News & Insights


July 10, 2017

Health Headlines – July 10, 2017

Outlook and Timing for Affordable Care Act Repeal and Replace Uncertain as Senate Returns from July Fourth Recess

The Senate returns today from its July Fourth recess and will be in session for the next three weeks. Over the recess, the number of senators stating that they could not support the current draft of the Better Care Reconciliation Act of 2017 (BCRA)  has increased. A revised BCRA may be released by the end of this week. With a 52-48 Republican majority, Senate Majority Leader Mitch McConnell (R-KY) can only lose the support of two Republican Senators and still have the 50 votes necessary for BCRA to pass, with Vice President Pence casting the tie-breaking vote.

This week, the Congressional Budget Office (CBO) is scheduled to release its analysis of various BCRA revisions, including a version which incorporates an amendment proposed by Senators Ted Cruz (R-TX) and Mike Lee (R-UT), referred to as the Consumer Freedom Act. This amendment would allow health insurers to sell two kinds of plans – ones that do comply with ACA rules regarding preexisting conditions and essential health benefits, along with ones that do not. Cruz and Lee have also floated amendments that would increase use of health savings accounts and allow account holders to use HSA funds to pay insurance premiums. Representative Mark Meadows (R-NC), chairman of the conservative House Freedom Caucus, has indicated a Senate bill with a Cruz amendment would be an improvement over the current BCRA bill and would garner the support of conservatives in the House.

Some other changes reportedly under discussion include eliminating the bill’s repeal of the net investment income tax on high-income taxpayers, revising cuts to the Medicaid program, and adding Federal funding to stabilize premiums in the individual insurance market. Senate Republicans had previously agreed to add $45 billion to address the opioid crisis, to address concerns from a number of senators, particularly those from Medicaid expansion States.

In comments last week, Senator Marco Rubio (R-FL) noted that he does not expect action on BCRA until the week of July 17, at the earliest. This would allow sufficient time for the CBO to release its “score” of various proposals as well as for the Senate Parliamentarian to rule on various policy amendments that may be added to the BCRA bill under the budget reconciliation process. President Trump has suggested that the Senate first repeal the ACA, followed by the development of a replacement health care plan, if senators cannot agree on a replacement soon. Some senators have urged that the Senate work through August to develop a replacement health care plan. Last week, Senator McConnell has indicated that if the ACA repeal fails, Congress would need to work in a bipartisan manner to stabilize health insurance markets.

Reporter, Allison Kassir, Washington, D.C., +1 202 626 5600,


K&S Webinar: Personal Jurisdiction Following BMS v. Superior Court of CaliforniaOn July 20, 2017, at 1:00 ET, Fritz Zimmer, Jeff Bucholtz, and Merritt McAlister will present a webinar discussing the Supreme Court’s recent decision in Bristol-Myers Squibb Co. v. Superior Court of Cal., the Court’s most significant personal jurisdiction decision since its 2014 ruling in Daimler AG v. Bauman, and one that could change the legal landscape for mass torts. The webinar will also discuss the Court’s other recent decisions on general personal jurisdiction, the potential impact of BMS on approaches to personal jurisdiction in other jurisdictions, and questions that courts and parties will have to grapple with following BMS. Registration is available here.