1. REPEAL/REPLACE THE AFFORDABLE CARE ACT?

2. Budget Reconciliation
A special legislative process created by Congress to allow for expedited voting on bills that directly impact revenues and expenditures (i.e., taxes and spending).
A budget reconciliation bill can be passed by a simple majority (51 votes) in the Senate and is not subject to a filibuster (which requires 60 votes to overcome).
A budget reconciliation bill can only be debated for 20 hours in the Senate and the scope of floor amendments is very limited.

3. Budget Reconciliation
Most controversial bills in the Senate are filibustered, so who decides whether a bill qualifies for budget reconciliation?
The Senate parliamentarian decides.
The parliamentarian is a government official who is appointed by the majority party.
The parliamentarian reviews the bill and decides whether it qualifies for reconciliation. If so, the bill is immune from a filibuster and can pass the Senate with 51 votes.

4. Budget Reconciliation
The current Senate parliamentarian, Elizabeth MacDonough, already approved for budget reconciliation a prior Republican bill to “repeal” the ACA that was passed by the Senate in December of 2015, but was later vetoed by President Obama.
Political insiders view this bill as the precursor to future legislation because its provisions have already been “preapproved” for the budget reconciliation process.

5. Tax Provisions of the ACA Subject to Repeal Via Budget Reconciliation
Individual mandate penalty reduced to zero
Employer mandate reduced to zero
40% excise tax on so-called Cadillac plans repealed (currently delayed until 2020)
The requirement to report the cost of employer-sponsored health plan coverage on Form W-2 cannot be repealed via budget reconciliation.
The excise tax may be replaced with a cap on the amount excluded from the employee’s income for employer-sponsored health plan coverage.
Impact: An increase in employee W-2 income would increase employer payroll taxes and the employee’s individual income taxes
Increase the dollar limit on flexible health spending account contributions for Section 125 cafeteria plans (currently set at $2,600 for 2017)

6. Tax Provisions of the ACA Subject to Repeal Via Budget Reconciliation
Federal government subsidies for individuals to purchase Exchange coverage reduced to zero (likely to be phased in over time)
Federal government “risk stabilization” payments to insurance companies reduced to zero (likely to be phased in over time)
Federal government payments to States adopting the optional Medicaid expansion reduced to zero, with Medicaid payments as block grants

7. “Market Reform” (Non-Tax) ACA Provisions Requiring 60 Votes to Repeal/Replace
Coverage mandates for insured and employer self-insured group health plans:
Coverage of adult children to age 26
Prohibitions on imposing:
Preexisting condition coverage exclusions
Waiting periods exceeding 90 days
Annual and lifetime dollar limits on essential health benefits
Reporting requirements (e.g., Summary of Benefits and Coverage)

8. “Market Reform” (Non-Tax) ACA Provisions Requiring 60 Votes to Repeal/Replace
Additional ACA Requirements for Non-Grandfathered Plans:
Coverage of preventive services without cost-sharing
Note: The regulatory interpretation of “preventive services” as including contraceptive coverage is likely to be changed eventually by new regulations under a Trump Administration.
Limits on employee cost-sharing
Independent external review of denied claims for plans not already subject to IRO under state insurance laws
Insurance Market Reforms
Small employer insured plans required to offer coverage of all ten essential health benefits

9. “Non-Enforcement” of Market Reform Requirements?
Enforcement of the ACA’s “market reform” requirements is via an excise tax penalty imposed on the employer under Code Section 4980D (“Hobby Lobby” penalty)
Penalty is $100 per affected individual, per day
Applies to any employer (regardless of the size of its workforce) that offers a group health plan that fails to comply with the ACA’s market reform requirements

10. “Non-Enforcement” of Market Reform Requirements?
Note: Insured plans must still comply with state insurance law requirements.
Could the Code 4980D excise tax be reduced to zero?
Could a Trump Administration adopt a non-enforcement policy regarding some certain market reform violations, but still enforce other popular market reforms (e.g., coverage of adult children up to age 26)?

11. Constitutional Limits to Non-Enforcement
Article II, Section 3 of the Constitution requires the President to “take Care that the Laws be faithfully executed.” (aka, the Take Care Clause).
The Take Care Clause (in theory) requires the President to enforce all constitutionally valid Acts of Congress, regardless of the Administration’s view of their wisdom or policy, so long as Congress has appropriated the money for enforcement.

12. Political Considerations
Can Congress can sue the Executive Branch?
Yes. But would a Republican Congress sue a Republican President for failing to “faithfully execute” the ACA’s market reform provisions?
Can a State sue the Executive Branch?
Perhaps. In  United States v. Texas, a 4-4 decision in 2016, the Supreme Court let stand a lower court ruling that the State of Texas had standing to sue for the non-enforcement of federal immigration laws.

13. Trump Administration “Principles” for Additional Health Care Reforms
Health Savings Accounts:
HSAs and free market choices by individuals for related insurance coverage should replace the ACA’s coverage mandates.
State Insurance Markets:
Federal law should permit the sale of group and individual health insurance policies across state lines. Competition should lower costs and increase consumer choice.

14. Looking Ahead… Without the employer mandate, will employers
offer affordable group health plan coverage?
Without the individual mandate, will individuals voluntarily purchase health insurance coverage?
Without the ACA’s market reforms requirements, what benefits will insurance companies and self-insured plans drop from “typical” plan coverage?
Will health savings accounts paired with high deductible health plans fill the coverage gap if subsidized Exchange coverage is eliminated?
What will be the scope of coverage under a block grant system for Medicaid?