A Divided Congress: What It Means for Health and Medicine

This is another of a series of analyses CRD Associates will publish examining the midterm election results and their likely impact on key federal policies

Prepared by the Team at CRD Associates

Democrats parleyed a growing wave of health care concerns into a majority of the House of Representatives, propelled in large part by promises to protect Americans with preexisting health conditions and lower prescription drug costs.

Fueled by Republicans’ repeated efforts to roll back the Affordable Care Act and disciplined Democratic campaigns focused on protections for those with preexisting conditions—and perhaps bolstered by Senate Majority Leader Mitch McConnell’s (R-KY) recent statements calling for Medicare and Medicaid reforms—exit polls taken on Election Day showed health care was a top concern for voters.

In fact, in a Kaiser Family Foundation poll taken in mid-October voters said health care was the top issue on their minds, even over the economy. That concern included the all-important independents and voters in swing states and districts.

Following is an analysis of how key health-related issues are likely to fare in the next Congress.

Appropriations good news/bad news

The good news is that funding for the National Institutes of Health enjoys bipartisan support in Congress—support that led to annual increases of $2 to $3 billion, for a total of $9 billion over the last four years for the nation’s top research agency.

The bad news is that other public health programs, like mental health and workforce training and education programs, have not gotten as much love from Congress, due in part to tight limits on discretionary spending.

That may change in the 116th Congress when Rep. Nita Lowey (D-NY) assumes the chair of the House Appropriations Committee and Rep. Rosa DeLauro (D-CT) leads the Labor-HHS-Education Subcommittee. Both will be in a better position to allocate more money for public health. But that won’t be easy because the two-year budget deal that raised spending caps imposed by the Budget Control Act of 2011 is due to expire next year. Absent another deal, non defense discretionary programs face cuts of $55 billion in fiscal year 2020, or about 10 percent below current spending.

Rep. DeLauro has said she wants to build upon a $325 million fund at the Centers for Disease Control and Prevention set up to respond to infectious disease outbreaks and other emergencies. Rather than fund those emergencies at the expense of other public health programs, DeLauro will push to have that spending designated as an emergency, freeing up funds to support ongoing public health programs.

ACA: Mother of all issues

The ACA was arguably the issue that cost Democrats control of Congress back in 2010. Ironically, all signs indicate that the health law was the reason Democrats regained control of the House for the first time since then. What was then an anchor is now a boon.

The turnaround began in early 2017, when public opinion of the ACA was tied at 46 percent between voters who approved and disapproved of it. A few weeks later, Republicans in the House voted to repeal the ACA—with no Democrats supporting it. Since then, more Americans have approved of the 2010 law than disapproved, saying that they blamed Republicans for anything going wrong in the law now that the GOP tried to undo it, i.e. you break it, you own it!

By last month, 82 percent of voters said health care is one of the most important issues in their votes for Congress; the same polls found voters trust Democrats over Republicans to improve their health care situation.

As for the future, the ACA remains a divisive and politically charged issue. Despite agreement on both sides that there are problems to be addressed and that the law should be updated, doing so will be difficult in a divided Congress. Democrats, for example, may try to block or amend administration rules expanding short-term, bare-bones health plans, health reimbursement accounts and loosely regulated association health plans.

In the meantime, House Democrats say they will conduct significant oversight of the president’s implementation of the ACA, work to bolster the exchanges, and possibly examine the idea of “Medicare for All,” broadening the federal health insurance program from covering primarily people 65 and older to a single-payer plan covering Americans of all ages. Rep. John Yarmuth (D-KY), who will likely head the House Budget committee, already plans to hold a hearing on the subject.

Also in the House, where the Energy and Commerce Committee will now be headed by Rep. Frank Pallone (D-NJ), long-term care is likely to be on the legislative agenda. In addition to being a strong advocate of the Affordable Care Act, Pallone is also the author of a proposal entitled The Medicare Long-Term Care Services and Supports Act, which promotes the prospect of long-term care getting some long-overdue attention.

Drug pricing on the front burner

The Democrats’ takeover of the House has injected new life into efforts to combat high drug prices—perhaps with bipartisan support.

House Democratic leaders and President Trump believe they share some common ground over drug pricing, and Senate Majority Leader Mitch McConnell (R-KY) has expressed some openness to addressing the issue in 2019, though he has not offered any specifics.

Allowing Medicare to negotiate drug prices has long been a goal of Democrats. And a few weeks ago, the Trump administration floated a proposal to tie the prices it pays for Medicare Part B drugs to those paid by consumers abroad. But it’s also possible that more targeted drug pricing actions could be attached to larger, must-pass legislation, such as appropriations bills. Along these lines, advocates have pushed for passage of the bipartisan CREATES Act, which seeks to crack down on delay tactics against approval of generic drugs.

More Medicaid expansion?

Voters propelled the biggest expansion of Medicaid in heavily Republican states since the early years of the Affordable Care Act, with hundreds of thousands of working poor and vulnerable residents standing to gain health coverage as a result of the midterm elections.

Idaho, Nebraska, and Utah approved ballot initiatives to include in their Medicaid programs adults with incomes of up to 138 percent of the federal poverty line, broadening the safety-net insurance that GOP-controlled state legislatures had balked at for years. In addition, Maine voters elected a new governor, Democrat Janet Mills, clearing the path for a Medicaid expansion that voters approved by referendum a year ago. (The outgoing GOP governor, Paul LePage, was an ardent foe of the expansion and had blocked it for a year.)

Successes in those handful of states give other ballot organizers a blueprint on how to expand Medicaid in states that have resisted—a move that would not only help improve health coverage for their residents, but also help stabilize hospitals, particularly those in rural areas, by cutting down on uninsured patients and uncompensated care. Incoming Kansas Democratic Governor Laura Kelly has already promised to advocate for Medicaid expansion in her first year in office; Wisconsin Governor-elect Democrat Tony Evers, a supporter of Medicaid expansion may increase the prospects of expansion in that state; and while the outcome of the Georgia gubernatorial race is still pending, if elected, Democrat Stacey Abrams plans to make Medicaid expansion her first priority.

The major threats to Medicaid, including converting funding to a block grant or imposing a per capita spending limit, virtually disappear in a divided Congress. In fact, the Democrats’ House takeover could draw attention to expanding home and community-based services for Medicaid recipients, and block or revise administration rules governing work requirements.

Data privacy legislation has a fighting chance

Democrats’ takeover of the House could open the way to data privacy legislation, particularly with Rep. Pallone chairing the House Energy and Commerce Committee. Pallone has listed privacy and data security protection as among his top priorities for the next Congress—more specifically, ensuring that consumers, not tech companies, have control over the collection and use of their own personal information. But Pallone isn’t the only lawmaker promoting data privacy. Ranking Senate Finance Committee member Senator Ron Wyden (D-OR) and Senator-elect Marsha Blackburn (R-TN) have both suggested legislation that promotes internet privacy and data protection.

For decades, companies like Google, Facebook and Amazon have successfully monetized the personal information of their users with almost no oversight or regulation. Seven times this year big tech has been called on the carpet to answer for data breaches, fake news, political meddling on the internet and the endless amounts of personal information being gathered on Americans. As a result, their size, power and ability—or willingness—to police themselves are being called into question. Driven in part by steps already being taken by the European Union, a consensus is developing that something has to change.

Sensing what may be the inevitable, Facebook, Twitter, Google and Amazon are now saying they could support a U.S. privacy law if they were given considerable input. The Internet Association says it would support giving Americans reasonable access to their information and some privacy rights now enjoyed by Europeans.

Patient Centered Outcomes Research Institute (PCORI) up for renewal

Established in 2010 to set priorities for the conduct of comparative clinical effectiveness research (CER), PCORI’s current authorization will expire September 30, 2019. To date, PCORI has invested nearly $2.4 billion in more than 600 patient-centered CER studies and related projects.

PCORI is funded through the Patient-Centered Outcomes Research Trust Fund (PCOR Trust Fund), which receives income from three revenue streams: appropriations from the General Fund of the Treasury, transfers from the Centers for Medicare and Medicaid trust funds, and a fee assessed on private insurance and self-insured health plans. The bulk of PCORI’s funds—more than $250 million annually—come from the PCOR fee.

In the Senate, two lawmakers, Senators Bill Cassidy (R-LA) and Mark Warner (D-VA), are leading the charge to reauthorize the program and its funding beyond the end of this fiscal year. However, questions remain about the details of the reauthorizing legislation, including at what funding level the program should be continued, for how long and the extent of stakeholder participation in decision-making.

Older Americans Act Reauthorization

The law authorizing Older Americans Act (OAA) programs expires September 30, 2019. First enacted in 1965, the legislation supports 11 million, or 1 in 5, older Americans, allowing them to remain independent by reducing hunger and food insecurity, offering opportunities to socialize, and supporting access to preventative care.

The committees of jurisdiction are the House Committee on Education and Workforce and the Senate Health, Education, Labor and Pensions (HELP) Committee. (Education and Workforce will also be responsible for reauthorizing the Healthy, Hunger Free Kids Act, which expired in 2016.) While OAA’s reauthorization was not a priority for the 115th Congress, the law’s renewal would represent a bipartisan win.

The House panel is expected to be chaired by Rep. Bobby Scott (D-VA), a long-time advocate who helped secure passage of the Elder Abuse Victims Act.

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