In January, there will be a divided government. This severely restricts the possibility space for legislative health policy. Anything that can pass Congress will need Speaker Pelosi and likely Majority Leader McConnell’s agreement. I am not sure that there is all that much that will fit that description. There might be a chance of something on prescription drugs. There might be a chance on something getting to the White House on balanced billing that may be very favorable to clinical interests, but there is no agreement zone for large expansions of public insurance coverage.
Policy will be in the courts and in the executive branch.
As of my most recent cup of coffee, it looks more likely than not that the President on January 21st will be Joe Biden as he is building a lead in Wisconsin and has closed the gap in Michigan with several hundred thousand votes from Detroit still to be processed. I think that there will be significant continuity on the development and deployment of alternative payment models in Medicare and Medicaid. There will be little administration interest in promoting and increasing administrative burden as a barrier to accessing public programs. There are some ideas floating around on the ACA exchanges that will make things better on the margin. I am confident that the Biden Administration will have a much better APA record in the courts than the Trump Administration.
The first big question on the courts is if they sever the individual mandate from the rest of the law in January or February. The courts are going to be heavily tilt conservative as I don’t think Biden will get many judges confirmed in a world where McConnell has demonstrated that all that matters is who controls the agenda and who has 51 votes. He is likely to control both. For the ACA case, the Supreme Court has lots of options from least disruptive to most disruptive:
- Standing –> could you please explicate your precise injury for being subject to a $0 penalty that is not being enforced?
- Still a tax –> a future Congress could raise money this way
- Sure, you’re right, but totally severable so the mandate goes away, the exemptions to the penalty go away and nothing else.
- You’re right, all of the individual market goes boom
- You’re right, everything goes boom.
This is where my head is at on a policy basis this morning.