Byrd Bath: Seven Provisions That Could Disappear From the Senate Health Bill

We still don’t know what bill Republican senators will take up next week when they turn to health care. There are three versions of the legislation that could be considered, each with slightly different provisions.

But the bill that the senators vote on, if they vote at all, is likely to be different from any of those. That’s because the draft bills have not yet undergone scrubbing and analysis by the Senate’s parliamentarian, an expert who scrutinizes legislation to make sure it complies with the rules. The parliamentarian, Elizabeth MacDonough, a lawyer who has long worked for the Senate, has the power to strip out key parts of the bill if they don’t pass legal muster.

Congressional leadership is trying to pass its health care overhaul through a special budget process called reconciliation, and there are limitations on what provisions can be added to such a bill.

Experts from both parties make arguments before the parliamentarian, in a process somewhat like a Supreme Court oral argument. And, in the end, the parliamentarian will issue her rulings on which things stand and which must be removed from the bill.

That process is known in the Senate as the Byrd Bath, named for Senator Robert Byrd of West Virginia, who was the chief sponsor of the Congressional Budget Act of 1974, the bill that established the standards. Important parts of that process are expected to take place on Friday.

The rules are complicated, but most come down to a key question: Does the change in the law affect the federal budget? Legislative changes with no budgetary impact are not allowed in reconciliation bills. Items that have a nominal budget impact, but are mostly there for policy reasons, are also supposed to be struck, though that’s a more subjective standard.

Ms. MacDonough is just one person, but as long as she continues to hold the office, her say goes. That makes predictions difficult.

But we convened a panel of experts and Byrd Bath veterans from both political parties to help provide some educated guesses about what might happen to questionable portions of the Senate health bills. According to our nine experts, at least some parts of the bill are likely to be eliminated before the voting begins.

Restrictions on abortion coverage

All versions of the health bill say that subsidies to help people pay their insurance premiums can’t be used to buy plans that cover abortion services. Seven of our nine panelists thought this provision would not survive.

“I worked with the drafters of the Byrd Rule,” said Bill Dauster, a retired Democratic Senate staff veteran who worked on the Budget and Finance Committees, as well as in the majority leader’s office. “The abortion issue was the parade example of something for which budgetary effects were merely incidental to the policy.”

A provision defunding Planned Parenthood

A G.O.P. bill would strip all federal health care funding for one year to health providers with a set of specifications that apply only to Planned Parenthood. The organization has been arguing that the provision should be eliminated in the Byrd Bath, but our panelists think it will probably stay. Only one thought it would be struck, while six thought it could stay, and two thought it could remain with minor changes.

A newly permissive state waiver process

A Senate bill would make it relatively easy for states to waive Obamacare rules for their insurance markets, including regulations on the benefits required of insurance products, and the funding formula used to determine how much customers receive in subsidies. A version of this provision was part of Obamacare, but a Senate bill would strip away many of the requirements for approval, making the only hard rule that a state program could not add to the federal deficit.

Our panel was divided on this one. A few members thought it would be eliminated. A few thought it would survive with changes, and a few thought it could stay.

Changes to rules governing insurance pricing by age

Both the House and Senate health bills said that insurance companies could charge their oldest customers five times as much as they charged their youngest ones, a change from the Obamacare rule that limited the ratio to 3:1.

Our panelists were split. The four experts who thought the provision would be dropped noted that it’s really just a regulation of insurance products, not the federal government. The four who said it should stay noted that insurance subsidies in the bill are linked to insurance prices, meaning that changes to sticker prices could affect the federal budget.

Funding for cost-sharing reductions

Congress and the White House are fighting in court about an Obamacare provision that awards subsidies to insurance companies so those companies can lower deductibles and co-payments for low-income customers. A direct appropriation would settle the dispute and calm insurance markets, and a Senate bill would provide one for two years.

But because the cost-sharing reductions are already part of current law, most of our panelists argued that directing the White House to spend them doesn’t have a direct budgetary effect. Nevertheless, many argued that they may remain anyway, since Democrats may choose not to raise a challenge. “Assuming it is challenged, it is struck,” said Rodney Whitlock, a former aide to Senator Chuck Grassley of Iowa and now a vice president of health policy at ML Strategies.

Elimination of the medical-loss ratio rule

Obamacare requires health insurance companies to spend a minimum percentage of their premiums on medical care for customers, limiting how much they can keep as profits or overhead. A Senate bill would eliminate this rule, letting states decide whether to regulate insurer profits.

Of the seven experts who answered this question, five thought it would not survive. Several described it with the phrase “merely incidental budgetary effects.”

The Cruz Amendment

One version of the Senate bill contains a controversial provision that would allow insurers to offer plans that are not subject to many of Obamacare’s consumer protections, as long as they also offer plans that follow all the rules. Senator Ted Cruz of Texas has indicated that he will require such a provision to vote for the package.

Only seven members of our panel answered this question, but all of them thought the provision could run into trouble. Five thought it would be eliminated, and two thought it could remain only with modifications.

Panel of experts:

• Sarah Binder: professor of political science, George Washington University

• Bill Dauster: retired, former deputy chief of staff for policy for the Senate majority leader Harry Reid.

• Sarah Kuehl Egge: senior manager, Washington Council Ernst & Young

• G. William Hoagland: senior vice president, Bipartisan Policy Center

• Chris Jacobs: senior health care policy analyst, Texas Public Policy Foundation

• Gregory Koger: professor, University of Miami

• Ed Lorenzen: senior adviser, Committee for a Responsible Federal Budget

• Rodney Whitlock: vice president of health policy, ML Strategies

• Billy Wynne: managing partner, Wynne Health Group