Illustration: Aïda Amer / Axios
There's an extra hurdle in the Senate for Republicans' megabill: Each provision has to have an intentional budget impact under reconciliation rules — otherwise, it could get thrown out by the parliamentarian.
Why it matters: Some key stipulations, including abortion measures and penalties for states covering undocumented immigrants, could be scrapped.
We talked to sources in both parties about which health provisions from the House-passed bill could be eliminated by the so-called Byrd Rule, which requires that provisions have a sufficient effect on the budget.
- Although the parliamentarian rulings haven't happened yet and the text could be tweaked in the Senate, here are provisions most likely to be axed.
1. FMAP cut for states covering undocumented immigrants
The House-passed text would cut from 90% to 80% the federal share of Medicaid costs (FMAP) for states that cover undocumented immigrants with state funds.
- Cutting the FMAP has a budgetary impact but could still run afoul of the Byrd Rule by being viewed as "merely incidental" to the true intent of the provision: pressuring states to change which groups they cover with their own funds.
- "I feel pretty darn confident that the FMAP decrease is going to fall out," said Bobby Kogan, a former Democratic Senate Budget Committee staffer now at the Center for American Progress.
- He described it as "shoehorning a budgetary effect into trying to get a state to do something with its own dollars."
2. Abortion restrictions on CSR funding
The bill would fund cost-sharing reduction (CSR) payments to insurers in the ACA marketplaces but would prevent those payments from going to plans that cover abortion (other than in certain exceptions, including for the life of the mother).
- Those abortion restrictions could conflict with the Byrd Rule's budgetary effect requirements, sources say.
- If the abortion restrictions are struck, it is possible Republicans would remove the CSR funding altogether, given that some GOP senators do not want to vote for the funding if it lacks abortion restrictions.
3. Defunding abortion providers
The bill would cut off certain abortion providers from Medicaid funding. Although the text does not include Planned Parenthood by name, Democrats argue that the provision is aimed at the organization.
- If the provision is viewed as targeting a specific organization, it could conflict with the rule, so whether it stays could depend on whether Republicans can argue that the provision would have a broader impact.
4. Gender-affirming care funding ban
The bill would block federal Medicaid funds for gender-affirming care.
- It's possible that provision would be viewed as primarily a policy change on gender-affirming care rather than being sufficiently intended to have a budget impact, and it could be struck.
What we're watching: None of these scenarios are certain to happen, but Democrats can at least make their case before the parliamentarian on a range of measures.
- "Dems will go through everything with a fine-tooth comb," Kogan said.
