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Senate Parliamentarian Upends GOP Hopes For Health Bill

The official rules keeper in the Senate Friday tossed a bucket of cold water on the Senate Republican health bill by advising that major parts of the bill cannot be passed with a simple majority, but rather would require 60 votes. Republicans hold only 52 seats in the Senate.

Senate Parliamentarian Elizabeth MacDonough said that a super-majority is needed for the temporary defunding of Planned Parenthood, abortion coverage restrictions to health plans purchased with tax credits and the requirement that people with breaks in coverage wait six months before they can purchase new plans.

The Senate is using a budget process called “reconciliation” that allows Republicans to pass a bill with only 50 votes (and the potential tie to be broken by Vice President Mike Pence). But there are strict rules about what can and cannot be included, and those rules are enforced by the parliamentarian. Those rules can be waived, but that requires 60 votes, and all the chamber’s Democrats have vowed to fight every version of the bill to “repeal and replace” the Affordable Care Act, which is set for a possible vote next week.

The list was released by Democrats on the Senate Budget Committee and later confirmed by a spokesman for the committee Republicans. It is the result of what is called the “Byrd Bath,” a process in which the parliamentarian hears arguments from Democrats and Republicans and then advises on which provisions comply with the Byrd Rule. That rule requires that only matters directly pertaining to the federal budget are included. The rule is named for former Senate Majority Leader Robert Byrd (D-W.Va.), who first wrote it.

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Senate Republicans were quick to point out that the document is “guidance” that they can use to try to rewrite impermissible language. The guidance “will help inform action on the legislation going forward,” said a spokesman for Senate Budget Committee Chairman Mike Enzi (R-Wyo.).

Among the other provisions that the parliamentarian has advised should require 60 votes are ones that would eliminate Medicaid requirements to provide 10 “essential health benefits.” Also on the list is a provision to repeal a requirement that insurers spend a minimum amount of each premium dollar on direct medical services, rather than administration or profits.

The determination also pertains to a part of the bill that would continue payments for “cost-sharing subsidies” to insurers for two more years. Those subsidies help lower-income people afford out-of-pocket costs like deductibles. The parliamentarian said that duplicated existing law.

MacDonough also said that a provision in the House version of the bill that pertains directly to New York violates the Byrd Rule. That measure would change the way the state collects money for Medicaid. That could suggest efforts by Senate Majority Leader Mitch McConnell (R-Ky.) to offer state-specific changes to gain support for the bill might meet the same fate.

Minority Leader Chuck Schumer (D-N.Y.) said that decision could have “the greatest effect on Republicans’ ability to pass this bill.” He predicted it would “tie the majority leader’s hands as he tries to win over reluctant Republicans.”

Some of the provisions that didn’t pass muster with MacDonough were key to getting the bill through the House. And if they are dropped, it might make it difficult for the House to approve a final version of the bill.

Not all the decisions went the Democrats’ way. MacDonough found that only a simple majority is needed for language allowing states to impose work requirements for Medicaid recipients. She also said that a provision that will ban abortions if the services are paid through a new fund provided to states would be allowed. That’s because that fund will be governed by existing rules that already ban abortion in most cases.

A few provisions remain under review, according to the list. Those include allowing states to waive a long list of insurance protections, including the ACA’s essential health benefits and preexisting coverage guarantees. Also still under review is language allowing small businesses to pool together to purchase insurance as well as a provision changing requirements related to how much more insurers can charge older adults.

Trump Plan Might Cut Expenses For Some Insured Patients With Chronic Needs

Erin Corbelli takes three medications to treat high blood pressure, depression and an anxiety disorder. Her health plan covers her drugs and specialist visits, but Corbelli and her family must pay a $3,000 annual deductible before the plan starts picking up any of that tab.

Corbelli’s insurance is linked to a health savings account so that she and her husband can put aside money tax-free to help cover their family’s drug and medical expenses. But there’s a hitch: Plans like theirs can’t cover any care for chronic conditions until the deductible is satisfied.

Those out-of-pocket expenses could shrink under a Trump administration draft executive order that would change Internal Revenue Service rules about what care can be covered before the deductible is met in plans linked to health savings accounts, or HSAs.

“It would save us a lot of money,” said Corbelli, 41, who lives in Orlando with her husband and their two children, ages 3 and 5.

Insuring Your Health

KHN contributing columnist Michelle Andrews writes the series Insuring Your Health, which explores health care coverage and costs.

To contact Michelle with a question or comment, click here.

This KHN story can be republished for free (details).

Health plans with deductibles of thousands of dollars have become increasingly commonplace. Plans often cover services like generic drugs or doctor visits before consumers have satisfied their deductibles, typically requiring a copayment or coinsurance rather than demanding that consumers pony up the entire amount.

But plans that link to health savings accounts have more restrictions than other high-deductible plans. In addition to minimum deductibles and maximum HSA contribution limits, the plans can’t pay for anything but preventive care before consumers meet a deductible. Under current IRS rules, such preventive care is limited to services such as cancer screenings and immunizations that prevent a disease or condition, called “primary prevention.” With HSA-eligible plans, medical services or medications that prevent an existing chronic condition from getting worse or prevent complications from occurring — called “secondary prevention” — can’t be covered before the deductible is paid.

The Trump administration’s draft executive order, which was first obtained last month by The New York Times and has yet to be issued, would allow such secondary preventive services to be covered.

Under the Affordable Care Act, most health plans, including HSA-eligible plans, are required to cover services recommended by the U.S. Preventive Services Task Force without charging consumers anything for them. That requirement is generally limited to primary prevention.

“We know health savings accounts are here to stay and we’d like to make them better,” said Dr. A. Mark Fendrick, an internist who is director of the University of Michigan’s Center for Value-Based Insurance Design and who has advocated for the change.

If people have diabetes, for example, they need regular eye and foot exams to prevent complications such as blindness and amputations down the road. But HSA plans can’t pay anything toward that care until people satisfy their deductible. “The executive order gives plans the flexibility to do that,” he said.

Similarly, it’s critical to remove obstacles to treatment for people like Corbelli with high blood pressure or heart disease, said Sue Nelson, vice president for federal advocacy at the American Heart Association.

“For people with cardiovascular disease, affordability is their No. 1 concern,” Nelson said.

The draft executive order is short on details, and administration officials would have to determine which new preventive services should be covered pre-deductible. Guidelines from medical specialty boards and quality metrics that many physicians are already being measured against could be used, said Roy Ramthun, president and founder of HSA Consulting Services who led the Treasury Department’s implementation of the HSA program in the early 2000s.

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Back then, they took a conservative approach. “We said we can be more flexible later, but we can’t put the genie back in the bottle,” said Ramthun, who supports expanding preventive services coverage.

Many more employers would offer HSA-eligible plans if the list of services that could be covered pre-deductible were expanded, said Tracy Watts, a senior partner at human resources consultant Mercer. Fifty-three percent of employers with 500 or more workers offer HSA-eligible plans, according to Mercer survey data. Three-quarters of employers put money into their employees’ HSA accounts, she said.

Erin Corbelli’s husband’s employer contributes up to $1,500 every year to their health savings account, which can help cover their pre-deductible costs.

Not everyone is so fortunate. “You’re kind of at the mercy of what your employer can offer and what your disposable income is,” she said.

Republicans have long advocated for the expanded use of health savings accounts as a tax-advantaged way for consumers to get more financial “skin in the game.”

Consumer advocates have been much less enthusiastic, noting that the accounts typically benefit higher-income consumers who have cash to spare.

Still, given the reality of the growing prevalence of high-deductible plans, with or without health savings accounts, it’s a sensible proposal, many say.

“This is not a silver bullet or a solution to the problems that high-deductible plans can pose,” said Lydia Mitts, associate director of affordability initiatives at Families USA, an advocacy group. “But this is a good step in thinking about how we offer access to treatment people need in a timely and affordable way.”

Please visit to send comments or ideas for future topics for the Insuring Your Health column.

Read Latest CBO Scores Of Senate Replacement Draft Bills

Amendment Score

On July 20, the Congressional Budget office updated its original estimate (released June 26) of the Senate’s Better Care Reconciliation Act, based on its most recent revisions. This estimate does not include the Cruz Amendment, which CBO has said would take more time to complete:

Repeal-Only Bill

On July 19. CBO released its estimates on an amendment to H.R. 1628 that would repeal the Affordable Care Act outright.

Past Scores

This is the CBO’s fifth review of repeal-and-replace-related legislative drafts. It scored the House-passed version on May 24.

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Podcast: What The Health? Senate Health Bill, Mostly Dead?

Julie Rovner of Kaiser Health News, Stephanie Armour of the Wall Street Journal, Sarah Kliff of, and Margot Sanger-Katz of The New York Times discuss the ever-changing status of the Senate’s effort to “repeal and replace” the Affordable Care Act, and the Trump Administration’s efforts to undermine the working of the law.

Plus, for “extra credit,” the panelists recommend their favorite health stories of the week they think you should read, too.

Julie Rovner: Politico’s “How hospitals got richer off Obamacare,” by Dan Diamond

Stephanie Armour: This tweet from Sam Stein of The Daily Beast:

high risk pool

— Sam Stein (@samstein) May 4, 2017

Margot Sanger-Katz: The Daily Beast’s “Team Trump used Obamacare money to run PR effort against it,” by Sam Stein.

Sarah Kliff:’s “The ripple effect of declining births,” by Bob Herman.

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