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Legislation & Policy

Breastfeeding & the Health Care Reform Landscape

The USBC team is continuously monitoring this highly fluid process and will update this webpage with additional news articles, action alerts, and bill/policy analysis as events unfold.

Date last updated: October 25, 2017

Affordable Care Act Breastfeeding Provisions

The Patient Protection and Affordable Care Act (ACA) was signed into law on March 23, 2010, by President Obama. There are three provisions of the ACA that have a direct impact on breastfeeding supports:

1) Breastfeeding Supports as a Preventive Service

Section 1001 of the ACA amended the Public Health Service Act to require health plans to cover certain preventive services and eliminate cost sharing for them. Breastfeeding supports fall under this provision in two places: 1) "Breastfeeding: Primary Care Interventions" has a "B" grade from the United States Preventive Services Task Force (USPSTF), and 2) the Health Resources and Services Administration (HRSA) supports Women's Preventive Services Guidelines that include "Breastfeeding Services and Supplies."

Learn more about implementation of these supports on our Preventive Services webpage.

2) Workplace Breastfeeding Support ("Break Time for Nursing Mothers" provision)

Section 4207 of the ACA amended the Fair Labor Standards Act to require employers to provide break time and a place for most hourly wage-earning and some salaried employees (nonexempt workers) to express breast milk at work, until the employee's baby turns one year old. Employers must provide a "reasonable" amount of time and a private space other than a bathroom.

Learn more about implementation of these supports on our Workplace Support webpage.

3) Funding for CDC Breastfeeding Programs via the Prevention & Public Health Fund

Section 4002 of the ACA established the Prevention & Public Health Fund (also known as PPHF or "the Prevention Fund"), to "provide for expanded and sustained national investment in prevention and public health programs to improve health and help restrain the rate of growth in private and public sector health care costs." Starting in Fiscal Year 2012, PPHF funds have been allocated each year to the Centers for Disease Control & Prevention (CDC) Breastfeeding programs.

Analysis of these Provisions within Budget Reconciliation (in general)

Congressional Republicans are pursuing repeal of the ACA via the legislative mechanism of budget reconciliation. The advantages to this approach are that it allows for expedited consideration, the scope of amendments is limited, and it is not subject to filibuster in the Senate (requires simple majority only). As the Republicans only have a 52 vote majority in the Senate, the avoidance of a filibuster is critical for the success of what is expected to be hyper-partisan legislation.

In order to qualify for budget reconciliation, legislative provisions must change spending, revenues, and/or the federal debt limit. This limits the scope of which sections of the ACA can be targeted via this approach.

In mid-January 2017 both the House and Senate voted to pass a budget resolution to be used as a vehicle or "container" within which Congress can repeal certain provisions of the ACA. Action then moved to the four authorizing committees—Ways & Means and Energy & Commerce in the House, and Finance and Health, Education, Labor, & Pensions in the Senate—to work out the details. Because of time limitations on the overarching budget resolution, the ability to use this mechanism to pass a health reform bill this year expires September 30, 2017. After that date, any legislation to repeal the ACA would need 60 votes.

1) Breastfeeding Supports as Preventive Services

This provision was not a target for repeal in past, and it is thought that it would not be subject to repeal via budget reconciliation. Even if it is not repealed in statute, however, specific services could be eliminated or their definitions weakened on the administrative/regulatory side. For this reason, Senate Democrats have introduced a bill to codify the specifics of the list of the current Women's Preventive Services into statute.

2) Workplace Breastfeeding Support

This provision was not a target for repeal in past, and it is thought that it would not be subject to repeal via budget reconciliation. It was originally included in the draft legislation that became the ACA with bipartisan support (unanimous vote of the Senate HELP Committee), and the bill to expand its coverage to salaried/professional workers also has had bipartisan co-sponsorship.

3) Funding for CDC Breastfeeding Programs via the Prevention & Public Health Fund

The PPHF was a target for wholesale and immediate elimination in last year’s reconciliation repeal bill, and it is clearly subject to budget reconciliation.

Congressional Action on Health Reform in 2017

In the House of Representatives

On March 6, leaders in the House of Representatives released budget reconciliation legislative recommendations, dubbed the "American Health Care Act" (H.R. 1628), as the first step in a proposed three-phase process to repeal and replace the Affordable Care Act. The two House committees tasked with jurisdiction were the Energy & Commerce Committee and the Ways & Means Committee.

After expedited committee markups, consideration of many amendments and associated updates to the bill's score from the Congressional Budget Office (CBO), and an initial failure to secure sufficient votes for passage in late March, Republican leadership fast-tracked a vote on a final amended version on May 4. The bill passed the House 217-213, with 20 Republicans voting against it, mostly centrists from swing districts.

On May 24, a new Congressional Budget Office (CBO) score was released estimating that the House-passed version would reduce the cumulative federal deficit over the 2017-2026 period by $119 billion. The estimated number of people with health insurance would be slightly higher, with the projection of those losing coverage at 23 million. Average premiums for insurance purchased individually—i.e., nongroup insurance—would be lower, in part because the insurance, on average, would pay for a smaller proportion of health care costs. In addition, CBO expects that some people would use tax credits authorized by the act to purchase policies that would not cover major medical risks and that are therefore not counted as insurance.

In the Senate

Action then moved to the Senate, where a more methodical approach was expected. The two Senate committees tasked with jurisdiction were the Finance Committee and Health, Education, Labor and Pensions (HELP) Committee. Senate Majority Leader Mitch McConnell (R-KY) also convened a working group representing different perspectives, including members of the leadership team, moderates worried about the Medicaid rollback, conservatives, and the two key committee chairman—Orrin Hatch (R-UT) for Finance and Lamar Alexander (R-TN) for HELP—to work out a compromise. 

Several proposed bills eventually emerged in the Senate, and each has ultimately failed to achieve sufficient votes for passage:

  • Better Care Reconciliation Act (voted down 43-57 on July 25)
  • Repeal-Only Bill (i.e., no replacement measures included, voted down 45-55 on July 26)
  • Health Care Freedom Act (a.k.a., "skinny repeal", voted down 49-51 on July 28)
  • Graham-Cassidy Bill (died September 26 as three Senate Republicans announced opposition, and leadership decided not to hold a roll call vote)

On October 17, Senators Lamar Alexander (R-TN) and Patty Murray (D-WA), chair and ranking member respectively of the HELP Committee, announced they had come to agreement on a bipartisan deal to restore cost sharing reduction payments, reinvest in outreach and enrollment, and streamline the state waiver process while maintaining the core patient protections enacted by the ACA. Since that time, the proposal has been greeted by mixed signals by the Administration and Congress. The bill, titled the "The Bipartisan Health Care Stabilization Act of 2017," has gathered support, and as of 10/25 it was co-sponsored by 12 Democratic and 12 Republican Senators. The HELP Committee has also published a section-by-section summary of the bill.

Analysis of Impacts of the Proposed American Health Care Act

1) Breastfeeding Supports as Preventive Services

The bill as passed by the House, and the various bills proposed in the Senate, would not specifically repeal the Preventive Services. Although Preventive Services are one of the ten Essential Health Benefits (EHB), there is separate statutory authority for them under section 2713 of the ACA. So even if the AHCA and future health reform bills impact or eliminate the EHB, unless they specifically repeal ACA section 2713, the mandate for coverage of Preventive Services with no cost-sharing will remain in place.

By eliminating or weakening the Medicaid expansion, however, as well as other sections that encourage individual and employer coverage, the bills would result in a loss of health coverage in general for millions of Americans. Therefore, even if the Preventive Services remain in place for most plans, the newly uninsured would not have access to them.

2) Workplace Breastfeeding Support

As anticipated, the bills would not impact this provision of the ACA.

3) Funding for CDC Breastfeeding Programs via the Prevention & Public Health Fund

As anticipated, the bills would eliminate the Prevention and Public Health Fund, without any provision to replace it.

Active Action Alerts: see list here

Media Coverage:

There has been much coverage in both traditional and new media outlets about the fate of breastfeeding within the repeal/replace/repair/reform of the Affordable Care Act (also known as Obamacare). Some of the coverage has been accurate, some not. The following are a list of articles vetted for accuracy that we recommend sharing: