Vote Like Your Practice Depends on It
By Alpha Lillstrom Cheng, JD, MA
This is a presidential election year like no other, for many reasons.
Every four years, pundits declare “this is the most important election of our lifetime.” While that may or may not be the case, when a federal election includes selections for president, all House of Representatives seats, and roughly one-third of the Senate, the results of that election can make a significant difference in the types of laws enacted and the political lens applied to regulatory policy priorities for the next two to four years. The executive and legislative branches have separate and distinct tools through which they can change what you get paid for, the amount you get paid, what kind of information you must report to the federal government, the amount of taxes you pay, and lastly, the range of health care coverage you can access yourself, offer to your employees, or engage with as you provide care to your patients.
Power of the Executive Branch
The president is the head of the United States government and uses the executive branch to implement and enforce the laws passed by Congress. The president also issues executive orders, which direct executive officers or clarify and further existing laws and has the privilege of nominating a Supreme Court Justice (which must be confirmed by the Senate) when a vacancy occurs. Finally, while the president can request Congress pursue certain legislative priorities, the president and the executive branch have no power to change laws themselves — they must work within existing legal parameters. Cabinet members, appointed by the president (and approved by the Senate) are tasked with the day-to-day implementation, enforcement, and administration of federal laws passed by Congress. Regulatory agencies are tasked with applying the policy philosophy of the president when building out and fine-tuning legislative mandates passed by Congress.
Impact of the Election
The president influences domestic policy through federal agencies by setting the tone for the approach regulations will take. Cabinet members appointed (with the advice and consent of the Senate) are tasked with implementing the president’s priorities. For example, the Department of Health and Human Services (HHS) and the Center for Medicare and Medicaid Services (CMS) are responsible for producing the annual Medicare Physician Fee Schedule (MPFS), which set the rates it will reimburse Medicare-eligible providers for services provided to Medicare beneficiaries. Each year CMS also uses the MPFS to propose regulations that govern what providers must do in order to receive payment.
Sometimes agencies are simply deciding which factors to consider when implementing laws. Two recent examples are the gradual implementation of the Merit Based Incentive Payment System (MIPS) since the passage of the Medicare Access and CHIP Reauthorization Act of 2015 and the 2020 final MPFS CMS, which determined how it was going to process the legislatively mandated payment differential for physical therapist assistants. Other times, an agency uses its regulatory authority to go beyond executing a law and utilizes its regulatory authority to finalize regulations ranging from the removal of functional limitation reporting effective 2019 and extending telehealth waivers to cover physical therapy for Medicare patients this spring, to its 2020 MPFS final rule plan to cut specialist reimbursement in order to pay for an increase in the value of evaluation and management codes. In each instance, PPS engages with federal agencies to seek the most favorable regulatory outcome for private practice physical therapists. For example, PPS has been actively pushing back against the regulatory action to cut physical therapy reimbursement by 9% since it was proposed in July 2019.
With a new president, the philosophical approach to regulatory policy could change significantly. While the focus on quality measures and the move towards payment for performance instead of fee-for-service, the approach taken when implementing programs such as MIPS and bundled payment would likely shift.
Power of the Legislative Branch
The legislative branch is responsible for drafting, negotiating, and passing laws that provide the framework for federal policy. It is important to engage in advocacy and communicate your preferences to your elected officials. A Member of Congress’ representation can take many forms. The most common is for lawmakers to introduce, cosponsor, and vote for legislation that will improve how federal policy impacts their district or state. Representation may also come in the form of defense when lawmakers act to prevent the enactment of policies. As constituents you should ask your elected officials to represent the interests of your practice, your profession, and your patients as well as personal priorities.
Impact of the Election
House of Representatives
Each election year all 435 House of Representatives seats are on the ballot. Democrats currently hold a 233-198 majority in that chamber. As of this writing, at least 52 districts – 34 held by republicans and 18 held by democrats – will not have an incumbent running for re-election. Turnover of legislators results in the shifting of members from committee to committee as more senior members angle to be placed on more prestigious committees. The House committees that deal with health policy — Ways & Means and Energy & Commerce — are considered prime committee assignments. Ten retiring members sit on those committees: eight (six republicans, two democrats) are members of the Energy & Commerce Committee and two (both republicans) sit on the Ways & Means Committee; regardless of the election results, these committee rosters will feature at least ten new members. It is widely expected that the democrats will retain the majority in the House, but depending on the final party affiliation ratio, there may also be a reallocation of the proportion of republicans and democrats in each committee, which would shift committee rosters even more.
In the Senate, republicans currently hold a 53-member majority. Senators are elected for six-year, staggered terms. In this Fall’s election, there are 35 Senate seats on the ballot, which includes special elections in Arizona and Georgia. Twenty-two of these contested elections are for seats currently held by members of the Republican Party while 12 are held by democrats. While it is likely that republicans will remain the majority party, they could see their majority shrink. If the election results in a 50-50 split in the Senate, control of that chamber will come down to which party wins the presidential election. This is because one of the responsibilities of the Vice President of the United States is to be the tie-breaking vote in the Senate and that person will most likely side with the members of his or her political party. In order to gain the outright majority in the Senate for the 117th Congress, democrats will need a net gain of four seats.
So far three republicans who sit on committees of health care jurisdiction have declared their intent to retire from the Senate: Health Education Labor and Pensions (HELP) Committee Chairman Lamar Alexander (TN), as well as Mike Enzi (WY) and Pat Roberts (KS), who both serve on the Finance and HELP Committees. These retirements mean that next year there will be a new republican leader of the HELP committee, at least three new members on HELP, and at least two new members on the Senate Finance Committee. If republicans retain a similar proportion of the majority, those slots will be filled by republicans. If the ratio of republicans to democrats shifts, then the allocation of republicans and democrats on each committee will also shift. For instance, if Senate seats were to be evenly split between parties, the committee rosters would similarly be evenly allocated between the parties. Whichever party has an outright majority in the Senate has the upper hand for committee business and is able to pass partisan bills through committee and therefore has more control of what legislation makes it all the way through to a floor vote.
ELECTION OUTCOME SCENARIOS
While many health care and small business issues can be addressed with bipartisan legislation, the common limiting factor is how much a policy change would cost the federal government. However, some health care policy issues, such as health care reform, limiting the in-office ancillary service exception to physician self-referral restrictions, and opting out of Medicare, expose the great divide in political philosophies.
Another significant outside factor could impact health policy next Congress. The Supreme Court has agreed to hear a challenge to the Affordable Care Act (ACA) in its 2020-2021 term. In 2017 when republicans controlled the legislative and executive branches, they enacted a tax reform law which reduced the fine for being uninsured to zero. This change opened the door to legal challenges to decide if the “individual mandate” portion of the law has been effectively removed from the ACA or if a fine of zero dollars is still legally considered a fine. The Supreme Court has agreed to determine whether the constitutionality of the ACA hinges on there being a fine of more than zero dollars, or if, upon removing that portion of the law, the rest of the legislation can survive.
Due to the death of Justice Ruth Bader Ginsburg, the makeup of the Supreme Court will have shifted once again since the Court upheld the law in 2012 and rejected a challenge to it in 2015. As is the case with the most controversial or consequential Supreme Court cases, the decision won’t be released until the end of the term (June 2021). While awaiting the Supreme Court decision, there will be resounding calls of support of the landmark law coming from democrats while a republican-controlled Senate will continue to block any significant additions to it.
If republicans retain the White House and the Senate while democrats maintain control of the House, it is reasonable to expect that the current political tone and philosophical approach to policy will remain in place. For example, we should expect the administration to continue its movement towards bundled payment, integration of care, and quality measures as well as efforts to reduce reimbursement in the same way they have over the past four years. Because of the divided congress where each chamber is controlled by a different party, the legislative branch will focus on bipartisan bills and policies that are less controversial — just as they have been doing for the past two years.
Executive Branch and House Controlled by Democrats, while Republicans Retain Senate Majority
In this scenario, it is likely that most legislative activity will be bipartisan and include consideration of Medicare coverage of telehealth, expansion of the locum tenens policy, and policies that increase patient access. With a democrat in the White House but no significant changes to health care policy able to pass a republican-controlled Senate, health care reform efforts will largely take place through the DHS and the CMS. CMS will likely focus on value-based payment and quality measures and expanding access to care.
Democrats Win Majorities in House, Senate, and the White House
While it is widely accepted that Democrats will remain the majority party in the House of Representatives, the least likely outcome of this year’s general election is that democrats will also win the White House and gain a slight majority in the Senate. Should that be the case, it will be the first time since 2009 that both Congress and the White House were led by democrats. However, this does not mean that democrats will have unchecked power to pass sweeping legislation. Most legislation that moves through the Senate must have at least 60 votes to proceed because Senate rules allow for a filibuster. The only way to functionally proceed and be able to pass legislation is to achieve the 60 votes needed to leap over the threat of a filibuster.
If democrats control both chambers of Congress (but not enough to get past the filibuster) they will not have free reign to pass laws and make significant changes to policy. Instead, they may move forward with health care policies likely to achieve crossover support from moderate republicans such as including physical therapists in the National Health Service Corps, expanding locum tenens usage to all physical therapists, reducing administrative burdens, and other bipartisan policies. They may also attempt to use reconciliation which would allow the Senate to pass, with only 51 votes, targeted legislation that has a direct impact on the federal budget. Republicans used this tool in 2017 to pass tax reform, which removed the fine for not being covered by health insurance; democrats may use reconciliation to restore that fine. Because the Supreme Court will be hearing challenges to this specific issue, one could easily imagine democrats attempting to reinstate the fine in order to remove the risk of the whole law being thrown out. If Congress acts before the ACA case is heard, it could substantially change the substance of the legal arguments used.
Other health care reform topics that could be considered are Medicare for All, lowering the age to buy-into Medicare, and the Public Option (allowing someone of any age to choose Medicare coverage instead of a private insurance option). However, if Joe Biden is elected president, then Medicare for All will be discussed but not proceed to the president’s desk. Since Biden was the vice president when the ACA became law, he supports the structure of the law’s reforms. Lowering the age of buying into Medicare may be a possibility, but the likely proposed version of Medicare to survive the legislative process and be passed into law would be a moderate version of the Public Option. If any significant health care reform is passed into law, it will take at least two to three years to implement, not unlike the ACA.
Your vote this November is crucial. Each state sets its own rules and deadlines for how one can register to vote and cast your ballot, so check with your local election board to make sure you are prepared. Additionally, this year some states have changed policies to allow for more people to vote by mail, absentee, or early. The United States Postal Service has suggested you allow one week for ballot materials to arrive at their destination, which means that if you plan to vote by mail you should have requested your ballot by October 1. Make sure to follow all of the steps needed to validate your mail-in ballot, including signing the envelopes the same way you did when you registered to vote and/or getting witnesses. Be sure to check if your ballot requires postage (possibly more than one stamp). Each voter will have at least two if not three Federal office holders to vote for: president, U.S. Representative, and possibly Senators. It is also crucial that you cast votes for your state legislators — the state lawmakers elected this year will redraw their state’s Congressional districts to assign geographic regions to the number of seats that the census allocates. While you may or may not consider it the most important election of your lifetime, it certainly is the most important election of the decade.
Alpha Lillstrom Cheng, JD, MA, is a registered federal lobbyist and the President of the firm Lillstrom Cheng Strategies which has been retained by PPS.