Trump win tees up regulatory rollbacks and uncertainty

Modern Healthcare – Wednesday, November 6, 2024
By Michael McAuliff

Former President Donald Trump’s victory on Election Day promises to bring major disruption to how the federal government treats healthcare. Some of those changes will benefit companies and others won’t, but an uncertain business landscape lies ahead no matter what.

While neither the Republican Trump nor the Democratic nominee, Vice President Kamala Harris, led their campaigns with business-focused healthcare platforms, Harris offered a sense that she would largely build on President Joe Biden’s policies and maintain continuity.

President-elect Trump, however, was vague on healthcare policies, offering “concepts of a plan” to improve the Affordable Care Act of 2010, and largely remaining quiet even on policies he pursued in his first term as president. Late in the race, his campaign seemed to defer health issues to former independent White House aspirant Robert Kennedy Jr., who mounted a “Make America Healthy Again” effort on behalf of Trump that included social media posts about banning fluoride in drinking water.

Still, analysts suggested the healthcare sector can reliably set some expectations, including that Trump will undo regulations enacted under Biden, particularly in areas important to Trump’s base and related to the ACA.

“I expect a slew of administrative actions to try to reverse what Biden has done on the ACA, reproductive health and public health,” Larry Levitt, senior vice president of the health policy research organization KFF, wrote in an email.

The ACA has grown much more popular since Trump and the GOP-led Congress failed to repeal it in 2017. During the 2024 campaign, Trump said he now wants to improve it. What that signifies is an open question, but it likely means rolling back specific regulations Biden implemented and resuming pushes for less-expensive, lower-quality health plans that Trump permitted in his first stint in office.

“Trump has promised to make the ACA ‘much better, stronger and far less expensive’ — meaning no repeal,” Allison Kassir, a lobbyist and senior government relations adviser on King & Spalding’s government advocacy and public policy team, wrote in an email. “We would expect to see a Trump administration pick right back up where it left off on deregulation and price transparency efforts — including promoting expanded access to short-term, non-ACA compliant [and] association health plans and revising regulations to remove protections based on gender identity and sexual orientation.”

Brian Blase, president of the right-leaning think tank the Paragon Health Institute and a former Trump administration official whose name has been floated for jobs in the next term, suggested the once-and-future-president would revisit his past policies.

“President Trump’s victory last night represents an opportunity to build on the healthcare successes of his first term, which expanded choice, competition and transparency,” Blase said in a statement. “The Biden administration pursued a set of policies that benefited special interests, and it’s time for a different direction that empowers patients, reforms government programs including by eliminating waste, fraud and abuse, and restores trust in public health agencies.”

One such “interest group” observers identified is transgender people, who were the targets of late-campaign ads run by Trump supporters.

“An incoming Trump administration will likely pull back the Biden administration’s rule interpreting Section 1557 of the Affordable Care Act as prohibiting the withholding of gender-affirming care,” Robert Bradner, a partner at Holland & Knight, wrote in an email. “They may also withdraw federal Medicaid matching funding to cover such care on the basis that it is unproven.”

Affordable Care Act and Medicaid

A key issue for the ACA will be whether or not enhanced subsidies for marketplace plans are maintained after 2025, when they are due to expire. The more generous financial assistance, introduced during the COVID-19 pandemic and extended under Biden’s Inflation Reduction Act of 2022, are credited with helping lift exchange sign-ups to more than 21 million this year.

The popularity of the ACA and better access to coverage had suggested to analysts that they would not necessarily be ended in a Trump presidency, especially if Democrats control one chamber of Congress.

While the subsidies are due to sunset next year, so are many of the tax cuts Trump enacted in 2017, and that is seen as a significant bargaining opportunity. However, Republicans won control of the Senate on Election Day, and may retain control of the House, giving the GOP much greater leverage in those future talks.

“The expanded ACA subsidies are set to expire at the end of 2025, and in next year’s ‘Super Bowl of tax,’ it is hard to imagine that Trump will fight to extend them,” Kassir wrote.

Another Biden-Harris priority, expanding Medicaid, will also certainly vanish, with the issue left to states. Trump has also favored allowing states more leeway with Medicaid in general, including enabling them to impose work requirements on enrollees.

Other key healthcare issues face an unsure future, including those about which there has been bipartisan agreement in Congress.

Transparency, PBMs and Medicare Advantage

For instance, bipartisan groups in Congress have been pursuing greater transparency across the health sector, ways to reduce prescription drug prices and tougher oversight of pharmacy benefit managers as they seek to trim hospital spending in Medicare, boost pay for physicians, and curb prior authorizations in Medicare Advantage.

Trump did not talk much about such issues in the campaign, but in his previous term he supported price transparency rules for hospitals, sought to ban PBMs from keeping drug rebates and proposed linking U.S. pharmaceutical prices to international benchmarks.

While some Republican lawmakers such as Sen. Dr. Roger Marshall (Kan.) have grown concerned about prior authorizations in Medicare Advantage, Trump has been supportive of the alternative to traditional Medicare, and analysts predicted he’d be a boon for them after the Biden administration imposed stricter oversight and tightened the purse strings.

“A Trump administration is likely to view the program as a fine example of privatizing government and to be friendlier to rate adjustments and less likely to attempt to dictate how the plans market to seniors,” Mark Lutes, chair of the board at Epstein Becker Green, wrote in an email.

Other Biden initiatives that are not dependent on passing laws are also likely to be rolled back, or at least modified, such as how the Federal Trade Commission and the Justice Department approach mergers and acquisitions in healthcare.

Although FTC Chair Lina Khan is not likely to be reappointed, some Republicans including Vice President-elect JD Vance, currently a senator from Ohio, have praised her work. Republicans more generally have expressed growing hostility to consolidated healthcare conglomerates. One of the loudest GOP opponents of healthcare consolidation, Sen. Mike Braun, won the Indiana gubernatorial race Tuesday and will leave Congress in January, however.

Some analysts have predicted Trump would not stop tougher enforcement, but would be more unpredictable and more selective in blocking mergers or stepping up antitrust efforts.

Lame duck session

The most immediate impact of the elections will be seen in how the current Congress finishes its work for the year. Analysts said before the election that if either party wins the White House, House and Senate, the most likely result would be that Congress does as little as possible by passing stopgap measures to punt major decisions until the new Congress convenes in January.

The GOP has notched the White House and the Senate and is within reach of keeping the House as votes continue to be counted. If Republicans do win the lower chamber, or if the final outcome is delayed for a significant amount of time, priorities such as PBM legislation, bills to mandate “site-neutral” Medicare payments for outpatient services, a physician pay hike and many others are almost certain to be put off until next year when the new government can more fully put its stamp on the laws.

There are also some wild cards that worry some analysts, such as who Trump names to top healthcare posts. While there are plenty of older, well-known hands in Trump’s universe, such as Blase, who would not set off concern, Trump’s promise to elevate Kennedy —who has made false claims about vaccines, water fluoridation and myriad other subjects — has alarmed some.

“If RFK Jr. gets a major role in healthcare in the administration, we could see the government being an accelerator for misinformation,” Levitt wrote.

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