'Byrd bath' results complicate GOP's push to repeal ACA

In what could be a blow to the GOP’s effort to repeal the Affordable Care Act, the Senate parliamentarian has determined that several provisions in the Better Care Reconciliation Act can’t be included if the measure is to pass with only 50 votes.

The parliamentarian’s review is known as the “Byrd bath”—so named because of the Byrd rule, which stipulates only provisions directly affecting the federal budget can be included in a reconciliation measure that requires only a simple majority to pass.

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Current Parliamentarian Elizabeth MacDonough issued guidance (PDF) late on Friday that outlined 11 provisions in the BCRA she said would require 60 votes to pass. Particularly problematic for conservatives, these include the provisions that would defund Planned Parenthood and prevent premium tax credits from being used to purchase health insurance to cover abortion.

Several of the provisions that MacDonough said would violate the Byrd rule are significant for individual market insurers: the 6-month waiting period for people trying to enroll in health plans after experiencing a gap in coverage, changes to medical loss ratio requirements, and funding for cost-sharing reduction payments through 2019. The CSR funding provision, she noted, “replicates current law.”

Other notable provisions that didn’t pass muster include the sunset of the essential health benefits requirement for Medicaid alternative benefit plans and a state-specific provision known colloquially as the “Buffalo Bailout,” which would limit the ability of New York state to require counties other than New York City to contribute funding to the state’s Medicaid program.

MacDonough did, however, say that six provisions in the bill were allowable under the Byrd rule, including the one that allows states to impose work requirements on Medicaid beneficiaries, the repeal of the CSR program starting in 2020 and the abortion funding restrictions in the State Stability and Innovation Fund.

Meanwhile, the parliamentarian is still reviewing other key provisions in the bill, including one that allows insurers to charge older individual market enrollees five times more than younger enrollees, the block-grant Medicaid funding option for states, the provision allowing for association health plans in the small-business market and the one allowing states to use innovation waivers to opt out of certain ACA coverage rules.

What it means and what's next

To Democrats, MacDonough’s guidance is a victory for those opposed to the BCRA. Senate Minority Leader Chuck Schumer, D-N.Y., said it would “tie the majority leader’s hands as he tries to win over reluctant Republicans,” according to Kaiser Health News.

Yet Republicans pointed out that the parliamentarian’s review simply lets them know what to tweak in the bill in order to comply with the Byrd rule.

"The parliamentarian has provided guidance on an earlier draft of the bill, which will help inform action on the legislation going forward," said Joe Brenckle, a spokesman for Republicans on the Senate Budget Committee, per Politico.

Senate Republicans are set to take a procedural vote as early as Tuesday to begin debate on a healthcare bill, but it is still unclear which of several measures they’ll be voting on—or whether there will be enough "yes" votes to move forward.

During an appearance this weekend on Face the Nation, Sen. Susan Collins, R-Maine, expressed frustration at the uncertainty in the process.

Senate Majority Leader Mitch McConnell’s current strategy is to push senators to vote yes on the motion to proceed, then allow for amendments that could help get reluctant conservatives and moderates alike on board, according to The Wall Street Journal.  

At least one prominent conservative group appears to embracing that tactic.

“Failure is not an option,” Heritage Action for America CEO Michael Needham said in a statement. “For seven years, Republicans promised the American people that they would do everything in their power to dismantle Obamacare. Every single Republican should vote yes tomorrow.”