Beth M. Cubriel
Principal at Michael Best Strategies LLC
In October, my colleague John Zordani provided an outline of the leading Democratic presidential candidates’ positions on health care reform. While we still don’t know who the Democratic nominee for President will be, President Trump is expected to represent the Republican Party on the November ballot. With health care expected to continue to be a focus of policy making and political campaigns in 2020, it’s worth taking a closer look at President Trump's health care positions as he heads into his campaign for reelection in earnest.
How does President Trump’s advocacy for health care reform differ from Democratic presidential candidates?
The Role of Publicly Funded Health Care Coverage
The President is unequivocally opposed to expanding publicly funded health care, an approach that is popular among the Democratic candidates. In releasing the October 3rd, 2019 Executive Order to improve seniors’ health care, the administration’s fact sheet argued that “Medicare-for-All bills proposed by Democrats in Congress threatened to end the Medicare program as we know it and eliminate choice for America’s seniors.”
The Future of the Affordable Care Act (ACA)
Furthermore, the President has been a champion for dismantling the Affordable Care Act, including signing a tax reform bill that reduced the penalty for individuals who fail to get qualifying coverage down to $0. That action provided the window for a coalition of states Attorneys General to challenge the mandate once again, claiming that without the tax, the ACA is unconstitutional.
President Trump’s Justice Department initially defended the lawsuit, arguing that only a narrow aspect of the law be abolished. The department then switched positions arguing to abolish the entire ACA in the states that signed on to the lawsuit. So far, the federal courts have generally sided with the plaintiff states. At the trial level, Texas federal District Court Judge Reed O’Connor ruled that the entire ACA was unconstitutional. The 5th Circuit Court of Appeals agreed on appeal that the individual mandate was unconstitutional. However, it sent the case back to the trial court, asking Judge O’Connor to clarify what, if any, aspects of the ACA could remain.
Politically, should the entire ACA be dismantled, the President may find himself having to answer to voters with pre-existing conditions in the middle of an election year. To date, the President and Republicans have made the ACA, or “Obamacare,” their scapegoat for America’s health care ills without offering any real solutions to protect those with pre-existing conditions. Protecting people with pre-existing conditions is a policy position supported by 64% of Americans, including 50% of Republicans.
Where do the President and his potential Democratic challengers find common ground?
In some cases, the President’s health care positions are closer to the center of the political spectrum than the views of Republicans in Congress. It is making for interesting headlines but little progress on the policymaking front.
Prescription Drug Costs
In the fall of 2019, President Trump tweeted support for House Speaker Nancy Pelosi’s outline to drive down the cost of prescription drugs. Included in the proposal is a requirement that CMS negotiate drug prices for prescription drugs purchased by the Medicare program.
By the time the bill passed the House, Republican leadership in the Senate had referred to the bill as “dead on arrival,” and that President Trump was also opposed. The President’s thinking seems to be continuing to evolve. In 2016, then-candidate Trump supported the government’s ability to negotiate drug prices and even advocated the use of an international price index for drugs covered by Medicare. A second-term President Trump might be more open to such a proposal if the Democrats win control of the Senate in the 2020 election.
The President also supported the bipartisan CREATES Act. These policy provisions were included in the appropriations bill covering the United States Department of Health and Human Services signed by the President just prior to the December recess. The Act makes it easier for generic drug manufacturers to get samples of brand-name drugs and bring generic competitors to market. This provision is reportedly projected to save close to $4 billion over ten years. The administration viewed this provision as a practical opportunity to lower drug prices without further “socializing” medicine.
Surprise Medical Billing
President Trump has asked Congress to send him a bill that addresses the costs paid by consumers when they are forced in an emergency to use out of network provider services. Congress has considered several legislative solutions, but members have different opinions on whether to establish rate-setting standards or require providers and insurance companies to arbitrate the matter. The policy differences on this issue are less partisan, and the President would likely sign any bill that Congress sends to him. Until Congress sends the President a bill, we can expect to hear from him on this issue while on the campaign trail.
Based on his actions in the past three years, we can expect the President to continue to promote transparency in the health care industry. He has already used his administrative authority to require hospitals to publish their service rates, with similar rules for insurance companies under consideration. And, his administration passed rules, later overturned by the federal courts, which required pricing disclosures on all drug advertising.
What Health Care Policies Is President Trump Highlighting?
Based on prior actions and public statements, we should expect candidate Trump to continue to advocate for incremental reforms, rather than a federal takeover of the health care industry. We should also expect him to promote steps he has taken via executive order while railing against Congress – and Congressional Democrats in particular – for the slow pace of sending bills to his desk.
On his campaign website, the President boasts his successes in funding rural health, allocating resources to opioid addiction, moving generic drugs to market, and expanding association health plans.
Whether these and other campaign promises result in actual action will depend on the President’s willingness to part with Republicans on certain issues, including drug price negotiation. It will also depend on Congress’s ability to bridge political and policy divides to send more health care legislation to the President.
This year will bring a great deal of political and policy intrigue when it comes to health care, and The Alliance will keep close tabs on all of it for you.
House and Senate members have returned from their summer recess, which started at the beginning of August and ran through Labor Day. Let’s take a look at the major health care policy matters that are on deck for consideration before lawmakers return once again to their districts at the end of the year.
Surprise Medical Billing
During the August recess, members of Congress were greeted in their districts by ads purchased by physician advocates. These ads, which arrived in mailboxes, and ran on TV and radio, encouraged the public to contact members of Congress to let them know that surprise medical billing reform hurts doctors and hospitals. One ad campaign compared benchmark pricing – one of the proposed solutions to surprise billing – to “government rate-setting” and warned that surprise billing reform could cause hospitals to close. But according to the Kaiser Family Foundation, the majority of the public (57%) still supports such reforms, despite seeing or hearing the ads.
As for reform, there are two approaches. The first, as noted above, would establish “benchmark pricing,” requiring out-of-network hospitals and physicians treating emergency cases to bill at the average in-network rate since the patient doesn’t have the choice of hospital or caregiver in such circumstances. This is the approach generally favored by employers and is included in legislation being considered in both the House and Senate.
The second approach is arbitration, meaning that if the provider doesn’t want to agree to the benchmark, they can use a dedicated appeal system to negotiate a different price for the insurance company. This concept, currently opposed by the administration and by most employer groups, has some popularity in both chambers and is being described as a “backstop” for when benchmark pricing is deemed unacceptable or unworkable by providers.
Before August recess, the House overwhelmingly passed HR 748, including a permanent repeal of the Cadillac Tax, by a vote of 419-6. The fate of the repeal is now in the Senate, where Majority Leader Mitch McConnell has been quiet on any commitment to bring the vote to the floor. Since the bill enjoys political support from consumers, employers and labor unions, it is expected to pass should it receive a floor vote. Repeal of the tax is expected to add $197 billion to the federal deficit over the next decade, however, which makes Congressional leadership very nervous.
Shortly after returning from the recess, House Speaker Nancy Pelosi released details for her long-awaited bill on prescription drug reform. The proposal would, among other measures, require the federal government to negotiate 250 different brand name drugs offered through Medicare. Pelosi’s reform is supported by many Democrats and even enjoys the support of President Trump, who has expressed his support for efforts designed to deliver relief to consumers. But the bill is opposed by progressive Democrats, who argue it doesn’t do enough, and by almost all Republicans, who have described it as “socialist” and “dead on arrival” in the upper chamber.
With prescription drug reform being identified as a “priority” issue by 70% of the electorate, and with the issue likely to continue to be a topic of discussion heading into next year’s presidential election, members of Congress have plenty of motivation to find common ground. If a bill moves, it likely will be a hybrid of the Pelosi bill and the Senate bipartisan plan that would cap out-of-pocket expenses for certain seniors and limit drug price increases to the cost of inflation.
What’s most likely* to move?
Of these three much-needed health care policy changes, I expect that some sort of surprise medical billing reform has the best prospects of becoming law before the end of the year. It’s the issue on which there is most agreement, although the aggressive lobbying effort by physician advocate groups over the summer has softened congressional resolve somewhat. Prescription drug reform is best primed for next year. There is political pressure for change but lawmakers from each party, and within the two parties, have very different solutions and expectations. Finally, there is as yet no easy solution the high price tag associated with Cadillac Tax permanent repeal, and its fate in the Senate remains in doubt.
*Update -- on September 24, 2019, House Speaker Nancy Pelosi announced that the House would open a formal impeachment inquiry into President Trump. While the impact of this development on the regular legislative business of the Congress is still unknown, it is reasonable to assume that nothing requiring bipartisan cooperation will move quickly until the two parties decide how to work through this inquiry.
Why You Should Get Involved
The Alliance encourages its member-employers to get involved and share their perspectives with their elected representatives, particularly members of Congress given that so many policy issues are handled by the U.S. Congress and federal agencies.
Beth Cubriel with Michael Best Strategies shares her perspectives on how best to build relationships and share information with members of Congress. Beth worked for many years for United States Senator John Cornyn.
Time to Meet Your Member of Congress!
Here are some tips on how you can build a trusted relationship with your member of Congress and in so doing make sure that The Alliance’s health policy priorities are well understood by those members.
Know Who Represents You. The first step in establishing a relationship with your elected representatives is to know who they are and how to reach them. You can look up your House member and senators and find their offices’ contact information here: https://whoismyrepresentative.com/
Call the office. Generally speaking, this is an easy but relatively ineffective method of communication. Calls into members’ offices get logged as a position for or against a particular issue. There are no supporting arguments or rationale relayed with your position and you will not get a response from the member. The only time that calls into offices work is if they are done en masse, potentially encouraging a member who is on the fence.
Write letters/emails. For the activist with limited time, a letter or email can be very effective, especially if you have a unique story to tell. When writing your letter, be sure to let your representative know you are an employer in his or her district and that a vote they are about to take not only affects your ability to run a successful business, but also affects your employees. If appropriate, ask your employees to send letters of their own. Some Congressional offices have a policy to respond to all received correspondence. The response is almost always drafted by a staff member but includes language that is approved by the member.
Meet with staff in the district. When I worked in the state offices for Sen. Cornyn, we met with constituents all the time. They came to our office; we attended their events; we got to know them. These are the people we would often proactively call for their opinion on a topic. They became opinion leaders for us in their particular field. We would report back to the senator so that he could better understand the perspectives of the business owners, law enforcement, teachers, etc. in the state.
Attend events. When you know that a Congressional recess is approaching, call the member’s office and ask if they have any public events you can attend. Unfortunately, because the political climate has gotten so hostile, the public town hall meeting has become a thing of the past. But if you get to know the staff, they will likely be more forthcoming with you about opportunities to connect with the member. Conversely, if you’re a member of an association or chamber of commerce, ask them to invite your member to speak to your group. Or, invite the member to visit your business and meet your employees.
Engage on social media. Want your member to Fight the 40, also known as the Cadillac Tax? Tag them when you re-tweet Fight the 40s twitter feed, letting them know you are a constituent and employer in their district. Say something like “This constituent wants to know if @JohnSmith will support workers in the district by fighting the 40.” Or, if your member has already voted to repeal the Cadillac Tax, a quick tweet to say thanks is always helpful. Just stay within the character limits and avoid being combative!
Travel to Washington, D.C. If you happen to be taking the family to D.C., be sure to check in with your member before you go. They can be helpful in scheduling tours and most members will have a weekly meet and greet, a time when visiting constituents can snap a photo with the member.
Help the campaign. If you are inclined, attend a fundraiser or volunteer for your member’s campaign. You’ll have to go to the member’s campaign website to get involved politically. That information can usually be found by Googling “John Smith for Congress” or “Jane Doe for Senate.”
I Can Help!
Please let me know if you have any questions about these suggestions. I’ve worked on both sides of constituent-member relationship, both as a Senate employee and as an issue advocate. I’m happy to review correspondence, track down the most relevant contact information, or answer any questions you might have about forging a trusted relationship with your elected official. You can contact me at firstname.lastname@example.org.
Learn the impact of surprise medical billing from out-of-network providers, the politics of reform and what reform is happening in the United States.
Ever since the U.S. Supreme Court upheld major portions of the Affordable Care Act (ACA) in 2012, health care providers, insurers and employers have been closely monitoring congressional and executive action to forecast the future of the law and its many provisions. The Dec. 14, 2018 ruling by a federal district court judge in Texas, Reed O’Connor, once again throws judicial action into the forefront of that mix.
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