November 12, 2018

Midterm Elections Place Healthcare Policy in Spotlight

Holland & Knight Healthcare Blog
Miranda A. Franco

Healthcare was a top voter priority in the 2018 midterm elections, with 41 percent of national voters stating that healthcare was their "most important" issue. Accordingly, the Democratic strategy to focus on healthcare opened opportunities in states the party likely wouldn't have dreamed of winning two years ago when the future of the Affordable Care Act (ACA) was in serious doubt. Ultimately, healthcare helped Democrats win control of the House, adding a nurse, dermatologist and a former U.S. Department of Health and Human Services (HHS) secretary as freshman representatives.

Meanwhile, in the Senate, Republicans held – and slightly increased – their majority. A split Congress will keep healthcare squarely in the spotlight, assuring a busy two years for healthcare stakeholders. The items below reflect some of the takeaways from the midterm elections and the implications for the future.

Democrats Will Continue to Leverage Healthcare Going into 2020

As long as a Republican-supported lawsuit challenging the ACA's constitutionality continues, Democrats will continue to leverage the issue to keep the focus on the ACA. Democrats will use their majority in the House to make healthcare coverage and patient protections a central issue in 2020. They also are expected to use their oversight authority to investigate actions the administration took to weaken the ACA and their subpoena power to examine the work requirements in Medicaid. House Democrats are likely to try and advance legislation aimed at patient protections (e.g., pre-existing conditions, guaranteed issue and cost-sharing) and reducing out-of-pocket expenses. Although it is doubtful that anything drastic will move, the measures likely will set the agenda for 2020 and force the Republican-controlled Senate to tackle some challenging issues.

Medicaid Expansion Was the Big Winner on Nov. 6

Voters in Nebraska, Utah and Idaho approved ballot initiatives in favor of Medicaid expansion. Under the expansion, the federal government pays 90 percent of the cost of healthcare for those who enroll under the expansion population, with the state picking up the rest. The vote could result in more than 250,000 new beneficiaries gaining coverage. However, as we've seen in the past, these ballot initiatives do not always result in immediate expansion. This was evidenced in Maine, where voters voted to expand Medicaid in 2017, but the governor opposed. On Election Day, that changed as a Democratic gubernatorial win in Maine made expansion more likely. Democratic gubernatorial wins in Kansas and Wisconsin may also lead to increases in Medicaid expansion.

In North Carolina, Democrats won enough seats to take away Republicans' veto-proof super majorities in both the state House and Senate. Accordingly, Democratic Gov. Roy Cooper may work with Republican leaders to craft a Medicaid expansion proposal.

Following the election, 37 states, plus the District of Columbia, have adopted the ACA's Medicaid expansion. With more states potentially embracing Medicaid expansion, House Democrats could lead an effort to move a Medicaid buy-in option through Congress. The effort would likely not advance in the Senate but would set up party messaging for 2020.

Next Moves for the Administration

Given the Trump Administration's now-limited ability to drive significant healthcare reforms through legislation, busy rulemaking will likely continue. The past few months have seen rules on exemptions for the coverage of certain preventive services under the ACA; major site-neutral payment policies finalized; an initiative to index pricing for Medicare Part B drugs; a redesign of the Meaningful Use program; a (delayed) revision of evaluation and management (E/M) payment and documentation, and guidance providing states increased flexibility under 1332 waivers. Further, HHS Secretary Alex Azar recently announced that the Centers for Medicare & Medicaid Services (CMS) plans to test a mandatory payment model for radiation oncology and relaunch two previously canceled payment models for cardiac care.

A Split Congress May Advance Bipartisan Healthcare Measures

This session, Congress advanced bipartisan efforts addressing the opioid crisis, telehealth, and refinements to the Medicare Access and CHIP Reauthorization Act (MACRA). The two parties also share an interest in advancing efforts in the 116th Congress regarding price transparency, consolidation, drug pricing, rural health and interoperability.

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