BY DAVID BOTTOMS, REBC, RHU, CLU, CHFC
SENIOR VICE PRESIDENT, BENEFITS
Published: February 2021 Cobb Business Journal
With the January Senate runoffs behind us and Democratic control secured in the upper chamber of Congress, there is much speculation regarding what impact the new power dynamic in Washington will have in a variety of areas.
Given that healthcare is a key issue of importance for most Americans, much speculation is being made as to what the new Administration will, or will not, be able to accomplish with a razor thin majority in the Senate.
Given that moderate Democratic Senator Joe Manchin of West Virginia went on the record in early November 2020 to state that he “will not vote to end the filibuster”, health care changes (or pretty much any legislation lacking bipartisan support) will have to be passed via the Senate’s budget reconciliation process which allows for passage with 51 votes and is not subject to the 60 vote minimum required to override filibuster objections and move to a Senate vote for typical, non-reconciliation related bills.
Students of recent history may recall that, when the Affordable Care Act passed in 2010, Democrats controlled 60 votes in the Senate which enabled them to pass the sweeping legislation. And, even with 60 Senate seats secured, the bill barely made it over the proverbial finish line.
As such, with effectively 51 votes in Democratic control, progressive dreams of transformational changes to healthcare are unlikely to occur under this Congress and, as a result, visions of a “public option” health plan to compete with private insurers or “Medicare for All” is highly unlikely to find the needed votes to pass.
Nonetheless, much can be accomplished via the Senate’s budget reconciliation process so expect to hear a lot about what is allowed (and what is not allowed) under the Senate’s reconciliation rules as discussions of health care changes begin and likely find themselves packaged within a budget reconciliation bill including the Biden administration’s proposed tax policy changes in mid to late 2021.
Given Senate reconciliation process rules, it will be much easier for Democrats to adjust elements of existing law than it will be to implement the new structures within the healthcare system that would be required of more ambitious changes. As such, we can expect to see an increase in the value of subsidy dollars provided to purchasers of individual health insurance within the federal insurance marketplace. Additionally, we can expect to see an expansion of Medicaid funding for the 12 states that have previously resisted the ACA’s entreaty for them to expand coverage.
Last, but not least, the case currently pending a ruling in the Supreme Court regarding the constitutionality of the ACA is effectively rendered moot as Democrats could reinstate a nominal individual mandate penalty to remedy the potential legal issues raised as a result of the Trump administration’s removal of the tax penalty for individuals not enrolled in coverage meeting government requirements as part of its Tax Cuts and Jobs Act which was passed in 2017 and, as may be of interest, was also passed using Senate reconciliation rules since the Republicans at the time lacked the 60 votes needed to override a filibuster when they advanced their legislation.
So, as a practical matter, while the Democrats do control the Presidency, Senate and the House of Representatives, absent an about face by Senator Manchin, and as long as the Senate rules allow for a filibuster absent a 60 vote majority vote, in all likelihood, the near term adjustments to health care will be just that…adjustments, not transformational changes.
Whether this is good news or bad news to you will I suspect depend on your political persuasions, but for employers pondering what this will mean to their employer-sponsored healthcare plans and compliance responsibilities, in all likelihood, the answer is…not much.
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