The uncertainty around the future of the black lung improvements that are contained within the Affordable Care Act continues.
“Day one” has come and gone and the Affordable Care Act—including the black lung improvements known as the “Byrd Amendments” remain current law. However, their future remains uncertain. There has not been any movement on the House bill that would preserve the Byrd Amendments (H.R. 323), or even the symbolic House resolution (H. Res. 26). (See previous post here.)
The past week has seen two relevant developments: (1) the introduction of a Senate bill that would preserve the Byrd Amendments, and (2) an executive order by President Trump related to the Affordable Care Act.
- Senate Bill 191 – The Patient Freedom Act of 2017
The most notable development this week regarding the Byrd Amendments has been the introduction of a Senate bill that would explicitly preserve the Byrd Amendments.
On January 23, 2017, four Senate Republicans introduced “The Patient Freedom Act of 2017” (S.191). Those senators are Bill Cassidy (R-La.), Susan Collins (R.-Me.), Shelley Moore Capito (R. W. Va.), and Johnny Isakson (R. Ga.). The overall scope of the Patient Freedom Act of 2017 is beyond what I have the ability to cover. (For a couple overviews, see this Bangor Daily News article or this National Law Review article)
I note it here though because § 101(b)(4) of the bill has the following language (the text of the bill is here):
(4) Preservation of black lung benefits for coal miners.—Subsection (a) shall not apply with respect to section 1556 of title I of the Patient Protection and Affordable Care Act (amending the Black Lung Benefits Act).
(Note: “subsection (a)” here refers to the Patient Freedom Act of 2017’s proposal to make the Affordable Care Act inapplicable to states that do not “opt in” and “section 1556” of the Affordable Care Act contains the black lung improvements known as the “Byrd Amendments”.)
In her floor statement when introducing the bill, Senator Capito said, “It protects the federal Black Lung benefits program, which is especially important in my state of West Virginia and the surroundings areas.”
Of course, who knows whether this bill will actually move towards passage, but it provides another possible way for the Byrd Amendments to be preserved and shows that the black lung improvements are supported by both Senate Democrats (see previous post here) and Senate Republicans.
2. Executive Order 13,765
On the day he was inaugurated, President Trump signed Executive Order 13,765.
The order was (incorrectly) understood by many to be a repeal of the Affordable Care Act.
But it does not appear to have any effect on the Byrd Amendments or black lung benefits cases more generally. The most relevant part of the order, § 2, says: