A demonstrator in support of U.S. President Barack Obama’s health-care law, the Affordable Care Act (ACA), holds up a “Don’t Take My Care” sign after the U.S. Supreme Court ruled 6-3 to save Obamacare tax subsidies outside the Supreme Court in Washington, D.C., U.S. (Photographer: Andrew Harrer/Bloomberg)

Obamacare Repeal's Latest Obstacle Involves Native Americans

(Bloomberg) -- Democrats say House Republicans may have to vote again on their Obamacare repeal bill before sending it to the Senate, citing among other things an obscure provision that affects health care for Native Americans.

Republicans dismissed the problem as hypothetical, but taking another vote is the last thing the House GOP wants to do, after barely managing to pass the bill on May 4 with a razor-thin 217-213 margin after weeks of negotiations with dissidents in their own party. House Speaker Paul Ryan still hadn’t sent the bill to the Senate by Monday afternoon, as lawmakers await a ruling on whether the measure is eligible for a streamlined Senate procedure allowing the GOP to pass it with a simple majority.

The Senate parliamentarian’s decision on that question could come this week, possibly as soon as late Monday.

Republicans and Democrats met with the Senate parliamentarian earlier in the day. Members of both parties say the latest obstacle for the GOP involves a provision in the House bill that strikes Obamacare’s cost-sharing subsidies available to help low-income Americans afford their health policies, including a provision extending them to Native Americans, according to congressional aides. 

Democrats argue that the Native American cost-sharing eligibility issue falls under the jurisdiction of the Senate Indian Affairs Committee. If that’s so, the bill wouldn’t qualify for the streamlined procedure, which requires all policy changes to go through either the Senate Health or Finance committees, said Ed Lorenzen, a senior adviser to the independent Committee for a Responsible Federal Budget.

CBO Analysis

"If the parliamentarian rules that repeal of Section 1402 implicates Indian Affairs Committee jurisdiction it would be a fatal violation," Lorenzen said, referring to the section of law containing the cost-sharing. That would require House action "to correct the problem," he said.

And this time, a House vote would be taken after rank-and-file Republicans have seen an analysis of the bill by the Congressional Budget Office. The nonpartisan CBO reported May 25 that Republicans’ revised bill would undermine insurance markets in some states and result in 23 million more people without insurance.

If the parliamentarian finds a significant problem, House Republicans would have to decide how to fix the cost-sharing provision. A GOP leadership aide described the change as a simple technical correction that isn’t worrisome for backers of an Obamacare replacement. It could be passed by voice vote, some Republicans contend.

Democrats say not so fast -- they will insist on an actual floor vote.

GOP Campaign Promise

The skirmishing over rules is vital in determining whether Republicans can meet their campaign pledge of repealing and replacing the 2010 Affordable Care Act. Some Senate Republicans already are voicing doubt about whether the Senate can act this year.

A 13-member working group of Senate Republicans includes lawmakers with varying views, and they have yet to produce a proposal. At least four senators during last week’s Memorial Day recess voiced concern about whether the Senate can pass health-care legislation: Richard Burr of North Carolina, Ben Sasse of Nebraska, Jeff Flake of Arizona and Ron Johnson of Wisconsin.

Asked Monday if he worries that a major health care bill won’t be passed this year, Republican Senator Lindsey Graham of South Carolina said, "I don’t think there will be. I just don’t think we can put it together among ourselves."

Republican Senator Cory Gardner of Colorado said Monday that he expects the Senate to tackle health care before the August recess, noting that Senate leaders plan to update their Republican colleagues on their discussions in a lunch meeting Tuesday.

"It’s just going to be a continuation of many conversations we’ve had, so I don’t know if tomorrow’s going to be the day where anything is different from what we’ve seen," he told reporters. "But obviously we are building up to that hopeful August moment."

The language related to Native American health care is in addition to arguments by Senator Bernie Sanders of Vermont and others in the Democratic caucus that the House-passed bill, H.R. 1628, doesn’t meet requirements for cost savings.

Tie-Breaker Vote

Democrats are working to spoil the Republican strategy of passing their own health-care bill with as few as 50 votes -- plus a tie-breaker from Vice President Mike Pence -- and bypassing the usual 60-vote threshold. Democrats are asking the Senate parliamentarian to rule that the House bill contains flaws that prevent Senate Republicans from using the streamlined procedure to avoid a filibuster.

To use that procedure, the measure can’t add to the deficit and the Senate must match the House bill’s $119 billion in deficit reduction over 10 years. In addition, provisions overseen by the Senate Finance and the Senate Health committees must produce $1 billion in cost savings each.

Democrats contend the bill doesn’t meet the requirement of $1 billion in cost savings under the Senate Health committee’s jurisdiction. They say that’s because funds added to the House bill to stabilize state high-risk pools for the very sick push the costs too high to meet the target, according to several Democratic aides familiar with the arguments.