Even if Biden wins, divided Congress stifles chance for more progressive health policies

With the 2020 election results still in flux, even if former Vice President Joe Biden squeaks out a win, the chances of him achieving his more ambitious health policy objectives are slim given a Congress even more fractured than before.

The Associated Press has not counted the 270 electoral college votes needed for Biden to become the 46th president, nor has he declared victory. The former Delaware senator said Wednesday afternoon he believes he will be the victor when all the votes are counted — which could be days or weeks away. 

And President Donald Trump’s campaign has said it will begin legal challenges in states with close outcomes.

As of Thursday morning, four Senate seats are also still undecided making a switch in control not impossible for Democrats. The path, however, is narrow. Democrats did maintain control over the House, but lost their margin.

If the current projections play out and Biden presides with a divided Congress, a few key insights can be gleaned.

COVID-19 drives agenda

The United States hit a record-high number of COVID-19 cases recorded in a single day Wednesday at more than 103,000, according to the COVID Tracking Project

With a third spike of coronavirus infections in the U.S. underway, the pandemic will take center stage in a potential Biden administration.

The former VP has reportedly started putting together a transition team to implement the plan for tackling the virus he released previously.

“They’re going to really try to get ahold of this virus. To me, that’s what this election was about,” said Lyndean Brick, CEO of consultancy Advis. She added later: “You’re not going to see a lot of rash activity. He’s got to deal with this pandemic.”

The pandemic was top of mind for voters this year and Biden has pledged to tackle it head on if elected. 

That would be starkly different from Trump’s approach of emphasizing a desire to keep the economy running and pinning most of the country’s hopes on a vaccine.

Biden could install mandates for testing, hospital staffing or domestic production of personal protective equipment, for example.

He could also work with Congress to tweak the Coronavirus Aid, Relief, and Economic Security Act in providers favor by forgiving Medicare loans and changing reporting requirements for receiving funding. Another relief package would also be a priority.

Before Election Day, the two parties couldn’t agree on legislation, with the issue of how much funding to include forming as a key sticking point. Senate Majority Leader Mitch McConnell and House Speaker Nancy Pelosi have both been on the record recently as interested in pursuing agreement, possibly in a lame duck session.

If Biden wins the presidency and no relief bill has been passed, he would likely put that at the top of the list for his first 100 days in office.

Brick said his science-first approach to pandemic response would itself be a drastic difference. Under Trump, the healthcare industry has taken the role of advocating for measures like wearing a mask and social distancing.

“So to the extent that the federal government can step in and take some of the burden of the industry, the industry is going to be able to take a breath and figure out how it needs to respond,” Brick said. “Honestly, it hasn’t had time to do that.”

Public option, lower Medicare age all but off the table

Biden’s healthcare platform had two key policies that would have brought about substantial change — although far short of the single-payer plans espoused by his primary opponents.

He supports a public option, which would allow anyone to buy Medicare-like coverage that would be cheaper than many alternatives. He also would like to lower the Medicare age to 60, which could open access to an additional 20 million Americans.

But neither of those are possible without cooperation from Congress. The Democrats held on to the House of Representatives this year, but unless they wrangle away the Senate as well, such policies are essentially dead in the water.

That unlikelihood of progressive policies would be good overall for commercial insurers, especially those heavily SVB Leerink analysts said in a note Thursday morning, noting one index of payer stocks was up 9% Wednesday.

The scenario is also a positive for providers, the analysts said, as Medicare rates are lower than what commercial payers pay, the analysts said. “The weakness in [healthcare] provider stocks yesterday seems to reflect the return of the overhang from the SCOTUS review of the ACA.”

With a GOP-controlled Senate, Biden would be left with the most options via administrative actions, experts said. He could roll back restrictive Medicaid expansion waivers with work requirements and encourage more states to expand to bigger populations.

Lindsay Bealor Greenleaf, vice president of policy at political consulting firm Advi, said Biden could also turn to executive orders, which can be used to explicitly pull back a previous president’s executive orders.

ACA case before Supreme Court gets weightier

The scenario of a trifecta in D.C., with Democrats nabbing the White House and Senate, would have been a great relief to supporters of the Affordable Care Act. The landmark law faces an existential challenge from a lawsuit brought by Republican attorneys general and backed by Trump’s Department of Justice.

The U.S. Supreme Court, which now has a clear majority of justices appointed by Republican presidents, is set to hear arguments next Tuesday. An opinion is expected next year, and a range of options is possible. If the high court throws out the law entirely, the country’s healthcare infrastructure would be upended.

Biden, who pushed the law to passage during his vice presidency and remains a staunch supporter, would be able to take legislative action to secure the ACA if he has the votes in Congress. A GOP Senate isn’t likely to give that to him.

Biden could take a few steps in executive actions, like restoring funding for ACA navigators who help people select plans and relaxing rules on enrollment during the pandemic public health emergency.

Bipartisan paths most plausible

One key possibility for movement is a fix for surprise medical billing, which both candidates discussed on the campaign trail. Democrats and Republicans have put forward plans for legislation banning the practice, but payers and providers have thrown a lot of lobbying dollars to oppose certain bills.

Providers favor using arbitration to settle surprise bills while payers back a set rate for out-of-network clinicians. If enough support in Congress builds behind one approach, or a mix of the two, there is a chance of passing a fix.

Alternative payment models, such as from Center for Medicare and Medicaid Innovation, also enjoys some bipartisan backing.

That agency could become key for Biden if he’s working with a divided Congress, as it has broad authority to waive the entire Medicare statute when implementing a demonstration project, Bealor Greenleaf said. “There aren’t really many restrictions on what and how CMMI could implement such a demo,” she said. “It’s really really broad wording.”

Brick said she’s optimistic Biden could find a way to reach across the aisle. The thing about Biden is he’s a dealmaker,” she said. “He’s a senator first and foremost. To me the big question is going to be: What’s the left wing of the Democratic party going to allow him to cut deals about?”

Other possibilities

If Trump continues to challenge results in favor of Biden, the final outcome of the election could be dragged out for months. The fate of the Senate could also be delayed, potentially until January if the determination falls to two runoff elections in Georgia.

That scenario adds uncertainty, but it’s hard for the landscape to get more volatile for the industry considering the still raging pandemic. Heading into winter and the height of flu season is once again pushing hospitals to the brink.

“Living in an uncertain world is something we’re all getting a little used to,” Bealor Greenleaf said.

If Trump does pull out a win, his assault on the ACA would likely continue if the high court does not invalidate the law on its own. He would also be likely to continue to support more restrictions on Medicaid enrollment in his second term.

He could also continue to propose cuts to Medicare as well as Medicaid, which could threaten the programs’ solvency.

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