With the election barely concluded (and a few results still being determined) – I wanted to take a quick look at the election results.

While many people will be writing or speaking about what the results mean to each party, and how they may impact the 2020 presidential elections, I’m going to limit my lens to employee benefits—and specifically health care.

The Affordable Care Act Lives On

The Affordable Care Act, which has survived repeal efforts in the last two years, should get some support from a House of Representatives that has already declared its intent to serve as a check and balance to the Republican Senate and President Trump. Key committees within the House will be led by Democratic representatives, intent on maintaining the Affordable Care Act. Additionally, Senate Majority Leader Mitch McConnell (R-KY) conceded the morning following the election that repealing the Affordable Care Act would not gain traction in the House. Nevertheless, Republican efforts to chip away at the aspects of the Affordable Care Act that they find most problematic continue—including recently announced guidance allowing religious exemptions related to contraceptive services.

With the divided Congress, the Democratic proposal for Medicare for All, which has become a popular topic among more progressive members of the Democratic Party, will likely be a discussion point for the 2020 elections, but will not serve as a material legislative development.

Republicans Want to Expand Account-Based Health Care

There have also been updated proposals to expand account-based health care, long a staple of the Republican health care agenda—and with the divided Congress, it remains to be seen how far these expansions will be allowed to go. The recently proposed expansions of health reimbursement arrangements to allow for premium reimbursement HRAs, as well as excepted benefit HRAs highlight the GOPs desire to expand this type of benefit program.

Lawsuits Attacking the ACA May Evolve

While the House leadership will work to ensure that the Affordable Care Act is protected from legislative threats, other challenges await the ACA. There are several lawsuits challenging the Affordable Care Act—and some of the electoral activity at the state level could come into play in this arena. As the Republican championed lawsuit from multiple states seeks to upend the Affordable Care Act, the changes in governors and attorney generals for some of the participating states could come into play. Will the lawsuits continue? Undoubtedly, but with potentially shifting participants.

Conservative Judiciary

While the Democrats are celebrating their gains in the House, the Republicans are maintaining their control of the Senate. Because of their Senate majority, the Republicans will continue to pursue their agenda of confirming conservative judges to federal courts and through this avenue, establishing long-term impacts through judicial channels. With a wide variety of court cases with employee benefits implications, the Republican influence, despite the Democrats gains in the House, will continue to have a major impact for years to come.

Blue Waves in Certain States Bolster the ACA

In recent years, we have seen several blue states and local government districts (including Massachusetts, Vermont, New Jersey and Washington DC) that have passed individual mandate requirements. With the addition of several new Democratic governors, it’s possible that we could see additional states pursuing similar state requirements designed to bolster their insured numbers and strengthen the Affordable Care Act. Additionally, Idaho, Nebraska, and Utah all expanded their Medicaid programs through ballot measures seen as a big win for Democrats. 

Bipartisan Support Possible

Some health-related topics are getting support from both sides of the aisle—and attention to and efforts to address the opioid problem will likely continue to receive strong bipartisan support.

Another area where there is potential common ground, is the issue of pharmaceutical drug prices. Shortly before the election, the Trump Administration proposed an approach to lowering prescription drug prices by establishing a global pricing index and only allowing Medicare to pay costs in line with those paid by countries in the global index.

While Democrats initially derided the proposal as a mid-term elections publicity stunt—should both parties be willing, there could be common ground found here. But, this would require the Democrats to be willing to support President Trump in gaining a potential big ‘win’—while it would also require the Republicans to go against the powerful and wealthy prescription drug companies that spend millions in support of their preferred candidates. But drug prices are a popular concern and President Trump has already voiced support for tackling this issue, such that it could create an opportunity if the parties are willing to work together.

In the immediate aftermath of the election, both parties are talking of bipartisanship and of working together, but the ideological divide on key topics such as federal court confirmations, health care, The Affordable Care Act, and other non-health hot-button topics, as well as the now not-so-distant 2020 presidential election, will give us plenty to watch in the coming months. 

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