Health Care – The Fight Over the ACA Continues

Baker Donelson
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Baker Donelson

Perhaps no issue has dominated the headlines during the Obama Administration more than the fight over the future of the American health care system. And while Secretary Clinton and Mr. Trump disagree over many health care policies (first and foremost, the Affordable Care Act) both presidential candidates have said they seek to expand health care access, make health care more affordable and improve the quality of care for all Americans.

Insurance and Access to Care – Clinton
Secretary Clinton is a strong supporter of President Obama's signature health care legislation, the Affordable Care Act (ACA), and has pledged not only to keep the law in place, but to expand it. Clinton has said that she will expand coverage through implementing new incentives for states that have not expanded Medicaid, though she has not been specific on what exactly those incentives would be. Secretary Clinton has also said that she would expand access to health care by allowing residents to purchase insurance on the exchanges regardless of their immigration status.

Having been pushed to the left during the primary election, Secretary Clinton recently came out in support of a "public option" insurance plan as part of the ACA and to allow Americans over the age of 55 to purchase coverage under the Medicare program. Other proposed changes are aimed at lowering out-of-pocket expenses by creating a tax-credit for Americans whose out-of-pocket expenses amount to more than five percent of their income and guaranteeing three sick visits per year without having to meet a deductible, among others.

As part of her efforts to increase access to care, Secretary Clinton proposed to provide $40 billion to expand access to community health centers over the next ten years. This has long been a focus of Senator Sanders, who advocated for additional money for the centers in the negotiations leading up to the passage of the ACA and reportedly pushed for its inclusion during discussions with the Clinton campaign earlier this year.

Insurance and Access to Care – Trump
Donald Trump, in line with congressional Republicans, is strongly against the Affordable Care Act and has committed to asking Congress to immediately deliver a full repeal of the ACA on day one of a Trump Administration. As part of this process, Mr. Trump would repeal the individual mandate and roll back Medicaid expansion. However, Mr. Trump has said he supports maintaining ACA provisions that mandate insurance companies provide coverage for individuals with pre-existing conditions.

As a replacement for the ACA, Mr. Trump proposes to lower barriers for insurance companies to do business across state lines and would allow people who purchase their own insurance to deduct the premiums from income taxes. A significant part of this effort would include encouraging individuals to utilize Health Savings Accounts, though no distinct policy proposal for how to do this has been released. As it relates to Medicaid, Mr. Trump has proposed converting the program to a state block grant, allowing states the freedom to implement the program. Mr. Trump has also discussed the need to "make sure no one slips through the cracks simply because they cannot afford insurance," and has said he would work with states to review Medicaid to ensure coverage for all who want it.

Prescription Drug Costs – Clinton
Secretary Clinton's push to lower prescription drug costs is built around efforts to promote competition and leverage the federal government's bargaining power to lower consumer prices. In particular, Secretary Clinton would seek to allow the Secretary of Health and Human Services to negotiate drug prices with pharmaceutical companies. Clinton's plan to promote competition includes allowing Americans to import cheaper drugs from abroad, expanding access to both traditional and biologic generic drugs by directing additional funding to the FDA's Office of Generic Drugs, and lowering the biologic exclusivity period from 12 to 7 years. Secretary Clinton also said she would direct the FDA to give prioritized, expedited review to biosimilar applications that only have one or two competitors in the marketplace and prohibit "pay for delay" arrangements. In response to rising prices on high profile drugs such as EpiPens and pyrimethamine, Secretary Clinton recently proposed the creation of a new U.S. government oversight board that would investigate price gouging on "long-available treatments" and have the ability to take enforcement action when it finds public health has been threatened.

Secretary Clinton is also focused on limiting out-of-pocket expenses for consumers and would push to cap the amount of money consumers can be expected to pay for drugs at $250 per month. The proposal would not cap the cost of any particular drug, but would instead be based on the full range of prescribed therapies and would apply to prescriptions covered by insurance that are specifically approved by the FDA for the treated condition.

Prescription Drug Costs – Trump
Donald Trump, bucking Republican orthodoxy and siding with congressional Democrats and Secretary Clinton, has called for the removal of barriers to entry into markets by drug providers. This includes changing the law to all importation of prescription drugs to the United States from abroad and allowing Medicare to negotiate prices directly with pharmaceutical companies. According to Mr. Trump, "Though the pharmaceutical industry is in the private sector, drug companies provide a public service."

Mental Health – Clinton
Last week, Secretary Clinton proposed a sweeping mental health agenda that calls for the integration of mental and physical health care systems, expansion of reimbursement structures in Medicare and Medicaid, and for the Center for Medicare and Medicaid Innovation to create and implement the new payment models. Secretary Clinton's plan also includes a major focus on suicide prevention and calls for new funding of brain and behavioral science research at the National Institutes of Health.

In particular, the proposal focuses on increased enforcement of mental health parity and calls for randomized audits to detect parity violations and increased federal enforcement. Secretary Clinton also called for the Departments of Labor and Health and Human Services to fully enforce disclosure requirements concerning how insurance plans cover non-quantitative treatment limitations.

Mental Health – Trump
Donald Trump has not yet released a comprehensive mental health policy proposal. On his website, Mr. Trump states, "we need to reform our mental health programs and institutions in this country. Families, without the ability to get the information needed to help those who are ailing, are too often not given the tools to help their loved ones. There are promising reforms being developed in Congress that should receive bi-partisan support."

Takeaway: Though they both claim to push for accessible, affordable and high-quality health care, Mr. Trump and Secretary Clinton offer essentially opposite plans for how to achieve these goals. Mr. Trump calls for the repeal of the Affordable Care Act, repeal of the individual mandate and the transformation of Medicaid to a state block grant program. Secretary Clinton, on the other hand, seeks to expand coverage through expanding Medicaid, allowing un-documented immigrants access to the ACA exchanges, creating a "public option" allowing a buy-in to Medicare, and providing additional funding for community health centers. Mr. Trump and Secretary Clinton both support changing existing law to allow for the importation of prescription drugs and to give Medicare the ability to negotiate drug prices directly with pharmaceutical companies.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations. Attorney Advertising.

© Baker Donelson

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