The 2018 mid-term election is over, and, as many expected, Democrats regained control of the House of Representatives. The incumbent party normally loses seats in the mid-terms, making the last two years of a President’s four-year term a bit more challenging than the first two. For the first time in the Trump presidency, there will be a divided congress. This means one of two things: 1) the two sides will work together and pass legislation on a bi-partisan basis, or 2) very little will get done from a legislative standpoint. Most are putting their money on the second option—there doesn’t seem to be much appetite for compromise inside the Beltway right now.
This is especially true when it comes to healthcare. Democrats and Republicans have very different ideas about how to solve the healthcare crisis, and it seems that they would rather dig in and wait for 2020 than work together on a solution. Increasingly, Democrats are embracing the idea of “Medicare for All” while Republicans remain united in their opposition to a government run, single-payer healthcare system.
We could go on, but it’s probably safe to say that there won’t be a lot of movement on the legislative front. Sure, there could be some minor improvements; perhaps a transparency bill or an HSA expansion bill could gain enough bipartisan support to pass, probably as a rider to another bill. But if you’re hoping for an ACA repeal and replace bill to find its way to the president’s desk, you shouldn’t hold your breath.
There are two other branches of government, though, and Republicans definitely have an advantage in those two areas. The executive branch, of course is controlled by President Trump, so we could certainly see new regulations that weaken the ACA and further expand non-metallic plan options in the coming year. And the judicial branch, which is supposed to be impartial, has nonetheless seen dozens of Trump appointments to the federal bench and the confirmation of two Supreme Court justices since President Trump took office. These new appointees will be asked to rule on at least one challenge to the Affordable Care Act and probably multiple cases alleging administrative overreach. How those cases will play out is anybody’s guess.
More specifically, here are four things we’ll keep an eye on in 2020:
- In the next few months, we should see final rules on HRA expansion. The proposed rules were released October 23 and, when finalized, could allow large employers to pay for individual plans and might even allow employers to reimburse employees for short-term coverage. This could have a huge impact on both the group and individual health insurance markets.
- We could see regulations that would further expand short-term plans. The Trump administration has proposed that premium tax credits be allowed to pay for short-term, limited duration plans that do not meet all of the requirements of the Affordable Care Act, including the guaranteed-issue provision, pre-existing condition protections, and coverage of the Essential Health Benefits.
- A court case challenging the legality of the Affordable Care Act is working its way through the court system. The argument is that the individual mandate is no longer a tax now that the penalty has been reduced to zero and therefore should be ruled unconstitutional. There’s a second argument that the guaranteed-issue and community rating provisions are inseverable from the individual mandate, so they should be tossed out as well.
- As the administration continues to chip away at various provisions of the Affordable Care Act, consumer groups and others will file lawsuits challenging the administration’s authority to make those changes. Some of these cases will be ruled on by lower courts. Some will be appealed and could be heard by the Supreme Court.
In short, the mid-terms made it less likely that we’ll see a legislative solution in the next two years, which means the Affordable Care Act will likely be around at least through the end of 2020. Still, we will likely continue to see the law shaped through regulation and through court decisions. And, of course, we’ll do our best to keep you up to date on the latest developments.