How will Donald Trump's election affect the EHR market?

Since the Affordable Care Act passed in 2010, Senate and House Republicans have attempted more than 60 times to introduce legislation to either repeal or defund the law to no avail. As we are all keenly aware, the fruits are borne out of the 2016 elections offered Republicans the first viable chance to make good on their long-standing promise to repeal the Affordable Care Act as Republicans won the Presidency and maintained control of both chambers of Congress. Considering this change in fortunes, once the newly minted President Trump assumes office, Republican majorities in Congress will set to work undoing President Obama’s hallmark legislation.

Repealing the ACA

There is one big catch, contrary to a mistaken assumption fed by political rhetoric the Affordable Care Act simply cannot be stricken from the books. Rather, the process will likely be piecemeal and incremental with the high likelihood that only portions of the law will be repealed. Enter the complex games of legislative power and lawmaking. At its core, lawmaking is a game of numbers, and at present, the Republicans hold a 241-194 majority in the House of Representatives. However, they only possess a slim majority in the Senate, holding either 51 or 52 seats, contingent on the outcome of the December runoff election for the Louisiana Senate seat.

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As such the provisions vilified on the right, such as the Medicaid expansion and individual mandate will likely not survive. However, signals from Washington, indicate that provisions of the law which will impact EHRs most likely will survive or may be amended to fit with stated policy goals expressed by President Elect Trump to contain healthcare costs.    

As the numbers indicate, Republican efforts in the House to repeal the Affordable Care Act will sail through without incident, however, in the Senate, the majority held by Republicans is significant in that they do not hold the required 60-vote supermajority to overcome a filibuster by Democratic Senators. For those unacquainted with the Senate’s arcane parliamentary rules, a filibuster allows one or more Senators to delay or ultimately prevent a vote on a proposed piece of legislation.

Filibustering potential

Further, complicating matters are the fact that Senate rules allow for a process called reconciliation that prevents a proposed piece of legislation with a direct budgetary impact (impacting revenue or spending) from being filibustered. To qualify for reconciliation, legislation needs to be certified that its content has a budgetary impact, once a bill meets this criterion the Republicans would possess the necessary votes to send the bill to the President for his signature.

However, any measures that do not meet this standard will most certainly be subject to a Democratic filibuster given the highly partisan environment present in the Senate.   Further,  as pointed out in a policy paper published in 2012 outlining the legal and strategic considerations related to repealing the Affordable care Act these limitations include many parts of the law that cannot, “even through a wide interpretation by legislators or parliamentarians, be tied in with fiscal matters. If lawmakers tried to repeal the whole ACA through reconciliation, these parts would certainly be exploited by opponents… gutting the attempted reconciliation bill.”  Given these realities the more likely outcome will be that portions of the Affordable Care Act considered being ineffective will be repealed if possible under Senate rules, with a considerable amount of reform efforts being introduced. However, given that a majority EHR regulations are the product of the HITECH Act and not the Affordable Care Act, the regulatory landscape surrounding EHRs should remain unchanged in the short term.

In the context of EHR regulations and incentive programs, the question of whether these programs will escape repeal or be modified remains an unsettled question given that Trump as a candidate and President-Elect, and Congressional Republicans have remained relatively silent on the issue as well. The bill presented to the president earlier this year that he vetoed were also silent as to EHR regulations and incentives.  The primary determining factor in the future status of HIT regulations will depend on the posture of stakeholders and lobbyists from the health care and the HIT industry who will make their case to Congress in light of the upcoming efforts to repeal and reform the Affordable Care Act.

The EHR market in the long-term

Non-EHR related provisions under the Affordable Care Act that will likely be repealed are Medicaid expansion provisions and health insurance subsidies and the individual mandate. However, many parts of Obamacare will likely survive given the current balance of power in the Senate. Among the provisions that will likely survive, selected are Medicare program reforms, the requirement that insurers cover young adults on their parents’ policies, bans on health history discrimination by insurers.

If one is to take the President Elect’s public policy positions on healthcare at face value he has indicated that he would move to redouble efforts at reducing healthcare costs  In the larger context of the repeal and reform efforts, the EHR market may benefit from these efforts in the long term