Legislative Actions in the 112th, 113th, and 114th Congresses to Repeal, Defund, or Delay the Affordable Care Act
Released: 2017-02-07T00:00:00

Introduction

Congress is deeply divided over implementation of the Affordable Care Act (ACA), the health reform law enacted in March 2010 during the 111 th Congress. Since the ACA's enactment, lawmakers opposed to specific provisions in the ACA or the entire law have repeatedly debated its implementation and considered bills to repeal, defund, delay, or otherwise amend the law.

This report summarizes legislative actions taken during the 112 th , 113 th , and 114 th Congresses to repeal, defund, delay, or otherwise amend the ACA. Much of this legislative activity took place in the House, which reverted to Republican control at the beginning of the 112 th Congress (2011-2012). The Republican-led House passed numerous ACA-related bills, including legislation that would have repealed the entire law.

There was less debate in the Senate, which remained under Democratic control during the 112 th and 113 th Congresses. Most of the House-passed ACA legislation was not considered in the Senate during that period. A few bills to amend specific elements of the ACA that attracted sufficiently broad and bipartisan support were approved by both the House and the Senate and signed into law.

With Republicans in control of both chambers in the 114 th Congress, opponents of the ACA sought new opportunities to pass and send to the President legislation that would change the law.

Republican leaders used a special legislative process known as budget reconciliation in an effort to repeal parts of the ACA. Pursuant to the Congressional Budget Act (Budget Act), budget reconciliation allows Congress to use expedited procedures when considering legislation that would bring existing spending, revenue, and debt limit laws into compliance with the fiscal priorities set out in the annual budget resolution. Using the reconciliation process to try and dismantle the ACA appeals to opponents of the law because reconciliation bills are not subject to filibuster and can be passed with a simple majority vote in the Senate.

On October 23, 2015, the House passed a reconciliation bill ( H.R. 3762 ) containing provisions submitted by three committees—Ways and Means, Energy and Commerce, and Education and Workforce—pursuant to reconciliation instructions included in the FY2016 budget resolution. This bill would have repealed several provisions of the ACA, among other things.

The House-passed bill was taken up by the Senate, which substituted its own more extensive set of ACA repeal provisions. These provisions were submitted by the Finance Committee and the Health, Education, Labor, and Pensions (HELP) Committee in accordance with the instructions in the budget resolution. The Senate approved H.R. 3762 , as amended, on December 3, 2015. The House approved the Senate-passed bill on January 6, 2016, and the measure was sent to President Obama. On January 8, 2016, the President vetoed H.R. 3762 . The House was unable to override the veto in a vote taken on February 2, 2016.

The information in this report is presented in three tables. Table 1 summarizes the ACA changes that were signed into law during the 112 th , 113 th , and 114 th Congresses. Table 2 lists all the other ACA bills passed by the House during that period. Table 3 summarizes the ACA provisions in the reconciliation bill that President Obama vetoed. While a detailed examination of the ACA itself is beyond the scope of this report, a brief overview of the ACA's core provisions and its impact on federal spending is provided as context for the material presented in the tables.

In addition to considering ACA repeal or amendment in authorizing legislation, lawmakers have used the annual appropriations process in an effort to eliminate funding for ACA implementation and address other concerns they have with the law. A companion report, CRS Report R44100, Use of the Annual Appropriations Process to Block Implementation of the Affordable Care Act (FY2011-FY2017) , summarizes the ACA-related language added to annual appropriations legislation by congressional appropriators since the ACA was signed into law.

A Brief Overview of the ACA

The ACA made significant changes to the way U.S. health care is financed, organized, and delivered. Its primary goal is to increase access to affordable health care for the medically uninsured and underinsured. To that end, the law included a complex set of interconnected provisions that address the private health insurance market.

First, the ACA requires health insurers to comply with a set of federal standards ("market reforms") to ensure that individuals may purchase, keep, and renew coverage that provides a minimum level of benefits and consumer protections, with some limits on costs. Second, the law establishes competitive private health insurance exchanges (also known as marketplaces) through which individuals and small employers are able to compare and enroll in qualified health plans.

Exchanges operate in every state and the District of Columbia. They are administered by states or by the federal government, or through a partnership between the state and federal governments. Qualified individuals who enroll in exchange plans may receive financial assistance if they meet income and certain other requirements. Refundable tax credits are available to individuals and families with incomes between 100% and 400% of the federal poverty level (FPL) to help pay the insurance premium. The premium tax credits are available upon enrollment so that eligible individuals and families can choose to receive the subsidy immediately rather than wait until they file taxes the following year. In addition, certain individuals and families receiving the tax credit may be eligible for cost-sharing subsidies to reduce their out-of-pocket costs (e.g., deductibles, co-payments) when receiving health services. Small employers with no more than 25 full-time equivalent employees (FTEs) may also use the exchanges to purchase insurance coverage for their employees and may qualify for a tax credit to help cover the cost of providing that coverage.

In June 2015, the U.S. Supreme Court in King v. Burwell ruled that the premium tax credits are available to all qualified individuals who enroll in exchange plans and meet the necessary income and other requirements, regardless of whether the exchange is administered by the state or the federal government.

Third, the ACA's "individual mandate" requires most U.S. citizens and legal residents to obtain coverage. Those who remain uninsured may have to pay a penalty unless they qualify for an exemption. The individual mandate is intended to encourage healthy individuals to participate in the insurance market and not wait until they get sick to buy coverage. Finally, the law's "employer mandate" requires employers with 50 or more FTEs to offer health coverage that meets affordability and adequacy standards for their full-time employees and those workers' dependents. Employers who do not comply with these requirements may be subject to a tax if one or more of their employees purchase coverage through an exchange and receive a subsidy. The purpose of the ACA's employer requirements is to encourage larger firms to maintain affordable and adequate coverage for their employees.

The ACA coupled its private insurance provisions with the requirement that states expand their Medicaid programs to cover all nonelderly individuals with incomes up to 138% FPL. Those with higher incomes, up to 400% FPL, may be eligible to get subsidized coverage through an exchange. In June 2012, the U.S. Supreme Court in NFIB v. Sebelius found the Medicaid expansion to be unconstitutionally coercive and prohibited the federal government from enforcing it. The Court's decision made Medicaid expansion optional for states.

In addition to expanding access to insurance coverage, the ACA contains hundreds of other provisions that address health care access, costs, and quality. They include new programs to test alternative ways of delivering and paying for health care. The law also includes new taxes and fees as well as adjustments to Medicare payments to hospitals and other health care providers. These provisions are designed to offset the federal spending on exchange subsidies and Medicaid expansion.

ACA's Impact on Federal Spending

Implementation of the ACA is affecting both mandatory and discretionary spending. Mandatory spending —also referred to as direct spending—is controlled through authorizing laws. It includes spending on entitlement programs such as Medicare and Social Security. Authorizing laws may provide permanent or temporary appropriations or other forms of budget authority for such spending. When the authorizing law contains no appropriations, mandatory programs may be funded through the annual appropriations process. This is sometimes referred to as "appropriated mandatory" or "appropriated entitlement" spending. Discretionary spending is both controlled and funded through the annual appropriations process. It typically covers the routine costs of running federal agencies and offices, including wages and salaries.

Federal spending on ACA implementation can be grouped into three categories: (1) mandatory spending on expanding insurance coverage, (2) mandatory spending on other programs, and (3) discretionary spending. Each of these categories is briefly discussed below.

Mandatory Spending on Expanding Insurance Coverage

This category accounts for most of the federal spending under the ACA. It includes the exchange subsidies (i.e., premium tax credits and cost-sharing subsidies), the federal government's share of the costs of Medicaid expansion, and tax credits for small employers. The Congressional Budget Office (CBO) and the Joint Committee on Taxation (JCT) projected that this and other ACA mandatory spending (discussed in the second category, below) would be more than offset by (1) revenues from the ACA's new taxes and fees, and (2) savings from the law's adjustments to Medicare provider payments that are projected to slow the rate of growth of Medicare spending.

Mandatory Spending on Other Programs

The ACA authorized new Medicare and Medicaid spending. For example, it phased out the Medicare prescription drug benefit "donut hole" through a combination of subsidies and manufacturer discounts, and it increased Medicare payments for primary care services and medical education. The ACA also included numerous appropriations that are providing billions of dollars of mandatory funding to support grant programs and other activities authorized by the law. For example, the law funded temporary insurance programs for targeted groups prior to the exchanges becoming operational, and it provided funding for grants to states to plan and establish health insurance exchanges. The ACA included a permanent appropriation, available for 10-year periods, for the Center for Medicare & Medicaid Innovation (CMMI), within the Centers for Medicare & Medicaid Services (CMS), to test and implement innovative health care payment and service delivery models.

In addition, the ACA created four special funds and appropriated amounts to each one. First, the Community Health Center Fund (CHCF) has provided almost $11 billion over five years (FY2011-FY2015) for the federal health centers program and the National Health Service Corps. Second, the Patient-Centered Outcomes Research Trust Fund (PCORTF) is supporting patient-centered comparative clinical effectiveness research through FY2019 with a mix of appropriations, fees on health plans, and transfers from the Medicare trust funds. Third, the Prevention and Public Health Fund (PPHF), for which the ACA provided a permanent annual appropriation, is supporting prevention, wellness, and other public health-related programs and activities. Finally, the Health Insurance Reform Implementation Fund (HIRIF), for which the ACA appropriated $1 billion, helped pay for the initial administrative costs of implementing the law.

Discretionary Spending

The ACA is affecting discretionary spending in two ways. First, the law created numerous new discretionary grant programs and provided each of them with an authorization of appropriations. To date, however, few of these programs have received discretionary funding through annual appropriations acts, though several of them have been supported with mandatory funds from the PPHF. Second, the two agencies primarily responsible for implementing the ACA's provisions to expand insurance coverage—CMS's Center for Consumer Information and Insurance Oversight (CCIIO) and the Internal Revenue Service (IRS)—are incurring significant costs in connection with administering and enforcing the law. Both agencies requested increases in funding in each of their past four budget submissions (i.e., FY2013-FY2016) to help pay for ACA implementation. But congressional appropriators have not provided either agency with any additional discretionary funds. CMS instead has relied on discretionary fund transfers from other accounts, amounts from the Nonrecurring Expenses Fund (NEF), and ACA mandatory funds (i.e., HIRIF, PPHF) to support its ACA implementation activities. CMS also has transferred HIRIF funds to the IRS.

ACA Provisions in Authorization Legislation

Enacted Laws

Table 1 summarizes the authorizing legislation to amend the ACA that has been enacted since the ACA became law in March 2010. Each table entry includes the public law number and date of enactment, the original bill number and sponsor, and a brief description and explanation of the change(s) made to the ACA. The laws are listed in reverse chronological order, beginning with the most recently enacted legislation and extending back to the first measure signed into law following enactment of the ACA and the accompanying package of amendments in the Health Care and Education Reconciliation Act (HCERA).

During the 111 th Congress, when the House was still under Democratic control, a number of clarifications and technical adjustments to the law were enacted. In the 112 th , 113 th , and 114 th Congresses, several more substantive ACA amendments that garnered bipartisan support were signed into law. For example, Congress repealed Title VIII of the ACA—the Community Living Assistance Services and Supports (CLASS) Act—which would have established a voluntary, long-term care insurance program to pay for community-based services and supports for individuals with functional limitations. Lawmakers also repealed a tax-filing provision (IRS Form 1099) that had been included in the ACA, and, in two separate legislative actions, they reduced the PPHF annual appropriations over the period FY2013-FY2024 by a total of $9.75 billion.

In compiling Table 1 , CRS made decisions about which laws—or specific provisions in a particular law—to include, and which ones to leave out. CRS elected to include only those provisions that made changes (including funding extensions or rescissions) to new programs and activities first authorized and funded by the ACA. CRS excluded provisions addressing established programs and activities that predate the ACA and were amended or extended by it. For example, the ACA extended multiple existing Medicare and Medicaid program payments and activities that have since been further extended and/or modified by provisions in more recently enacted laws. The ACA also extended funding for a number of existing grant programs whose funding has been further extended by provisions in newer laws. None of these types of provisions are included in Table 1 .

House-Passed Bills

Table 2 summarizes the ACA provisions in authorizing legislation that passed the House in the 112 th , 113 th , and 114 th Congresses (2011-2016) but saw little if any further legislative action. As noted in the table, some of these House-passed ACA bills were used by the Senate as vehicles for considering other, unrelated legislation.

The House-passed legislation included stand-alone bills as well as provisions in broader, often unrelated measures that would have (1) repealed the ACA in its entirety and, in some cases, replaced it with new law; (2) repealed, or by amendment restricted or otherwise limited, specific provisions in the ACA; (3) eliminated appropriations provided by the ACA and rescinded all unobligated funds; (4) replaced the mandatory appropriations for one or more ACA programs with authorizations of (discretionary) appropriations, and rescinded all unobligated funds; and (5) blocked or otherwise delayed implementation of specific ACA provisions.

Generally, Table 2 lists only legislation that, if enacted, would have had a direct impact on the ACA and its implementation; measures that would not have had such an effect are not included. Thus, budget resolutions, which are only binding on certain matters before Congress, are not included.

ACA Reconciliation Legislation

In addition to their efforts to repeal or otherwise amend the ACA through regular legislative procedures, Republican leaders used the reconciliation process to pass legislation that would eliminate several core provisions of the ACA. Table 3 summarizes the ACA provisions in H.R. 3762 , the Restoring Americans' Healthcare Freedom Reconciliation Act of 2015, which President Obama vetoed on January 8, 2016.

H.R. 3762 was reported by the House Budget Committee on October 16, 2015, and passed by the full House on October 23, 2015. The measure contained provisions submitted by three committees—Ways and Means, Energy and Commerce, and Education and Workforce—pursuant to reconciliation instructions included in the FY2016 budget resolution ( S.Con.Res. 11 ).

As passed by the House, H.R. 3762 would have repealed the individual and employer mandates, eliminated the medical device tax and the tax on high-value employer-sponsored health plans (i.e., "Cadillac tax"), and defunded the PPHF, among other things. CBO and JCT estimated that the bill would reduce the budget deficit over the period FY2016-FY2025 by about $129 billion. That amount reflects not just the bill's direct impact on federal spending and revenues but also its broader impact on the U.S. economy, the so-called macroeconomic feedback effects.

The Senate took up consideration of H.R. 3762 and substituted its own significantly broader set of ACA provisions. Those provisions were submitted by the Finance and HELP Committees, in accordance with the reconciliation instructions in S.Con.Res. 11 . As amended, H.R. 3762 passed the Senate on December 3, 2015.

The House approved the Senate-passed bill on January 6, 2016. The enrolled bill was sent to the President, who vetoed it on January 8, 2016. The House voted to override the veto on February 2, 2016, but did not muster the two-thirds vote required.

As summarized in Table 3 , the vetoed bill would have repealed the premium tax credits and cost-sharing subsidies, eliminated the penalties associated with the individual and employer mandates, terminated the requirements and enhanced federal funding for the Medicaid expansion, and repealed most of the ACA's taxes and fees, among other things.

CBO and JCT estimated that the loss of tax and other revenue under the bill would be more than offset by eliminating spending on subsidies and Medicaid expansion. They projected that the bill would reduce the budget deficit over the period FY2016-FY2025 by about $474 billion, including macroeconomic feedback effects.

The Senate's Byrd Rule

Reconciliation bills are considered by the full House and Senate under expedited procedures. In the Senate, a reconciliation bill can pass with only a simple majority—rather than the 60 votes that are often needed for controversial legislation—because reconciliation bills are not subject to filibuster. The Budget Act limits Senate debate on a reconciliation bill to 20 hours and requires any amendments offered to be germane to the bill.

However, the Budget Act includes language known as the Byrd rule, after the late Senator Robert Byrd, that allows Senators to block provisions of (or amendments to) a reconciliation bill that are determined to be "extraneous" to the bill's basic purpose of implementing budget changes. The Byrd rule includes several criteria for determining whether a provision is extraneous. For example, a provision is extraneous if

it does not produce a change in outlays or revenues, unless the provision establishes the terms and conditions of another provision that has a budgetary impact; it produces a change in outlays or revenues that is "merely incidental" to the provision's non-budgetary effects; or it increases the deficits in any year after the time period covered by the reconciliation instructions, unless other provisions recommended by the same committee fully offset those "out-year" costs.

Senators may raise a parliamentary objection (i.e., a point of order) against any provision that they believe to be extraneous. If the point of order is sustained by the parliamentarian, the extraneous material is deleted. Importantly, the Budget Act requires 60 votes to waive the Byrd rule or override the parliamentarian's ruling on a point of order under the Byrd rule.

After the House first approved H.R. 3762 and referred the measure to the Senate, the Senate parliamentarian ruled that the bill's provisions to repeal the individual and employer mandates were extraneous. Specifically, the parliamentarian determined that the budgetary impact of repealing the mandates, though significant, was "merely incidental" to the broader non-budgetary (i.e., policy) impact of making those changes in law.

The ruling meant that Senate Republicans would need 60 votes to protect the language if Democrats raised Byrd Rule points of order. Lacking such a supermajority in the Senate, the Republicans chose instead to modify the provisions so that they would not violate the Byrd Rule. The Senate version kept the mandates but eliminated the penalties for noncompliance.

H.R. 3762 also would have repealed most of the ACA's taxes and fees. Each provision that permanently repeals an ACA tax or fee is potentially vulnerable to a challenge under the Byrd rule because it reduces revenues (and, thus, increases the deficit) in the out years. However, as noted above, such provisions are not considered extraneous if the loss of revenue is offset by other provisions.

While CBO and JCT projected that the loss of revenue under H.R. 3762 would be more than offset by the spending reductions during the first 10 years (i.e., FY2016-FY2025), they concluded that the bill could start adding to the deficit over the longer term because the revenue losses would grow more rapidly beyond 2025 than the spending reductions, primarily as a result of repealing the Cadillac tax. According to CBO and JCT, the loss of revenue from repealing this tax on high-premium health insurance plans would grow at a significantly higher rate than other components of their estimate, as more and more plans became subject to the tax over time.

U.S. House of Representatives v. Burwell

On July 30, 2014, the House approved a simple resolution ( H.Res. 676 ) on a party-line vote that authorized Speaker John Boehner to sue the President or other executive branch officials for actions taken to implement the ACA that are inconsistent with their duties under the Constitution and laws of the United States.

On November 21, 2014, the House filed a lawsuit in the U.S. District Court for the District of Columbia, which contained two counts against the Administration. First, the lawsuit claimed that the President had exceeded his constitutional duty to faithfully execute federal laws by delaying implementation of the ACA's employer mandate. Second, the lawsuit asserted that the cost-sharing subsidies were in violation of the Constitution because Congress had not appropriated any funds for them.

The Administration challenged the lawsuit claiming that the House had no legal standing to sue, and asked for the lawsuit to be dismissed. On September 9, 2015, the judge agreed that the House did not have standing to pursue its claim regarding delay of the employer mandate. But the judge ruled that the House did have standing to pursue the second claim that the Administration was violating the Constitution by paying cost-sharing subsidies without an appropriation to cover those outlays. On May 12, 2016, the judge issued a merits decision, holding that Congress had not appropriated funds for the payment of cost-sharing subsidies.

That ruling has been stayed while the case is on appeal to the U.S. Court of Appeals for the D.C. Circuit.