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ACA: Repeal and Replace

On January 13, 2017, the U.S. House of Representatives set the repeal of the Affordable Care Act (“ACA”) in motion.  With a vote of 227-198, the House approved a budget resolution allowing Congress to repeal certain key provisions of the ACA without filibuster from the Democrats.  This same resolution passed the U.S. Senate on January 12, 2017, with a 51-48 vote.  The now-passed budget instructs both the Senate and the House to draft repeal legislation by January 27, 2017.  Two committees in each the Senate and the House are charged with drafting the repealing legislation.  This legislation, like the budget resolution, is also immune to filibuster and may be passed with a simple majority in both the Senate and the House. 

Because the Republicans are utilizing the budget resolution process for repeal, the entire ACA cannot be repealed, only certain provisions, including provisions with respect to the insurance marketplaces, Medicaid-expansion, and the employer and individual mandates, among others. 

Without meaningful replacement, approximately 22.5 million people will likely lose insurance coverage due to the repeal of the insurance marketplaces’ subsidies. 

As of January 1, 2017, 32 states, including the District of Columbia, have expanded Medicaid under the ACA.  Approximately 12.9 million people would lose Medicaid coverage, because the Republican legislation is expected to eliminate the federal funding provisions for such expansion.

For the approximately 150 million people covered under employer-sponsored plans, certain consumer protections, such as the ban against pre-existing conditions and coverage of young adults to age 26, are immune from change under the current budget resolution process.  However, Senate Republicans have recently voted against legislation that would preserve these provisions, thus making such provisions vulnerable. 

Replacement legislation does not have as clear of a path as repeal.  Unlike the repeal path, any replacement legislation will require a “super-majority,” not just a simple majority, meaning, for example, in the Senate, 60 votes will be required for passage.  Thus, Republicans must get cooperation from Democrats to gain the required support for a replacement bill.  Further, from the Republican camp, Congressmen have stated that repeal and replacement could occur 2 to 4 years from now, however, nothing conclusive has been determined.  The next few months will be legislatively instrumental in providing guidance as to content and timing of both repeal and replacement.

This is a process to which we must all pay careful attention, as the largest national reform to the health care system since Medicare in 1965 is about to go through another historical overhaul.  

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