Bipartisan Healthcare Policies Will Survive the Election

As some of you may have noticed, we are neck-deep in presidential campaigns.

The two presidential candidates appear starkly different at first glance. On many issues, each is proposing a significantly different direction for the country.

Surprisingly, however, there is a policy area where both Republicans and Democrats are more-or-less aligned. That policy area is healthcare administration: that is, the business of doing healthcare in the U.S.

It turns out that no matter who we see in the White House next year – and, to a certain extent, who we see running the House or Senate – some of the most visible policies on healthcare administration today will continue to be in place.

Let’s tick through a few:

Policies on transparency are expected to continue. Over the past decade, we’ve seen regulations imposed on hospitals and health plans that require transparency not just with healthcare costs, but also on provider information, network rates, and other previously relatively hidden relationships within the healthcare industry.

A majority of the transparency regulations were drafted under the Trump Administration, which in turn, based their authority on language in the Affordable Care Act passed into law during the Obama Administration. When the Biden Administration took over in 2021, it did not roll back the transparency requirements, but rather doubled down on their enforcement.

So, transparency policies will very likely continue with any administration or Congress.

Policies on surprise balance billing are also expected to continue, regardless of who is in the White House. In fact, in the past year, we’ve seen both Republican and Democratic states pass their own balance billing laws – for instance, on ground ambulance claims – even while the bipartisan No Surprises Act has applied broad protections for patients across the country.

Other healthcare administration policies where there appear to be little partisan disagreement include interoperability – that is, laws and regulations that support getting electronic clinical data to the right person, at the right time, for the right reason. Value-based healthcare is another non-partisan policy that we can expect any administration to support.

But let’s circle back to the No Surprises Act (NSA). As I said, both political parties agree on the basic policy intent behind the NSA, so we can expect regulations under either administration to continue under the umbrella of that law. However, as Zelis’ Cate Brantley reported in this space last week, litigation over specific aspects of the NSA continues. The outcome of those cases could well change the regulatory requirements and practical results of the law itself.  

Furthermore, decisions coming out of the Supreme Court earlier this summer, for better or worse, appear to weaken the authority of regulatory agencies and the rules that they publish. Given SCOTUS’s rulings on the Loper case in which Chevron deference was overturned, plus the decisions on Corner Post and Jarksey, most legal experts – whether they agree with the decisions or not – expect that future administrations are going to experience much more litigation against their regulations (like what we’ve been seeing with the NSA) and the enforcement of those regulations.   

This brings us to an interesting possible sea change in healthcare policy, beyond the election: it’s not the presidential or congressional candidates that are going to significantly impact healthcare policy going forward; it’s much more likely going to be the courts and the judges making the impact.

Even if agencies ultimately win these legal challenges, and agency requirements are allowed to stand, experts say that the increase in lawsuits – and the time it takes for these cases to work their way through the courts – will likely result in a slowdown of the entire regulatory process… for any administration. In the future, when the industry wants to understand how to comply with any given healthcare law passed by Congress, instead of reading what’s published in the Federal Register – that is, the words of the regulatory agencies – we may instead have to wait until we’ve heard from the courts before implementing any requirements.