The House Will Likely Need To Vote On Reconciliation Package Again; Time “Fix It Later” Is Now

On Sunday, the House passed the Senate health care bill and a reconciliation package that contains a number of so-called fixes. That reconciliation package is being taken up today in the Senate. Because of the strange nature of the Byrd rule, which requires every part of the reconciliation package to affect the budget, it is highly unlikely the Senate will be able to pass the exact same reconciliation bill that the House passed. Since both chambers must pass the same bill word-for-word, that means the House will, in all likelihood, need to vote on the reconciliation package one more time before it can become law.

The rules of reconciliation are a bit complicated. During the reconciliation debate, any senator can raise a Byrd rule point of order claiming some part of the bill violates the Byrd rule. The parliamentarian advices the chair if the point of order is validate. If the chair decide to take the advice of the parliamentarian and uphold the point of order that part of the bill is removed, unless 60 senators vote to waive the Byrd rule for that provision. All 41 Senate Republicans have pledged to prevent waiving the Byrd rule for any provision of the bill.

Given these restrains, it is almost assured that some part of the reconciliation package will violate the Byrd rule. From my reading of the bill section 2301 Insurance Reforms (PDF) seem the most glaring of provisions that might violate the rule.

SEC. 2301. INSURANCE REFORMS.

(a) Extending Certain Insurance Reforms to Grandfathered Plans- Section 1251(a) of the Patient Protection and Affordable Care Act, as added by section 10103(d) of such Act, is amended by adding at the end the following:

`(4) APPLICATION OF CERTAIN PROVISIONS-

`(A) IN GENERAL- The following provisions of the Public Health Service Act (as added by this title) shall apply to grandfathered health plans for plan years beginning with the first plan year to which such provisions would otherwise apply:

`(i) Section 2708 (relating to excessive waiting periods).

`(ii) Those provisions of section 2711 relating to lifetime limits.

`(iii) Section 2712 (relating to rescissions).

`(iv) Section 2714 (relating to extension of dependent coverage).

`(B) PROVISIONS APPLICABLE ONLY TO GROUP HEALTH PLANS-

`(i) PROVISIONS DESCRIBED- Those provisions of section 2711 relating to annual limits and the provisions of section 2704 (relating to pre-existing condition exclusions) of the Public Health Service Act (as added by this subtitle) shall apply to grandfathered health plans that are group health plans for plan years beginning with the first plan year to which such provisions otherwise apply.

`(ii) ADULT CHILD COVERAGE- For plan years beginning before January 1, 2014, the provisions of section 2714 of the Public Health Service Act (as added by this subtitle) shall apply in the case of an adult child with respect to a grandfathered health plan that is a group health plan only if such adult child is not eligible to enroll in an eligible employer-sponsored health plan (as defined in section 5000A(f)(2) of the Internal Revenue Code of 1986) other than such grandfathered health plan.'.

(b) Clarification Regarding Dependent Coverage- Section 2714(a) of the Public Health Service Act, as added by section 1001(5) of the Patient Protection and Affordable Care Act, is amended by striking `(who is not married)'.

I think it is likely that this section, or parts of this section, will be found in violation of the Byrd rule. (If not, it raises some interesting questions about the claims of Kent Conrad , and the media's willingness to believe them, that comprehensive health care reform could not have passed using just reconciliation because it would strip out non-budget related reforms like these.)

If this section or any other is removed because the Byrd rule the bill will need to go back to the House for a final vote. Both senior Democrats and senior Republicans believe some changes will be made as a result of the Byrd rule.

Meanwhile, the Democratic Senate leadership is currently whipping against members’ attempts to offer amendments to make health insurance reform better--like adding a public option--by making the absurd claim that they are trying to pass this bill unchanged--even though that is almost a certain impossibility.

For all the people who said “pass the bill and fix it later,” the “later” is now. The big health care bill has become law, and now reform supporters have a vehicle with which to fix health care reform that can't be filibustered. A chance Democrats are unlikely to get again for years. This is probably the best opportunity Democrats have to get some important improvements through Senate, yet the silence from many in the “fix it later” crowd is deafening.