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The Health 202: Meet the referee in the GOP effort to replace Obamacare


Washington is filled with people who talk much but affect little. Senate parliamentarian Elizabeth MacDonough is the opposite —  she intentionally stays out of the spotlight but wields enormous influence in proceedings on the Senate floor. As the Capitol Hill version of a referee in the contentious health-care debate, MacDonough will soon exercise broad authority in considering the fate of the House GOP health-care bill. She could also rule on a Senate version, if and when it materializes.

Picture this. Sometime in the next few weeks, four Democratic attorneys and four Republican ones will file into the ornate LBJ room just steps from the Senate chamber to consider a bill overhauling the Affordable Care Act.

They’ll sit at a long table before MacDonough. Democrats will argue the GOP bill known as the American Health Care Act (ACHA) bleeds over the boundaries of what can be accomplished under the budget rules known as “reconciliation.” Republicans will insist the ACHA complies with those rules by containing only provisions that affect federal spending.

MacDonough will listen carefully to both sides. She’ll ask questions. She won’t appear to favor one side over the other. And when she finally makes a decision, it will be based on her best understanding of Senate rules and past precedent —  not on whether she personally approves or disapproves of Obamacare or the effort to revamp it, say multiple friends and former co-workers.

David Schiappa, who for years worked closely with MacDonough as secretary for Senate Republicans, said he feels she is "completely unbiased and she cares about the institution and she follows the precedent that has been established." Bill Dauster, a longtime counsel to Senate Democrats, told me he "always felt I could get a fair hearing" from her.

(In case you're wondering,The Health 202 reached out to the parliamentarian's office, but MacDonough declined an interview.)

MacDonough worked her way up the hard way. After attending law school, she started as an assistant parliamentarian in 1999 and served for 13 years before the Senate approved her as parliamentarian in 2012 at the recommendation of then-Majority Leader Harry M. Reid (D-Nev.).

Observers say it is a stressful role, especially as the environment in Congress has grown evermore partisan and toxic. While past Senate leaders have ousted parliamentarians for decisions they didn’t like – and Senate Majority Leader Mitch McConnell has the ability to do the same to MacDonough -- the job is still widely recognized as nonpartisan. Part of being perceived as fair to both sides means that MacDonough keeps her personal political views to herself.

“My experience with her is that she is fair,” said Sen. Bernie Sanders (I-Vt.), ranking Democrat on the Budget Committee, which has had extensive interaction with MacDonough and her team. “She has a lot of responsibility on her shoulders.” McConnell's deputy chief of staff Don Stewart told me the Senate is “fortunate” to have MacDonough’s guidance.

But the health-care debate into which MacDonough is about to step could challenge even her fair reputation.

A budget bill needs just a simple majority in the Senate to be approved -- not the 60 votes typically required to overcome a filibuster --  allowing Republicans to pass their health-care legislation with just 50 out of their 52 members, with tiebreaking help from Vice President Pence.

But there are strings attached, and MacDonough is the one who can pull them. Each piece of such a budget bill must be directly related to federal spending, like a tax or expenditure. Repealing certain parts of Obamacare, like its taxes for example, fit easily under this standard. But other parts, like rolling back the law’s insurance regulations, don’t necessarily qualify.

MacDonough’s primary task over the next few weeks is to rule on whether AHCA qualifies as a budget bill – and if so, which parts of it meet reconciliation rules. If she finds individual parts don’t have a direct budgetary impact, through a process known as a “Byrd bath,” they would be stripped out -- but the House wouldn’t have to vote again on its bill. She’ll apply a similar standard to a Senate measure, should lawmakers get their act together. 

Most health-care experts believe some parts of the House bill will be stripped by MacDonough — indeed, many House Republicans are holding their breath over some of the AHCA’s riskier elements.

The parts most vulnerable to MacDonough’s rejection include its waivers for states to opt out of protections for people with preexisting conditions, or its provision raising the ratio for how much insurers can charge older people relative to younger ones. Both those elements are insurer regulations not directly related to federal spending, but some Republicans have argued an indirect link by noting that premiums would be affected and therefore the amount of subsidies the government must pay out.

Another questionable part of the House bill is its language banning federally subsidized insurance plans from covering abortions. Abortion foes insisted such a ban must be included, even though that too might raise MacDonough’s eyebrows.

Republicans already have a sense of how MacDonough might rule. A year and a half ago, she and her deputies analyzed a measure aimed at repealing some of the ACA but not replacing it. While President Obama ultimately vetoed that bill, House and Senate Republicans passed it partly as a readiness exercise should they eventually win the White House.

Staffers writing that 2015 House health-care measure hadn’t even tried to repeal large parts of the ACA, fearing MacDonough would strip it anyway. But under pressure from conservatives, the Senate added in provisions eliminating the insurance subsidies, Medicaid expansion and small business tax credits. Notably, MacDonough allowed them.

Perhaps even more surprisingly to health wonks, MacDonough ruled that a section banning Planned Parenthood from getting Medicaid reimbursements could remain. The legislation said Medicaid dollars couldn’t go to certain abortion providers, without explicitly mentioning the group.

But MacDonough didn’t give the bill an entirely free pass. Under her guidance, the Senate was forced to tweak language repealing the individual and employer mandates, technically leaving the requirements in place but eliminating the penalties associated with lacking coverage or for businesses not offering it to workers.

A few of the more conservative senators including Sen. Ted Cruz (Texas) have suggested that McConnell could allow the Senate president to overrule MacDonough if she disappoints them.

But that’s not a widespread viewpoint. Those who know MacDonough say they’re not surprised she doesn’t give interviews or speak publicly because she takes her job as an unbiased adjudicator seriously.

And even some outside conservatives who argue for a more expansive interpretation of  budget rules as they apply to health care say they are not worried MacDonough won't be fair.

“I have complete confidence in her ability to interpret Senate rules,” said Michael Cannon, a health-policy expert at the libertarian Cato Institute who has argued extensively that virtually every part of Obamacare is closely tied to government spending. Cannon stressed, however, that he's unsure whether MacDonough has a deep enough understanding of health policy to consider the arguments from him and others that most of the law could be repealed using reconciliation.

Cannon also told The Health 202 something about MacDonough we definitely didn't know: She has great teeth.

Cannon used to live in MacDonough’s neighborhood, and he says they’d run into each other while walking their dogs. They also visited the same dentist – and once during an appointment, he saw her photo displayed on the office wall.

“She’s got such a great smile, [the dentist] put her picture up in his office,” Cannon said.

Republicans must certainly be hoping she'll flash her pearly whites their way.


AHH: In a long read entitled "The Addicts Next Door," the New Yorker's Margaret Talbot visits West Virginia's Eastern Panhandle, where heroin has devastated the area. "Like the vast majority of residents there, nearly all the addicts are white, were born in the area, and have modest incomes. Because they can’t be dismissed as outsiders, some locals view them with empathy. Other residents regard addicts as community embarrassments. Many people in the Panhandle have embraced the idea of addiction as a disease, but a vocal cohort dismisses this as a fantasy disseminated by urban liberals," Talbot writes.

OOF: President Trump tweeted something rather puzzling over the long weekend:

As my colleague Damian Paletta writes, that statement is at odds with the budget proposal the president unveiled just last week. The budget plan, assembled by Office of Management and Budget Director Mick Mulvaney, called for cuts of between $800 billion and $1.4 trillion in future spending on Medicaid. It also called for cuts in future spending on a health-care program for low-income children. What it didn't propose is new health-care spending.

The Health 202 doesn't know exactly what prompted Trump to send this tweet. But we do know this: the statement came as part of a blizzard of Twitter posts from Trump after he returned from his first foreign trip -- which he was on as his top advisers rolled out the budget. Those advisers spent days explaining the plan to the media and to Congress, but Trump did not weigh from abroad. "This was unusual, as the budgets submitted by presidents in their first year in office tend to represent the most complete portrait of their agenda and legislative priorities," Damian writes.

Trump's tweet confused many people. Wall Street Journal reporter Stephanie Armour had this to say:

The New York Times's Paul Krugman said what we're all wondering:

OUCH: Democrats are using the new CBO score of the House health-care bill to go on the attack against Republicans over a critical one-week recess, The Hill writes. "A recess packet sent to House Democrats encourages lawmakers to hold events highlighting the 'terrible consequences' of the House Republican bill to repeal and replace Obamacare," report Rachel Roubein and Jessie Hellmann. "Meanwhile, advocates are coordinating events to hold House Republicans accountable for the bill they supported, and to pressure the Senate against doing the same."


--The Trump administration has drafted a rule to ditch a requirement from the Obama administration that many religious employers provide birth-control coverage in health plans, the New York Times reports. The past administration had offered a workaround to these employers, after getting heated pushback and luring scores of lawsuits. But now officials under Trump's guidance are seeking to roll back the mandate entirely.

"On its website, the White House Office of Management and Budget said it is reviewing an 'interim final rule' to relax the requirement, a step that would all but ensure a court challenge by women’s rights groups," NYT's Robert Pear writes. "The new rule will fulfill a campaign pledge by Mr. Trump....Tom Price, the secretary of health and human services, welcomed the opportunity to re-examine the preventive-services mandate. 'We will be taking action in short order to follow the president’s instruction to safeguard the deeply held religious beliefs of Americans who provide health insurance to their employees,' he said this month."

--The Trump administration is planning to roll back something else: The presence of the federal government in fighting discrimination and protecting minorities --  by cutting budgets, dissolving programs and appointing officials unsympathetic to previous practices.

"The administration has reversed several steps taken under President Barack Obama to address LGBT concerns," my colleagues Juliet Eilperin, Emma Brown and Darryl Fears write. "The Department of Housing and Urban Development, for example, has revoked a rule ensuring that transgender people can stay at sex-segregated shelters of their choice, and the Department of Health and Human Services has removed a question about sexual orientation from two surveys of elderly Americans about services offered or funded by the government."

"The efforts to reduce the federal profile on civil rights reflects the consensus view within the Trump administration that Obama officials exceeded their authority in policing discrimination on the state and local level, sometimes pressuring targets of government scrutiny to adopt policies that were not warranted," they write.


--Rep. Mark Meadows (R-N.C.), leader of the House Freedom Caucus, got emotional last week, right after the health-care bill he initially opposed but ultimately helped shepherd to passage got its final Congressional Budget Office score. Fifteen minutes into a sparring session with reporters, he suddenly paused.

“Listen,” Meadows said, his voice cracking. “I lost my sister to breast cancer. I lost my dad to lung cancer. If anybody is sensitive to preexisting conditions, it’s me. And I’m not going to make a political decision today that affects somebody’s sister or father because I wouldn’t do it to myself. So I tell you that in the most earnest of ways that we’re going to get this right.”

Why the burst of emotion? The Post's Mike DeBonis writes that it "was a poignant reaction to an uncomfortable fact: According to the nonpartisan CBO, the GOP bill broke a fundamental promise GOP leaders made to the public."

"Repeatedly, top Republicans said, people with preexisting medical conditions would still be able to purchase affordable insurance under the AHCA. They downplayed concerns from independent analysts that the protections they included would not be sufficient to protect the sickest patients from drastic price hikes — touting a last-minute fix to beef up subsidies without waiting for the CBO to judge whether it would work," Mike writes.

The final CBO analysis "undermines not only the claims made by GOP leaders, but also shows that their bill could, by undoing what is perhaps the Affordable Care Act’s single most popular provision, throw consumers back into insurance markets where their ability to purchase affordable insurance would depend on their health," he explains.

--Republicans responded to the CBO score with a variety of explanations and evasions. Many simply cast doubt on the CBO’s ability to analyze health-insurance markets.

Rep. Phil Roe (R-Tenn.), a medical doctor who played a role in the health-care debate, said “the preexisting condition issue has been put to rest” and that the CBO has been “outrageously wrong” in the past.

“Look, they’re good people,” he said. “They do the best they can with the data they have, but they’ve been wildly wrong in these predictions."

Sen. John Cornyn, the Senate's No. 2 Republican, had a surprising take on a synopsis of the GOP plan from Rep. Adam Schiff (D-Calif.), who wrote this:

Cornyn didn't respond to Schiff's specific claims -- which, while presented in an intentionally negative light, were nonetheless derived from the CBO score. Instead, Cornyn just dismissed them, in a Trump-like way:

Ronald Brownstein, National Journal Group's editorial director, wasn't impressed:

--So why, exactly, has it been so darn difficult for Republicans to come up with a replacement for Obamacare that Americans actually like (their plan is polling in the low 20s right now)? The Post's Matt O'Brien says the answer is pretty simple: Republicans are philosophically opposed to redistribution, but health care is all about redistribution. "For a long time, they tried to wish that away, and it was only when that wasn’t an option anymore that they moved on to Plan B: trying to pass the least redistributive bill they can before anyone noticed how much it doesn’t redistribute," O'Brien writes.

If Republicans could start from scratch, they'd like our health-care system to work the way Singapore’s does. Everyone would have catastrophic insurance to protect against true medical emergencies and then use health savings accounts to pay for routine care out of pocket. People would pay their own way as much as possible, and making them do so would make them shop around for the best deal.

There are two problems with this, though, O'Brien writes. "Picking the right medical care is a lot different from picking the right car. People don’t know enough to be good comparison shoppers, and they’re not going to scrimp when their health is on the line. But second — and more importantly — we don’t have the low health-care costs you need to make all this work. Singapore's government, you see, has been able to keep costs down because it owns most of the country’s hospitals, it employs a lot of the doctors, and it subsidizes cheaper treatments to try to get people to choose them."


--The House GOP replacement for Obamacare contains some provisions to protect people with preexisting conditions -- but those provisions might undermine the individual insurance markets so much that effectively there is no protection at all, our fact-checker Glenn Kessler explains.

The American Health Care Act would allow states to get waivers that essentially allow insurers to base premiums on a patient's health status (instead of giving everyone a "community rating") if they lack coverage for more than 62 days. In its recent score of the bill, the CBO said states taking advantage of these provisions could perversely end up blowing up their insurance markets, leaving people with preexisting conditions with spiraling costs. About one-sixth of the U.S. population was estimated to live in states that would face this problem.

How it works:

1. Healthy, younger people would quickly discover that insurance rates are lower if they were rated under their health condition rather than as part of the community pool. So they would have an incentive to let their coverage lapse for at least 63 days.

2. As more and more healthy people discover that their rates would be lower when they are rated on their medical status, they would seek to stay on those plans. 

3. Meanwhile, the community-rated plans increasingly would be stuck with sicker and unhealthy people. So the average costs in the community pool would jump substantially and spiral ever higher. Thus, even if people with preexisting conditions get back to the community pool after a year being rated on their medical condition, they would find that premiums are still sky-high.

4. Eventually, "community-rated" premiums would be so high in some areas that the plans would have no enrollment. Such a market would be similar to the non-group market before the enactment of the ACA, in which premiums were underwritten and plans often included high deductibles and limits on insurer payments. That left people with high expected medical costs often unable to obtain coverage.

Bottom line: The CBO says markets would probably be stable in most of the country under the GOP replacement plan. But it predicted that in areas where one-sixth of the population lives, the individual market would quickly become unstable after 2020 — precisely the problem that the GOP legislation is supposed to prevent.


Molina Healthcare, top Obamacare insurer, investigates breach of patients’ data (California Healthline)

‘This is not the end’: Using immunotherapy and a genetic glitch to give cancer patients hope (Laurie McGinley)

Drug lobbyists’ battle cry over prices: Blame the others (New York Times)


GOP governors at odds over Medicaid expansion’s fate (Wall Street Journal)


Tiger Woods was arrested for a DUI over the weekend (he said it was an unexpected reaction to prescription drugs):

Tiger Woods arrested for DUI (Video: Reuters)

Watch Texas lawmakers get into an epic scuffle over immigration:

Texas state lawmakers got into a scuffle on May 29 on the House floor in Austin amid protests over immigration. (Video: Nar Dorrycott)