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State Waivers Largely Violate Senate Rules, According to Parliamentarian

(Washington, D.C.) –Today, the Senate parliamentarian determined that portions of Section 207, “Waivers for State Innovation,” of the Republican health bill are not permissible under Senate rules. Notably, the part that would have amended Section 1332 of the Affordable Care Act to allow states to waive essential health benefits and other pre-existing condition requirements so long as their proposal does not increase the federal deficit violates the Byrd Rule.


Under current law, 1332 waivers allow states to waive certain Affordable Care Act provisions as long as they can ensure that they cover the same number of people, same level of services and same protections against high out of pocket costs.


“Senate Republicans have tried again and again to undermine key protections in the Affordable Care Act and make patients’ quality of coverage completely dependent on which state they live in— but it is now clear that they have no path to accomplishing this goal in the Senate by jamming this particular policy through,” said Sen. Patty Murray (D-WA), the ranking member of the Senate Health, Education, Labor, and Pensions (HELP) Committee.


"The function of reconciliation is to adjust federal spending and revenue, not to enact major changes in social policy. The parliamentarian's latest decision reveals once again that Republicans have abused the reconciliation process in an attempt to radically change one-sixth of the American economy by repealing the Affordable Care Act," said Sen. Bernie Sanders (I-VT), the ranking member of the Senate Budget Committee.


"Today’s decision confirms that Senate Republicans cannot use their partisan, go-it-alone reconciliation process to water down key consumer safeguards like protection for people with pre-existing conditions and essential health benefits that Americans count on today. I wrote Section 1332 into the Affordable Care Act to give pioneering states the opportunity to innovate and make health care better, not worse. This decision upholds that intent and calls into question whether other regulatory changes that amount to anti-consumer schemes will fly under the partisan reconciliation process," said Sen. Ron Wyden (D-OR), the ranking member of the Senate Finance Committee.


Background From the Senate Budget Committee Minority Staff on the Parliamentarian's Latest Byrd Bath Decision


Provisions Subject to a 60-vote Byrd Rule Point of Order


Waivers for State Innovation (Essential Health Benefits): This section amends Sec. 1332 of the ACA to allow states to waive protections for people with pre-existing conditions, especially the essential health benefits so long as their proposal does not increase the federal deficit. This determination means Republicans cannot allow states to waive consumer protections, such as essential health benefits and out-of-pocket maximums, as proposed in their bill.