Health Insurance Rules Could Be Undone Through Budget: Ex-Trustee

By Jonathan Nicholson

Congressional Republicans have chafed under restrictions of a budget process known as reconciliation, which they plan to use to repeal parts of the Affordable Care Act, because the process limits what can be included in such a filibuster-proof bill.

But the kind of provisions that could be eligible may be wider than initially thought, according to a new analysis by a former Social Security and Medicare trustee.

Central to the debate is the applicability of the Byrd rule, named after former Sen. Robert Byrd (D-W.Va.). The Byrd rule was put in place to limit the scope of bills drawn up under reconciliation, because they need only 51 votes to pass the Senate—instead of the 60 needed to break a minority-party filibuster.

Among Byrd rule restrictions are prohibitions on provisions that have no impact on the budget—that is, that don’t change spending or revenue—and on provisions for which a change in spending or revenue “is merely incidental to the non-budgetary components of the provision.”

For Republicans, those two parts of the Byrd rule have meant that any reconciliation bill to repeal the Affordable Care Act would be only a partial rollback. But the GOP may be underestimating how many provisions could be included in a reconciliation bill, a Feb. 3 analysis by Charles Blahous, a senior fellow at the libertarian Mercatus Center and a former Social Security and Medicare public trustee, argued.

‘Ill-Serve the Public.’

“The purpose of the reconciliation process is to enable legislators to make informed budgeting decisions. If certain legislative actions are agreed to have substantial implications for the federal budget, especially in combination with other provisions moving through reconciliation, it would ill-serve the public to prevent lawmakers from acknowledging and considering them,” Blahous wrote.

Blahous’s argument cites footnotes in the Congressional Budget Office’s score of an early version of an ACA repeal bill (H.R. 3762) eventually vetoed by then-President Barack Obama in 2016. The bill was touted by Republicans as a practice run for repealing the ACA, once a Republican was in the White House, though it has not been revived since Donald Trump won the White House.

In two footnotes in a Dec. 8, 2015, score of the vetoed repeal bill, the CBO discussed the potential impacts of leaving in place ACA insurance regulations on guaranteed issuance, minimum plan benefits and insurance rating, saying that meant the bill’s projected savings would be smaller than a repeal of those regulations. The CBO also said it and the Joint Committee on Taxation agreed that leaving those regulations in place, while repealing the law’s subsidies and mandates, would probably mean an increase in the number of uninsured.

“As CBO describes them, these budget effects are non-incidental and likely substantial. CBO explains that the ACA’s insurance regulations directly affect the net cost of coverage for individual consumers (just as its subsidies and penalties do), and that their purchase decisions will be similarly affected thereby,” Blahous wrote.


That footnote language did not appear in the final score of the bill, which included a repeal of the monetary penalty for individuals not having insurance coverage though not of the individual mandate itself. Blahous wrote that the penalty repeal was scored by the CBO because it affected how many people would sign up for insurance, a rationale that should apply to the insurance regulations as well.

“It would be inconsistent to treat the penalty’s effects on enrollment as germane and determinative during budget reconciliation, while on the other hand treating the regulations’ effects on enrollment as incidental,” he wrote.

Those regulations—issuance, minimum benefits and ratings—have been seen as outside the bounds of reconciliation, in part because there were no specific estimates of their budget impact and because repeal of the individual mandate itself was not included in the vetoed repeal bill. Presumably, the exclusion of the outright mandate repeal was to avoid running afoul of the Senate parliamentarian’s interpretation of the Byrd rule.

‘Eye of Parliamentarian.’

Doug Holtz-Eakin, a former director of the nonpartisan CBO and president of the conservative American Action Forum, said the issue has less to do with whether there’s a specific cost or benefit to the insurance regulations than whether the Senate parliamentarian sees that impact as more than “incidental” in nature.

“It’s in the eye of the parliamentarian,” he said.

Given the parliamentarian apparently did not accept repeal of the mandate outright as being compliant with the Byrd rule, Holtz-Eakin said he doubted the other regulations would fare better. “If that doesn’t matter, I don’t know what does.”

“I don’t think it’s as simple as Charles is suggesting,” he said.

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To contact the editor responsible for this story: Paul Hendrie at

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