Senate Majority Leader Mitch McConnell, R-Ky, is pushing a last-minute effort to repeal and replace the Affordable Care Act (ACA) by forcing a vote this week on a bill (H.R. 1628) from Sens. Lindsey Graham, R-S.C., and Bill Cassidy, R-La.

The bill represents a radical departure from the earlier failed attempts at repealing ACA, leaving many of the ACA taxes in place. The bill would repeal only a handful of ACA taxes, including:

  • Excise tax "mandates" on individuals and businesses
  • Premium assistance credits
  • Small business tax credit
  • Medical device excise tax
  • The ban on reimbursements for over-the-counter medication from Health Savings Accounts (HSAs), Flexible Spending Arrangements (FSAs) and Medical Savings Accounts (MSAs)
  • Increased penalties on impermissible HSA and MSA disbursements
  • Limits on employer deductions related to the Medicare Part D subsidy

Many taxes previously unpopular with Republicans would be retained, including some of the biggest revenue raisers, such as:

  • 3.8% Medicare tax on net investment income
  • 0.9% Medicare surtax on earned income
  • Annual fees on health insurers and drug producers

The bill would dedicate most of the ACA spending to states and allow them to administer the funds. It would also allow states to opt out of popular ACA coverage requirements, such as the bans on denying coverage for pre-existing conditions and lifetime caps.

The outlook on this legislation is unclear. Health care reform had appeared all but dead in recent weeks until H.R.1628 gained unexpected momentum. This may be the last opportunity this Congress for Republicans to repeal ACA. The budget reconciliation instructions that allow them to pass a health care bill to pass the Senate with just 50 votes expire when the new federal fiscal year begins on Oct. 1. Republicans could create new reconciliation instructions for health care in their next budget, but have already committed to using the next budget for tax reform. Committees generally cannot receive two sets of reconciliation instructions in the same budget.

With a 52-seat Senate majority, Republicans can lose only two members without Democratic votes. Sen. Rand Paul, R-Ky., has already signaled his opposition. The three Republicans who sunk the last Republican health care bill in the Senate, Sens. Lisa Murkowski, R-Alaska, Susan Collins, R-Maine, and John McCain, R-Ariz., have criticized the bill but not have not announced any final decisions. Procedural rules could also be a hurdle.

Even if it passes the Senate, it would still have to go through the House. House Republicans would have little time or opportunity to change the bill and could be faced to either accept or reject the bill altogether. House Speaker Paul Ryan, R-Wis., is not tipping his hand at this point. Rand Paul objected to retaining many of the tax and spending increases from ACA, but taking the funding out of the hands of the federal government and handing it over to sates may appeal to many House Republicans.

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