Byrd Amendments Update: Senate Republicans Introduce Bill Protecting Black Lung Improvements & Analysis of Executive Order 13,765 Concerning the Affordable Care Act

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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.

  1.  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:

To the maximum extent permitted by law, the Secretary of Health and Human Services (Secretary) and the heads of all other executive departments and agencies (agencies) with authorities and responsibilities under the Act shall exercise all authority and discretion available to them to waive, defer, grant exemptions from, or delay the implementation of any provision or requirement of the Act that would impose a fiscal burden on any State or a cost, fee, tax, penalty, or regulatory burden on individuals, families, healthcare providers, health insurers, patients, recipients of healthcare services, purchasers of health insurance, or makers of medical devices, products, or medications.

There are two important phrases here: the first and the last.  The first says “To the maximum extent permitted by law,” this means that the Executive Order does not change the law, but rather only gives guidance to executive branch officials.  The last phrase limits the parties for whom the President was concerned about the burdens on:   “individuals, families, healthcare providers, health insurers, patients, recipients of healthcare services, purchasers of health insurance, or makers of medical devices, products, or medications.”  Notably, this list does not include coal companies or their insurance carriers.

In addition, § 5 of the order says,

To the extent that carrying out the directives in this order would require revision of regulations issued through notice-and-comment rulemaking, the heads of agencies shall comply with the Administrative Procedure Act and other applicable statutes in considering or promulgating such regulatory revisions.

This is important because the Byrd Amendments have been codified in the black lung regulations following notice-and-comment rulemaking.  (See 78 Fed. Reg. 59,101 (Sept. 25, 2013)).  This means that even under the Executive Order, revision of them would require the same procedure, and until it is done (or Congress changes the law), the Byrd Amendments should continue to be applied in black lung benefits claims.

In short, Executive Order 13,765 does not appear likely to have any effect on black lung benefits claims.

More generally though, Coal miners, their families, and others who care about the future of black lung benefits law have to continue to wait and see whether Congress preserves the Byrd Amendments.

4 Responses to “Byrd Amendments Update: Senate Republicans Introduce Bill Protecting Black Lung Improvements & Analysis of Executive Order 13,765 Concerning the Affordable Care Act”

  1. Jennifer Fisher

    I don’t understand. Does this mean that since I had breast cancer but not Black Lung Disease (praying for everybody) that there will be obamacare for some people but not for others people?

    • Evan B. Smith

      It’s all very confusing, so don’t feel bad if you don’t understand. If this proposed replacement for the Affordable Care Act passed, then the insurance you’re eligible for would depend on which state you live in.

      And for what it’s worth, I wouldn’t say that coal miners with black lung get what we usually think of as “Obamacare”—that is, expanded Medicaid. If they win their black lung benefits claim, then they get a special type of insurance under the Black Lung Benefits Act that ONLY takes care of their breathing problems. For things like cancer, they have to depend on other insurance, just like everyone else. Obamacare made it easier for miners with at least 15 years in the mines to qualify for black lung benefits, but I wouldn’t call those black lung benefits “Obamacare” because they’re distinct from expanded Medicaid.

      • Jennifer Fisher

        Thanks for answering. It is very confusing. So what’s the diference between obamacar, medicaid and aca? I didn’t hear anything about a replacement, just that they are going to take it away so Im scared.

        • Evan B. Smith

          The Affordable Care Act (ACA) is the law that Congress passed and President Obama signed in March 2010. That law is 906 pages long in the official version at Volume 124 of the U.S. Statutes at Large, page 119 to 1024.

          The Affordable Care Act does a lot of things, but one of the main things that’s currently being debated is the ACA’s expansion of Medicaid—the government’s health insurance program for low income people. The ACA made more people who work but don’t make a lot of money eligible for subsidized insurance.

          Different people use the word “Obamacare” to refer to different things, but usually people are referring to the big things that the ACA did to the health insurance market like medicaid expansion, the individual mandate to buy insurance, the “exchanges” where people buy insurance, etc.

          Some people might call the black lung benefits improvements that are contained within the ACA “Obamacare” but I’ve never heard anyone say that.

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