Maria Castelucc...: Hello there. Welcome to Modern Healthcare's Reporter's Roundtable, where we take you beyond the by-lines to better understand the news and how it's reported. I'm Maria Castellucci, Modern Healthcare Safety and Quality reporter.
I'm here today, hosting a special roundtable episode to discuss our election coverage with our two DC-based reporters, Michael Brady and Rachel Cohrs. And just to note, we're discussing results as of November 5th, and things can change after this time as those continue to be counted. Michael, can you set the scene of what we can expect after
Mike Brady: It looks unlikely that Congress will pass any sort of major healthcare legislation, even if Democrats managed to win a slim majority. So most of the changes in health care policy are going to be driven through the regulatory process. What Biden's regulatory agenda looks like will largely depend on how the Supreme Court rules on the ACA and how the COVID-19 pandemic develops over the next few months. As Trump finishes out his term and Biden comes into office.
Maria Castelucc...: Biden wins the presidency. What can we expect from his administration from a healthcare regulatory front?
Mike Brady: So I think the first thing you would see is that Biden would take immediate action to address COVID-19. And that would be accompanied by a big shift in tone, with a lot more emphasis on public health measures, less of a focus on vaccines and therapies, even though that work would continue behind the scenes the Biden administration would have that as sort of part of their COVID-19 response. But definitely more of an emphasis on the public health message and efforts to sort of contain the spread of the virus rather than all the focus on cures and, and vaccines. And I think we'd also see an effort to try to de-politicize agencies like the FDA and probably some sort of re-empowerment of the CDC to take the lead on the pandemic. The experts I've talked to seem to think that there wouldn't really be a COVID czar in the way that we have now, it would be much more relying on the agencies and the institutions to do the work that they've done historically.
Maria Castelucc...: Any ideas on what Biden's team will do to regulations the Trump administration has put into effect or in the pipeline to go into effect?
Mike Brady: Yeah, so there would probably be some sort of an early effort to roll back some of the Trump administration regulations and update some of the guidance. So Biden's team could look to reign in some of the workarounds on coverage that the Trump administration's put in, so short term health plans, association health plans, things like that. They could also look to reinstate old Obama era non-discrimination protections, which are currently working through their courts, among other things. But drug prices and other sort of less urgent issues are probably going to get tabled for at least a few months, but it's not exactly clear what that might look like. It wouldn't surprise me if, when Biden comes into office, he issued an executive order, directing all federal agencies to hit the pause button on whatever regulations they're working on and whatever they have in the pipeline to give his team a chance to review them and decide whether those are things that they want to move forward with, in and their current state, or whether it's something they would want to either withdraw or modify before moving to a final rule or final guidance.
Maria Castelucc...: Okay, great. And then on a related note, if Biden does end up taking the presidency, what are your thoughts? What have you been hearing from your sources about potentially what the Trump administration will be doing their remaining weeks?
Mike Brady: One of the things I'm watching is whether the Trump administration will finalize the stark law and anti-kickback reforms they proposed awhile ago. They had to pause them in August as part of the response to the COVID-19 pandemic, but it is something that's very important to the healthcare industry and the transition to value-based payments. So I think that's something we could see get finalized before Biden takes office. I also think we could see some of the agencies try to implement the drug executive orders that the president signed over the summer, but it will be interesting to see what a lame duck Trump administration prioritizes. Another issue that's been important, during the Trump administration specifically under the CMS' leadership of Seema Verma, is this effort to change how the Medicaid program works. And so one of the things that I'm looking for is to see if Tennessee's block grant proposal, which they had to modify earlier this year, is to see if that gets approved.
Maria Castelucc...: And then if Trump wins the presidency, what can we expect from his administration, from the healthcare regulatory front?
Mike Brady: I think if Trump does manage to win reelection, you'll see the administration and its second term hit on a lot of the same themes they hit on in their first term. So price transparency efforts to reform drug or lower drug prices, ways to expand coverage that don't necessarily meet the ACA requirements.
Maria Castelucc...: Now, let's move on to Rachel. It looks like the Republicans will keep the majority in the Senate. You reported this week, along with our colleague Tara Bannow, what this could mean for the healthcare agenda in Congress. What can we expect?
Rachel Cohrs: As of the data and the numbers that are in right now, it appears that control of the Senate won't be finally decided until early January as there are going to be two key Senate races in Georgia that won't be decided until run-off elections are held. So I think there is going to be some ambiguity over the next couple months as to what control of the Senate will look like, but we can talk a little bit about the two possible scenarios. So for hospitals, they definitely want a Democratic Senate over the campaign cycle for 2020, which is over the past two years, they've given disproportionately to Democrats, it was a 70, 30 split in favor of Democrats in terms of the campaign contributions from healthcare providers. So clearly they had a vested interest in Democrats taking control of the Senate. And Chuck Schumer is from New York and there a very powerful hospital lobby that has influence with his office. So I think they've seen him for a long time as an ally of the hospital industry.
And if Democrats were able to create a trifecta government, if they were able to take the White House, the Senate and maintain the House, then Congress would be more nimble and more able to respond if the Supreme Court decided to strike down all or part of the Affordable Care Act, which would provide more certainty, more flexibility to ensure hospitals uncompensated care costs stayed low. But on the other hand, if Republicans keep the Senate, as you mentioned, which is a more likely scenario at this point in time, then it kind of mitigates the risk for insurers of a public insurance option or pressure toward some sort of single payer system, really kind of alleviate that pressure on insurers, and it also mitigates the possibility of really aggressive policymaking targeting the pharmaceutical industry, a policy like Medicare drug price negotiation that Nancy Pelosi has really pushed in the House. If Democrats can't take at least 50 votes in the Senate, then I think that sort of policy looks very unlikely. So for those two sectors divided government just provides more certainty...
Maria Castelucc...: Yeah, I know right now, as we're recording, we definitely have a lot of uncertainty about where we stand in terms of Congress, but let's talk about what will happen if the Republicans keep the majority in the Senate. We have a case before the Supreme Court on the future of the Affordable Care Act, how will a divided Congress respond if that law's overturned by the Supreme Court? Have you you talked to sources about that?
Rachel Cohrs: Yes, I think we're still in the early stages and it's worth a reminder that whatever the Supreme Court decides and they do have a lot of options, it's not uphold the law in its entirety or stripped out in the law in its entirety, that justices do have leeway to rule that the individual mandate is severable from the rest of the law, which means even if they find part of the law unconstitutional, they don't have to strike down the entire thing or they could choose certain provisions that were closely related to the individual mandate to strike down while leaving other key provisions intact. So I think there's just a really broad range of options that we're looking at here, but there's no question that if some key provisions were struck down, it would be much harder for a divided Congress to kind of find resolution on that.
As you know, Republicans tried to make big policy, repeal the Affordable Care Act with control of the White House and the Senate and the House, and they weren't able to agree on a solution on how to do that and how to replace the Affordable Care Act then, when they had full control. So I think it would be really difficult to come to an agreement if there is some really big policy decisions that have to be made. However, there's also a pretty simple fix, depending on how the court rules, Congress could just make the individual mandate penalty some nominal fee, like $1, so it could still constitutionally be described as a tax. So I think they do have options there and I think there will be tremendous pressure for lawmakers to do something if there is a serious threat to healthcare coverage for individuals with pre-existing conditions or those who get their health insurance on the exchanges, or the Medicaid expansion population. And there's no guarantee that Congress would be able to move quickly on that in a divided atmosphere.
Maria Castelucc...: Does it seem realistic that Republicans in the Senate will want to put back in the individual mandate and work with the Affordable Care Act?
Rachel Cohrs: I think some Republicans are on the record saying that... Congress in 2017, when they zeroed out the individual mandate, didn't intend to invalidate the entire law. However, there are some staunch GOP opponents of the Affordable Care Act who would be, I would say, highly unlikely to vote for any sort of continuation of the Affordable Care Act in its current form. But I mean, if the two parties are able to work together, then I think there could be a bi-partisan deal.
Maria Castelucc...: Well, that's definitely something, I know Rachel, you'll be following closely in the months ahead. Rachel, I think it's fair to say this is an unusual election. What plan did you have cover it responsibly and fairly?
Rachel Cohrs: Yeah, this definitely was kind of an unorthodox election just because there were so many more mail-in ballots than usual and counting was delayed. And usually as reporters, when we have a big news event coming up that we're aware of ahead of time, we tend to prepare different stories and do some pre-writing for different scenarios. But I think that was a little difficult to do in this case just because there were so many options on election night. And the one that ended up happening was that we didn't have answers on a lot of the big races that we were watching, some ballot initiatives, the Presidency, control of the Senate and we're on day three of this election and we still don't have definitive answers.
Maria Castelucc...: Michael, a question for you. How has your sourcing come into play as you try to cover the election?
Mike Brady: One of the things that's interesting about covering an election is that you need to be careful when you're talking to sources about whether they're telling you what they think will happen or what they would like to happen. And so in reporting specifically on the regulatory policy for the election and all the different scenarios that could occur, I was very careful to select sources who I thought would tell me what would happen and under what circumstances, rather than trying to push whatever their regulatory agenda was into the narrative.
Maria Castelucc...: Well, thank you both so much for a great discussion.
Rachel Cohrs: Thanks for having us, Maria.
Mike Brady: Thanks for having us.
Maria Castelucc...: To make sure you hear every episode of Beyond The Byline. You can subscribe on Apple Podcasts, Spotify, and RadioPublic. And if you value the work we do, you can subscribe to Modern Healthcare at the link in the show notes. Thanks for listening.
