At the same time as we published last week’s Washington Update that previewed the various scenarios for whether the reconciliation bill to repeal and replace the ACA can continue after September 30, Elizabeth MacDonough, the Senate parliamentarian, announced that September 30 will in fact be a hard deadline and that the reconciliation vehicle will expire at the end of the month. This means that if congressional Republicans want to repeal and replace portions of the ACA with a simple majority in the Senate, their time and options are running out. They will either need to attempt another vote this month using the Fiscal Year (FY) 2017 vehicle, repurpose the FY 2018 reconciliation vehicle that was intended for tax reform (and therefore forgo tax reform via reconciliation), or resign themselves to attempting a true bipartisan package that can win the support of 60 votes in the Senate.

Republicans argued that reconciliation vehicles can extend beyond the FY for which they are written and remain valid until it is either passed or a new FY budget is approved. No budget-reconciliation package had previously been attempted beyond its FY, which led to the ambiguity. However, MacDonough ruled in favor of conventional arguments that the vehicles must be passed during their current FY. The healthcare reconciliation package was specifically written for FY 2017, and therefore must be passed by both chambers and signed into law by the president prior to the end of the 2017 FY on September 30.

While this decision puts a damper on the prospects of advancing legislation to repeal and replace the ACA, there are still some very limited options:

• Senate Republicans can attempt to once again pass the reconciliation bill that failed on three separate attempts in July. This would face a hard deadline of September 30.

o They can attempt to pass the House-passed American Health Care Act (AHCA) as is. If this passes, they can then send it President Trump to be signed into law.

o They can attempt to pass legislation that varies from the AHCA, such as the proposal by Senators Bill Cassidy (R-LA) and Lindsey Graham (R-SC), in which case the House can then vote on that version, or both chambers can hold a conference and then separately vote on that final bill. If that is passed, they can send it to President Trump to be signed into law.

• Republicans can repurpose the FY 2018 reconciliation vehicle that was originally intended for tax reform and use it for healthcare. This would effectively extend the deadline for a reconciliation repeal of the ACA until September 30, 2018, but would likely mean the end of any hopes of passing tax-reform legislation. Without the FY 2018 vehicle for tax reform, Republicans would be unable to pass reforms on a partisan basis as planned, and it is unlikely that there are enough Democratic votes to pass tax reform on a bipartisan basis.

• Republicans can retain the FY 2018 reconciliation vehicle for tax reform and instead pass healthcare reform legislation under regular order. This would require a minimum of eight Democratic votes in the Senate, but likely more, as concessions made to Democrats would almost certainly lose the support of more hard-line Republican Senators like Ted Cruz (TX), Mike Lee (UT) and Rand Paul (KY).