The Dems just flipped the Senate. Here are 3 health policies Biden could now get passed—and one he won't

Both the AH&LA and AAHOA released statements in support of the President’s call for bipartisan efforts to improve border security and ongoing job growth.
Here are some of President-elect Joe Biden's legislative priorities that are alive thanks to the Democratic takeover of the Senate. (Image: Getty Images/Bill Chizek)

The Democratic takeover of the Senate after two projected runoff wins in Georgia highly increases the likelihood that several legislative priorities for President-elect Joe Biden could become law.

What does that mean when it comes to healthcare? 

While Democrats will have a majority, it would be a narrow 50-50 majority with Vice President-elect Kamala Harris breaking any ties, leaving the margin of error very slim.

However, Democrats could use a parliamentary procedure called reconciliation that lets them bypass a legislative filibuster for budgetary bills and pass certain pieces of legislation via a simple majority.

RELATED: What a Republican Senate will mean for the healthcare industry

Here are three health policy areas where Democrats could have legislative success—as well as one in which experts say that is unlikely. 

Legislation that could get approved

Bolstering the Affordable Care Act

One of the top priorities in President-elect Biden’s healthcare plan was to bolster subsidies for Affordable Care Act (ACA) plans.

Democrats have a consensus on how they'd want to bolster the ACA, including lowering deductibles by pegging deductible amounts to a gold plan instead of a silver tier plan.

Another popular idea on the left is to expand subsidies to people who are in the Medicaid gap, where they have incomes at or below the poverty level but are in states that did not expand Medicaid.

“Democrats would also expand subsidies to people who make above 400% of the poverty level,” said Cynthia Cox, director of the Kaiser Family Foundation’s program on the ACA, referring to the cutoff to become eligible for ACA subsidies.

RELATED: 3 ways a Biden White House could impact healthcare

Congress could also get rid of a “firewall” that prevents low-income people with poor employer-sponsored insurance to get a premium tax credit, Cox told Fierce Healthcare.

“Someone who has an employer offer who feels [they] can get a better deal buying on exchange can do so with subsidies,” she said. “The combo of those proposals means that just about everyone who is buying their own coverage or could buy could save money, and additionally those with employer coverage could save money.”

Democrats could also take legislative action to render moot a lawsuit challenge before the Supreme Court, Cox said. The lawsuit charges that zeroing out the ACA’s individual mandate penalty in the 2017 tax reform law means the entire law should be struck down.

Democrats could simply pass a minuscule penalty to render the lawsuit’s argument moot.

Tackling drug prices

Democrats now can go after pharmaceutical companies for high drug prices, an area that has gotten some wide bipartisan support.

But it remains unclear how far they can go. The House in 2019 passed legislation to give Medicare the power to negotiate for lower drug prices and require drug companies to apply those negotiated prices to commercial markets.

It's murky whether that legislation, which never was taken up in the GOP-controlled Senate, could get through the narrow majority now.

The legislation “gets new energy but is unlikely to pass in its current form,” Dan Mendelson, founder of consulting firm Avalere Health, told Fierce Healthcare. He added that the legislation “goes a bit too far relative to what many members want in terms of pricing.”

But an area that could get more bipartisan support is considering the Medicare Part D and B pharmaceutical benefits that are out of date and “put a lot of costs onto beneficiaries that frankly can’t handle at this point,” Mendelson said.

More COVID-19 relief

Democrats and Republicans barely came to an agreement for a $900 billion relief package late last year.

However, Democrats could use a reconciliation to pass a package that contains more Democratic priorities including larger direct checks to every American. They could also give more money to providers, as many groups like the American Hospital Association have complained more help is needed as facilities combat massive surges of the virus.

But Democrats could address a priority that was missing from the last package: aid to states and localities.

Mendelson said Democrats could also give money to states to help fund Medicaid, as enrollment has swelled, and states must shoulder the burden.

One policy not likely to pass

Public option

Biden has made a public option for ACA plans a centerpiece of his healthcare platform and a bid to sidestep "Medicare for All." But even though the public option could technically pass with only Democratic votes, it remains unclear whether there are any.

“The way public option saves money is by paying docs and hospitals less, and doctors and hospitals have become an even more sympathetic interest group because of the pandemic,” said Cox.

There is also major opposition from the insurance industry.

Mendelson also has doubts a public option could get through the Senate.

“For a group of people who dedicated themselves to practical approaches, they are relatively less likely to prioritize getting that through,” he said.

But a Democratic-controlled Senate and committees have huge messaging opportunities and could press for more legislation to expand coverage.

“This is not just a matter of what legislation is going to pass,” Mendelson said. “It is a messaging and emphasis and the fact that the leader is going to be talking about the positive things that can happen out of legislation as opposed to not talking at all.”