Sunday brunch bill clears Ga. legislature

The years-long movement to liberalize Georgia’s Sunday alcohol sales law finally cleared both chambers of the General Assembly last week.
 
The proposal, dubbed the “Sunday brunch bill” around the Gold Dome, would allow for local referenda to determine whether restaurants and wineries could serve alcohol as early as 11am, an increase of 90 minutes from the current law. 
 
The proposal, which leaves rules for the package sale of beer, wine, and  alcohol by retail unchanged, heads now to the desk of Governor Nathan Deal for final consideration.
 
Elsewhere around the capitol …
 
The House unanimously approved legislation to broaden insurance coverage eligibility and benefits for children with autism spectrum disorder. 
 
The bill, a version of which was already passed by the Senate, would raise coverage eligibility for those with autism from six years to 20, and increase the benefits up to $35,000. The bill now returns to the Senate for final agreement or adjustments.
 
The House Governmental Affairs Committee advanced legislation that would shorten the voting hours and reduce Sunday early-voting for the city of Atlanta. The bill was offered after a special election last year that included portions of Atlanta, where voting was allowed until 8pm, and Cobb County, where it ended at 7pm.
 
The Senate Regulated Industries Committed unanimously approved a House bill that would regulate daily online fantasy sports program. The bill, of which a version failed last year, would make illegal the participation of college athletes of persons below the age of 18, and would levy a 6 percent tax on businesses that operate the online leagues.

Ga. House OK’s 2018 ‘Little Budget’

The Georgia House of Representatives approved last week a midyear spending bill to make use of additional revenues for fiscal year 2018, appropriating more than $300 million in new money.

The supplemental budget, known around the capitol as the “Little Budget,” will keep state agencies and offices running through June 30, when a new fiscal year will begin.

More than a third of the newly apportioned revenue will go to public schools and colleges. Other tens of millions will be directed to health care programs serving poor Georgians.

The so-called Little Budget now goes to the Senate for consideration, and its eminent passage brings the General Assembly one step closer to addressing and completing its singular constitutional obligation: passing a balanced spending plan, known as the Big Budget, for the next fiscal year.

Elsewhere in the capitol …

A House education subcommittee green lighted a proposal to address supplemental funding inequities for charter schools across the state, while another committee approved legislation providing for a new sales tax exemption to help pay for a potential expansion by the Georgia Aquarium.

Senator Brandon Beach has introduced his long-awaited transit reform bill, which would create new transit funding mechanisms through an optional local sales tax. The stipulates that MARTA would operate any service funded by the new tax. Specifically, the bill would:

  • Provide for a 1% Transit SPLOST and excluding that tax from the 2% cap;
  • Allow counties to fund transit projects within their jurisdiction, subject to approval of those projects by the Commission, and referenda would be carried out in accordance with other such SPLOSTs.  Approved projects would then be evaluated and prioritized by the local jurisdictions affected in conjunction with MARTA.  Local jurisdictions will also have the option to execute intergovernmental agreements with MARTA under which MARTA would assume control of future transit services.  For all intents and purposes, this bill would appear to impact 13 metro Atlanta counties: Cherokee, Clayton, Coweta, Cobb, DeKalb, Douglas, Fayette, Forsyth, Fulton, Gwinnett, Henry, Paulding, and Rockdale; and
  • Create the Atlanta-region Transit Link “ATL” Commission as a new division under the Georgia Regional Transportation Commission. The purpose of this Commission is to plan and coordinate the provision of transit services, the establishment of transit facilities, and the funding of those purposes throughout its jurisdiction. This jurisdiction consists of any county which has approved a MARTA tax or any county which has approved a Transit SPLOST.  Initially the Commission would consist of 11 members.

Spurred by recommendations from House Rural Development Council, legislation has been introduced in the House that would finance the cost of developing rural broadband with a new tax on digital content streaming services like Netflix.

Ga. House, Senate leadership agree to crossover, sine die dates

The General Assembly’s pace quickened last week after a sluggish start to session, stalled in part by unusual winter weather and a shortage of essential legislative priorities.

After earlier sparring over an adjournment resolution that could have split the two chamber’s work calendars, leadership from the House and Senate agreed to a time table for the remainder of the 2018 session.

The consensus calendar encircled Feb. 28 as crossover day—the point by which any bill must have been green lighted by at least once chamber to remain viable—and March 29 as the final day of session. Leadership has pledged it will adjourn no later than midnight on sine die (from the Latin “without day”), as has occurred in recent years.

Elsewhere under the Gold Dome …

Senator David Shafer, a Republican vying for the open Lt. Governor’s post, has proposed an amendment to the Georgia constitution that would declare English as the official language of the state.

An omnibus health care bill based in part on the policy recommendations of the House Rural Development Council is expected to be dropped this week. The measure is said to include a provision tinkering with the state’s certificate-of-need framework, but won’t repeal the hospital rule in urban areas as was proposed last year by the Council.

Legislation to propose a new structure for the governance and funding of transit in the metro Atlanta area are being finalized and will likely be introduced this week or next.

A bipartisan group of senators are backing legislation to reduce Georgia Power’s profits on the multi-billion dollar Plant Vogtle nuclear facility by restricting the so-called nuclear tariff the utility has been charging customers’ since 2011 to finance the project. Under the bill, Georgia Power would no longer be allowed to charge the financing fee on parts of the notoriously laggard project that had fallen behind the original schedule.

The Senate voted 49-0 last week to approve a raft of technical adjustments to the state’s garnishment law, which was overhauled two years earlier amid a rebuke by federal courts. The updates would bring the state code into alignment with federal garnishment rules.

As Congress returns: health care fixes

After the Senate failed to pass a version of repeal and replace in late July, Senator Lamar Alexander (R-TN), chair of the Senate Committee on Health, Education, Labor and Pensions (HELP), announced there would be bipartisan hearings in September to try to develop legislation that would address some of the problems in the individual market in state exchanges. The first week after Labor Day, the committee will hear testimony from five governors and five state insurance commissioners on how Congress can help their states. The following week, the committee will hear from other stakeholders.

It is possible that Senator Alexander, along with the committee’s top Democrat, Patty Murray (WA), could craft legislation and try to insert it into a short-term appropriations extension or some other must-pass legislative vehicle that would continue federal payments for cost-sharing subsidies and provide states with the flexibility to attempt to bring down the cost of certain health care plans.

Medicare Extenders

Absent legislative action, certain health care-related provisions will lapse on September 30, 2017, and December 31, 2017. The expiring provisions relate to Medicare, Medicaid, the joint federal-state Children’s Health Insurance Program (CHIP), and private health insurance programs and activities.

Two broad categories of programs are at risk should Congress not act. The first type provides temporary funding, such as Medicare provider payments. The second type authorizes government agencies to act.

Funding for the CHIP program will be foremost among these issues, accompanied by a batch of additional expiring provisions expected to cost around $6 billion. Among these “extenders” is the physical, occupational and speech-language pathology (SLP) therapy cap exception process created by Congress in 2006. Others include funding for community health centers, diabetes programs at the Indian Health Service, teen HIV/STD prevention, and infant and early childhood visitation programs, among others.

CHIP

Mandatory funding for the Children’s Health Insurance Program (CHIP) is scheduled to expire on September 30, 2017. Congress created the program in 1997 and it currently covers over 8 million children. CHIP gives states financial support to expand publicly funded coverage to uninsured children who are not eligible for Medicaid. As a block grant, it provides states with a set amount of funding that must be matched with state dollars. If Congress does not reauthorize the program before October 1, the federal government will no longer be able to provide its payments to states. However, it is possible for states to continue to provide CHIP coverage for another two or three months beyond the expiration date.

 

Washington’s week ahead: July 17

In the latest of a string of setbacks, ObamaCare reconciliation vote delayed in the Senate as Arizona Senator John McCain is treated for a blood clot… Don Jr., and others, met with Russian promising “very high level and sensitive information”… Approps Omnibus package gains steam – pre whip count – in House… POTUS celebrates Bastille Day in Paris with French President Macron… Federal Judge in Hawaii loosens Trump temporary travel ban… CBO says Trump ’18 budget will not balance in a decade, contrary to WH estimates… FBI nominee Wray testifies before Senate Judiciary Committee… House Appropriations Committee releases spending bill with $1.6 bill for border wall… Former FBI Director Comey signs book deal… POTUS approval rating after six months in office is the lowest of any president in the past 70 years, according to a new poll… And K Street scrambles to rebook flights out of town as Leader McConnell takes back 2 weeks of recess…

THE WEEK AHEAD:   The White House dubs this “Make in America Week”… CBO score due for repeal 2.0..House Budget Committee to mark up… House whips Approps Omni package…

POTUS:   POTUS  announced the appointment of Ty Cobb–no not that one: a veteran Washington lawyer with experience as a federal prosecutor and defense attorney–as special counsel at the White House

CONGRESS:  The House Dress Code gets an update. The conservative firebrand credited with pressuring then-Speaker John Boehner (R-Ohio) to resign in 2015 issued a warning Thursday to Senate Majority Leader Mitch McConnell (R-Ky.) and his establishment allies.. Rep. Brad Sherman (D-Calif.) formally introduced an article of impeachment against President Trump on Wednesday.

THE COURT:   Partisan map makers beware, the Supreme Court is set to take a serious look at partisan gerrymandering with a case that could jeopardize voter maps across the country and help Democrats regain control of Congress

APPROPRIATIONS:  House GOP leaders will return to Washington this week with hopes of passing a budget resolution and a 12-bill omnibus before leaving town for the August recess.

CYBER:  Major technology companies and tech advocacy organizations are banding together in a last-ditch effort to save the Federal Communication Commission’s net neutrality rules.

ENERGY:  House appropriators diverged from President Donald Trump’s budget proposal by minimizing cuts to the Interior Department and the EPA’s budget as part of the energy and water appropriations bill.

ENVIRONMENT:  The Environmental Protection Agency asked for a 52-day delay from having to enforce the Obama-era regulation for the venting and flaring of methane, a critical greenhouse gas, after a court ruled against the agency. The U.S. Court of Appeals for the District of Columbia Circuit granted a 14-day stay while the EPA considers further legal action.. A bipartisan group on the House side protected the need to study climate change as part of national security as part of the National Defense Authorization Act, striking down an amendment that opposed it.

HEALTH:  It’s unclear whether Senate Republicans have the votes to win on a key procedural motion that would allow them to debate the new healthcare bill they released on Thursday.  Here is what has changed in the new version and a look at who got what. 

RUSSIA INVESTIGATION: Trumpland lawyers up… Calls for Kushner to loser his security clearance have mounted, as congressional investigators probe whether the Trump campaign’s digital operation — run by the president’s son-in-law — coordinated efforts with Russian bots spreading fake news about Hillary Clinton.  The Federal Election Commission (FEC) is sharply divided over how the election watchdog agency should respond to Russian interference in the U.S. election as more revelations come to light about foreign meddling during 2016.

RUSSIAN SANCTIONS:  Lawmakers are growing increasingly frustrated with a series of procedural spats that are stalling new Russia sanctions in the House amid mounting concerns about Moscow’s election meddling.

TRADE:  Energy Department Secretary Rick Perry visited his counterpart in the Mexican government to discuss trade relations and cross-border electricity transmission as part of a broader discussion on North American energy strategy.

TRAVEL BAN: The Trump administration asked the Supreme Court on Friday to block a federal judge’s ruling that grandparents of U.S. citizens and refugees already being processed for resettlement are exempt from President Trump’s travel ban. 

CONFIRMATION UPDATE: Office for Regulatory Affairs  PREVIOUSLY CONFIRMED- FEMA Administrator  Deputy Secretary of State, Associate Attorney General, Deputy Secretary of Transportation,  Sec. of Air Force, FDA Commissioner, US Trade Representative Chairman of the SEC,  Sec of Agriculture, Sec of Labor   Associate Justice of the Supreme Court , Amb. To Israel  Admin of CMS, Director of National Intelligence, Sec. of HUD, Sec. of Energy, Sec of Interior,  Sec. of Treasury, OMB Director,  Attorney General, Sec. of Education, Sec of Veteran’s Affairs , EPA Administrator, Small Business Admin, Sec. of HHS, Sec. of State, Sec of Transportation, Director of CIA, Sec. of Defense, Amb. to the UN, Sec. of Homeland,  Sec. of Commerce  

PRESIDENTIAL MEMORANDUM & EXECUTIVE ORDER TRACKER:   Presidential Memoranda Cuba  Jerusalem Embassy Act  Stabilization of Iraq  Aluminum Imports    Offshore Drilling, VA Accountability, Local Control of Education, Review of Antiquities Act, Rural American Prosperity : Orderly Liquidation Authority, Financial Stability Oversight Council, Steel Imports and Threats to National Security  Executive Branch Re-Org    Travel Ban 2.0 Memo for USSS, USAG, USSHS     Fiduciary Duty RuleNational Security Council,  Defeat ISIL,   Pipeline Construction, American Pipe,  Domestic Manufacturing,  TPP, Hiring Freeze, Mexico City (Abortion), Memo to Executive Departments and Agencies  Executive Orders: North Korea   Western Balkans Cyber security    Election Integrity   Promoting Free Speech & Religious Liberty Identifying Tax Burdens, Buy American and Hire American  Principles for Reforming the Military selective Service Process  Climate,   Addiction & Opioid Crisis , Report on Trade Deficits,  Trade Enforcement Travel Ban 2.0  Regulatory Reform Task Forces,  Crime Reduction, Drug Cartels, Law Enforcement protection, DOJ Succession,  Dodd Frank,  2 for 1 Reg,    Border and Immigration Enforcement, ObamaCare, Public Safety, Expediting Environmental Review Process, Visa Restrictions

 

Where McConnell’s latest attempt to pass a health care bill stands

Senate Majority Leader Mitch McConnell’s latest attempt to pass the GOP’s health care agenda was revived this week with the release of an updated bill.

However, two Republican senators, Susan Collins of Maine and Rand Paul of Kentucky, quickly have said they would not support a procedural vote early next week that would bring the latest health care proposal to the floor. With no more votes to spare, leadership enters the weekend focused on their whip operation.

Here’s a summary of the latest round of horse trading as illustrated in the newest version of the bill:

  • CassidyMedicaid base year: latest draft allows late expansion states to only use four quarters of data for their per capita base year and not eight. Important for Louisiana.
  • MurkowskiEnhanced FMAP: latest draft includes an enhanced 100% FMAP for eligible individuals who are members of an ‘Indian tribe’, which will be helpful in multiple states, but is written to also include individuals in Alaska.
  • RubioPublic health expenditures: latest draft exempts public health expenditures from both the Medicaid per capita caps and block grant funding. A priority for Sen. Rubio considering Florida’s experience with the Zika outbreak.
  • Portman/ CapitoOpioid Funding: latest draft includes an additional $45 billion for the opioid crisis, specifically for state grants for treatment and recovery programs as well as research money into pain and addiction with respect to the crisis.
  • Corker/ Thune and several GOP SenatorsIncrease affordability: latest draft includes additional $70 billion to the Long Term Stability fund to help individuals purchase health coverage at a lower price.
  • Moderate GOPKeep some ACA taxes: Latest draft maintains two ACA taxes against high income Americans (Medicare tax on high earners and net investment tax).
  • ConservativesMarket reform: latest draft allows HSA funds to pay for insurance premiums, allow catastrophic plans to be sold on exchanges and allows subsidies to be used to buy them; Medicaid: latest draft maintains Toomey’s slower per capita cap growth rate than in house-passed bill; Cruz proposal: latest draft includes bracketed language that would allow insurers that sell ACA compliant plans (at least one gold and silver) to also offer plans off the exchange that would be exempt from several ACA insurance requirements (including pre-existing conditions, community rating and guaranteed issue) but would allow federal subsidies to be used to purchase them.

Is it enough?

  • Sens. Rand Paul and Susan Collins reiterated their opposition almost immediately after the new draft was released; therefore GOP leadership cannot afford another no vote.
  • First vote will be a procedural vote– on the motion to proceed– that is a procedural vote to start debating the House-passed bill. GOP leadership has been working with Senators emphasizing the need for a Republican-led Senate to be able to vote to get on an Obamacare repeal bill so they can start debating the contents of the legislation.

What will the Parliamentarian say?

  • This week started the official litigation with the Senate Parliamentarian where majority and minority staff are both present to argue their case as to whether provisions of the draft legislation violate the Byrd rule. The process was focused on provisions in the first CBO score and this week focused on Medicaid provisions, tax provisions and the insurance provisions in Title II of the draft.
  • What the parliamentarian said this week about the insurance provisions, the Sec. 1332 waiver changes, etc will have an impact of the politics of the bill. Will the parliamentarian strike any of the provisions that the conservatives point to as repealing parts of the Obamacare.
  • These official litigations will continue next week to include the new provisions in the latest draft, including the Cruz proposal, next week.

What will the CBO say?

  • A new CBO score is due out early next week, as early as Monday. Originally, reports suggested CBO would have two scores, one with the Cruz proposal and one without. However, since the CBO didn’t receive legislative language until too late on the Cruz proposal, it is likely the CBO will not have the time to score that part of the newly released draft.
  • Leaving GOP Leadership of having to find another official body to do the analysis of the Cruz proposal, possibly OMB or CMS.

Compare latest version of Senate GOP health bill to first attempt

Below is a summary of the discussion draft released yesterday by Senate Majority Leader Mitch McConnell with those comments in PURPLE denoting changes that were made to the prior version.

Medicaid

The Senate bill ends the ACA Medicaid expansion and starts a three-year transition period for expansion states, commencing on January 1, 2020. Expansion states are limited to those that implemented the Medicaid expansion by March 1, 2017. The three-year transition period would see the enhanced federal match for those states reduced in stages as follows:

  • 2020 — 90 percent federal match
  • 2021 — 85 percent federal match
  • 2022 — 80 percent federal match
  • 2023 — 75 percent federal match
  • 2024 (and subsequent years) — standard state matching rate

No changes to policy in latest draft.

Eligibility redeterminations:  Like the House bill, the Senate bill requires states, starting on October 1, 2017, to redetermine Medicaid eligibility every six months (or more often, if the state chooses). It also provides for a five percent enhanced federal match to help states implement this. No changes to policy in latest draft.

Optional work requirement:  The Senate bill allows states, beginning in FY 2018, to include in their Medicaid program an optional work requirement for non-disabled, non-elderly, non-pregnant individuals. There is an increased match available for implementation activities. No changes to policy in latest draft.

Medicaid and CHIP quality performance bonus payments:  The Senate bill provides for $8 billion in performance-based payments for states that report on and meet quality indicators and whose spending is below benchmarks. No changes to policy in latest draft.

Retroactive eligibility: The Senate bill reduces retroactive eligibility from 90 days to the month in which the applicant applied. The latest draft provides an exception to the reduction in retroactive eligibility for blind and disabled.

Presumptive eligibility: The Senate bill eliminates presumptive eligibility. No substantial changes to policy in latest draft.

Home and Community-Based Services demo (brand new): The latest draft of the Senate bill establishes an $8 billion, 100 percent Federal Medical Assistance Percentage (FMAP) demonstration project for 2020 through 2023 for states to provide home and community-based services payment adjustments. Priority is given to the 15 least densely populated states.

Per capita caps

The Senate bill starts the transition from the current Medicaid program to per capita caps (PCCs) in FY 2020. No changes to policy in latest draft.

Baseline:  Instead of using FY 2016 as the base year (as in the House bill), the Senate version allows the states to choose any eight consecutive fiscal quarters within the period of 2014 through 2017 to calculate an average base year. HHS may adjust the base year if it determines the state has taken actions (e.g., through supplemental payment data retroactive adjustments) to “diminish the quality of the data” used in calculating the PCCs. There are also certain exclusions from the baseline period, such as disproportionate share hospital (DSH) payment adjustments, Medicare cost-sharing, and non-expansion state provider payment adjustments. Newest draft includes a change for late expansion states that allows them to pick only four fiscal quarters instead of eight. This was a concern raised by Sen. Cassidy (R-La.) on behalf of his state.  Latest draft also excludes from the PCCs up to $5 billion in spending for public health emergencies between 2020 and 2024. This was a priority for Sen. Rubio (R-Fla.), whose state has recently been impacted by Zika outbreak.

Growth rate:  From 2020 to 2024, the Senate bases their growth rate on the medical component of the consumer price index (CPI). Starting in 2025, the growth rate will be based on the CPI for all urban consumers (CPI-U). No changes to policy in latest draft.

PCC target adjustments:  States whose expenditure targets exceed the mean by at least 25 percent will be reduced by an HHS-determined amount of between 0.5 percent and 2.0 percent. If less than the mean per-capita expenditure for all states (but not by less than 25 percent), states will receive a corresponding HHS-determined increase. Federal payments must be budget neutral. The provision does not apply to “low population density” states. No changes to policy in latest draft.

Excluded populations:  The Senate bill lists the following populations as excluded from PCCs: CHIP beneficiaries, Indian Health Service, breast and cervical cancer services-eligible enrollees, specified partial-benefit enrollees, and medically complex children. No changes to policy in latest draft.

Essential health benefits (EHBs):  Like the House-passed bill, the Senate bill sunsets Medicaid EHBs after Dec. 31, 2019. No changes to policy in latest draft.

Block grant option

Medicaid Flexibility Program:  The Senate bill, like the House bill, provides states the option beginning in FY 2020 to choose the “Medicaid Flexibility Program” instead of PCCs. The Senate bill imposes certain requirements on the states with respect to the application process, including a requirement to publish the application in the state along with at least a 30-day state notice and comment period. The Senate bill also includes required benefits and services, applies mental health and substance abuse parity and applies Medicaid rebates if outpatient drugs are covered. Premiums, deductibles and cost-sharing are permitted as long as they do not exceed 5 percent of family income. The latest draft expands the populations that states may include in the Medicaid Flexibility Program from the “other nonelderly, nondisabled, nonexpansion adult category” to also include the expansion category. Additional funds may be provided if there is a public health emergency, again a priority for Sen. Rubio.

Provisions for non-expansion states

Removes DSH cuts for non-expansion states:  The bill would remove ACA-implemented DSH allotment cuts for all non-expansion states. In addition, non-expansion states whose DSH allotments were below the national average in FY 2016 would receive an increase in their FY 2020 DSH allotment by the amount it would take to meet the FY 2016 national average. This one-time increase would not impact future calculations. The removal of DSH cuts would not apply to expansion states, whose ACA DSH cuts would stay in place. Latest draft includes a slight change in the methodology that would be used to determine states whose DSH allotments were below the national average. Latest draft clarifies that for the purpose of this provision, a non-expansion state is a state that does not cover expansion populations as of January 1, 2021 (rather than date of enactment).

Additional safety net funding for non-expansion states:  The Senate bill allows non-expansion states to provide additional “safety net” provider payments “so long as the payment adjustment to such an eligible provider does not exceed the provider’s costs in furnishing health care services” and also provides an increase in FMAP for such adjustments: 100 percent in FY 2018 through 2021 and 95 percent in FY 2022. No changes to policy in latest draft.

Other Medicaid-related provisions

Support for state response to opioid crisis:  The bill would appropriate to HHS $2 billion for FY 2018 “to provide grants to States to support substance use disorder treatment and recovery support services for individuals with mental or substance use disorders.” Latest draft boosts opioid-response funding by $45 billion to provide states grant money for treatment and recovery support services as well as research funds on addiction and pain as they relate to opioids.

Medicaid provider taxes:  Starting in FY 2021 and continuing over the next four years, the bill gradually reduces the threshold allowed for provider taxes from 6 percent in current law to 5 percent by 2025. No changes to policy in latest draft.

Planned Parenthood:  The Senate bill includes the House-passed policy defunding Planned Parenthood for one year in the Medicaid program. Also like the House-passed health bill, the Senate bill provides an additional $422 million for community health centers for one year. No changes to policy in latest draft.

Changes to the Affordable Care Act

Repeals the individual and employer mandates:  Like the House-passed health bill, the Senate bill also retroactively repeals both the individual and employer mandates, effective back to 2016. No changes to policy in latest draft.

Subsidies/tax credits

ACA subsidies:  The Senate bill continues through 2019 ACA subsidies as currently structured. Beyond 2019, the Senate bill modifies the eligibility of subsidies down from 400 percent Federal Poverty Level (FPL) to 350 percent FPL, and extends them down to 0 percent FPL from 100 percent FPL in the ACA. Also, the amount of the subsidy is based on income, age and geography, and is tied to a maximum percentage of income an individual can spend on the cost of his or her premium. No changes to policy in latest draft.

Definition of “lawful presence”:  The Senate bill makes modifications to the definition of lawful presence, such as replacing it with “qualified alien.” No changes to policy in latest draft.

Benchmark plan:  Instead of using the ACA’s second-lowest-cost silver plan as the benchmark for premium subsidies, the Senate bill defines the benchmark plan as median premium that has 58 percent actuarial value. Latest draft allows premium subsidies to be used to purchase catastrophic plans.

Small Business Tax Credit:  The Senate bill ends the small business tax credit, starting in 2020. For plans with abortion coverage, the credit ends starting in 2018. No changes to policy in latest draft.

Cost-Sharing Reduction (CSRs) Subsidies:  The Senate bill appropriates cost-sharing reduction subsidy payments for two years (through plan year 2019) and then repeals the cost-sharing subsidy program after Dec. 31, 2019. No changes to policy in latest draft.

Insurance market changes

Age rating:  Like the House bill, the Senate legislation changes age rating bands to 5:1 and would take effect for plan years beginning on or after Jan. 1, 2019. States are given the flexibility to set their own age rating bands. No changes to policy in latest draft.

MLRs:  The Senate bill sunsets the ACA’s medical loss ratio for plan years beginning on or after Jan. 1, 2019, allowing states to set their own MLR thereafter. Latest draft maintains the sunset of the MLR in 2019, and then requires states to set their own MLRs for group and individual coverage.

QHP definition:  The Senate bill specifically excludes from the definition of a “qualified health plan” (QHP) any plans that cover abortion (except for abortions “necessary to save the life of the mother” or undertaken to end “a pregnancy that is the result of an act of rape or incest”) as of Dec. 31, 2017.

1332 waivers:  The Senate makes changes to the ACA’s 1332 waiver process by allowing states to waive a variety of ACA requirements, including essential health benefits and regulations prohibiting subsidies off-Exchange. The Senate bill also removes the requirement that 1332 waivers must be budget neutral or achieve the same coverage rates as would otherwise be attained under federal law and instead requires that the waiver must not add to the federal deficit. HHS may also establish an expedited waiver approval process, if the waiver responds to “an emergency situation with respect to health insurance coverage” in the state. The Senate bill encourages states to apply by making available $2 billion in grant funding through 2019 for the application process. Latest draft adds to the description of the alternative means that a state’s application can use to meet the 1332 requirements to include “providing consumers the freedom to purchase the health insurance of their choice and increasing enrollment in private health insurance.” Latest draft also adds that the Secretary must approve the waiver unless the waiver adds to the federal deficit or is missing a required element of 1332 waivers. It also adds to the pass-through funding language those who would qualify for a reduction in the premium tax credits.

Small business health plans:  The Senate bill adds a section to include group health plans sponsored by trade associations within the definition of “small business health plan.” It establishes requirements for plan certification, sponsors, board governance and plan oversight, and includes a provision that preempts states laws that preclude issuers from offering trade association-sponsored plans. Latest draft makes changes to this section that would increase oversight of small business health plans, including certification requirements of both the plan and plan sponsors.

ACA Taxes

Cadillac tax:  Like the House bill, the Senate bill delays the Cadillac tax until 2025. No changes to policy in latest draft.

Medical device tax: Like the House-passed bill, the Senate bill repeals the 2.3 percent excise tax on medical devices. But it does so beginning in 2018, one year later than the House version. No changes to policy in latest draft.

Health insurance tax:  The Senate bill repeals the health insurance tax beginning in CY 2017. No changes to policy in latest draft.

Medicare tax:  The House-passed health bill repealed, effective January 1, 2023, the ACA’s 0.9 percent Medicare surtax on high-income earners. The prior draft of the Senate bill did as well, but the current version has removed this section, leaving the ACA Medicare surtax in place.

Net investment tax:  The prior draft of the Senate bill, like the House-passed bill, repealed the 3.8 percent net investment tax; retroactively effective January 1, 2017. The latest draft has removed this section, leaving the ACA Net Investment tax in place.

Tax on OTC medications:  The Senate bill, like the House-passed health bill, repeals the prohibition of paying for over-the-counter medicines with health savings accounts; retroactively effective January 1, 2017. No changes to policy in latest draft.

Tax on prescription medications:  The Senate bill repeals this tax effective in 2018, one year later than the effective date in the House-passed health bill. No changes to policy in latest draft.

Medicare Part D deduction:  The Senate bill repeals the ACA’s elimination of employers’ deduction for retiree drug costs; retroactively effective January 1, 2017. No changes to policy in latest draft.

Medical deduction tax:  Also known as the “chronic care tax,” it is repealed in the Senate bill retroactively effective January 1, 2017, and the medical deduction threshold is restored to its pre-ACA level of 7.5 percent. No changes to policy in latest draft.

Tanning tax:  The Senate bill repeals the ACA tanning tax effective Sept. 30, 2017. No changes to policy in latest draft.

Health savings accounts (HSAs):  The Senate bill lowers the additional tax on distributions not used for qualified medical expenses from HSAs from 20 percent increase in the ACA to a 10 percent increase, and for Archer medical savings accounts from 20 percent down to 15 percent; allows spouses each enrolled in a high-deductible health plan (HDHP) to make catch-up contributions to the same HAS; and increases maximum contributions to HSAs to the amount of the deductible and out-of-pocket limitation. The latest draft adds a provision that would allow HAS funds to be used to pay the premium of the HDHP.

Stabilization Fund

Short-term stability:  The bill would appropriate $15 billion for CY 2018 and 2019; and $10 billion for years 2020 and 2021 for CMS to fund arrangements with “health insurance issuers to assist in the purchase of health benefits coverage by addressing address coverage and access disruption and responding to urgent health care needs within States.” Funds remain available until spent. Latest draft amends purpose for funds in the short-term stability fund as noted above in red.

Long-term stability and innovation program:  The bill appropriates a total of $62 billion from CY 2019 to 2026, including $8 billion for CY 2019, $14 billion for CYs 2020 and 2021, $6 billion for CYs 2022 and 2023, $5 billion for CYs 2024 and 2025 and $4 billion for CY 2026. For CYs 2019-2021, HHS must ensure that states spend at least $5 billion each year on premium stabilization (e.g., reinsurance or high-risk pools). The Senate bill identifies a formula for redistributing unspent money among other states. Latest draft includes an additional $70 billion for the long-term stability fund, the money was added to CYs 2022-2026. The total for the long-term stability fund in the latest draft is $132 billion.

States can apply for funding for one of four purposes: (i) to establish a program or mechanism to fund high-risk individuals to purchase health coverage including by reducing premiums for those who don’t have access to coverage; (ii) to enter into arrangements with health insurance issuers to assist in the purchase of health coverage by help stabilizing premiums and promoting state health insurance market participation; (iii) to provide payments for health care providers;  and (iv) to provide health insurance coverage by funding assistance to reduce out-of-pocket costs, such as copayments, coinsurance and deductibles, of individuals enrolled in plans offered in the individual market. Starting in CY 2022, states will have to pay a specific match rate to receive 100 percent of the federal amount as follows: 7 percent for CY 2022, 14 percent for CY 2023, 21 percent for CY 2024, 28 percent for CY 2025, and 35 percent for CY 2026. Latest draft amends some of the parameters states can use the fund for, as noted above in red.

BRAND New Provisions in Latest Draft

Continuous Coverage: Latest draft includes a provision that requires that starting in 2019 a person must maintain continuous health coverage or they will be subject to a 6-month waiting period to buy health insurance in the individual market. A “gap in continuous coverage” is defined as a significant break of 63 days or longer within a 12-month period or, if applying during a special enrollment period, no creditable coverage at any point during the 60 days prior to application submission.

Catastrophic Coverage: Latest draft allows any individual to enroll in a catastrophic health plan and that those individuals would be included in the single risk pool under the ACA and as stated above allow the premium subsidy to apply to the cost of a catastrophic plan.

Sen. Ted Cruz’s proposal: Latest draft includes bracketed language (commonly referred to as the Cruz amendment) that would allow insurers who sell compliant plans (at least one gold and one silver level qualified plan on the exchange) to sell plans exempt from many of the ACA insurance requirements in off-exchange markets, starting in 2020. It would not allow ACA subsidies to be used to buy these off-exchange plans, but does allow HSA dollars to be used to pay the monthly premium for high-deductible health plans, unless the plan includes abortion coverage.

ACA provisions waived by the Cruz amendment:

  • ACA metal tiers, i.e. bronze, silver, gold
  • Community rating
  • Pre-existing conditions
  • Guaranteed issue
  • Essential health benefits
  • Cost-sharing reductions in group health market
  • MLR rebate requirement
  • Requirements around preventive health