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From Health Law Daily, January 13, 2017

House and Senate pull out all the stops to halt ACA

By Bryant Storm, J.D.

The repeal and replacement of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) will take place at the same time, according to House Speaker Paul Ryan (R-Wis). Ryan’s announcement was made the day after President-elect Trump announced the repeal and replacement of the ACA would be done "essentially simultaneously." Lawmakers have already begun paving the way for repeal of the health law with the passage or resolutions in the House and Senate. Republicans in both houses of Congress are relying on unorthodox measures to affect repeal and replacement of the ACA.

Senate. The Senate resolution, which passed 51-48 without amendment, authorizes repeal through the budget resolution process—a mechanism requiring only a simple majority vote for success. The budget resolution also allows Republican senators to avoid the threat of a filibuster. The resolution instructs House and Senate committees to develop repeal legislation by January 27, 2017 (see Senate puts ACA repeal on the calendar, January 12, 2017).

House. The House resolution (H.R. 5), which passed 234-193, instructs the Congressional Budget Office (CBO) to analyze all bills that will cause a net increase in direct spending except for bills pertaining to the repeal or replacement of the ACA—a limitation that lies in conflict with the CBO’s declaration that its "work reflects the agency’s objective, impartial, and nonpartisan analytical judgment." The resolution seeks to further upend the status quo under its Title II with a proposal to repeal the Chevron and Auer doctrines to "end judicial deference to bureaucrats’ statutory and regulatory interpretations." Limitation on those doctrines would significantly impact the rulemaking and interpretive powers of HHS, CMS, and the FDA.

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