“At first blush, it would sure seem that these are policy changes,” Binder told me this morning. “If these changes are primarily regulatory, they would likely be tripped up by the Byrd Rule.”
This scenario arose with the last bill. Recall that Republicans weakened the ACA’s Essential Health Benefits package in the last GOP bill to win over conservatives, but it didn’t prove enough. That, too, would have triggered a Byrd Rule challenge, and at the time top #Senate Republicans even warned that it was unlikely to succeed. (White House officials had also been warning as much, but abruptly switched gears in a last-minute effort to win conservatives.)
But the new version appears to add an additional deregulatory component. It doesn’t just provide a waiver for Essential Health Benefits; it also provides one for allowing insurers a freer hand to jack up prices for the sick. “This doesn’t solve the challenge of getting it through the Senate,” Binder said. “One reason it would likely not pass the Senate would be the procedural trap set by the Byrd Rule.”
The crucial point here is that this poses a short-term political obstacle, not just a long-term procedural one. Here’s why: House moderates — who balked at the last bill because it took coverage from millions — may be less likely to support this new proposal, for both substantive and procedural reasons. As Margot Sanger-Katz explains, the option to allow insurers to charge more could also wreak havoc on another key element of the ACA: the prohibition on discrimination against people with preexisting conditions.
Technically, the deal would still prevent insurers from denying coverage to people with a history of illness. But without community rating, health plans would be free to charge those patients as much as they wanted … the hypothetical cancer patient might be able to buy only a plan, without chemotherapy coverage, that costs many times more than a similar plan costs a healthy customer. Only cancer patients with extraordinary financial resources and little interest in the fine print would sign up. There is a reason that many conservatives want to do away with these provisions. Because they help people with substantial health care needs buy relatively affordable coverage, they drive up the price of insurance for people who are healthy. An insurance market that did not include cancer care — or even any cancer patients — would be one where premiums for the remaining customers were much lower. The result might be a market that is much more affordable for people with a clean bill of health. But it would become largely inaccessible to anyone who really needs help paying for medical care.