The Better Care Reconciliation Act – An Irreconcilable Solution

by WBE | 7.18.2017 | In The News, You Should Know

On June 22, 2017, Senate Republicans introduced a draft version of their Affordable Care Act (“ACA”) repeal bill – the Better Care Reconciliation Act of 2017 (“BCRA”). While the bill failed to obtain the necessary votes to pass on July 17, 2017,^[1] the BCRA still warrants scrutiny to thoroughly understand how Senate Republicans attempted to reform health care and how they may broach the subject in the future.

The BCRA was neither “better,” nor did it “reconcile” many of the very serious concerns surrounding ACA repeal. The BCRA differed somewhat from the American Health Care Act (“AHCA”), which the House proposed in May 2017 (and on which I reported in my last blog). But the Senate bill would have maintained a number of AHCA provisions, including:

Repealing the individual and employer mandate
Retaining the guaranteed issue requirement
Allowing young adults to stay on their parents’ coverage until age 26
Establishing a State Stability and Innovation Program (which is a variation of the Patient and State Stability Fund proposed in the AHCA)
Prohibiting federal funding of Planned Parenthood for a year
Allowing states to apply for waivers under which they could eliminate or change the “essential health benefits” (“EHBs”) requirement (which covers conditions such as maternity care, inpatient/outpatient care, coverage for prescriptions, and mental health care) for both small group and individual insurance coverage.^[2]

In a number of ways, the Senate bill annihilated the ACA even more so than the AHCA did. Not present in the House bill was a BCRA provision that would have penalized those who did not have continuous coverage for the previous twelve months by requiring them to wait six months before purchasing individual (i.e., non-group) health coverage.^[3] Additionally, while the BCRA would have extended eligibility for premium tax credits to those with income under 100 percent of the federal poverty level, it would have eliminated eligibility for anyone with income above 350 percent of the federal poverty level.^[4] The BCRA’s State Stability and Innovation Program would have provided less funding for health care over the course of nine years than the AHCA’s Patient and State Stability Fund (i.e., $112 billion compared to $115 billion under the AHCA).^[5] Fifty-billion dollars would have been used for reinsurance from 2018 to 2021, while $62 billion would have been reserved for state reinsurance programs, high-risk pools, cost-sharing subsidies, and provider payments from 2019 to 2026.^[6]

The heaviest burden of the Senate legislation would have fallen on those who depend on the Medicaid program, especially women. The ACA required the federal government to cover 90 percent of the costs of expansion as an incentive for states to increase Medicaid eligibility. Under the BCRA, the 90 percent requirement would have been phased out and allowed for only traditional state matching by 2024.^[7] The lack of federal dollars towards Medicaid would have forced states into a financial strain and provided them with no choice but to make cuts to their Medicaid programs.^[8] If states had been unable to sustain their Medicaid programs, up to 15 million enrollees in the Medicaid program may have lost coverage.^[9] The BCRA also would have specifically impacted women on Medicaid who seek routine health care from Planned Parenthood, preventing them from “accessing preventive care at Planned Parenthood health centers– including birth control, cancer screenings, and STI testing and treatment.”^[10]

The Congressional Budget Office (“CBO”) and Joint Committee on Taxation (“JCT”) scored the likely effects of the BCRA on June 26, 2017. The CBO estimated that the BCRA would reduce the federal deficit by $321 billion, which is $202 billion more than reduction under the AHCA.^[11] But the number of uninsured people would increase by 22 million in 2026 to 49 million when compared to the law as it presently stands.^[12] In states that obtain waivers and change or remove EHBs from coverage, out-of-pocket spending for services no longer considered EHBs may increase. According to the CBO/JCT, “[p]eople who used services or benefits no longer included in the EHBs would experience substantial increases in supplemental premiums or out-of-pocket spending on health care, or would choose to forgo the services.”^[13]

On July 13, 2017, the Senate unveiled a revised version^[14] of the BCRA. This version would have maintained the taxes placed on higher income individuals under the ACA, increased federal funding to states by $70 billion to help cover low-income individuals, and allocated $45 billion to combat opioid addiction.^[15] While funding to states would have increased, insurers would have been permitted to offer skimpy plans with fewer benefits and less coverage, meaning that healthy people could have purchased more basic plans while sicker and older people and those with pre-existing conditions would have been forced to purchase more comprehensive, higher-priced plans.^[16] The July 13 version still would have allowed insurers to exclude EHBs as long as insurers offered a plan on the exchange that included such benefits. This update would have solved nothing, as those with pre-existing conditions and those that are sicker or older still would have paid more for health insurance. And states could have still sought waivers to change or remove coverage for EHBs, meaning insurers could have imposed annual and lifetime limits.

A number of organizations voiced grave concerns about the BCRA and the July 13 revisions to the bill. Planned Parenthood president, Cecile Richards, stated that the BCRA is “the worst bill for women in a generation, especially for low-income women and women of color. Slashing Medicaid, cutting maternity coverage, and blocking millions from getting preventive care at Planned Parenthood would result in more undetected cancers and more unintended pregnancies.”^[17] American Medical Association (“AMA”) president, David O. Barbe, MD, MHA, echoed similar concerns, stating that “‘the revised bill does not address the key concerns of physicians and patients regarding proposed Medicaid cuts and inadequate subsidies that will result in millions of Americans losing health insurance coverage.’”^[18] Barbe aptly added that while funding for opioid addiction “‘is a positive step,’” those with substance-use disorders “‘have other health care needs that are not likely to be addressed if they lose coverage through a rollback of the Medicaid expansion.’”^[19] American Hospital Association president, Rick Pollack, emphasized that the “unacceptable flaws” of the BCRA have not changed with the July 13 update, as those with “chronic conditions such as cancer, individuals with disabilities who need long-term services and support, and the elderly” all remain at risk under the revised bill.^[20] And Haywood Brown, MD, president of the American Congress of Obstetricians and Gynecologists (“ACOG”) emphasized that the July 13 revisions to the BCRA made no headway:

Its original version deliberately stripped landmark women’s health gains made by the Affordable Care Act, turning back the clock on women’s health. This new version threatens to leave patients with preexisting conditions without care. Senators drafting these proposals still aren’t listening to America’s doctors. Yesterday, ACOG joined leaders representing 560,000 frontline physicians on Capitol Hill with one unified message to Senators: the BCRA is dangerous for patients and must be rejected.^[21]

It seems that, yet again, those who supported the bill turned a blind eye to those who understand the health care system best.

Ultimately, it is unfathomable to me how legislation that clearly promotes sickness, disparity, and potentially death due to inaccessibility of care, can be considered “American” or “better” or a “reconciliation.” From all angles, the BCRA would have disrupted the lives of the most vulnerable – Medicaid recipients, those with pre-existing conditions, the elderly, and even those who are healthy, but may one day find themselves diagnosed with diabetes or a brain tumor. Current suggestions to the failed health care bill include simply repealing the ACA and crafting a timeline of several years to replace it (although this idea seems to have failed already)^[22] or making state health insurance exchanges more robust.^[23] But if future repeal efforts look anything like the BCRA did, Congressional Republicans would need to change the name of their future bill or come up with a plan that actually promotes the health and well-being of Americans.

[1] Better Care Reconciliation Act of 2017, H.R. 1628, 115^th Cong. (2017); See https://www.nytimes.com/2017/07/17/us/politics/health-care-overhaul-collapses-as-two-republican-senators-defect.html.

[2] Better Care Reconciliation Act of 2017, H.R. 1628, 115^th Cong. (2017); http://files.kff.org/attachment/Summary-of-the-Better-Care-Reconciliation-Act; http://www.kff.org/interactive/proposals-to-replace-the-affordable-care-act/.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] https://www.nytimes.com/2017/06/22/us/politics/senate-health-care-bill.html; http://www.kff.org/interactive/proposals-to-replace-the-affordable-care-act/.

[8] https://www.washingtonpost.com/news/wonk/wp/2017/06/27/it-would-be-nearly-impossible-for-states-to-keep-medicaid-expansion-under-senate-bill/?utm_term=.d249f52a9718.

[9] https://www.washingtonpost.com/powerpost/mcconnell-to-release-new-gop-health-plan-allowing-bare-bones-insurance-policies/2017/07/13/8f0509c4-67bb-11e7-8eb5-cbccc2e7bfbf_story.html?utm_term=.9e32ef06abbf.

[10] https://www.plannedparenthood.org/about-us/newsroom/press-releases/planned-parenthood-blasts-trumpcare-2-0.

[11] https://www.cbo.gov/publication/52849.

[12] Id.

[13] Id.