Notice & Comment

September 30 Is Not the Deadline for Legislative Changes to the Affordable Care Act, by Sam Wice

Republicans have tried to use the reconciliation process to change/repeal the Affordable Care Act (Obamacare).   Despite voting on several proposals, Republicans have not been able to get 50 votes to pass any legislation under reconciliation. The Senate parliamentarian recently declared that at the end of the fiscal year, September 30, the reconciliation instructions Republicans could use to change the Affordable Care Act through a simple majority vote would expire. However, Republicans can still make legislative changes to the Affordable Care Act, even changes through reconciliation.

Republicans can use reconciliation to change the Affordable Care Act. Because reconciliation is a part of the budget process, reconciliation must be tied to a budget resolution. Republicans can use one of two future budget resolutions for another reconciliation instruction. Because the previous Congress did not pass a budget for the 2016-2017 fiscal year, Congress used last year’s budget resolution for the Affordable Care Act reconciliation instructions. Thus, this Congress has two opportunities to pass budget resolutions: for the 2017-2018 fiscal year and for the 2018-2019 fiscal year. Republicans could use one of these resolutions to pass tax reform/cut and the other to change the Affordable Care Act. With the recent struggles to achieve consensus on tax reform, Republicans could simultaneously craft tax reform legislation and changes to the Affordable Care Act.   The House of Representatives and a Senate committee could even pass the legislation without needing reconciliation instructions. Only when the Senate believes it has the 50 votes to pass the legislation would it need to pass a budget resolution. For instance, Senators Graham and Cassidy believe they can get the 50 votes to pass their version of changing the Affordable Care Act, but they might not have enough time to pass the legislation before September 30. If they cannot meet the deadline, Congress could pass a second reconciliation instruction regarding healthcare. Additionally, while Republicans might not have 50 votes now, getting 50 votes under a future reconciliation instruction could soon become slightly easier if Republicans can pick up a Senate seat from Senator Menendez’s potential resignation.

Republicans can also try to make legislative changes to the Affordable Care Act without reconciliation. Republicans never envisioned reconciliation as the end of changing the Affordable Care Act. Secretary Price has emphasized that the process would have three parts: reconciliation, bipartisan legislative changes that cannot be done through reconciliation, and regulatory changes. Congress can still work on bipartisan changes that could get 60 votes in the Senate. Senators Alexander and Murray are working on such a proposal. Additionally, Republicans had originally suggested making incremental changes such as tort reform and allowing insurance to cross state lines. Because they originally planned to propose those changes, there is no reason why they cannot continue with that original plan.

After September 30, Republicans will be in a no different position to change the Affordable Care Act than they were at the beginning of the year. They can pass a new reconciliation package for another attempt at changing the Affordable Care Act. The only restrictions upon legislative changes will be the constraints of the reconciliation process to only change revenue or spending levels and/or whether Republicans can muster 50 votes for any proposed changes. Then again, the Trump administration and the courts could always intervene and completely change the Affordable Care Act as we know it today.

Sam Wice is a former analyst at the Congressional Budget Office and a former Council member of the American Bar Association’s Section of Administrative Law and Regulatory Practice. He can be reached at sam.wice[at]

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