Biden likely to turn to executive authority to invoke healthcare priorities in face of divided Congress

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.
President-elect Joe Biden is likely to face a divided Congress that could stymie any progress on his ambitious healthcare agenda. But there are some areas of common ground with Republicans. (Getty Images/Bill Chizek)

After being declared the winner of the presidential election, President-elect Joe Biden will soon have a lot of work to do. But Biden’s healthcare priorities in the first term are likely to meet stiff opposition if the Republicans hold the Senate.

As of press time, it appears Republicans will hold a 52-48 majority in the next Congress. However, Georgia will hold runoff elections on two senate seats in the state in January and could decide the fate of the Senate.

Democrats would need to get both seats to get a majority, with Vice President-elect Kamala Harris breaking a 50-50 tie. Even with a majority that slim, Democrats won't be able to pursue some of Biden's key healthcare agenda items like a public option for the Affordable Care Act (ACA). 

“It is still going to be very contentious,” said Dan Mendelson, founder of consulting firm Avalere Health, during a webinar Thursday sponsored by the firm. “To find consensus in this political environment is just going to be tough.”

So for some of the incoming president's larger priorities, like lowering the Medicare age to 60 and lowering the income thresholds to qualify for tax credits to lower the cost of ACA exchange plans, experts say he'd likely have to rely on executive orders and regulations.

But there are some areas in which Biden could find common ground with Republicans in the Senate, chiefly on drug prices.

“I know there are members in the Senate who really want to do something on drug prices and frustrated efforts did not go anywhere,” said Stephanie Kennan, healthcare policy adviser for consulting firm McGuireWoods.

One area of consensus could be changes to Medicare Part D.

“There is some bipartisan consensus to add an out-of-pocket cap so patients are protected from higher spending,” said Chris Sloan, an associate principal with Avalere, during the webinar.

A bill to cap Part D drug prices beyond inflation narrowly passed the Senate Finance Committee but never made it to the Senate floor due to GOP opposition.

But there is an area of regulatory change on drug prices that President Donald Trump actually has laid the groundwork for: international reference prices for Medicare drugs.

“This focus on how things are paid for abroad is a general theme across both administrations playing out,” said Lindsay Bealor Greenleaf, vice president of policy for consulting firm Advi.

Biden has expressed interest in the idea of using a third party to help set prices for new drugs. He recently released a plan that would use a drug value assessment agency to explore the value of a drug before it hits the market.

Trump issued an executive order earlier this fall that called for his administration to pursue a payment model that would tie drug prices paid under Medicare Part B to the "most favored nation” price paid by countries overseas.

Biden would likely rely on models through the Center for Medicare and Medicaid Innovation (CMMI) to create an entity that “reviews drug prices and recommends drug prices for the Medicare program,” Sloan said. “The types of reforms they have been talking about in the campaign could be tested through demonstrations with CMMI.”