Senators begin a 20-hour debate on Affordable Care Act repeal, but it's unclear which bill they hope to pass

The Senate side of the United States Capitol in Washington, D.C.
The Senate's procedural vote on Tuesday to debate a potential repeal of the healthcare reform law launched 20 hours of debate. With votes on amendments, it could be several days before a final vote is taken.

The Senate began a 20-hour debate Tuesday on a bill to repeal the Affordable Care Act shortly after a 51-50 vote to allow the discussion.

The debate will include amendments from both Republicans and Democrats and will be a healthy civics lesson for the country as lawmakers discuss the merits and the flaws in the bill, Lowell Brown, partner and national leader of Arent Fox’s Health Care Practice Group, told FierceHealthcare during an interview Tuesday.

The first such vote, on the Senate version of the bill with both the Cruz and Portman amendments attached, failed 43-57 Tuesday night. The Cruz plan allows insurers to offer cheaper, more narrow health plans alongside their more robust ACA-compliant plans. The Portman amendment adds $100 billion in Medicaid spending.

Although all Democrats voted against the motion to proceed—a crucial procedural step in the budget reconciliation process—many said they were heartened by the words of Senator John McCain, R-Ariz., who after the vote urged his Republican and Democrat colleagues to work together on a bipartisan measure.

RELATED: Senate votes to begin debate on a replacement for the Affordable Care Act

McCain, who was recently diagnosed with brain cancer, received thunderous applause when he returned to the Senate floor to cast his vote. His vote, along with Sen. Ron Johnson, R-Wisconsin, were crucial to advance the healthcare reform repeal discussion as Senate Majority Leader Mitch McConnell could only afford to lose two votes. Senators Susan Collins, R-Maine, and Lisa Murkowski, R-Alaska, voted against the motion, and Vice President Mike Pence cast the tie-breaking vote.

In an emotional speech after the vote, McCain urged Republican and Democratic senators to work together to find solutions. “We are spinning our wheels on too many important issues trying to find a way to win without help from across the aisle,’’ he said. “We are getting nothing done.”

McCain said he voted to allow the debate to continue so senators could discuss amendments and not the “shell” of a bill that currently stands.

The procedural vote will now allow 20 hours of debate, evenly divided between the two sides, which could take several days before a final vote is taken. Democrats are vowing to introduce hundreds of amendments in an effort to slow the bill's progress.

Unclear which bill is under debate

The problem, however, is that it is unclear which bill McConnell wants to pass. Among the options:
 

  • The widely unpopular House bill, the American Health Care Act, which passed in May.
  • The Senate's Better Care Reconciliation Act, which the Congressional Budget Office estimates would lead to 22 million Americans without insurance by 2026.
  • The Cruz amendment, which would allow insurers to sell plans that don’t comply with the Affordable Care Act’s benefits requirements as long as they sell at least one plan in that state that does comply.
  • A simple bill known as the “skinny repeal” which would repeal the Affordable Care Act’s least popular provisions: the individual mandate, the employer mandate and a tax on medical devices. The American Academy of Actuaries warned the Senate in a letter (PDF) Tuesday that a skinny repeal may lead to increased premiums, increased federal government costs for premium subsidies and insurance losses and solvency issues.
  • A repeal of the ACA with a pledge to replace it with new healthcare legislation within two years. 

Could lead to ‘free for all’ on Senate floor

While he agreed with Brown that it’s probably good that the debate will take place, Julius Hobson, a healthcare lobbyist and attorney at the law firm Polsinelli, said the problem is a looming “free for all” on the Senate floor. And when all the amendments are made and a final vote is taken, it will be difficult to know the full scope of the legislation if it passes because the reconciliation process will not involve a Congressional Budget Office score.

But Hobson said he doubts a bill will pass unless it includes an amendment to lessen Medicaid cuts.

“I’ve never seen anything like this,” Hobson told FierceHealthcare, noting he’s also heard that both the House and Senate might conference their Affordable Care Act repeal-and-replace bills to reconcile their differences, a procedure that he doesn’t understand. “I’m in the dark.”

If the Senate fails to pass a final version of a bill, Brown said the next question will be whether Republicans go ahead with a symbolic repeal before they come up with a replacement plan.

Democrats, healthcare industry leaders react

And Democrats are worried about the potential outcomes. Senator Patty Murphy, D-Wash., said after the Tuesday procedural vote that McConnell is launching a last-ditch effort to pass “the worst healthcare plan” the country has ever seen and that it will harm patients across the country. 

A vote to bring discussion to the Senate floor is ultimately a vote for “TrumpCare,” which she said would lead to higher costs for families, defund Planned Parenthood, gut Medicaid, leave millions without healthcare coverage and cause uncertainty over whether patients with pre-existing conditions will have coverage.

Healthcare advocates also expressed disappointment that the Senate agreed to move forward with discussions to repeal the Affordable Care Act and vowed to oppose any significant cuts to Medicaid and coverage losses.

“Amid all of the uncertainty surrounding the healthcare reform debate, this fact remains unmistakably clear: We will always fight tirelessly for the patients and communities we serve,” said Rick Pollack, president and CEO of the American Hospital Association, in a statement.

The Association of American Medical Colleges urged the Senate to “vote ‘no’ on reform legislation presented thus far, and to only pass a bill that would at least maintain current coverage levels.”

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