Why It Matters

The Senate rejected an effort to overturn a Trump administration rule setting payment, enrollment and benefit standards for Affordable Care Act marketplaces, leaving the regulation in effect.

S.J.Res. 197 would nullify a Centers for Medicare & Medicaid Services (CMS) rule within the Department of Health and Human Services (HHS) setting payment, benefit and enrollment standards for Affordable Care Act (ACA) marketplaces and the Basic Health Program.

The rule establishes payment parameters, HHS risk-adjustment and data-validation policies, and user-fee rates for federally facilitated exchanges. It also makes changes affecting insurance brokers, catastrophic plans, standardized plan options, essential health benefits, enrollment verification and eligibility for advance premium tax credits.

The Senate rejected a motion to proceed to the resolution 48-51 on Sept. 29, preventing the chamber from taking up the Congressional Review Act challenge and leaving the administration's rule in effect.

The Big Picture

Sen. Tammy Baldwin (D-WI) introduced the resolution on June 17. The Health, Education, Labor, and Pensions Committee referred it, but the committee discharged it by petition under the Congressional Review Act on July 14. The Senate then placed the resolution on the Legislative Calendar as Calendar No. 456.

The resolution invokes the Congressional Review Act to disapprove the CMS rule published May 20. If enacted, the resolution would provide that the rule "shall have no force or effect."

CMS said the rule establishes standards for health insurance exchanges, insurers, agents, brokers, and web-brokers. Among other provisions, it sets the federally facilitated exchange user fee at 1.9% of monthly premiums and the state-based exchange on-the-federal-platform user fee at 1.5%.

The rule also eliminates the federal requirement that insurers offer standardized plan options, expands eligibility for hardship exemptions allowing certain consumers to enroll in catastrophic coverage, permits certain catastrophic plans to have terms lasting multiple consecutive plan years, and prohibits insurers from including routine adult dental services as an essential health benefit.

It also implements statutory changes affecting eligibility for advance premium tax credits and Basic Health Program payments and establishes additional income and enrollment verification requirements. The rule took effect July 20, although individual provisions apply on different schedules.

Partisan Perspectives

The Sept. 29 vote largely divided the Senate along party lines. All 45 Democrats and both independents voted to proceed with the resolution. Sen. Susan Collins (R-ME) joined them, producing 48 votes in favor. The other 51 Republicans voted against proceeding. Sen. Dan Sullivan (R-AK) did not vote.

The resolution has 15 cosponsors, including Baldwin: 14 Democrats and one independent. It has no Republican cosponsors.

The CMS rule reflects the administration's policy. CMS said the regulation would strengthen program integrity, expand consumer choice and flexibility, reduce regulatory burdens in several areas, and implement statutory changes to marketplace subsidies.

Political Stakes

For supporters of the resolution, the vote blocked an effort to use the Congressional Review Act to invalidate the regulation. For opponents of the resolution and the administration, the result preserves the rule governing marketplace payment, enrollment and benefit policies.

Because the resolution was brought under the Congressional Review Act, enactment would do more than alter individual provisions of the regulation. It would provide that the challenged rule has no force or effect.

The Bottom Line

The significance is both procedural and substantive. The Senate rejected the motion to proceed to S.J.Res. 197 by a 48-51 vote, preventing the chamber from moving forward with the Congressional Review Act challenge. The resolution remains on the Senate Legislative Calendar as Calendar No. 456, but the failed motion to proceed leaves the underlying CMS rule in force unless Congress takes further action. An identical House resolution would also have to advance through that chamber, and any Congressional Review Act resolution would ultimately require enactment to nullify the regulation.

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