Independent Health is closely following efforts by the Trump Administration and Congress to repeal and replace the Affordable Care Act (ACA). We provide this latest overview in our occasional series of ACA updates.

August 7, 2017 Update:
Following the Senate Vote, what’s next?

american flag with stethoscope in foreground

Despite extensive efforts, the House and Senate have adjourned for their summer recess without sending a bill to President Trump that would repeal and replace the Affordable Care Act (ACA.) The Senate’s inability to reach consensus on an ACA replacement bill underscores the fact that sustainable solutions to transform our nation’s health care industry cannot be easily or quickly achieved. 

At this point, much uncertainty still exists around the future of the ACA and what Congressional leaders or the President will do next. However, as Independent Health’s president and chief executive officer, Michael Cropp, M.D., stated in a recent Buffalo News commentary any action must focus on improving quality and lowering the cost of care, and Independent Health will continue to invest in and advance initiatives and partnerships to move Western New York into a high-performing, health care community.

When Congress returns to D.C. in September, they can still use the fast track legislative process, called reconciliation, to repeal and replace the ACA. However, legislation isn’t the only tool Congress and the Trump Administration have to make changes to the ACA. In fact, Congress and the Administration are using a three-pronged approach to repeal and replace the ACA through: 1) reconciliation legislation; 2) administrative action, and; 3) new legislation.

Reconciliation Legislation
Reconciliation has been the primary strategy for the Republican members of Congress to repeal and replace the ACA, since it offers a fast-track process. Legislation through the reconciliation process requires only 51 votes in the Senate, rather than 60, but it can only address tax and spending provisions that have a direct budget impact. Provisions without a direct budget impact, including many policy issues like benefit coverage, may not be part of the budget reconciliation process.

Following the passage of the American Health Care Act (AHCA) in the House of Representatives on May 4, the Senate took up the bill and amended it with versions developed by Senate Republican leadership. The Senate could not attain the 51 votes needed on a bill to repeal and replace the ACA, nor a simple repeal without replacement.

Given the broad consensus in Congress among both Republicans and Democrats that the ACA is not ideal, activities in both chambers will continue to look for ways to move forward. Rep. Tom Reed, from Corning, is leading a bipartisan group in the House, called the “Problem Solvers Caucus,” to look for provisions that both Democrats and Republicans can agree on. The Chairman of the Senate Health Education Labor and Pensions (HELP) Committee, Senator Lamar Alexander, is scheduling hearings for the beginning of September to discuss approaches to market stabilization with public input.

Administrative Action
Another approach to change the ACA is through administrative action. This can be achieved through executive orders signed by the President or through regulations developed by Secretaries of federal agencies charged with implementing the ACA, such as Health and Human Services (HHS.) For instance, President Trump can continue or stop making payments for the Cost Sharing Reduction Subsidies (CSRs), which reduce out-of-pocket cost for individuals.

The ACA also included language that gives various Secretaries of federal agencies, including the Secretary of HHS, the authority to interpret key provisions of the law. For example, the ACA states 1,442 times that the “Secretary Shall…,” which means that HHS Secretary Tom Price has the authority to review current regulations. An example of an administrative action would be the Administration stopping the enforcement of the Individual Mandate, which requires most Americans to obtain health insurance or face a penalty. Earlier this year, President Trump directed federal agencies to reduce the burdens of the ACA on the public.

New Legislation
The third approach is by addressing the ACA through new legislation, not subject to the rules and privileges of the reconciliation, or fast track approach. In this instance, both Democratic and Republican support in the Senate would be required, since legislation outside of reconciliation requires 60 votes. Senate minority leader, Chuck Schumer, has stated he is willing the work with Republicans and has heard from many of his colleagues that they want to work on short and long-term market stabilization solutions.