The midterm elections all but ended the Republican push to repeal the 2010 law known as Obamacare, but as a defining issue for Democrats in their takeover of the House, health care will likely remain near the top of lawmakers’ policy and political agenda.
Newly emboldened Democrats are expected to not only push legislation through the House, but use their majority control of key committees to press Trump administration officials on the implementation of the health law, Medicaid work requirements, and insurance that does not have to comply with Obamacare rules.
Both parties are looking to address issues that voters prioritized, such as lowering prescription drug prices, though different approaches by Republicans and Democrats could mean incremental changes stand a better chance of enactment than any major bill.
Early on, lawmakers may find themselves dealing with the fallout of a court ruling that could overturn the law’s mandate that health insurance cover pre-existing conditions, putting Congress on the spot in the face of widespread voter support for those protections.
All of these issues, which dominated this year’s elections, will play out against the backdrop of the next congressional and presidential contests.
“In a lot of ways, the purpose of legislation in this Congress for the Democrats is going to be to set the agenda for the 2020 election,” said Dan Mendelson, the founder of the consulting firm Avalere.
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Lowering drug prices is a top priority for House Democrats and President Donald Trump. Leaders of both parties identified this issue last week as a possible area for bipartisanship.
But Democrats’ more ambitious plans, like allowing Medicare to negotiate drug prices, aren’t expected to advance in the Republican Senate. Instead, issues like increasing transparency or speeding up approvals for new treatments could be ones where both parties can find agreement.
Texas Democratic Rep. Lloyd Doggett, a contender to lead the Ways and Means Health Subcommittee, is pushing a measure that would require HHS to negotiate prices for drugs covered by the Medicare Part D program. While most Democrats say they back price negotiations, there will likely be debate within the party about the details, particularly if they seem to be close to the government setting prices.
“When you start getting into anything that looks like price controls, you might get some bipartisan support for, but you also might get bipartisan support against,” said Ben Isgur, the leader of PwC’s Health Research Institute.
Democrats’ other focal points center on price-gouging for pharmaceuticals, which gained significant attention in recent years. The House Democrats’ “Better Deal” legislative agenda envisions a “price-gouging” enforcer, which would be a Senate-confirmed position to lead a new agency focused on stopping significant price increases for prescription drugs. Democrats also hope to require drug manufacturers to provide data to justify significant price increases.
Their plan would require drugmakers to justify price increases of certain amounts at least 30 days before they take effect.
Leaders in both parties have said since the election that drug pricing will be on the agenda, but have appeared skeptical of whether their efforts would yield a successful outcome.
“The jury’s out in my mind,” Democratic Rep. Pramila Jayapal said in a call with reporters last week. “If he is serious about taking on those pharmaceutical drug companies and ensuring that we can really get prescriptions filled for our seniors and negotiate prices for our pharmaceutical drugs the way we do for our VA, then we might have something we can work on.”
Mendelson predicted that even if a major bipartisan agreement to lower prices doesn’t advance in the next Congress, the Trump administration will keep taking steps that could eventually lower prices. Food and Drug Commissioner Scott Gottlieb has earned bipartisan praise for speeding new drug approvals, for instance.
The Trump administration could try to stay in command of drug pricing politics ahead of the 2020 election, he added, although Democrats will also seek to control the issue.
“There could well be significant progress over the next year or two because the administration has a lot of authority and they will use it to neutralize the issue before the 2020 election,” said Mendelson, a former Clinton administration official.
Health care law
The electrifying election-year issue of pre-existing condition protections is likely to win a House vote as Democrats seek to prove their commitment to that popular part of the law.
Both parties are bracing for a ruling from U.S. District Court Judge Reed O’Connor of Texas in a lawsuit filed by 20 state officials seeking to overturn the 2010 law. O’Connor heard oral arguments in September, although the Trump administration asked to delay a ruling until after the open enrollment period ends on Dec. 15.
If O’Connor strikes down all or part of the health care law, Democrats expect a group of state attorneys general defending the law to seek an immediate injunction and appeal the decision. Legal scholars on both sides of the aisle question the arguments of those attempting to kill the law, but the case could reach the Supreme Court.
House Democrats plan to consider a bill by Rep. Jacky Rosen of Nevada who won a Senate bid last week, that would allow the House to intervene in the case and defend the health law, aides say.
Across the Capitol, 10 Senate Republicans introduced a bill this summer to guarantee coverage of pre-existing conditions, which GOP aides say could be part of a response to the lawsuit.
Democrats have criticized the Senate GOP bill because it doesn’t require insurers to cover certain services for patients with pre-existing conditions. Republicans like North Carolina Sen. Thom Tillis, who sponsored the measure, defend it.
“If they do strike down large parts of the legislation, Sen. Tillis’ bill could be one important part of a larger health care legislative effort,” said Adam Webb, a spokesman for Tillis.
Senate Majority Leader Mitch McConnell of Kentucky declined to reveal after the election how the chamber would respond to a ruling striking down parts of the law, but called for bipartisan fixes to the health law.
A draft bipartisan stabilization bill, which has been at an impasse for nearly a year, could re-emerge in the next Congress, but it’s not clear if lawmakers can resolve a fight over abortion restrictions that blocked an agreement or how that measure could change a year later.
“The first thing we need to do is stop Republican attacks on coverage of pre-existing conditions, stop any movement toward extending these short-term plans,” Iowa Rep.-elect Cindy Axne, who defeated Rep. David Young, said in a call with reporters last week.
Top Democrats — Frank Pallone Jr., Richard E. Neal of Massachusetts, and Robert C. Scott of Virginia, who are expected to chair the Energy and Commerce, Ways and Means, and Education and Workforce committees, respectively — introduced legislation this year to shore up the health law. It would increase the size of the tax credits that help people pay their premiums and expand eligibility. It would also block Trump administration rules to expand health plans that don’t meet the 2010 law’s requirements.
Aides caution the bill could see minor changes next year based on developments since it was introduced in March and say it could be tied into a stabilization debate.
Since falling short in their efforts to overhaul the law last year, Senate Republicans pivoted to rising health care costs, a focus that will likely extend into next year. Several senators showed interest in legislation to prevent surprise medical bills, but it’s not clear what other topics could lead to bipartisan agreement, which will still be needed in the Senate even with a larger Republican majority.
Oversight of the health care law will dominate House action on the health law in a largely gridlocked Congress. House Democrats plan to bring administration officials to Capitol Hill to explain what critics call “sabotage” of the law’s insurance exchanges.
“We’ll be looking at what they’re doing administratively to undermine the operations of the Affordable Care Act and what consequences they may have caused to literally millions of people,” Minority Whip Steny H. Hoyer told reporters in September.
Oversight could touch on issues such as Trump’s funding cuts to outreach and advertising for the exchanges, reductions in enrollment help and the effects of repealing the law’s mandate to get coverage.
Maryland Rep. Elijah E. Cummings, who is expected to lead the House Oversight Committee, will likely rev up an investigation into drug companies high prices that he has been conducting as ranking member and could bring executives in to testify before the panel.
In a post-election press conference, the presumed incoming House speaker, Nancy Pelosi of California, highlighted the Energy and Commerce Committee as another “big oversight committee” that will be active.
“We do not intend to abandon or relinquish our responsibility … for accountability, for oversight and the rest,” said Pelosi. “This doesn’t mean we go looking for a fight, but it means that if we see a need to go forward, we will.”