On April 26, 2017, the House Rules Committee posted yet another proposed amendment to the American Health Care Act. This amendment would remove the provision in the MacArthur amendment, released on April 25, which would have exempted coverage for members of Congress and their staff from the effects of state waivers of the age rating, essential health benefits, and community rating protections of the Affordable Care Act.
Health Affairs Blog was the first to notice this exemption, which was widely publicized by Sarah Kliff at Vox. A first explanation offered for the language was that the District of Columbia, whose SHOP exchange is the exclusive source of coverage for members of Congress and their personal staff who want federal assistance with purchasing health coverage, is not a state. But the Affordable Care Act; the Public Health Services Act, which it amended; and the American Health Care Act itself, all define the District as a state. A more plausible reason for the exemption has to do with a technical issue under the Byrd Rule that applies to budget reconciliation legislation in the Senate: a provision can be objected to under the Byrd Rule if it is not within the jurisdiction of the Senate committees specified in the Budget Reconciliation Resolution, which might have been true for a provision affecting Congressional benefits.
In any event, news of the provision spread quickly. By the end of the day, Democrats were running digital ads in nine states claiming that the congressional exemption demonstrated that the congressional Republicans did not like their own bill enough to have it apply to them. The amendment’s sponsors then decided to remove the exemption. Removing the exemption may make it harder to get the bill through the Senate, but the original waiver amendment would seem to face formidable Byrd Rule objections in any event, since it has nothing to do with the revenues or outlays of the federal government.
The entire AHCA, with all amendments, is now listed as an “Item that may be considered pursuant to a rule” in the House. It could be considered on April 28, but is more likely to be considered during the first week in May.
Baptist Universities Request Judgment Against Accommodation For Religious Objections To Contraceptive Coverage; Trump Administration Seeks Continued Delay
In May of 2016 the Supreme Court entered orders in Zubik v. Burwell remanding to the appellate courts ten appellate cases: nine in which decisions had upheld the accommodation that the Obama administration had offered religious organizations that opposed offering contraceptive services to their employees or students for religious reasons, and one where a court had struck down the accommodation . The accommodation allowed religious organizations to refuse to cover some or all contraceptives as long as they informed either their insurer or third party administrator or the Department of Health and Human Services of their objection; arrangements could then be made to cover the employees or students through the insurer or third party administrator without the involvement of the objecting organization. The organizations argued this did not go far enough to protect their rights.
The Supreme Court asked the appellate courts to afford the parties:
an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans “receive full and equal health coverage, including contraceptive coverage.”
Since that time, the cases have been on hold. In January, just as it was leaving office, the Obama administration stated that it was not possible to reach a compromise that would be acceptable to the religious organizations and that would also protect access for employees and students to contraceptives. The Trump administration has not yet weighed in on this question.
On April 20, 2017, two of the plaintiffs in one of the cases, East Texas Baptist University and Houston Baptist University, asked the Fifth Circuit to end its stay and to remand the case to the district court to enter a judgment for the plaintiffs and against the government. The plaintiffs’ motion relied in part on President Trump’s Affordable Care Act executive order, on an earlier amicus brief filed in their support by now-HHS Secretary, then congressman Tom Price; and on public statements by President Trump.
In response, the federal government asked that the case be held in abeyance until June 23, 2017 to allow time for the three Departments involved—Labor, Treasury, and HHS—to analyze the issues in the cases and reach a common position. The government noted that in any event under the Supreme Court’s order the plaintiffs were not subject to taxes or penalties for noncompliance while the case was pending.
Other plaintiffs in the case were willing to go along with the government’s request for a further stay, but the Baptist University plaintiffs said the litigation had gone on long enough and demanded that it be resolved. Apparently the Tenth Circuit had denied a similar request in another case and allowed the government a continued stay as requested. The Fifth Circuit may follow suit, but the Trump administration will probably soon have to decide its position in these cases.
from Health Affairs BlogHealth Affairs Blog http://ift.tt/2pqWx1N
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