Health Care/Medicaid/Long Term Supports and Services — Repeal of The Affordable Care Act Fails in The Senate: A Week In Review

Last Week

This issue of Capitol Insider is devoted to a review of the Senate’s consideration of the effort to repeal/replace the Affordable Care Act.

Health Care; Medicaid; Long Term Supports and Services
Repeal of The Affordable Care Act Fails in The Senate: A Week In Review

Last week was a critically important week for people with intellectual and developmental disabilities (I/DD) and their families, indeed, for all people with disabilities. The result was what The Arc and its members had worked hard for over the last nine months. However, the week of Senate legislative action played out like an intense roller-coaster ride and the results were not predictable until the final vote in the early hours of Friday, July 28.

As the week began, Senate Majority Leader Mitch McConnell (R-KY) planned a series of Senate floor votes on the efforts to repeal or replace the Affordable Care Act (ACA) and make fundamental structural changes to the Medicaid program. It was expected that the votes could be close, with 52 Republicans in the Senate and 48 Members of the Democratic caucus (including the two Independents who vote with the Democrats). Republicans would need at least 50 votes in support of any action or legislation to proceed – Vice President Mike Pence would be called upon to break any tie votes. Several Republicans had already expressed serious reservations about various provisions of the bills under consideration.

Monday, July 24:

Senator John McCain (R-AZ) made the surprise announcement that he would be returning to Washington DC, despite his recent brain surgery and cancer diagnosis.

Tuesday, July 25:

The Senate voted on the “Motion to Proceed” on debate of the repeal of the ACA. This is a procedural voted needed to begin debate on the bill. With Vice President Pence casting the vote to break the tie, the motion passed the Senate 51-50. Senator Susan Collins (R-ME), Senator Lisa Murkowski (R-AK) and all Democratic Caucus Senators voted no.

Following the successful motion to proceed, the Senate voted to replace the House-passed text with it’s own text, a version of the Better Care Reconciliation Act

  • This bill included an amendment by Senator Ted Cruz (R-TX) that would allow insurance companies to sell plans that do not comply with current insurance regulations as long as some of their plans do comply. Insurers could drop maternity care, mental-health treatment, and other benefits if they sell at least one health plan that includes them.
  • This bill also included an amendment by Senator Rob Portman (R-OH) which would provide $100 billion to help people cover their deductibles and other expenses when they lost Medicaid coverage, and it would let states set up such arrangements without needing special federal approval.

Due to an opinion by the Senate parliamentarian, this bill would have required 60 votes to pass. With 57 “no” votes and 43 “yes” votes, the BCRA did not pass. The no votes were cast by Senators Murkowski (R-AK), Collins (R-ME), Heller (R-NV), Corker (R-TN), Cotton (R-AR), Graham (R-SC), Lee (R-UT), Moran (R-KS), Paul (R-KY), and the whole Democratic caucus.

Wednesday, July 26:

Following the defeat of the BCRA, the Senate held a vote on the Obamacare Repeal Reconciliation Act, a “repeal and delay” bill. This bill failed with 55 no votes and 45 yes votes. The no votes were cast by Senators Murkowski (R-AK), Collins (R-ME), Heller (R-NV), Alexander (R-TN), Capito (R-WV), Protman (R-OH), and the whole Democratic caucus.

Thursday, July 27 into Friday, July 28:

At around 10:30 pm Thursday, Majority Leader McConnell introduced the language of what had been called the “skinny repeal.” Officially titled the Healthcare Freedom Act, this bill would have struck down a few provisions of the ACA, including the individual mandate, the employer mandate, and the medical device tax. The Congressional Budget Office (CBO) reported that the Health Care Freedom Act would cause 16 million people to lose insurance and individual market premiums to go up by 20 percent. The insurance coverage provisions would have also resulted in a loss of $235 billion in the Medicaid program over 10 years.

At about 1:30 am Friday morning, the final vote on the Senate series of repeal efforts was completed with a defeat of the Health Care Freedom Act by a vote of 51-49, with Senators Collins (R-ME), Murkowski (R-AK), McCain (R-AZ), and the whole Democratic caucus voting against the bill.

What We Narrowly Avoided:

If the Health Care Freedom Act had passed the Senate, a joint House-Senate conference committee would have considered the Health Care Freedom Act and the House-passed American Health Care Act (AHCA) to develop a bill to be considered by both the House and Senate. Through the AHCA, per capita caps and over $830 billion in cuts to Medicaid over a decade would have been part of the consideration by the conference committee. The House also could have simply passed the “skinny repeal” without going to conference. Both of these scenarios were of major concern to many Senators and were a factor in decisions to oppose the bill.

The Arc of the United States released statement on the failure of the effort to repeal the Affordable Care Act (ACA) and make fundamental structural changes to the Medicaid program which can be seen here.

Next Steps

Several Senators have already announced efforts to work together to produce legislation to address issues left in limbo by the failure of the House and Senate efforts. Some are looking to work in a bipartisan manner to ensure that the affordability provisions in the ACA remain funded and to address health insurance market place issues. House Minority Leader Nancy Pelosi (D-CA) wrote to House Speaker Paul Ryan (R-WI) and Senate Majority Leader McConnell indicating that “we have a responsibility to pivot from the current debate on health care and to work in a bipartisan fashion to lower costs, improve quality, and expand coverage, while strengthening the stability of the marketplaces.” Senate Minority Leader Chuck Schumer (D-NY) has similarly expressed a desire to work in a bipartisan manner to resolve the identified problems of the ACA.

Thank You

As Congress continues to debate health care policy, The Arc and other disability advocates expect to remain fully engaged. In the meantime, sincere thanks and acknowledgement are due to the extraordinary efforts of people with disabilities and their families, friends, supporters, and providers throughout the country who shared their life experiences and made their voices heard on the issues of affordable, accessible health care and the critical importance of home and community based services and health care through Medicaid. This work over the last nine months clearly affected elected officials. It was a powerful combined effort and it helped force the defeat of misguided attempts to repeal the ACA and cut and cap the Medicaid program.

Long Term Services and Supports – Centers for Medicare and Medicaid Services (CMS) Gives Initial Approval to Two Additional State Transition Plans.

On Thursday, June 2, CMS granted initial approval to the Kentucky and Ohio State Transition Plans. Unlike Tennessee, which received final approval, these two states received only initial approval. Additionally, the approval letters strongly discouraged reliance on reverse integration. No state, except for the aforementioned three, have received any formal approval from CMS.

Long Term Services and Supports – New Toolkit Available NOW for the new Home and Community Based Services (HCBS) Settings Rules

The new HCBS Settings Rules require all settings funded by Medicaid HCBS programs to, among other things, provide opportunities for participants to be integrated in and engage in community life, have access to the community, control their personal resources, and seek employment and work in competitive settings. This new toolkit provides advocates with detailed information about the HCBS Settings Rules and provides action steps for advocates to impact implementation of the new rules in their states. The toolkit contains three documents: (1) The Medicaid Home and Community-Based Services Settings Rules: What You Should Know; (2) Home and Community-Based Services Regulations Q&A: Settings Presumed to be Institutional & the Heightened Scrutiny Process, and (3) The Home and Community-Based Settings Rules: How to Advocate for Truly Integrated Community Settings (full and abridged).

Rights/Long Term Services and Supports — Court Rules That Illinois Can Close Murray Developmental Center

Citing a nation-wide trend to increase home and community based services (HCBS) for people with I/DD, the U.S. Court of Appeals for the Seventh Circuit recently ruled on the contested closure of Murray Developmental Center (Murray DC). The court held that Illinois could move forward with closing the facility. The ruling cited a growing number of studies that show that people with disabilities experience a higher quality of life in community-based settings as opposed to facility-based care. The ruling in its entirely may be viewed here.

Tax Policy/ABLE Act – Department of Treasury and Internal Revenue Service Hold Hearing on Qualified ABLE Programs Notice of Proposed Rulemaking

Last week, the Department of Treasury and Internal Revenue Service (IRS) held a public hearing on the proposed rules for implementation of the Stephen Beck, Jr., Achieving a Better Life Experience (ABLE) Act of 2014. Speakers included Marty Ford of The Arc, representatives of other major disability advocacy organizations, and representatives of state treasurer’s offices and college savings plan administrators. Speakers fielded questions from representatives of the Treasury Department and IRS. Most speakers stressed the need for a streamlined enrollment process and administrative simplicity. The Department of Treasury and the IRS will now consider all written and oral comments and issue final regulations in the coming months.

Tax Policy/ABLE Act – Department of Treasury and Internal Revenue Service Hold Hearing on Qualified ABLE Programs Notice of Proposed Rulemaking

Last week, the Department of Treasury and Internal Revenue Service (IRS) held a public hearing on the proposed rules for implementation of the Stephen Beck, Jr., Achieving a Better Life Experience (ABLE) Act of 2014. Speakers included Marty Ford of The Arc, representatives of other major disability advocacy organizations, and representatives of state treasurer’s offices and college savings plan administrators. Speakers fielded questions from representatives of the Treasury Department and IRS. Most speakers stressed the need for a streamlined enrollment process and administrative simplicity. The Department of Treasury and the IRS will now consider all written and oral comments and issue final regulations in the coming months.

ABLE Act: Regulation Comment Period Closed

The comment period for the IRS Notice of Proposed Rulemaking for regulations to implement the Achieving a Better Life Experience (ABLE) Act closed on Monday, September 21, 2015.  Most comments have been posted, and other comments will be made available soon. The Arc’s comments can be viewed here. Thank you to all chapters and members who have commented. You have participated in an important part of the democratic process.

Administration on Community Living New Organizational Structure

Last week the Administration on Community Living (ACL) announced an updated organizational structure to reflect changes implemented as a result of the Workforce Innovation and Opportunity Act. Some key changes are as follows:

  • Creation of the Administration on Disabilities (AOD), led by Commissioner Aaron Bishop
    • Within AOD, the Administration on Intellectual and Developmental Disabilities will be led by a Deputy Director for Developmental Disabilities but remains otherwise unchanged.
    • Also within AOD, is the Independent Living Administration (ILA) created as part of the Rehabilitation Act. ILA’s leader will serve as both the Deputy Commissioner of AOD, and the Director of the ILA. In this dual role, this person serves as a member of the Administrator’s senior leadership team and reports directly to the Administrator for performing the functions of the Director of Independent Living. ILA will manage the independent living programs that moved to ACL under WIOA, as well as programs that serve people with non-developmental disabilities.
  • The National Institute on Disability, Independent Living and Rehabilitation Research is a new center on ACL’s organization chart, but NIDILRR itself is unchanged. It will continue to be led by John Tschida as its director.
  • The Center for Consumer Access and Self-Determination has been renamed the Center for Integrated Programs (CIP). CIP will continue to bridge the aging and disability centers and manage the programs that address both populations.

Date Set for 2015 White House Conference on Aging

Last week, Secretary Burwell of Health & Human Services (HHS) announced that the 2015 White House Conference on Aging will be held on July 13th, 2015. The conference will bring together government officials, members of the public, caregivers, older Americans, business leaders, and community leaders to discuss a vision for aging in the next decade.  A number of disability-related issues are expected to be addressed during this conference, including aging caregivers, the growing need for family support, and reforms to the long term services and supports system.

If you are interested, please see the 2015 White House Conference on Aging video announcement, visit http://www.whitehouseconferenceonaging.gov.

ABLE Act – IRS Publishes Notices to States Providing Some Guidance to States

On March 10, the Internal Revenue Service (IRS) announced Notice 2015-18 to provide advance notification of a provision it expects to be included in the proposed regulations for section 529A of the Internal Revenue Code regarding ABLE Act accounts. The notice makes two important points:

  • First, the “Treasury Department and the IRS do not want the lack of guidance to discourage states from enacting their enabling legislation and creating their ABLE programs, which could delay the ability of the families of disabled individuals or others to begin to fund ABLE accounts for those disabled individuals. Therefore, the Treasury Department and the IRS are assuring states that enact legislation creating an ABLE program in accordance with section 529A, and those individuals establishing ABLE accounts in accordance with such legislation, that they will not fail to receive the benefits of section 529A merely because the legislation or the account documents do not fully comport with the guidance when it is issued. The Treasury Department and the IRS intend to provide transition relief with regard to necessary changes to ensure that the state programs and accounts meet the requirements in the guidance, including providing sufficient time after issuance of the guidance in order for changes to be implemented.”
  • Second, the Treasury Department and the IRS advise the states that the ABLE Act guidance, when issued, may differ in various ways from the current section 529 education programs. “In particular, the Treasury Department and the IRS currently anticipate that, consistent with section 529A(e)(3), the guidance will provide that the owner of an ABLE account is the designated beneficiary of the account. In addition, the Treasury Department and the IRS currently anticipate that the section 529A guidance will provide that, with regard to the ABLE account of a designated beneficiary who is not the person with signature authority over that account, the person with signature authority over the account of the designated beneficiary may neither have nor acquire any beneficial interest in the account and must administer that account for the benefit of the designated beneficiary of that account.”

These are both important clarifications for states moving forward with legislation. The IRS notice can be found at the IRS website.