House GOP tax cut bill has pluses and pitfalls for healthcare stakeholders

http://www.modernhealthcare.com/article/20171102/NEWS/171109965/house-gop-tax-cut-bill-has-pluses-and-pitfalls-for-healthcare

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Healthcare companies, executives and professionals could enjoy lower business and personal taxes while facing reduced revenue due to Medicare and Medicaid cuts that may be used to pay for the tax reductions, under the House Republican tax reform bill released Thursday.

The 429-page Tax Cuts and Jobs Act—which congressional Republicans hope to pass quickly through the expedited budget reconciliation process with little or no Democratic support—would slash the corporate tax rate from 35% to 20%. That would benefit profitable companies like UnitedHealth Group, HCA and Universal Health Services, according to an analysis by Mizuho Securities.

The tax plan also would sharply raise the income threshold for individuals and families paying the top personal tax rate of 39.6%, to $500,000 for individuals and $1 million for married couples. In addition, it would abolish the alternative minimum tax. Those provisions would reduce personal income taxes for many healthcare executives and professionals.

But at the same time, the bill would cap corporate interest deductions at 30% of earnings before interest, taxes, depreciation and amortization. That could hurt companies carrying large debt loads such as Tenet Healthcare Corp. and Community Health Systems, which declined to comment on the bill.

“For companies that are profitable, the lower corporate tax rate is a powerful generator of cash flow,” said Sheryl Skolnick, managing director at Mizuho. “But for highly levered companies, the interest deduction is quite powerful for them in reducing their tax bill. If that deduction is no longer available, that would be a negative for money-losing companies with little cash flow to begin with.”

Healthcare industry groups will have to consider how the long-term budget impact of the tax cuts will affect broader health policies.

“This is clearly a package that will increase the deficit significantly,” said Matt Fiedler, an economist at the Brookings Institution’s Center on Health Policy. “Ultimately the lower revenues need to be financed by reduced federal spending. Since healthcare programs are a large portion of the budget, this will create pressure for cuts in those programs.”

The release of the House GOP bill Thursday was the first step in what’s likely to be a politically difficult process of passing a bill in the House and reconciling it with a separate Senate GOP tax bill scheduled for release as early as next week. The legislation is likely to come under heavy fire from various industry and consumer groups as well as Democrats as the winners and losers are identified.

But congressional GOP leaders and President Donald Trump believe they can’t afford another legislative failure following the collapse of their efforts to repeal and replace the Affordable Care Act. “We made a promise to deliver tax reform that creates more jobs, fairer taxes, and bigger paychecks,” House Ways and Means Committee Chairman Kevin Brady (R-Texas) said in a written statementaccompany the bill’s release.

Paul Keckley, a veteran industry analyst, said healthcare companies will hold off on making any financial adjustments based on this bill because it’s certain to undergo substantial changes before anything is passed. “With all the darts that will be thrown at this thing, it’s a long way from the finish line,” he said.

Beyond the immediate tax impact, however, analysts cautioned that healthcare companies should beware of big cuts in Medicare, Medicaid and Affordable Care Act funding that Congress may consider to offset the revenue losses from the bill’s tax cuts. The House and Senate budget resolutions capped the 10-year cost of the tax cut package at $1.5 trillion.

A Democratic analysis of the Senate budget blueprint passed by Republicans last month found that it would cut Medicaid by $1 trillion and Medicare by $473 billion over 10 years.

“This massive tax cut for the rich would add trillions of dollars to the national debt, allowing Republicans to then come after Medicare, Medicaid, Social Security, and other middle-class priorities,” Sen. Patty Murray (D-Wash.) said in a written statement.

“There’s no way you can offset $1.5 trillion in tax cuts without looking at entitlements,” said Anders Gilberg, senior vice president for government affairs at the Medical Group Management Association.

He worried that if congressional Republicans seek to cut Medicare to recoup those revenue losses, that could destabilize the current transition of physicians from fee-for-service to value-based payment. “We’ll be looking at what the offsets are,” he said. “This sounds easy until you have tension between cutting taxes and being accountable for the deficit.”

Skolnick agreed that hospital leaders need to watch out for possible cuts in federal healthcare programs as a way to pay for the tax cuts. “Unless you pay a whole lot of whopping taxes, tax reform will be a net negative for the hospital sector, both for-profit and not-for-profit,” she predicted. “Careful what you wish for, you may get it.”

The American Hospital Association raised objections to two provisions of the bill affecting hospitals. One would stop treating tax-exempt bonds as investment property. The AHA warned that if hospitals’ access to tax-exempt financing is limited or eliminated, they would have a harder time investing in new technologies and renovations.

The other measure would impose a 20% excise tax on executive compensation above $1 million. The AHA said the law already requires a rigorous process for hospital boards to set compensation based on competitive market rates for top talent.

Physician groups were left behind on the bill’s provision reducing tax rates for pass-through entities. Passive owners of S corporations and limited liability corporations — the structures used by many medical groups — would be able to pay just a 25% tax rate rather than the 39.6% top rate for personal income. But medical groups and other professional service firms would not receive that reduced rate unless they were able to show the income was not labor-related.

“I’m disappointed we wouldn’t see a benefit for our members,” said Tina Hogeman, the MGMA’s chief financial officer.

She also worried about the bill’s $500,000 cap on home mortgage interest deductions, down from the current $1 million. “That’s a real problem for our members,” she said. “The average physician has a home that cost more than $500,000.”

A controversial provision of the House GOP bill that affects consumers is the proposed elimination of itemized deductions for high medical expenses, including long-term care costs. That deduction costs the Treasury about $10 billion a year. The AHA opposes ending that deduction.

The Brookings Institution’s Fiedler said that while the deduction isn’t well-targeted to help people with high medical costs, it’s a bad idea to repeal it to help pay for tax cuts for corporations and wealthier Americans.

“It could be sensible policy to repeal the deduction, but here it’s just financing regressive tax cuts,” Fiedler said.

Healthcare industry groups and supporters of the Affordable Care Act were relieved that the House GOP tax bill did not include provisions Republicans were considering to repeal the ACA’s individual mandate or erase the ACA’s taxes on wealthier people’s investment earnings. Those provisions could have undermined the individual insurance market and the financing for the law’s coverage subsidies.

“The bill is most notable for what’s not in there,” Fiedler said.

What the FY 2018 budget resolution means for ACA repeal

http://www.fiercehealthcare.com/aca/2018-budget-resolution-republicans-aca-repeal?utm_medium=nl&utm_source=internal&mrkid=959610&mkt_tok=eyJpIjoiTTJZNU4yTTNZV05sWm1FNSIsInQiOiJ2OXhPMHVRRk82MmRcL2llaVprUXFYSFJkbDBIS1lTcm1mRzVDSnFQQWRncUR5WmVDaFdFOGdTTkh4RWhIRTNHakR4Nm5Cd1hVYUIyZ1wveVl4ZTBpUXZqbkdYQldPTFpPazJqYlV4UGlNekw0QklMTHNwaEZtZVJGNHRXY2xVbzJPIn0=

The Senate side of the United States Capitol in Washington, D.C.

Senate Republicans’ fiscal year 2018 budget resolution suggests that they have put their goal of broadly unwinding the Affordable Care Act on the back burner—yet they could still use it to repeal key parts of the law.

The budget resolution (PDF), released by Senate Budget Committee Chairman Mike Enzi, R-Wyo., on Friday, contains reconciliation instructions that direct the Senate Finance Committee to “reduce revenues and change outlays to increase the deficit by not more than $1.5 trillion over the next 10 years.”

Since that reconciliation instruction is rather broad, the GOP could potentially use it to repeal some ACA-related taxes and other provisions that make health insurance affordable under the law, argued a post from the left-leaning Center for American Progress (CAP).

With their new budget resolution, Republicans could also still roll back other portions of the ACA, including the individual mandate, a Bloomberg article noted.

But because the budget resolution doesn’t include any instructions for the Senate Health, Education, Labor and Pensions Committee or the House Energy and Commerce Committee to craft reconciliation legislation, that may indicate that broader ACA repeal efforts are on hold, The Hill reported.

In addition to the reconciliation instructions, the budget resolution includes deficit-neutral reserve funds for legislation that would allow Congress to repeal or replace the ACA. This primarily just signals rhetorical support for rolling back the healthcare law, the CAP post noted, but that’s significant since it shows the GOP isn’t giving up on repeal.

3 Ways the Senate Budget Reopens the Door for ACA Repeal

https://www.americanprogress.org/issues/economy/news/2017/09/29/440039/3-ways-senate-budget-reopens-door-aca-repeal/

After the latest failed attempt to repeal the Affordable Care Act (ACA) in the Senate, Sens. Lindsay Graham (R-SC) and Ron Johnson (R-WI) declared that they would only support a new budget resolution that enabled them to keep trying to force through their own health care bill. The Senate has not had to meet the 60-vote standard to pass ACA repeal because of the budget reconciliation process, which lets the Senate pass legislation with a simple majority vote. This process began with reconciliation instructions included in the fiscal year 2017 budget that Congress passed in January 2017, but those instructions expire on September 30.

While the new FY 2018 budget resolution from the Senate Budget Committee retreats from ACA repeal to some extent—after massive public opposition—it would still enable Congress to revive major elements of ACA repeal using reconciliation. Here are three ways the proposed Senate budget supports ACA repeal.

1. An overly broad reconciliation instruction to the Senate Finance Committee

The Senate Finance Committee has jurisdiction over both tax policy and several federal health care programs, including Medicare and Medicaid. If the Senate wanted to limit the scope of a reconciliation bill to tax policy, the budget resolution could give instructions to the Senate Finance Committee that only cover revenues. Instead, the budget instructs the Finance Committee to produce legislation that increases deficits by up to $1.5 trillion over 10 years.

Since deficit changes can be accomplished via changes to both spending and revenues, the Finance Committee could use this reconciliation instruction to repeal ACA-related taxes as well as much of the spending that helps people purchase health insurance under current law. Politico reports that “95 percent of health care policy” goes through the Senate Finance Committee, according to a Republican Congressional staffer discussing ACA repeal. As a result, the staffer said, “it’s not like we couldn’t slip it in anyway.”

Every dollar the Finance Committee cuts from health care could be used to pay for tax cuts for the rich that would be on top of the $1.5 trillion tax cut financed by deficits. This reconciliation instruction could let Congress pass a huge deficit-financed tax cut for the wealthy and corporations, combined with major elements of ACA repeal, in a single omnibus reconciliation bill. If the Finance Committee’s overall bill does not increase deficits by more than $1.5 trillion over 10 years, the Senate could pass it on a party-line vote under reconciliation.

Aside from the Finance Committee, the only other committee involved in ACA repeal in the Senate is the Health, Education, Labor, and Pensions (HELP) Committee. The Senate budget resolution does not give a reconciliation instruction to the HELP Committee, which signals a meaningful retreat from full ACA repeal. Nevertheless, the Finance Committee instruction would still enable the Senate to change major parts of the law, which could include nullifying the ACA mandate for individuals to purchase health insurance, repealing the ACA-related taxes that finance the coverage expansion, and making all of the Medicaid cuts in earlier ACA repeal legislation, such as repealing the Medicaid expansion and making further cuts by turning the program into a block grant.

2. A deficit-neutral reserve fund for ACA repeal

The Senate budget resolution further smooths the path for ACA repeal with a deficit-neutral reserve fund for “repealing or replacing” the ACA. This allows Senate Budget Committee Chairman Mike Enzi (R-WY) to adjust the aggregates that are included in the budget resolution, such as overall spending and revenue levels, to accommodate ACA repeal. This reserve fund helps the Senate majority avoid points of order that could otherwise create hurdles for passing a future health care bill. A similar reserve fund was also included in the FY 2017 budget resolution.

Budget resolutions often include many reserve funds that are mostly designed to signal rhetorical support for an issue. Not only does the reserve fund for health legislation smooth the way for ACA repeal, it also shows that supporters of the Senate budget continue to endorse ACA repeal even after the FY 2017 reconciliation instructions expire on September 30.

3. Deficit-financed tax cuts

Even if Congress does not go after the ACA using reconciliation instructions in the FY 2018 budget, the deficits from the tax cuts the Senate budget enables will be used by the ACA’s opponents to attack the law in the future. Whipping up hysteria about budget deficits is a common tactic to advocate cuts to programs such as Medicare and Medicaid, and it is already being used to justify ACA repeal. When asked a question on CNN from a person who had recovered from substance abuse addiction and who worried about loss of Medicaid coverage for treatment for others suffering from addiction, Sen. Graham responded, “Let’s talk about $20 trillion of debt.”

If lawmakers increase the debt with the very tax cuts that Treasury Secretary Steven Mnuchin says will be “done by the end of the year,” it will add further fuel to their drive to slash programs for low- and middle-income Americans using reconciliation instructions in their next budget resolution for FY 2019. This will not be a long delay—the FY 2019 budget would be passed by April 15, 2018, if Congress follows the schedule for the regular budget process.

Lawmakers can cut taxes, increase deficits, and use those higher deficits to justify a renewed push to repeal the ACA, all before the 2018 midterm elections.

Conclusion

The window is closing for Congress to pass ACA repeal using the FY 2017 reconciliation instructions, but the Senate Budget Committee is reopening it with the FY 2018 budget. The quest to repeal the ACA—thereby cutting taxes for the wealthy, taking health insurance from tens of millions of Americans, eliminating protections for preexisting conditions, and driving up out-of-pocket costs—will continue if Congress passes the Senate budget resolution.

What Republicans must answer about their next steps on health care

https://www.brookings.edu/blog/fixgov/2017/09/26/what-republicans-must-answer-about-their-next-steps-on-health-care/?utm_campaign=Governance%20Studies&utm_source=hs_email&utm_medium=email&utm_content=56772969

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Congressional Republicans’ last-ditch efforts at repealing the Affordable Care Act using the budget reconciliation process appear to have failed. The procedural protections that prevent a filibuster of the current bill expire on September 30, when the government’s new fiscal year begins. But is the option of party-line legislating on health care really off the table for good? It depends, in large part, on Republicans’ answers to the following three questions:

1. Can Republicans agree to a new budget resolution?

To use the fast-track reconciliation process in a given fiscal year, Congress must first adopt a budget resolution that contains reconciliation instructions, or language outlining which congressional committees will develop reconciliation legislation. When the 115th Congress began in January, the plan was to use the process twice: once for health care (with instructions initiated by the fiscal year 2017 budget resolution) and then a second time for tax legislation (with instructions contained in the fiscal year 2018 budget resolution).

With the FY2017 health care attempt now exhausted, Republicans could write FY2018 instructions that allow them to tackle both policy goals. On one hand, this would not be that difficult. Two committees that have substantial jurisdiction over health legislation—House Ways and Means and Senate Finance—also are responsible for taxes, so will already be included. Other health-related committees (House Energy and Commerce and Senate Health, Education, Labor and Pensions) could be given relatively small deficit reduction instructions to cover all necessary bases.

On the other hand, however, Republicans have struggled to come to agreement on what a budget resolution with reconciliation instructions for 2018 would look like—and that’s without introducing health care into the fight. One of the challenges in reaching agreement on a 2018 budget has been House conservatives’ insistence that they need more details on a tax bill before they support the budget resolution that will initiate said legislation. Senator Lindsey Graham (R-S.C.) threatened over the weekend that he “will not vote for a budget resolution that doesn’t allow the healthcare debate to continue.” While it would be relatively easy to meet that demand in principle, might other Republicans insist on more details or other promises related to health care in exchange for their support of the budget resolution? In the Senate especially, the GOP can spare relatively few votes and still adopt the resolution needed to kick off the reconciliation process.

2. Should health care and taxes be tackled separately or together?

Under current interpretations of the reconciliation procedures in the Senate, there are limits on the number of reconciliation bills Congress can consider each fiscal year. Reconciliation measures may make three kinds of budgetary changes: changes in revenue, changes in spending, and changes to the debt limit. If one bill contains more than one kind of change, that counts as the Senate’s attempt at both categories.

This year’s attempts at rolling back the Affordable Care Act have included both spending and revenue provisions. If Republicans want to pass health care changes that follow the same general outline from earlier this year—that is, eliminate the ACA’s taxes and pay for it with cuts on the spending side—they would have two choices. One, they could put all the spending AND revenue provisions from both their health care AND tax proposals together in one bill. Or, they could cleave the spending-side provisions off into a separate piece of legislation from the revenue items and attempt two different bills. The last two times Congress used the reconciliation process to make major changes in spending and taxes in the same year—1997 and 2005—it was by using this two separate measures approach.

The first option has a number of challenges (see #3 below), but so does the second. First, there are some aspects of the ACA that touch both revenue and spending, which could make it difficult to actually separate the two halves. Second, only about a quarter of currently serving House Republicans and roughly half of currently serving Senate Republicans were in Congress the last time their party attempted such a move, so many members lack experience with the process. A health care spending-only bill would still have to meet the various requirements of the reconciliation process, including those imposed by the Byrd Rule, and much of the Republicans’ intra-party disagreement so far has been over the spending-side substance of the measure. Republicans would also have to choose which bill to tackle first: the health care measure that has been front and center all year, or the tax legislation widely believed to just as important to key parts of the Republican base. If whatever they choose first takes up significant time, the calendar might prevent action on the second—especially in an election year.

3. If the answer is “together,” how do Republicans get to “yes”?

Suppose Republicans decide they are willing to try to tackle health care and taxes in the same, filibuster-proof legislation—and can adopt a budget resolution that allows them to do so. So far, writing a health care bill with majority support in the House and Senate has proved elusive. The path to tax legislation hasn’t been much smoother. And while there are some situations where logrolling across multiple hard issues actually generates a bill that’s easier to pass; a former Representative Barney Frank (D-Mass.) once said, “the key to understanding deal making Congress is to remember that the ankle bone is connected to the shoulder bone. Anything can be the basis of a deal.” But this year has presented little evidence to suggest that putting tax legislation and health care together in one measure would be one of those situations. Given how much time and energy Republicans have spent thus far with nothing to show for it on health care, many may be reluctant to tie the fate of a tax bill to an issue where victory has been so difficult.

The fate of the Affordable Care Act specifically does not, of course, rest just with Republicans’ immediate choices about reconciliation legislation in fiscal year 2018. The Department of Health and Human Services, for example, is taking actions that many see as undermining the implementation of the law—decisions the Department can make and pursue without any congressional action whatsoever. But on the legislative front, while party-line legislating to rollback Obamacare remains possible, the political path to success is likely to get harder, not easier, in the short term.

Last-Ditch Effort By Republicans To Replace ACA: What You Need To Know

http://khn.org/news/last-ditch-gop-effort-to-replace-aca-5-things-you-need-to-know/

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Republican efforts in Congress to “repeal and replace” the federal Affordable Care Act are back from the dead. Again.

While the chances for this last-ditch measure appear iffy, many GOP senators are rallying around a proposal by Sens. Lindsey Graham (R-S.C.) and Bill Cassidy (R-La.), along with Sens. Dean Heller (R-Nev.) and Ron Johnson (R-Wis.)

They are racing the clock to round up the needed 50 votes — and there are 52 Senate Republicans.

An earlier attempt to replace the ACA this summer fell just one vote short when Sens. Susan Collins (R-Maine), Lisa Murkowski (R-Alaska) and John McCain (R-Ariz.) voted against it. The latest push is setting off a massive guessing game on Capitol Hill about where the GOP can pick up the needed vote.

After Sept. 30, the end of the current fiscal year, Republicans would need 60 votes ­— which means eight Democrats — to pass any such legislation because special budget rules allowing approval with a simple majority will expire.

Unlike previous GOP repeal-and-replace packages that passed the House and nearly passed the Senate, the Graham-Cassidy proposal would leave in place most of the ACA taxes that generated funding to expand coverage for millions of Americans. The plan would simply give those funds as lump sums to each state. States could do almost whatever they please with them. And the Congressional Budget Office has yet to weigh in on the potential impact of the bill, although earlier estimates of similar provisions suggest premiums would go up and coverage down.

“If you believe repealing and replacing Obamacare is a good idea, this is your best and only chance to make it happen, because everything else has failed,” said Graham in unveiling the bill last week.

Here are five things to know about the latest GOP bill: 

1. It would repeal most of the structure of the ACA.

The Graham-Cassidy proposal would eliminate the federal insurance exchange, healthcare.gov, along with the subsidies and tax credits that help people with low and moderate incomes — and small businesses — pay for health insurance and associated health costs. It would eliminate penalties for individuals who fail to obtain health insurance and employers who fail to provide it.

It would eliminate the tax on medical devices. 

2. It would eliminate many of the popular insurance protections, including those for people with preexisting conditions, in the health law.

Under the proposal, states could “waive” rules in the law requiring insurers to provide a list of specific “essential health benefits” and mandating that premiums be the same for people regardless of their health status. That would once again expose people with preexisting health conditions to unaffordable or unavailable coverage. Republicans have consistently said they wanted to maintain these protections, which polls have shown to be popular among voters.

3. It would fundamentally restructure the Medicaid program.

Medicaid, the joint-federal health program for low-income people, currently covers more than 70 million Americans. The Graham-Cassidy proposal would end the program’s expansion under the ACA and cap funding overall, and it would redistribute the funds that had provided coverage for millions of new Medicaid enrollees. It seeks to equalize payments among states. States that did not expand Medicaid and were getting fewer federal dollars for the program would receive more money and states that did expand would see large cuts, according to the bill’s own sponsors. For example, Oklahoma would see an 88 percent increase from 2020 to 2026, while Massachusetts would see a 10 percent cut.

The proposal would also bar Planned Parenthood from getting any Medicaid funding for family planning and other reproductive health services for one year, the maximum allowed under budget rules governing this bill. 

4. It’s getting mixed reviews from the states.

Sponsors of the proposal hoped for significant support from the nation’s governors as a way to help push the bill through. But, so far, the governors who are publicly supporting the measure, including Scott Walker (R-Wis.) and Doug Ducey (R-Ariz.), are being offset by opponents including Chris Sununu (R-N.H.), John Kasich (R-Ohio) and Bill Walker (I-Alaska).

On Tuesday 10 governors — five Democrats, four Republicans and Walker — sent a letterto Senate leaders urging them to pursue a more bipartisan approach. “Only open, bipartisan approaches can achieve true, lasting reforms,” said the letter.

Bill sponsor Cassidy was even taken to task publicly by his own state’s health secretary. Dr. Rebekah Gee, who was appointed by Louisiana’s Democratic governor, wrote that the bill “uniquely and disproportionately hurts Louisiana due to our recent [Medicaid] expansion and high burden of extreme poverty.”

5. The measure would come to the Senate floor with the most truncated process imaginable.

The Senate is working on its Republican-only plans under a process called “budget reconciliation,” which limits floor debate to 20 hours and prohibits a filibuster. In fact, all the time for floor debate was used up in July, when Republicans failed to advance any of several proposed overhaul plans. Senate Majority Leader Mitch McConnell (R-Ky.) could bring the bill back up anytime, but senators would immediately proceed to votes. Specifically, the next order of business would be a process called “vote-a-rama,” where votes on the bill and amendments can continue, in theory, as long as senators can stay awake to call for them.

Several senators, most notably John McCain, who cast the deciding vote to stop the process in July, have called for “regular order,” in which the bill would first be considered in the relevant committee before coming to the floor. The Senate Finance Committee, which Democrats used to write most of the ACA, has scheduled a hearing for next week. But there is not enough time for full committee consideration and a vote before the end of next week.

Meanwhile, the Congressional Budget Office said in a statement Tuesday that it could come up with an analysis by next week that would determine whether the proposal meets the requirements to be considered under the reconciliation process. But it said that more complicated questions like how many people would lose insurance under the proposal or what would happen to insurance premiums could not be answered “for at least several weeks.”

That has outraged Democrats, who are united in opposition to the measure.

“I don’t know how any senator could go home to their constituents and explain why they voted for a major bill with major consequences to so many of their people without having specific answers about how it would impact their state,” said Senate Minority Leader Chuck Schumer (D-N.Y.) on the Senate floor Tuesday.

Parliamentarian deals setback to GOP repeal bill

http://thehill.com/policy/healthcare/343234-parliamentarian-deals-setback-to-gop-healthcare-bill

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Major portions of the Republican bill to repeal and replace ObamaCare will require 60 votes, according to the Senate parliamentarian, meaning they are unlikely to survive on the floor.

The parliamentarian has advised senators that several parts of the bill could be stripped out, according to a document released Friday by Sen. Bernie Sanders (I-Vt.), the ranking member of the Senate Budget Committee. (Read the guidance here.)

The provisions that would likely be removed include polices important to conservatives, such as restrictions on tax credits being used for insurance plans that cover abortion.

Language in the bill defunding Planned Parenthood for a year also violates budget rules, according to the parliamentarian. That guidance is sure to anger anti-abortion groups who backed the bill specifically because of those provisions.

In a statement, Planned Parenthood said it was “obvious” that the defunding provision would be a violation of the reconciliation rules.

“No amount of legislative sleight of hand will change the fact that the primary motivation here is to pursue a social agenda by targeting Planned Parenthood,” the group said.

The parliamentarian has also not yet ruled on a controversial amendment from Sen. Ted Cruz (R-Texas) that would allow insurers to sell plans that do not meet ObamaCare regulations. If that provision were struck, conservative support for the bill would be in doubt.

Republicans are trying to use the budget reconciliation process to pass their healthcare bill with only a simple majority. The provisions deemed impermissible under that process can be stripped if a senator on the floor raises an objection.

Democrats would be virtually certain to deny Republicans the 60 votes they would need to keep portions of the bill intact.

The result is that the arcane rules of the Senate could end up making the bill harder for Senate Majority Leader Mitch McConnell (R-Ky.) to pass.

A spokesman for McConnell was quick to point out that the parliamentarian only provides guidance on the legislation to help inform subsequent drafts. The bill will have to change before it gets to the floor if Republicans want to salvage any of provisions in question.

GOP leaders have said they want to vote on a procedural motion to begin debate on ObamaCare repeal legislation early next week. However, it’s still not clear if they have the votes, or which legislation they will be voting on; the replacement bill, or repeal-only legislation.

Some conservatives were already questioning Friday why the Senate parliamentarian, Elizabeth MacDonough, would rule against Planned Parenthood defunding, when that provision was allowed under reconciliation in 2015.

A spokesman for Sanders said the guidance has changed because it is now clear that Planned Parenthood would be the only organization affected by the defunding language.

“It passed last time because there was at least a question that other entities could be affected by the language,” the spokesman said. “In the interim, Republicans have not been able to show that any entity other than Planned Parenthood is affected, and the new [Congressional Budget Office] score confirms that.”

In a blow to the insurance industry, the parliamentarian has advised that two key market stabilization provisions in the bill would be against the rules. First, the legislation can’t appropriate the cost-sharing reduction subsidies insurers rely on to keep premiums and deductibles low; it can only repeal them.

Additionally, a “lockout” provision requiring consumers with a break in coverage to wait six months before buying insurance also violates the rules, according to the guidance.

The provision was added to the bill to address concerns that people would only sign up for health insurance when they’re sick, if insurers are still prevented from denying coverage for pre-existing conditions.

The parliamentarian also advised that a specific provision dealing with New York State’s Medicaid program would be a violation of the rules. Senate Minority Leader Charles Schumer (D-N.Y.) seized on that decision.

“The parliamentarian made clear that state-specific provisions” violate the rules, Schumer said. “This will greatly tie the majority leader’s hands as he tries to win over reluctant Republicans with state-specific provisions. We will challenge every one of them.”

Men Wrote The Senate Health Care Bill. This Woman Could Stop It.

http://khn.org/news/this-woman-can-make-or-break-mcconnells-health-bill/?utm_campaign=KFF-2017-The-Latest&utm_source=hs_email&utm_medium=email&utm_content=53790455&_hsenc=p2ANqtz-_JWCY7-Rs6iQa1IlXLvHfrruid_xBSSJj2FTGvqDRXtgdQ6xwSAaXci6idB0gn24t3CnJta099uqqsJvfzqvkN0tgSpA

As Majority Leader Mitch McConnell (R-Ky.) tries to negotiate his way to a health bill that can win at least 50 Republican votes, there is one woman in the Senate who could stop the bill cold.

She isn’t even a senator.

Elizabeth MacDonough is the Senate’s parliamentarian, the first woman to hold that post, which involves advising senators on the chamber’s byzantine rules and procedures. She alone can decide what pieces of the emerging Senate overhaul of the Affordable Care Act can be included under the budget reconciliation process senators are using. That process allows them to pass the measure with a simple majority vote rather than needing the usual 60.

In theory at least, she could reject the very deals McConnell is trying to cut.

By all accounts, MacDonough, who has spent almost her entire career working for the Senate and was appointed to her position in 2012, is scrupulously fair and trusted by both major parties.

“Elizabeth is great,” said Rodney Whitlock, a former Republican staffer on the Senate Finance Committee who has argued tricky legislative points before her numerous times. Democrats agree. “She’s a straight shooter and an honest broker,” said Bill Dauster, a longtime Democratic staff director for the Budget Committee.

It’s good that both sides like her, because if the Senate bill comes to the floor, MacDonough may have to make some tough decisions that will make one side or the other very unhappy.

MacDonough, along with her assistant parliamentarians, are charged with deciding which pieces of the bill violate the rules of budget reconciliation, in particular the “Byrd Rule,” named for its author, the late Sen. Robert Byrd (D-W.Va.). That rule requires that everything in the bill pertain directly to the federal budget. The idea is to prevent senators from loading up the budget bill, which gets fast-track consideration, with unrelated items that belong in the regular, slower Senate process.

The judgments mostly involve parts of the bill that opponents argue don’t add to or subtract from federal spending, or whose budget impact is “merely incidental” to the purpose of the policy. Outside observers say the parts of the Senate measure that are vulnerable under this rule include provisions that would defund Planned Parenthood and those affecting the rules for private insurance plans.

Generally, the “Byrd bath,” as it’s called on Capitol Hill, involves a string of meetings between Senate committee staff and the parliamentarian.

(Photo courtesy of the U.S. Senate)

“The Democrats go in, the Republicans go in, then both of them go in together,” said Dauster. Each side argues whether certain language should or should not be allowed in the bill.

The parliamentarian’s office in the Capitol “is actually a small room,” said Whitlock. “And when they are ready to have you in, you’re standing around and all the assembled in the room have at it.”

MacDonough does not make her rulings immediately after the arguments. “She has, of late, gotten back to people by email” with her decisions, said Dauster.

That has not always been the case. In the past, said Bill Hoagland, a longtime GOP staff director for the Senate Budget Committee, after making their arguments “we would wait until we went to the floor and [a senator] would raise a point of order” against some specific language, and senators and staff would learn the parliamentarian’s decision only then.

MacDonough’s ruling may prompt the bill’s authors to delete language before the bill comes to the Senate floor. Or they may opt to let the drama may play out in front of the C-SPAN cameras. Any senator can raise a point of order against a specific provision claiming it violates the Byrd Rule. It takes 60 votes to overcome such a point of order.

But what if Senate leaders opt not to accept MacDonough’s decision?

“That’s what scares the heck out of me,” said Hoagland. Under the Senate’s rules, the senator who is acting as the presiding officer during the debate does not have to take the parliamentarian’s advice. But if he or she rules against what the parliamentarian has advised, “I would argue that you have basically destroyed the Byrd Rule and you’ve destroyed the purpose of reconciliation at that point,” he said.

That’s because it would allow the majority party, which controls the Senate, to effectively include any provisions it wants in the fast-track budget bill with only a simple majority.

“It’s another way to go nuclear,” said Dauster, referring to efforts to end the Senate filibuster, which requires 60 votes to break.

Will that happen? It depends how MacDonough rules. And how badly the Republicans want their health bill to pass.