After No Repeal on the ACA, What Comes Next?

This post was authored by Dan Colacino, Vice President of Underwriting and Compliance at Rose and Kiernan, Inc. 

Now that we’re past the September 30, 2017 deadline for using reconciliation rules to force a “Repeal and Replace” of the current U.S. health care system, what lies ahead for the Affordable Care Act?  As Bloomberg columnist Megan McArdle puts it, the age of “Something must be done—this is something—therefore it must be done” legislation has ended and bipartisan-supported bills will probably be the most expedient way of revising the ACA.

So, what happens next? There are many possibilities:

  1. Regulatory Reform: The rules of the ACA that were not legislated but came about through regulation can be changed by one of the three agencies charged with interpreting the ACA and developing regulation: Department of Labor (DOL), Health and Human Services (HHS) or Treasury. Although they can’t change the intent of the statute, they can relax some rules or offer other options. For example, the lookback measurement period was not spelled out in the law but was an accommodation created by DOL. Therefore, the method used to count employee hours could be changed by regulation.
  2. Executive Order: A president’s Executive Order (EO) has the force of law but can’t change any laws.  In early 2017, the President issued an EO telling agencies to hold off on any regulations which had not yet been published in final form in the Federal Register, which delayed a number of pending regulations.  There are not a lot of areas that an EO could significantly impact the law.
  3. Bipartisan Bills: This option likely has the most potential for changing where we currently stand with health care, as a bipartisan bill could bring in the necessary 60 votes in the Senate, while not requiring the unanimous support of either party.  Some of the examples of bills with some bipartisan support are:
    1. S.58/H.R. 173 to repeal the Cadillac Tax
    2. H.R. 246 to repeal the Health Insurer Tax
    3. H.R. 30/ S. 30 to change the full time hour requirement to 40 hours instead of 30
    4. H.R. 2712/ S.1996 to simplify Employer Reporting (1095 process)
  4. Section 1332 State Innovation Waivers:  This authorizes states to waive key requirements under the law in order to experiment with different health coverage models. State interest in 1332 waivers to date has been limited; however, changes to the statutory waiver requirements included in the Senate’s Better Care Reconciliation Act of 2017 (BCRA) or other signals from the Trump administration could spark increased state action.  In a nutshell, this would allow a state to get the ACA money spent in their state to use for their own state-level health care program if the program meets certain requirements.  It was a key part of the Graham-Cassidy bill that was never voted upon in the Senate. Nine states have submitted waivers thus far, including Alaska, California, Hawaii, Iowa, Minnesota, Oklahoma, New Hampshire, Massachusetts and Vermont. Only Hawaii and Alaska have been approved. California and Vermont have been withdrawn.

This doesn’t mean there won’t be other attempts to alter the ACA in the future. For example, Republicans can still use Reconciliation Rules during this fiscal year but since the number of uses of this process is limited in a fiscal year, it’s more likely they will save it for tax reform bills or budget bills.

Stay tuned for future updates.


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