United States: Issue 110: Senate Efforts At Health Care Reform

This is the one hundred and tenth issue in our series of alerts for employers on selected topics on health care reform. (Click here to access our general Summary of Health Care Reform and other issues in this series.) This series of Health Care Reform Management Alerts is designed to provide an in-depth analysis of certain aspects of health care reform and how it will impact your employer-sponsored plans.

Seyfarth Synopsis: The epicenter of the health care repeal and replace effort has moved from the House of Representatives to the Senate. After several weeks of drafting behind closed doors, the Senate introduced the Better Care Reconciliation Act (BCRA) a few weeks ago, which faced immediate and heavy criticism. Seeing that he did not have enough votes to move the BCRA forward, Senator Mitch McConnell pulled the bill back to consider certain amendments to appease objections from various law makers. That effort has resulted in BCRA 2.0 released on Thursday, July 13th.

In early May, the House passed the baton to the Senate on the Republicans' repeal and replace efforts. The Senate was almost uniformly disdainful of the House efforts that produced the American Health Care Act ("AHCA"). Even President Trump labelled it a "mean" bill. A small group in the Senate quickly went to work conducting their legislative efforts in secrecy (from fellow Republicans as well as Democrats) and many were holding out hope that the Senate would scrap the AHCA and create meaningful reform. However, the iterations of the Senate health care reform bill eventually released (the latest version of their Better Care Reconciliation Act, or "BCRA", just this week) continue a similar approach as the House bill. The deep cuts to Medicaid remain and the Congressional Budget Office (CBO) score of the (first version of the) BCRA predicts 22 million fewer Americans will have coverage in ten years (as compared to the ACA) -- just slightly better than the 23 million under the AHCA.

Almost immediately Republican Senators were publicly stating their opposition to the BCRA. A few were concerned with the loss of Medicaid coverage that would impact their states, others concerned that the opioid epidemic was not addressed, and still others felt the roll back of the ACA provisions did not go far enough. BCRA 2.0 was released on Thursday, July 13th, to try to meet some of those objections and retain the 50 Republican votes needed to pass.

What Changed from BCRA 1.0 to BCRA 2.0?

Notable changes to the originally-drafted BCRA include:

  • Cruz Amendment. Most notably, BCRA 2.0 includes a controversial amendment drafted by Senator Ted Cruz that creates a two-track structure -- one for policies offered on the Exchanges and another for insured policies not on an Exchange. Insurers will be allowed to issue policies that do not cover all essential health benefits and that take into account a person's health status, claims history, and disability condition (that is, take into account pre-existing conditions) as long as they also maintain compliant plans on the Exchanges. As a result, individuals with pre-existing conditions may not have affordable access to coverage except perhaps through the Exchanges. This change could certainly impact the individual market but it also has the potential to impact the group market (e.g., for employers fully-insuring health insurance coverage). BCRA 2.0 attempts to handle this concern by allocating funds to the Exchanges for high-risk claims -- a risk pool approach. What remains unclear is whether this proposal creates two risk pools or a single risk pool (covering both compliant and non-compliant plans). A last minute revision appears to have modified the Cruz amendment to lump both populations into the same risk pool. This change has led to some confusion among insurance carriers and even Senator Mike Lee (who was an ardent supporter of this amendment as originally proposed) as to how this might work.
  • Retention of ACA's Taxes on High Earners. BCRA 2.0 also keeps some of the taxes in place that supported the ACA structure. The 3.8% tax on investment income and the 0.9% Medicare tax on high wage earners will remain in place, as will the deduction limit on salaries for insurance company executives.
  • Opioid Funding. BCRA 2.0 increases the funding pool for addressing the opioid epidemic from $2 billion to $45 billion.
  • Use of HSAs for Premiums. BCRA 2.0 would permit persons to use health savings account balances to pay health insurance premiums.

What's Not Changing from BCRA 1.0?

Notably, in what could be a potential sticking point for moderate Republicans, the funding cuts to Medicaid and per capita cap system stay in place under BCRA 2.0. However, in the event of a public health emergency, state spending on related costs would not count towards the caps. It's unclear whether this tweak would be enough to win over moderate holdouts.

What Happens Next?

The CBO score on BCRA 2.0 has not come out yet. Some in the Senate are suggesting that the Department of Health and Human Services (HHS) should score the bill (or, at the very least, the Cruz Amendment) instead of the non-partisan CBO as it will be a faster process. That suggestion has met with pushback.

If enough Republicans are swayed by the changes in BCRA 2.0 to get 50 votes, the Senate will likely vote next week (or before their August recess). If the 50 votes are not there, Senator Mitch McConnell may be forced to work with Democrats to get a meaningful reform effort off the ground.

As of today, two Senate Republicans (conservative Rand Paul and moderate Susan Collins) have indicated they would not vote to move the bill to the floor for debate. This procedural vote will be crucial, because once the measure moves to the floor, Senator McConnell has more flexibility to cut deals with individual Senators to pick off opposition.

An updated (and necessarily simplified) chart comparing the ACA against the AHCA and BCRA can be found in the document linked below.

Files And Links Issue 110: Senate Efforts at Health Care Reform

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions