For 2025 and beyond, there are a range of anticipated employee benefit and healthcare related policies proposed for the incoming administration. Generally, the currently known public policy objectives of the new administration focus on multiple healthcare related reforms, as well as policy reforms related to reproductive rights, gender identity, and consumer transparency.
Consumers can anticipate substantial activity related to the Patient Protection and Affordable Care Act (“ACA”), including proposals seeking to extend premium subsidy enhancements available to marketplace insurance subscribers, further promote marketplace competition, and other proposals looking to ease certain consumer protections. Also, watch for expansion of comprehensive coverage alternatives, such as short-term limited duration insurance, Individual Contribution Health Reimbursement Arrangements (“ICHRAs”), Qualified Small Employer Health Reimbursement Arrangements (“QSEHRAs”), Health Savings Accounts (“HSAs”), and the like.
The Centers for Medicare & Medicaid Services (“CMS”) will almost certainly face reforms, including proposals looking to impose federally mandated work requirements upon Medicaid recipients, capping of insulin pricing, expansion of site-neutral payment policies, and reinstated and/or expanded telehealth availabilities and flexibilities (respecting the December 31, 2024, expiration of certain telehealth flexibilities).
Two public policy areas likely to experience significant policy developments are reproductive rights and gender identity. Federal legislative and executive agency rulemaking related to gender identify will likely focus on policies prohibiting or restricting access to gender-affirming care for minors, biological sex-based requirements for team sports participation, regulation of public restroom use, and potentially, repeal of other current federal and state-level nondiscrimination protections. Respecting reproductive rights, look for reduced enforcement of HIPAA privacy protections related to use and disclosure of reproductive rights related information, minimal (if any) federal enforcement of the Emergency Medical Treatment and Labor Act (“EMTLA”), and new agency regulations related to the prescribing and receipt of medication abortion options. Also, there is the potential for repeal or replacement of federal rulemaking related to reproductive rights arising in the context of compliance with final rules published by the Department of Labor implementing the Pregnant Workers Fairness Act (“PWFA”).
Other highlights include strengthened pharmaceutical pricing regulations, expanding the availability and utilization of health savings accounts, rollout of new individual health insurance and expense funding alternatives, and increased transparency in hospital and insurance pricing.
To be sure, the next four years will be undoubtedly marked by significant strides of change respecting the public policies underlying employee benefits, and the American healthcare system, generally.
The following table offers an overview of anticipated policy motivations, as well as the legal and regulatory outcomes associated with each such policy. Respecting each policy initiative, please find the following analytic properties:
- A reform law or policy;
- A subject-matter-based subtopic;
- An overview of the specific underlying policy or proposal;
- Evaluation of the employer impact associated with performance of the policy or proposal, considering:
- The amount of time the proposal might take to distill, design, and implement into an actionable policy or procedure for a private employer; and
- The types, and the volume, of resources required for the employer to effectively administer the policy or proposal respecting its workforce and/or its employee benefit plans;
- Proposed outlook for the passage or implementation of the individual policy proposal.
*Please note that the rating of the employer impact and proposal outlook is based merely upon our opinion of anticipated outcomes.
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Employee Benefit Related Policy & Proposal Outcomes |
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REFORM TOPIC |
POLICY OR PROPOSAL |
EMPLOYER IMPACT |
PROPOSAL OUTLOOK |
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MINIMAL |
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POSITIVE |
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MODERATE |
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NEUTRAL |
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SIGNIFICANT |
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NEGATIVE |
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PATIENT PROTECTION & AFFORDABLE CARE ACT (“ACA”) |
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Subsidization of Marketplace Coverage |
One-year extension to marketplace enhanced subsidies to prevent loss of coverage for 2.2 million people. |
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Marketplace Competition and Price Transparency |
Improvement of ACA marketplaces via increased private competition and pricing transparency |
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Consumer Healthcare-Related Protections |
Potential weakening or rollback of healthcare-related consumer protections related to short-term limited duration insurance notice and other restrictions, coverage of preventive services, and prohibitions against preexisting conditions, annual limits, and lifetime limits |
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Risk Pooling |
Attempts to lower marketplace costs for younger populations, thereby driving up costs for older Americans insured through the ACA |
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Individual Contribution Health Reimbursement Arrangements (“ICHRAs”) |
Expansion of access to alternative healthcare funding arrangements, such as ICHRAs, QSEHRAs, and other plan-level design features |
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Employer Information Reporting |
Reform or rollback of ACA-related annual information reporting requirements for Applicable Large Employers |
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CENTERS FOR MEDICARE & MEDICAID SERVICES (“CMS”) |
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Medicaid Work Requirements |
Implementation of active work requirements applicable to Medicaid assistance recipients |
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Medicaid Funding |
Proposals to restructure and/or re-balance federal versus state funding of Medicare liabilities via block grant funding reformation |
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Medicare Price Transparency and Fraud Reduction |
Enhanced agency initiatives designed to combat Medicare-related fraud and waste, coupled with agency-mandated initiatives requiring new and/or enhanced healthcare pricing transparency and correlated agency reporting activities |
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Home Health Care |
Initiative to cover and/or reimburse the provision of residentially based health care services, treatments, and other interventions |
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Insulin Pricing |
Capping of the price of Insulin for Medicare and Medicaid recipients to a maximum of $35.00 monthly |
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Community-Based Care |
Expansion of existing and development of new resources related to the provision of community-based care for geriatric populations |
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Medicaid Spending Reductions |
Initiating the process of reform respecting Medicaid funding through budget-conscious policy reforms |
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Site-neutral Payments |
Proposals aim to pay the same rate for healthcare-related services, regardless of the care delivery site, potentially saving significant amounts for Medicare and reducing premiums and cost-sharing for beneficiaries |
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Telehealth |
Maintaining or expanding telehealth-related flexibility for Medicare and Medicaid – extended during the COVID-19 pandemic |
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GENDER IDENTITY & GENDER EXPRESSION |
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Gender Affirming Care for Minors |
State and Federal-level proposals seeking to prohibit and/or restrict gender-affirming care for minor residents |
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Civil Rights Act, Title IX, Nondiscrimination in Education |
Proposals seeking to sunset certain protections for transgender students within the educational context, generally respecting restroom gender selection and gender identify for purposes of participation in team sports |
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ACA, Section 1557 |
Repeal and/or reissue of the most recent Section 1557 rulemaking (2024) relating to nondiscrimination in health programs and activities on the basis of sex (to include pregnancy status and gender identity) |
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Mental Health Parity & Addiction Equity Act Enforcement |
Policy proposals to reclassify, reidentify, or specifically exempt gender dysphoria treatments and services for purposes of enforcement of MHPAEA’s nonquantitative treatment limitation analyses |
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Diversity, Equity & Inclusion Programs |
Broad policy proposals to effectively dismantle existing diversity, equity & inclusion programs at public schools, colleges, and universities, generally via reduced or terminated federal grant funding opportunities (which may operate to distill private employer implemented D, E & I programming). |
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REPRODUCTIVE RIGHTS |
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Emergency Medical Treatment and Labor Act |
Proposals to curtail and/or suspend EMTALA-related hospital investigations and enforcement mechanisms where they exist in conflict with existing state-law abortion restrictions |
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Medication Abortion |
Interpretation and enforcement of the Comstock Act (1873) to define Mifepristone and other medication abortion pharmaceuticals as prohibited offensive or elicit materials that are barred from transport across state lines |
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Privacy |
Recission or restatement of agency enforcement policies by the Department of Health and Human Services and the US Office for Civil Rights to curtail newly espoused privacy protections afforded to certain reproductive treatment information, such as abortion, DNC, IVF, and others |
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In Vitro Fertilization |
Proposals to require self-funded private health plans to cover in vitro fertilization procedures and related treatments and services |
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Pregnant Workers Fairness Act (“PWFA”) |
Congressional or regulatory attempts to repeal or replace the PWFA to circumvent the operation of its protections related to workplace leave and other individual rights arising in connection with the provision of reproduction-related healthcare treatments and services (including abortion, DNC, IVF, and others) |
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HEALTH PLANS AND BENEFIT PROGRAMS |
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Primary Care |
Introduction of policy initiatives designed to address chronic disease and promote the availability of age-in-place treatments and services |
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Short-term Limited Duration Insurance (“STLDI”) |
Advocating the expansion of STLDI policies, proposals to rescind the Biden Administration’s recent market notice requirements imposed upon such plans, as well as to revert from three back to twelve-month maximum terms for limited duration policies |
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Individual Contribution Health Reimbursement Accounts (“ICHRAs”) |
Seeking to expand the utilization of ICHRAs, proposals to reduce regulatory burdens associated with employer sponsorship of ICHRAs |
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Qualified Small Employer Health Reimbursement Accounts (“QSEHRAs”) |
Seeking to expand the utilization of QSEHRAs, proposals to increase effective annualized funding limitations and to reduce other related regulatory burdens of QSEHRA sponsorship. |
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Chronic Disease Prevention |
Establishment of federal regulatory commissions to investigate and address chronic health issues, particularly the intersection of mental health and medical/surgical health in geriatric and adult populations |
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Association Health Plans |
Policies to reinvigorate the association and collaborative health plan markets through reducing regulatory burdens and newly adopted financial and/or tax incentives |
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Health Savings Accounts (“HSAs”) |
Multiple competing legislative policy proposals introduced to reinvigorate HSA participation and utilization, employing a range of strategies, such as significantly increased annual funding limitations, additional reimbursement flexibilities, and enhanced coverage of treatments, services, devices, and medical equipment for home-based healthcare |
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CONSOLIDATED APPROPRIATIONS ACT AND THE NO SURPRISES ACT |
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Hospital Price Transparency |
Further initiatives to enhance consumer transparency requirements related to hospital pricing for treatments and services |
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Health Insurance Issuer Price Transparency |
Enforcement of existing and adoption of new or redesigned pricing transparency for consumers by health plan issuers and sponsors of self and level-funded health insurance plans |
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Advanced Explanation of Benefits |
Renewed emphasis and anticipated agency rulemaking implementing the advanced explanation of benefits (“EOB”) requirements contained within the Consolidated Appropriations Act’s incorporated No Surprises Act |
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Broker Transparency |
Renewed focus and potentially expanded agency guidance and enforcement initiatives related to the scope, frequency, and methodologies by which broker fees and costs are communicated to private health plan sponsors |
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Consumer Price Accessibility |
Advocacy related to implementation of additional federal protections and agency mechanisms designed to encourage pricing transparency related to the out-of-pocket costs that are passed along to individual consumers |
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PHARMACEUTICAL INDUSTRY REGULATION & ADMINISTRATION |
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Government Negotiation of Pharmaceutical Pricing |
Policymaking designed to revive Medicare drug pricing negotiations and to address rising rate of international pharmaceutical cost disparities |
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Regulation of Pharmacy Benefit Managers |
Congressional activities related to development of federal legislation, coupled with novel agency regulation and enforcement techniques designed to reform the business practices of pharmacy benefit managers (“PBM”), specifically as to pricing transparency, contract negotiation, gag clauses, and other elements of pharmaceutical pricing strategy |
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Domestic Production of Pharmaceuticals |
Policy proposals designed to incentivize domestic corporations to develop and produce affordable pharmaceutical solutions for US consumers, generally in the nature of patent vulnerability, tax rebating, and/or other revenue enhancement opportunities |
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Applicability of Tariffs and Tax Incentives to the Pharmaceutical Industry |
Application of novel tariffs upon international pharmaceutical producers, designed to encourage domestic production and broader availability of US-based pharmaceutical developmental and supply mechanisms |
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Divesture of Pharmacy Benefit Managers |
Bipartisan coalition of US lawmakers has drafted legislation that would force PBMs to divest pharmacies they own, compelling CVS Health Corp., Cigna Group, and UnitedHealth Group Inc. to shed drug-dispensing operations that have become profit centers for the vertically integrated conglomerates |
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MENTAL HEALTH PARITY & ADDICTION EQUITY ACT (“MHPAEA”) |
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Enhancing Enforcement |
Enhanced federal enforcement of existing behavioral health-related laws and regulations, with an emphasis on establishing and maintaining parity between physical and behavioral health |
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Chronic Disease Management |
Legislative and regulatory proposals designed to promote chronic disease prevention and management through holistic care options that contemplate behavioral and physical health treatments and services on a contemporary basis |
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Enhancing Accountability
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Tools and techniques designed to empower individual states to tailor mental health parity enforcement to their individualized and local needs. |
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For more information
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