BEYOND THE NUMBERS
An earlier draft of the Senate’s bill to repeal the Affordable Care Act (ACA) would cause 22 million people to lose coverage, raise costs for millions more, and remove key protections for people with pre-existing conditions, the Congressional Budget Office (CBO) estimated last month. The newer draft of the bill released yesterday does nothing — as we’ve explained — to alter those basic conclusions. Yet Senate Republican leaders appear intent on rushing to vote on the bill via a process meant to hide the bill’s impacts.
First, while a new CBO score is expected next week, it appears that it won’t evaluate a major change: an amendment from Senator Ted Cruz that would significantly undermine protections for people with pre-existing conditions beyond even the provisions in the initial bill. Instead, the Senate may use a Trump Administration analysis — an unprecedented move for a reconciliation bill.
Moreover, it’s almost certain that additional substantial changes will be made to the bill in an effort to win the votes of “holdout” senators. Yet there’s no guarantee that the public or other senators will see these changes until shortly before the final vote, or that CBO will have a chance to evaluate their impact on health coverage and consumers’ costs before a Senate vote — or even a subsequent House vote if the bill passes the Senate. In all likelihood, both Senate leaders and on-the-fence senators will claim major improvements in the bill without facing real scrutiny about whether the final product achieves what they promise.
- The Senate may try to press forward using a Trump Administration analysis — rather than CBO’s — on a major provision of the legislation. CBO reportedly may be unable to analyze the impact of the Cruz amendment by early next week — but the Senate may proceed using a Trump Administration analysis instead. Given the Administration’s interest in passing the bill, its analysis is unlikely to be unbiased — and as a result, would likely hide the damaging effects that a CBO analysis would expose.
The Senate bill already would undermine protections for people with pre-existing conditions, but the Cruz amendment would go further by making it possible for insurers to offer plans that are subject to medical underwriting — in other words, setting different premiums or denying coverage based on an individual’s health history. This would create a system where healthier people would enroll in underwritten plans, while sicker people would dominate “community-rated” plans that charge everyone the same premium regardless of health status. In practice, that would mean sicker people would be forced into an insurance pool with much higher, unaffordable premiums — in addition to the large gaps in benefits, higher deductibles and copayments, and annual and lifetime limits they could already face under the Senate bill.
Health insurance experts and insurance companies have concluded — in contrast to assurances by Senate leadership and the Administration — that the Cruz amendment would make insurance more expensive, perhaps prohibitively so, for many people with pre-existing conditions. CBO would likely reach a similar conclusion. Yet by using only a Trump Administration analysis, Senate Republicans would be attempting to hide this fact.
Beyond hiding the Cruz amendment’s impact, using a score from an entity other than CBO has major implications for future reconciliation legislation. The Budget Act includes constraints based on official scores of a bill’s cost. Setting a precedent of using an outside entity’s score — regardless of that entity’s credibility or neutrality — could let Congress choose an analysis based on the answer it wants to receive. In the extreme, that could result in Congress using an analysis that, for example, makes the erroneous claim that the “dynamic” effects of tax cuts on the economy can be so great that growth wipes out a large share of their costs. The result could be legislation that violates the rules that govern reconciliation and other Budget Act enforcement, but that nonetheless proceeds free of budget enforcement rules, due to a cherry-picked analysis.
- No one knows how long the final bill language will be available. While the latest version of the Senate bill is now public and a CBO analysis of the parts outside the Cruz amendment may be available a few days before a final vote — and for the required 20 hours of debate — there’s no guarantee that the Senate will ultimately vote on that version of the legislation. Along with piecemeal amendments that the full Senate might adopt, Majority Leader Mitch McConnell could introduce a full substitute amendment up to the very end of debate that could replace what was the subject of debate with a substantially new piece of legislation. The result could be a “bait-and-switch:” debate over one proposal, followed by a vote on a significantly different one.
That means senators and the public may have virtually no time to see the actual text that the Senate will vote on — and that could become law if the House then passes it without further amendment. Moreover, Sen. McConnell is expected to force a vote on this new substitute proposal without a full CBO analysis of its impact on health coverage and cost of health insurance, only a limited fiscal analysis. That would enable senators who vote for the final bill to claim that the bill has been “fixed” and assert it covers more people, reduces Medicaid enrollment losses, or increases premiums and out-of-pocket costs less than CBO’s earlier analysis indicated, with no credible evidence to back up that point.
- Senators could portray small, last-minute changes as major “concessions” even though they do little to undo the bill’s overall damage. Undecided senators have expressed concern over issues like the time provided to phase out the ACA’s Medicaid expansion, the depth of Medicaid cuts, the affordability of insurance for low-income consumers, and the impact of the Cruz amendment on pre-existing conditions. Senators could portray changes in these areas as major victories that have secured their votes, even if the changes have little impact overall on coverage and consumer costs. (Indeed, some of these “victories” may simply amount to returning to language in the House bill that these senators once viewed as unacceptable.) Yet without a CBO score on the final bill that includes a comprehensive analysis of the impact on coverage and consumers’ costs, there will be no official data with which to assess whether these changes have “fixed” the bill.
- We’ve seen this dynamic before, with the Upton amendment in the House. Introduced near the end of House consideration of its ACA repeal bill, the Upton amendment sought to allay criticism that people with pre-existing conditions couldn’t find affordable coverage if states waived “community-rating” requirements under the MacArthur amendment by providing $8 billion for high-risk pools. (Indeed, in many ways, the concerns that the Upton amendment were meant to address are similar to those raised by the Cruz amendment.) While prior history and independent analysis both questioned whether that funding would be anywhere near sufficient, House leaders claimed — without waiting for a CBO analysis to validate the claim — that the money would “allow people with pre-existing conditions who haven’t maintained continuous coverage to acquire affordable care.”
Unsurprisingly, CBO later confirmed that the funding “would not be sufficient to substantially reduce the large increases in premiums for high-cost enrollees.” But CBO didn’t release that analysis until weeks after the House passed the bill, with members justifying their “yes” votes on the basis of the exact claims that CBO later refuted.
And, unlike the House-passed bill — which was destined to undergo further changes in the Senate and return to the House — the Senate likely would never have to vote on the bill after CBO completes its analysis. Indeed, House leaders reportedly may rush a vote immediately after Senate passage. This means that the bill could pass the House as well — sending it to the White House for the President’s signature — before policymakers and the public understand the health care implications of any last-minute changes.
Of course, CBO will eventually release its analysis of the final bill. That analysis would likely contradict the very promises made in the run-up to the vote — contradictions that would become clear only after the bill and its highly damaging provisions are already signed into law.