When it comes to health policy, the fledgling administration of President Joe Biden and Vice President Kamala Harris hit the ground running. The White House has issued more than 20 health-related executive orders so far. While the administration’s top priority is to address COVID-19, there are many other key health policy areas in which significant changes might occur. These include stabilizing and building upon the Affordable Care Act (ACA), removing obstacles to health equity, and limiting drug prices.
Within hours of taking office, President Biden signed his first executive order, which requires mask wearing and physical distancing for everyone on federal property or traveling across state lines. The president urged governors, public health officials, mayors, and others to adopt mask wearing, physical distancing, and other measures for controlling COVID-19. With the inauguration, the federal administration went virtually overnight from no masks to double masks.
While the Trump-Pence administration delegated to the states responsibility for managing COVID-19 testing and vaccination, the new administration is employing a more hands-on approach to coordinating a national response. To meet its goal of “100 million shots by the end of our first 100 days,” the Biden-Harris administration is launching a national vaccination program, encouraging states to expand eligibility criteria for groups with vaccination prioritization, and invoking the Defense Production Act to ensure sufficient supplies. The president seeks a larger federal role in testing, contact tracing, and resource deployment, including needed personal protective equipment. He has advocated for increased funding for states, localities, and individuals. Those actions will require the cooperation of Congress.
Strengthening the ACA
The administration has begun to strengthen the ACA and expand access to health coverage. A three-month special open enrollment period began on February 15 so individuals can enroll in health insurance coverage through the federally facilitated ACA exchange market used in 36 states. California, which runs its own exchange, Covered California, also extended its enrollment period.
The US Supreme Court could release its decision regarding the ACA lawsuit, Texas v. California, at any time. After the inauguration, the Justice Department reversed the government’s stance in the ACA case and told the court that it is now siding with the multistate coalition led by California, which seeks to protect the law. That doesn’t change the position of the Texas-led state coalition, so the case is still a live wire. If the justices strike down protections for people with preexisting conditions, community rating, premium subsidies, or other important ACA provisions, we expect the law once again will consume vast amounts of policymaking energy and political capital held by Democrats and Republicans.
Chiquita Brooks-LaSure, recently nominated by Biden to head the Centers for Medicare & Medicaid Services (CMS), will undoubtedly be an advocate for the law. She is a veteran of the White House, Congress, and CMS during the Obama administration, and she knows the intricacies of the ACA, having already played key roles in its passage and implementation. The president’s appointment of Liz Fowler to lead the CMS Center for Medicare and Medicaid Innovation similarly brings an ACA veteran into this role.
The president is working to strengthen the Medicaid program by directing federal agencies to reexamine Medicaid demonstrations and waivers, including work requirements, that could be reducing coverage or undermining the programs. Agencies are examining any policy that makes it more difficult to enroll in Medicaid and ACA marketplace coverage.
Other health-related actions that have been taken include reversing the Mexico City Policy, known as the global gag rule, in order to allow US family planning dollars to flow with fewer limitations, and reversal of discriminatory policies and practices advanced by the previous administration, such as protections for transgender people.
As part of an executive order focused on immigration, President Biden has called on federal agencies to review Trump administration public charge policies and to consider their impact on public health. The order also calls for a communications campaign to counter the negative impact of changes to public charge rules that have negatively impacted immigrant communities’ enrollment in essential health and human service programs such as Medi-Cal, Temporary Assistance for Needy Families, and the Supplemental Nutrition Assistance Program despite continuing to be eligible.
Health Care Headed to Capitol Hill
The Biden-Harris administration has multiple channels for impact — executive actions, regulations, and legislation. Congressional partnership is required for the last of these. With Democrats and Republicans each controlling 50 seats in the Senate, Vice President Harris will cast tie-breaking votes, giving Democrats razor-thin control of the Senate for the next two years. Democrats chair the committees and thus set the agenda.
President Biden has proposed the American Rescue Plan, a $1.9 trillion package intended to provide COVID-19 relief and a more effective pandemic response. Highlights include $400 billion for measures to address COVID-19, including vaccines, testing, contact tracing, paid sick leave, and support for schools with the goal of reopening the majority of K-8 schools within 100 days. It also includes extended unemployment benefits, cash assistance of $1,400 per person with incomes at or below $75,000, and $2,800 for married couples with incomes at or below $150,000. It also includes housing, nutrition, and childcare support for families.
While President Biden hoped to build bipartisan agreement for the American Rescue Plan, Senate leaders are preparing to move forward using budget reconciliation processes supported solely by Democratic senators. That appears to be the most likely route through which the legislation will pass. While 60 votes are otherwise needed to end debate, advancing legislation through budget reconciliation requires a simple majority, which the Democrats have with Vice President Harris as the tie breaker. The House passed its version on February 27 and it’s now before the Senate for consideration. We anticipate it will pass by mid-March before the current enhanced unemployment benefit extensions expires.
Once pandemic relief efforts are well underway and the package has passed, the administration may want to engage in additional health care reform depending on the degree of bipartisanship that unfolds in Congress.
Three policy changes to strengthen and protect the ACA have a high likelihood of passing through a second reconciliation bill, most likely in late summer when unemployment benefit enhancements are up for renewal again:
- Expanding ACA premium subsidies beyond temporary increased premium tax credits that the current reconciliation bill would implement for 2021 and 2022
- Fixing the so-called family glitch to make ACA subsidies more accessible to families, which currently are ineligible for subsidies if even one family member has access to affordable workplace coverage while the remaining family members do not
- Increasing incentives for states that have not yet used the ACA to provide health coverage through Medicaid to more of their residents
Drug Pricing, Maternal Health
Two other policy changes are likely to pass either through bipartisan action or via the next reconciliation bill in August.
Drug pricing reform has bipartisan appeal that could lead to a package that restructures the Medicare prescription drug benefit along the lines of what was proposed in both the House and the Senate in 2019. That measure would cap out-of-pocket spending and increase the financial liability for health insurers and manufacturers while decreasing the government’s financial risk. The second reconciliation bill might seek to allow Medicare to negotiate prices directly with drug manufacturers and tie prices to international reference pricing.
We also may see bipartisan legislation to reduce maternal mortality and morbidity in the form of the so-called Momnibus, a multifaceted compilation of 12 maternal health bills. While Democrats could incorporate pieces of the Momnibus into the second reconciliation bill, the normal legislative process seems likely to win support from both sides of the aisle. The first reconciliation bill making its way through Congress now includes one key piece of the Momnibus: support for states to expand postpartum Medicaid coverage from 60 days postpartum to 12 months. California has expanded postpartum coverage to 12 months for mothers with a diagnosed maternal mental health condition. This extension is through December 31, 2021, and may be extended in this year’s state budget if needed.
A Regulatory Cooldown First
We are likely to see President Biden pursue proactive regulatory action soon. He has placed a freeze on all Trump administration regulations that have not yet been made final. When new actions start to flow, they are likely to include regulations undoing rules enabling Medicaid work requirements, reversing changes to public charge rules so that immigrant communities will stop avoiding use of core health and human service benefits, expanding and extending Medicare telehealth flexibilities, and efforts related to rural health, including the creation of an office of primary care within the Agency for Healthcare Research and Quality. The Center for Medicare and Medicaid Innovation already has demonstrations in all these areas, and more are likely as policymakers seek to make pandemic expansion of access to telehealth services into permanent policy.
Slim Chances for the Public Option
Public debate about a public option is likely to take center stage at some point in 2021. The chance of passage at the federal level is slim, but we are likely to see significant support for state-level public options through CMS. Brooks-LaSure, for example, brings extensive experience analyzing state-level public options, including recent analysis of Nevada’s proposals, and is known to support public options as a means of expanding access to affordable coverage and care.
The Biden-Harris administration is moving ahead rapidly on health policy. The COVID package will pass by mid-March, and a plethora of regulatory and legislative action will follow.
Authors & Contributors
Billy Wynne
Billy Wynne is founder and CEO of the Wynne Health Group, a Washington-based consulting and advocacy practice serving clients throughout the health care sector. A graduate of Dartmouth College and the University of Virginia School of Law, Billy previously served as health policy counsel to the US Senate Finance Committee.
Dawn Joyce
Dawn Joyce is a vice president with the Wynne Health Group and a health policy expert. She has hands-on experience at the federal, state, and local levels, and previously served as a staff member for California senator Dianne Feinstein.
Joyce is a graduate of Wellesley College and UC Berkeley’s School of Public Health.
