With the Election (Almost) Done, Now What is Congress up to?

If you are just crawling out from under a rock, note that last week, we had an election in this country.

Republicans won the White House and the Senate, and as of this writing, the House is still a toss-up. They are saying that it could be days or weeks before we have an official call on the House.

An undecided House sets up an interesting context for what comes next in the lame-duck session: we have a period of time when the Biden Administration and this Congress know they are on their way out, but there’s still some uncertainty about how the next Congress will look.

The question that the current Congress is asking, for the lame duck: do we kick some cans – including some healthcare-specific cans – down the road for the next Congress, or in our final hours of power, do we push through some actual legislation?

For the purposes of this audience, there are two issues of interest that the lame-duck session must either address – or kick the can on – when lawmakers come back into town next week: first, Congress has to figure out how to keep the government funded before it shuts down after Dec. 20. That’s right. We’re here, again, facing a government shutdown.   

Second, there are healthcare issues that need to be managed before the end of the year, like extending telehealth flexibility and funding community health centers. There was also some hope that before the new year, the lame-duck Congress could fix the nearly 3-percent decrease in 2025 Medicare physician reimbursement.

I think we’re going to see the can punted on the healthcare issues. There’s just not enough time for Congress to settle on appropriations, manage competing issues (like disaster aid and a defense bill), and also try and put together a substantive healthcare package. There will also be motivation from both parties to have the next Congress either a) take the credit or b) take the blame for what such a healthcare package looks like, depending on your point of view.

In contrast, during this same lame-duck session, the Biden Administration is expected to be very active. They have said in various different forums that they are working hard to push out a number of regulations on their agenda before the end of January.

For instance, look for a proposed modification to the Health Insurance Portability and Accountability Act (HIPAA) security rule, now in final review, as we’ve talked about on these pages. That rule is expected to propose new security standards for hospitals, payors, and business associates to help combat cyberattacks.

Also look for final rules on the independent dispute resolution (IDR) process for the No Surprises Act (NSA). That rule is expected to finalize a substantial upgrade on the federal No Surprises Act portal, digitalizing and modernizing the management of payer-provider negotiations and disputes.

(Note that, while new administrations have the ability to delay or roll back regulations from past administrations, there is no political – or partisan – reason for the Trump administration to stall these two rules.)

Then, come the end of January, expect a very active period for both the new administration and the new Congress. As previously noted, 50 percent of any given new Congress’s legislation is introduced within the first six months.

And given the GOP’s control of, at least, both the Senate and White House, we can expect a big push from the administration itself on the Trump agenda. The eagerness to legislate and regulate is driven in part by the unique fact that the Trump Administration is, by definition, a lame-duck Administration itself. That is, ostensibly, this is Trump’s last term of office, and his Administration will only have about a year and a half before midterms threaten his agenda.

However, when it comes to a Trump Administration and a GOP senate’s healthcare agenda, we don’t expect any surprises. In terms of healthcare policies current and future, both parties seem generally aligned.

If we set aside public health, plus policies under the Centers for Disease Control and Prevention (CDC) or Food and Drug Administration (FDA), and just focus on the “business of doing healthcare,” there is bipartisan support and momentum in nearly all policy areas.

At a high level, there is general bipartisan support for Medicare and Medicare Advantage, Medicaid (and managed Medicaid), the Affordable Care Act (ACA), value-based care, the No Surprises Act, price transparency, cybersecurity, interoperability, and administrative simplification.

That being said, in a Trump White House with a GOP Senate, we certainly will see a Republican flavor injected into any and all legislation and regulation regarding these programs. For instance, we will likely see work requirements suggested again for Medicaid, and there’s a question of whether subsidies will continue for the ACA marketplace and exchange.

In politics, nothing is certain. The only constant is change, etc. But we can be relatively sure of one thing: it’s going to be a busy first half of the new year.