United States: "Zombie" ACA Repeal-and-Replace Effort Suddenly Resuscitated (Beltway Buzz, September 22, 2017)

Last Updated: September 27 2017
Article by James J. Plunkett

"Zombie" ACA Repeal-and-Replace Effort Suddenly Resuscitated. Opponents of Affordable Care Act (ACA) repeal-and-replace efforts no doubt forgot the vitally important "double tap" rule, and now the zombie legislative effort is back from the dead. The Graham-Cassidy bill, which we reported on in last week's Beltway Buzz has suddenly emerged as the front-runner in the ACA repeal-and-replace effort, while the bipartisan Lamar-Murray proposal has simultaneously been taken off the table under pressure from Senate leadership. This means that the only two possible outcomes at this point appear to be either wide-ranging repeal-and-replace or the status quo. This decision will be made at the Senate level between now and the end of this month, when the opportunity to pass legislation on a 51-vote basis permanently expires. As of this date, Senate Republicans are optimistic that they will be able to assemble the minimum 50 votes required to pass the bill—which has sounded an alarm among Democrats and ACA advocates, such as the American Medical Association and AARP. Senate Majority Leader Mitch McConnell (R-KY) plans to schedule the bill for a vote sometime next week. A coalition of GOP governors—some from red states that could be hurt by the new block grant schematic—have formally expressed their opposition. Senator Rand Paul (R-KY) has stated that his vote is a definite "no," whereas senators Murkowski (R-AK), Collins (R-ME), and McCain (R-AZ)—the trio who sank the "skinny repeal" bill in July—remain unknowns at this point. Given the built-up pressure to gut Obamacare once and for all, some believe victory for the Republicans may finally be within reach. Along with most of Washington, we will be watching intently for daily changes in the scenario. (Hat tip to Stephanie A. Smithey, Timothy G. Verrall, and Richard C. Libert.)

EEO-1 Fallout. Some policymakers and advocates in D.C. are still fuming that the Office of Management and Budget (OMB) put a halt to the wage and hour reporting components that the Equal Employment Opportunity Commission (EEOC) added to its EEO-1 form in 2016. More than 100 Democratic Senators and members of Congress sent a letter to OMB and EEOC asking the agencies to further justify the decision to stay the effectiveness of the new reporting requirements. Not to be outdone, the National Women's Law Center and the Lawyers Committee for Civil Rights Under the Law filed a Freedom of Information Act (FOIA) request for similar information. The FOIA request seems to imply that OMB's rescission is the result of a conspiracy of sorts, alleging that,

the OMB's decision to stay use of the Revised EEO-1 Form for pay data collection occurred in secret after receiving requests from corporate representatives[,] the Equal Employment Advisory Council ("EEAC"), the U.S. Chamber of Commerce ("Chamber"), and the Business Roundtable.

The Buzz is of the opinion that these letters are, for the most part, political in nature as there is little legally that can be done to thwart OMB's decision. First, the Paperwork Reduction Act (PRA) regulations clearly permit this action (5 CFR 1320.10(f) and (g)). Second, unlike the Administrative Procedure Act, the PRA does not provide a private cause of action.

NLRB Nomination News. The Senate has scheduled a vote for 5:30 p.m. on Monday, September 25, on the nomination of William Emanuel to be a member of the National Labor Relations Board. The Buzz has been reporting on this matter for months now, so loyal readers are no doubt aware that Emanuel's (likely) confirmation will finally tip the NLRB scales to a 3–to–2 Republican majority. Additionally, President Trump has nominated management attorney Peter Robb of Vermont to be NLRB General Counsel upon the expiration of current General Counsel Richard Griffin's term on October 31. It would probably be hyperbolic to describe the NLRB from roughly 2009 to the present as the "Reign of Terror," but suffice it to say that the Buzz is hopeful that a newly formed Board will return some much needed balance to federal labor law.

OFCCP Reform White Paper. Earlier this week, the U.S. Chamber of Commerce delivered to Secretary of Labor Alex Acosta a report entitled, Office of Federal Contract Compliance Programs: Right Mission, Wrong Tactics—Recommendations for Reform. By now, astute readers have undoubtedly surmised that the report chronicles OFCCP's shortcomings and offers recommendations to get the agency back on track. The report doesn't pull many punches, stating,

Chamber members tell us that OFCCP routinely leaves contractors in the dark regarding potential areas of concern; regularly demands reams of personnel activity and salary data (along with various other documents) without explaining a basis for its requests; consistently imposes wholly unrealistic deadlines; and —perhaps most regrettably—often attempts to intimidate contractors with threats to issue a show cause notice, seek debarment, or publish negative press accounts.

While the entire report is well worth a read, folks who might be too busy responding to OFCCP document demands can skip ahead to the recommendations for reform, which begin on page 40. Hopefully, this document will be at the top of the reading list for whomever is nominated to be OFCCP director.

H-1B Premium Processing. Caroline Tang has all the details on the U.S. Citizenship and Immigration Services resumption of premium processing for all H-1B visa petitions subject to the fiscal year (FY) 2018 cap.

OSHA Silica Compliance. The Occupational Safety and Health Administration's (OSHA) enforcement of its crystalline silica standard for the construction industry begins tomorrow, September 23 (though OSHA also recently issued a memo detailing a 30-day grace period of sorts, for employers acting in good faith that are nonetheless unable to comply with the new standard). In 2016, OSHA finalized a rule that lowered the permissible exposure limit for silica in the workplace, but in April, OSHA announced that it would delay the enforcement date for compliance by the construction industry from June 23, 2017, to September 23, 2017. For the most part, compliance for general industry and maritime is scheduled to begin on June 23, 2018.

"History is happening in [Washington, D.C.] and we just happen to be in the greatest city in the world." No doubt crossing one item off his list of a million things he hasn't done, last week the ubiquitous Lin-Manuel Miranda—who is an "O" short of the coveted PEGOT—had an opportunity to be in the room where it happens. More specifically, Miranda was in town to receive the U.S. Capitol Historical Society's 2017 Freedom Award. But because the man is non-stop, Miranda also took time to lobby lawmakers to provide the National Endowment for the Arts and the National Endowment for the Humanities a "financial diuretic" of $150 million in funding. Celebrities really are just like us: they lobby, too! Check out the "Murray Has a Little Lamb" performer belting out some show tunes on the normally quiet "Congress train."

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