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: May 5, 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 both the House and Senate voted to pass the budget resolution that is being used as a vehicle or "container" within which Congress can repeal certain provisions of the ACA. Action then moves 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.

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, Senator Murray has 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.

Analysis of Impacts of the Proposed American Health Care Act

On March 6, leaders in the House of Representatives released budget reconciliation legislative recommendations, dubbed the "American Health Care Act," 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 by the Concurrent Resolution on the Budget for Fiscal Year 2017 published section-by-section summaries: the Energy & Commerce Committee and the Ways & Means Committee.

Subsequent steps in the process have included:

• Both House committees held markups on March 8, lasting 27 and 16 hours, respectively, and considering many amendments. See the results from each hearing: Energy & Commerce Committee and Ways & Means Committee. On the morning of March 9, both committees passed the legislation along party line votes, and forwarded it on to the House Budget Committee.
• The Congressional Budget Office (CBO) and Joint Committee on Taxation (JCT) released the cost estimate for the bill on March 13.
• The House Budget Committee held a markup on March 16 and advanced the bill along party lines.
• The House Rules Committee held a markup on March 22, and a manager's amendment reflecting a series of changes from the original legislation was filed. (Resource: The Kaiser Family Foundation published a summary describing key provisions of the bill as approved by the House Ways and Means, Energy and Commerce, and Budget Committees, and showing substantive changes proposed in the manager’s policy and technical amendments submitted to the House Rules Committee.)
• On March 23, a new Congressional Budget Office (CBO) score was released based on the committee amendments, with some similar results to the prior assessment: savings estimated at $186 billion less, but with a relatively unchanged number of individuals expected to lose coverage. (Note that the CBO update did not address late-stage revisions being considered in negotiations by this time, including repeal of the Essential Health Benefits (EHB).
• The House voted late Thursday night, March 23, on a fast-track procedure to speed up consideration of the bill. The House normally has to wait a day before considering a measure produced out of the Rules Committee, which determines how legislation is considered on the floor. The Thursday night procedural vote waived that requirement so that the House can consider a rule establishing parameters for floor debate on the same day a bill comes out of the Rules Committee.
• On March 24, the House Rules Committee voted along party lines to allow for four hours of floor debate on the legislation but to permit no amendments. A vote on the House floor was expected by the end of the day.
• Despite a number of proposed amendments—including threats to repeal the Essential Health Benefits (EHB)—furious negotiations failed to secure enough votes and late Friday afternoon, March 24, House Republican leaders pulled the bill from consideration before a planned vote on the House floor.
• In late April, new negotiations brought the bill back to life. An amendment offered by Rep. MacArthur would allow states to apply for "limited waivers" to opt out of EHB and the community rating requirement that prevents insurers from charging different prices based on a client's health status. An amendment offered by Rep. Upton would provide $8 billion over five years to help people with pre-existing conditions afford their premiums in states that are granted such waivers.
• Republican leadership fast-tracked a vote on an amended version of the American Health Care Act (H.R. 1628) on May 4, which passed the House 217-213. Twenty Republicans voted against the bill, mostly centrists from swing districts. The expedited vote meant that lawmakers did not yet have an updated report from the nonpartisan Congressional Budget Office (CBO) on how the bill would impact coverage or costs.
• Action now moves to the Senate, where a more methodical approach is expected. Major concerns have already been raised among Senate Republicans, chiefly among those from swing states who are opposed to the cap on the Medicaid expansion that would take effect in 2020. Senate Majority Leader Mitch McConnell (R-KY) has convened a working group representing different perspectives, including members of the leadership team, moderates who are worried about the Medicaid rollback, conservatives, and two key committee chairman—Senate Finance Committee Chairman Orrin Hatch (R-UT) and Senate Health, Education, Labor and Pensions Committee Chairman Lamar Alexander (R-TN)—to work out a compromise. 

1) Breastfeeding Supports as Preventive Services

The bill as passed by the House 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 the Medicaid expansion, however, as well as other sections that encourage individual and employer coverage, the bill would result in a loss of health coverage in general for a projected 24 million people by 2026. Therefore, even if the Preventive Services remains in place for most plans, the newly uninsured would not have access to them.

2) Workplace Breastfeeding Support

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

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

Section 101 of the bill would cut the Prevention and Public Health Fund by $100 million in FY18, and then eliminate it entirely starting in FY19. The bill does not include any provision to replace it.

Active Action Alerts:

• American Public Health Association: "Oppose the American Health Care Act"
• MomsRising: "Tell Congress: The American Healthcare Act (AHCA) will cost lives and hurt our economy."
• National Association of County & City Health Officials: "Email Your Senators to Support Funding for PPHF"
• National Women's Law Center: "Tell the Senate: Don’t Repeal the Affordable Care Act"
• Public Health Institute: "Call Congress Now: Tell Your Reps to Vote No on the Revived House Health Care Bill"
• The United State of Women: "Stand strong against the American Health Care Act"

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:

• Time.com (motto): "Obamacare Helped Working Moms Breastfeed — And It’s One Thing Republicans Might Keep"
• healthline: "Can the ACA Repeal Harm Breastfeeding Moms?"
• Working Mother: "Breastfeeding Moms May Get to Keep Key Obamacare Protections"