Gabriel Perna | November 12, 2020
Will President-elect Joe Biden be able to accomplish policy changes if Republicans retain control of the Senate?
While the final makeup of Congress will be unknown until the Georgia Senate runoff elections in early January, health policy experts are already considering how a divided government may tackle the industry’s biggest issues.
“The chances of a legislative agreement on much of anything are slim,” says Mark Pauly, Bendheim Professor, Department of Health Care Management, and Professor of Business Economics and Public Policy, The Wharton School.
Pauly was joined by two other University of Pennsylvania health policy experts in a recent webcast hosted by the university’s
institute for health economics. The other participants were Allison Hoffman, Professor of Law, University of Pennsylvania Carey Law School and Daniel Hopkins, Professor of Political Science, University of Pennsylvania School of Arts and Sciences, hosted by David Grande, MD, Director of Policy, Penn LDI and Associate Professor of Medicine, Perelman School of Medicine.
The experts discussed potential opportunities for health policy legislation if the make up of the government is a Biden presidency and a Republican Senate.
Executive orders and regulatory action
A lack of legislative agreements does not mean President-elect Biden can’t get things done with executive orders and regulatory action. Pauly says the biggest changes would be a Biden presidency rolling back executive orders the Trump administration put in place for non-ACA compliant, low-risk, short-term, associated health insurance plans. Hoffman says that Trump himself has done a lot with executive orders and regulatory action, which could be a route that Biden goes down as well if there is legislative gridlock.
“In the health care space, through executive orders and regulation, we’ll see an eye towards the pandemic. Things like COVID testing equipment, vaccine distribution, spending money that Congress has already appropriated for COVID response, he’ll be able to act on all of these things. Then we’ll see undoing of regulation by the Trump administration that has refused access to medical care,” says Hoffman.
This includes revisiting work requirements in the Medicaid program. Biden might also roll back a waiver to Georgia that allows them to opt out of the Healthcare.gov website and would reduce the number of people who can sign up for ACA coverage. Hoffman also expects executive orders that would return funding to Planned Parenthood, reimpose nursing home regulations that were present under President Obama, roll back of Trump’s actions on public charge status as it relates to Medicaid, and add non-discrimination protections for LGBTQ medical care.
“There’s a lot that can be done through regulatory action and the Biden administration will turn to these things pretty quickly,” Hoffman says. Another area where they could see action, she says, is in enforcing mental health parity laws, which has gone by the wayside in the Trump administration.
Allison Hoffman, Professor of Law, University of Pennsylvania Carey Law School and Daniel Hopkins, Professor of Political Science
Also, expect the Biden administration to continue CMS’ drive to value-based payments through regulatory actions. This movement has actually seen bipartisan support. Trump’s CMS has continued down the Obama administration’s path of moving the health system towards value and encouraging providers and payers to join bundled payment models.
Opportunities to move past the gridlock
Policies that Biden promised during the campaign like adding a public option to the ACA seem unlikely, if not impossible, to pass if the Senate is controlled by Republicans. However, it’s not impossible to imagine a scenario where the two sides find
middle ground on a more bipartisan issue like surprise billing or drug pricing. In fact, this was an issue that both the Trump administration and Democrat-controlled House worked on in 2019, although failed to come up with a solution.
“One thing I think there will be action on is government being involved on the bidding of drug prices under Medicare Part D. I think that goes along with some Republicans wanting to at least do something about drugs. We’ll test the hypothesis that the government is better than private insurers in negotiating the price of drugs,” Pauly says.
If a COVID-19 relief bill doesn’t get passed before the Jan. 20 inauguration, there may be incentives on both sides of the aisle to get something done as soon as possible. This legislation could include federal funding for vaccine distribution and testing.
One of the challenges from a health policy perspective, Hopkins argues, is that as soon as something gets in the public eye, the partisanship makes it hard to proceed because both sides feel the need to get a win. He says the minute any of these issues hits the front pages it becomes an issue that will define them, and the political incentives make it harder to complete.
“With two-year cycles on federal elections, one of the two parties almost always has an incentive to hold out and wait for more power. We didn’t even pass a stimulus bill this summer or fall, even though there was bipartisan agreement precisely because both parties wanted to wait until the election. Now
there will be significant incentive to wait until the next election,” Hopkins says. “We will be perpetually waiting for federal elections because they promise to change the balance of power in a way, when coupled with today’s hyper-political environment, makes it impossible for one party to do anything that would be seen as giving the other side a win.”