Close Election Leaves Murky O&P and Healthcare Policy Agenda
December 2020 Issue
Four days after the close of polling stations on election day, the Associated Press announced that Joe Biden had secured the presumptive title of president-elect, exceeding the 270 electoral college votes needed to win the presidency. At the time of this writing, one state remains undecided, Georgia, which is leaning Democratic. As states across the country move toward certifying their vote totals, President Trump is pursuing recounts and legal strategies to challenge the outcome and has, to date, not conceded the race. It may be weeks before a definitive result is known.
While most election analysts agree that the expected "blue wave" did not materialize, President-elect Biden did hold what is referred to as the "blue wall," winning in Wisconsin, Michigan, and Pennsylvania, and making inroads into traditionally Republican states such as Arizona, Nevada, and Georgia. He has already announced a presidential transition team and will be announcing plans to fight COVID-19 as one of his first priorities.
Democrats gained a net of at least one seat in the Senate, and the two Georgia races will move to a run-off on January 5, 2021. The outcome of these races will determine which party controls the Senate. Most analysts anticipate that the Republicans will continue to control the Senate and that Mitch McConnell will remain the majority leader. However, if the two Democratic candidates win their elections, the Senate would be split 50-50 and the presumptive incoming vice president, Kamala Harris, would break the tie, meaning Democrats would control the chamber. In the House, Democrats lost ground, losing at least ten seats with nearly 13 races still too close to call. The next Speaker of the House, presumably Nancy Pelosi, will have fewer Democrats on which to rely to achieve her agenda.
Independents Bernie Sanders (VT) and Angus King (ME), who caucus with the Democrats, give them a current total of 48 votes.
Congressional Electoral Analysis
The following sections break down the specifics of each chamber's election dynamics in more detail, according to results confirmed on November 16.
Control of the Senate remains unclear as of this writing as two races are either too close to call or headed for run-off elections. Due to the resignation of former Sen. Johnny Isakson (R-GA), Georgia held races for both Senate seats—incumbent Sen. Kelly Loeffler (R) will face a runoff against her Democratic challenger, Raphael Warnock, and the race between Sen. David Perdue (R) and challenger Jon Ossoff (D) also goes to a run-off. Democrats flipped two seats (Colorado and Arizona) and Republicans flipped one in Alabama, resulting in a net gain for Senate Democrats of one vote to date.
House of Representatives
Democrats were able to maintain control of the House. At the time of this writing the final House results remain unclear, with 13 House elections still undecided, and approximately ten races genuinely too close to call. Democrats did not expand their majority as many pollsters predicted. Currently, Democrats retain 219 House seats and Republicans hold 203 seats. Democrats gained three seats, two in North Carolina and one in Georgia, and Republicans flipped ten so far: Iowa, Minnesota, New Mexico, Oklahoma, South Carolina, Michigan, and two in California and Florida.
Of the 11 gubernatorial races that took place, Republicans picked up one seat by flipping Montana (where incumbent Gov. Steve Bullock was term-limited out of office), while the rest of the states retained current party control. Republicans are set to hold 27 governorships and Democrats will hold 23. Visit opedge.com for detailed information on key Senate, House, and gubernatorial races.
Key Changes to Congressional Committees Overseeing Healthcare Policy
In the House, there will be some shuffling of seats on key committees with jurisdiction over healthcare, but there are few major changes based on the races that have been called so far.
The Chairwoman of the House Appropriations Committee, Rep. Nita Lowey (D-NY), is retiring. Reps. Marcy Kaptur (D-OH), Debbie Wasserman Schultz (D-FL), or Rosa DeLauro (D-CT) will take over her gavel after leadership elections.
Rep. Greg Walden (R-OR), currently Ranking Member of the Energy & Commerce Committee, is also retiring. Reps. Michael Burgess (R-TX), Bob Latta (R-OH), and Cathy McMorris Rodgers (R-WA) are all running to take over his leadership seat.
Rep. Eliot Engel (D-NY), who currently serves on the Energy & Commerce committee, lost his primary race to challenger Jamaal Bowman (D-NY) in July.
Rep. Joe Kennedy (D-MA), who sits on the Energy & Commerce Committee, lost his race for Sen. Edward Markey's Senate seat and will not be returning to his House seat.
Rep. Susan Brooks (R-IN) and John Shimkus (R-IL), current members of the Energy & Commerce, are both retiring.
Rep. George Holding (R-NC) and Kenny Marchant (R-TX), members of the Ways & Means Committee, are both retiring.
Rep. Donna Shalala (D-FL), a member of the Education and Labor Committee, lost her race for reelection and Bradley Byrne (R-AL) lost his primary election. Rep. Phil Roe(R-TN), who serves on that committee as well as the Veterans Affairs Committee, is retiring.
Senate Republicans have term limits in committee leadership, limiting the period a Republican Senator can serve to six cumulative years as a chairman and six cumulative years as ranking member of the same committee. Because of these limits, several Senate committees will have a shift in Republican leadership.
Sen. Chuck Grassley (R-IA) has reached his term limit and will no longer be serving as the top Republican on the Finance Committee in the 117th Congress. This is particularly relevant to the O&P profession because Grassley is a strong supporter of the Medicare O&P Patient-Centered Care Act.
Sen. Mike Crapo (R-ID) will replace Senator Grassley as the Republican leader on Finance Committee. Attention all O&P practitioners in Idaho: Time to introduce yourself to your Senators and develop a relationship with Crapo.
Sen. Pat Roberts (R-KS) is also retiring and will, therefore, leave the Health, Education, Labor, and Pensions (HELP) Committee; his seat in the Senate will be filled by current Rep. Roger Marshall, who is a key Republican leader in developing healthcare policy in the House.
The remaining members of the Finance Committee in races this year all won reelection, including Sens. Bill Cassidy (R-LA), Steve Daines (R-MT), Ben Sasse (R-NE), John Cornyn (R-TX), and Mark Warner (R-VA). All of these Senators are either cosponsors or have shown support for S. 4503, the Medicare O&P Patient-Centered Care Act.
Sen. Lamar Alexander (R-TN) is retiring atop the HELP Committee; the next person in line for leadership would be Sen. Michael Enzi (R-WY), but he too is retiring. That leaves the Republican HELP Committee leadership seat open to either Sens. Richard Burr (R-NC), Rand Paul (R-KY), Susan Collins (R-ME), or Bill Cassidy (R-LA).
As of this writing, Sen. Doug Jones (D-AL) is the only HELP Committee member to have lost his seat, though Kelly Loeffler's (R-GA) race has gone to a run-off.
Sen. Tina Smith (D-MN) and Sen. Susan Collins (R-ME), who also serves as chair of the Special Committee on Aging, won reelection.
Implications of Election on the O&P Community
As the dust of the 2020 election begins to settle, divided government appears to be the path forward for the foreseeable future. Assuming President-elect Biden is inaugurated on January 20, 2021, the fate of the run-off elections in Georgia will determine the scope of his healthcare agenda. If Republicans win at least one of those races, they will control the Senate and Biden's long-standing relationship with Majority Leader Mitch McConnell (R-KY) will be at a premium. There is reason to believe that these two leaders will be able to forge a bipartisan consensus on some of the pressing issues of our day including responding to COVID-19 and other healthcare policies. If the Democrats win both races in Georgia, the vice president would break the tie, meaning Minority Leader Chuck Schumer (D-NY) would likely become majority leader and, due to special rules under "reconciliation," the Senate would be able to pass some legislation with only 51 votes rather than the 60 votes needed to break a filibuster.
During his campaign, Biden promised a new public option to help people purchase private health insurance at more competitive rates than coverage offered on the healthcare exchanges. He promised to reduce the age of eligibility of joining the Medicare program to 60, down from age 65; to reduce the price of prescription drugs and use some of the savings to expand benefits under Medicare to cover hearing, dental, and vision care; and to strengthen the Affordable Care Act and expand the use of subsidies to help people afford coverage. However, with a Republican-led Senate, most of these proposals would fail to be enacted. In fact, Majority Leader McConnell would likely not bring them to the floor of the Senate for a vote.
On the other hand, if Sen. Schumer becomes majority leader, many of these provisions could be included in an Omnibus Budget Reconciliation Act, which only requires 51 votes to pass, rather than the usual 60-vote threshold to break a filibuster by the opposing political party. Whether Biden as president would press forward on these healthcare policies, knowing how controversial they are, is another matter.
From an O&P legislative and regulatory perspective, the election presents significant opportunities. All of the Senate sponsors and cosponsors of S. 4503, the Medicare Orthotics and Prosthetics Patient-Centered Care Act, will remain in the 117th Congress, which
begins in January, including Sens. Steve Daines (R-MT), Mark Warner (D-VA), Tammy Duckworth (D-IL), John Cornyn (R-TX), and Bill Cassidy (R-LA). Similarly, all of the House sponsors of companion legislation, H.R. 5262, will remain in office, including Reps. Mike Thompson (D-CA), Glenn Thompson (R-PA), G.K. Butterfield (D-NC), and Brett Guthrie (R-KY). With several legislative vehicles expected to be considered and passed by Congress later this year and well into the next Congress, the O&P community will have several opportunities to make our case for passage of this important legislation.
In addition, new leadership in the White House brings new leadership at the Centers for Medicare & Medicaid Services and at the Department of Health and Human Services. A Democratic administration will not treat regulatory relief as a priority and, while this may have negative implications on providers overall, it may open the door for reconsideration of finally implementing regulations on Section 427 of the Benefits Improvement and Protection Act, which links O&P provider qualifications with the ability to be paid under the Medicare program.
O&P Opportunities for Engagement in 117th Congress
With all Senate and House sponsors for S. 4503/H.R. 5262, the Medicare Orthotics and Prosthetics Patient-Centered Care Act remaining in office for the 117th Congress, there is an opportunity to move the bill forward next year, if a legislative vehicle in the lame-duck session of this Congress does not materialize. If the bill passes, the interpretation of off-the-shelf (OTS) orthotics for competitive bidding would be limited to only those that truly require "minimal self-adjustment," and certified and/or licensed orthotists and prosthetists would not be required to have a competitive bidding contract to provide OTS orthoses to their patients at the competitive bidding rate in their area. The bill would also prohibit the practice of drop shipping on all prosthetic limbs and orthotic braces that are not truly OTS.
To help move this bill forward, O&P providers should continue to engage their members of Congress and ask them to sponsor the Medicare Orthotics and Prosthetics Patient-Centered Care Act through NAAOP's Taking Action webpage at naaop.us/get-involved/#taking-action. A bill with significant bipartisan support is more likely to pass through both chambers. O&P providers in states that have elected new senators and representatives should access NAAOP's advocacy resources to educate and encourage these new members to prioritize the O&P agenda, and in particular S. 4503/H.R. 5262.
Peter W. Thomas, JD, is a principal with the Powers Law Firm, general counsel for the National Association for the Advancement of Orthotics and Prosthetics (NAAOP), and counsel to the Orthotic and Prosthetic Alliance. Taryn Couture, MPA, and Joseph Nahra are directors of government relations at Powers Law Firm.