Who needs Congress? Clinton or Trump could make major health policy changes without changing law.

Topics: Health Care Reform, Insurance, Politics and Policy, Elections, 2016

By Ashley Fuoco Antonelli, associate editor

Democratic presidential nominee Hillary Clinton and Republican presidential nominee Donald Trump have proposed various, and very different, health policy reforms. But how much could the next president really change—especially if he or she is facing a divided, slow-moving Congress?

While congressional action is needed to make or change health care laws, experts tell American Health Line the candidates would have several tools at their disposal to alter existing health care policy without Congress' approval.

Health insurance exchanges

Jack Hoadley, a health policy research professor at Georgetown University's McCourt School of Public Policy, told American Health Line that a Clinton administration likely would look beyond Congress for new ways to build upon the Affordable Care Act (ACA) and stabilize the exchanges, such as by conducting "more outreach" to bolster enrollment or taking "incremental steps" to improve the ACA's risk adjustment programs for insurers, such as the risk corridors and reinsurance programs.

Risk adjustment program regulations have been updated annually, according to Tim Jost, a professor emeritus at Washington and Lee University, so Clinton wouldn't have to wait long to act. But Jost told American Health Line that because regulations need to go through the formal rulemaking process, it likely would take one to two years for changes to take effect.

Meanwhile, some experts say Trump could direct the IRS to stop enforcing the ACA's individual and employer mandates. Without the threat of a penalty for remaining uninsured, some U.S. residents—particularly healthy individuals—could choose to drop their exchange coverage, which could further skew insurers' risk pools and ultimately drive up premiums.

However, such action could be subject to legal challenges. When the Obama administration a few years ago used its authority to delay implementation of the employer mandate, some stakeholders had accused the administration of unconstitutionally refusing to enforce the law as it was passed and challenged the action in court. Following the same logic, stakeholders could file suit against a Trump administration if administration officials refuse to implement the law's provisions.

In addition, Hoadley said that a Trump administration could choose not to enter into contracts necessary to run the federal health insurance exchange. However, he said such moves also could spark legal challenges from ACA supporters who could claim Trump is not fulfilling his duty to enforce the law, which specifically calls for the exchanges.

State innovation waivers (ACA Section 1332)

The ACA's state innovation waivers—which offer states substantial flexibility in how they implement the health reform law—offer another way the next administration could put their mark on the law. The Obama administration is implementing the waivers through guidance, which Jost explained "is easier to change" than regulations because they do not need to go through the rulemaking process.

Sabrina Corlette, a research professor at Georgetown University's Center on Health Insurance Reform, said a Clinton administration likely would continue the Obama administration's "show-me approach," requiring states to prove that the waivers would not increase uninsured or premium rates.

According to McDonough, a Clinton administration could "be willing to entertain" state innovation waivers "that seek innovative ways to achieve the law's goals in alternative directions."

Meanwhile, a Trump administration could change the waiver's limitations and allow states "more flexibility," according to Jost—including in ways that Democrats have historically opposed.

For example, Hoadley said Trump could choose to approve state innovation waivers that would implement "a more conservative model for trying to expand coverage."

State Medicaid waivers (Social Security Act's Section 1115)

Experts agreed that most of the changes the next administration could make to Medicaid without action from Congress would come in the form of state Medicaid waivers, including those seeking alternative Medicaid expansions under the ACA.

For instance, Trump, who has called for transitioning Medicaid to a block-grant program, could approve state Medicaid waivers that move the programs toward block-grant-like systems, according to McDonough. Transitioning the entire Medicaid program to such a system would require congressional action.

Trump also could choose to approve Medicaid expansion proposals "that seek to empower states to limit eligibility, cost sharing, and benefits of their enrollees," similar to proposals from Indiana and Kentucky, McDonough said.

Alternatively, Trump could dismiss all Medicaid expansion proposals as a way to block the expansions altogether, Hoadley said.

In contrast, a Clinton administration likely would approve only those state Medicaid waivers that fall more in line with Medicaid's current system, and she would look to expand on the program's goals of providing coverage to low-income U.S. residents, McDonough said.

Center for Medicare and Medicaid Innovation

The next administration also could make broad changes to payment reforms implemented by the Center for Medicare and Medicaid Innovation (CMMI), or as Hoadley said, "The next president could do whatever they want with" CMMI.

McDonough said a Clinton administration likely would continue CMMI's work under new leadership to "tak[e] a fresh look" at what reforms CMMI is implementing and what the center could implement in the future.

In contrast, McDonough said, "A Trump administration might want to shake [CMMI] up and perhaps reorganize" or "even eliminate" the center. However, he noted that "many of the important initiatives" CMMI has implemented have "bipartisan support, such as [accountable care organizations] and bundled payment" programs.

Hoadley agreed that stopping CMMI's current programs could be difficult, but he said that a Trump administration "could opt not to start new initiatives" going forward.

Other possible changes

What might be more difficult, both McDonough and Hoadley agreed, would be changing MACRA.

Noting that a lot "of regulatory authority relating to MACRA resides in the executive branch [through] CMS," McDonough said, "It is possible that a new administration would seek to review and revise the recently advanced final rule" that implements new, mandatory value-based payment reforms for Medicare.

However, McDonough said, "Neither candidate has been clear on changes to MACRA, and it's complicated because" MACRA was approved with bipartisan support in Congress.

Hoadley also said the next president "could make different decisions within the scope" of how MACRA is implemented, but added that "it would be difficult" for the next administration "to scale back the law entirely because" a new payment system for Medicare providers already will have taken effect under the law.

Another way the next administration could affect health policy through executive action is by choosing whether to appoint individuals to serve on the Independent Payment Advisory Board (IPAB).

IPAB was established under the ACA to make cost-cutting recommendations for Medicare, but because Medicare's projected spending growth rate has not exceeded the thresholds necessary to trigger the panel, it has not yet convened. However, the latest Medicare Board of Trustees report projected that IPAB could be triggered next year.

Hoadley said it is unlikely that either candidate would appoint panel members, meaning the HHS Secretary would likely end up coming up with a cost-savings proposal and submitting it to Congress in the event that IPAB is triggered.

Fate lies in the election

Next week's election results will give us a clearer picture of where health care policy will head over the next four years.

While we know a Clinton or Trump administration could make some drastic changes to government health programs without Congress, what we don't know is whether they would. That answer also could depend on the political climate coming out of next week's elections, and whether the new administration feels emboldened to make the changes they proposed.