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Get Ready for a Lot of Biden Executive Orders on Health Care

  • 1Henry J. Kaiser Family Foundation, San Francisco, California

President-elect Biden proposed a sweeping set of health care initiatives during the campaign. The health care proposals included

  • Expanding testing for coronavirus disease 2019 (COVID-19), eliminating out-of-pocket costs for treatment, and providing additional pay and protective equipment for essential workers.

  • Increasing premium subsidies under the Affordable Care Act (ACA), capping premiums for all enrollees at 8.5% of income.

  • Creating a public option health plan administered by Medicare that would be available to anyone, including free coverage for people with low incomes in states that have not expanded Medicaid under the ACA.

  • Lowering the age of eligibility for Medicare to 60 years.

  • Giving the federal government the authority to negotiate drug prices for public programs and private payers.

  • Repealing the Hyde Amendment, which prohibits federal funding of abortion services.

  • Eliminating the 5-year waiting period before lawfully present immigrants can enroll in Medicaid or the Children’s Health Insurance Program.

With the Democrats apparently poised to take control of the Senate following the runoff votes in Georgia, these proposals are all in play. However, some could be controversial even among Democrats, such as a public option health plan. Policies that can be enacted through complex rules governing budgetary legislation are most likely to move ahead because they can pass the Senate with simple majority votes and are not subject to a filibuster, which requires 60 votes to overcome.

The Biden administration can also do much to push forward its health care agenda through administrative actions without Congress.

Early on, Biden will likely focus on undoing what the Trump administration did regarding health care. This could include actions such as

  • Putting scientists and public health experts front and center in addressing the COVID-19 pandemic.

  • Reentering the World Health Organization.

  • Reversing what Biden has called Trump’s “sabotage” of the ACA. That could include restoring a 90% cut in outreach and an 84% cut in grants to community-based navigators who help people enroll, as well as restoring the length of the ACA sign-up period, which Trump shortened. It could also include restricting enrollment in short-term insurance plans, which are not required to cover people with preexisting conditions and were expanded by Trump.

  • Repealing restrictions on immigration, like the public charge rule that penalized people for being sick, having a low income, or using public health benefits.

  • Removing restrictions on family planning funding for clinics like those operated by Planned Parenthood.

  • Rescinding the “Mexico City Policy,” which prohibits foreign aid to nongovernmental organizations that provide or promote abortion services.

Some of these administrative actions can be accomplished with the stroke of a pen. Others require complying with regulatory procedures, including an opportunity for public comment, which could take months or even years.

Reversing many Trump administration health care policies will be quite consequential, but the Biden administration will likely look to go further by using executive authority imaginatively to advance its health care priorities. Two important avenues to watch are the Center for Medicare and Medicaid Innovation (CMMI) and state-based health reform.

The CMMI was created by the ACA and given broad leeway to test new payment and service delivery approaches to improve patient care or lower costs in the Medicare and Medicaid programs. It is a particularly powerful tool because the CMMI has the authority to expand demonstrations nationwide if they prove effective.

When the CMMI was created under the Obama administration, demonstration projects were primarily focused on creating better incentives and strategies to provide more efficient and coordinated care, including accountable care organizations, bundled payments for episodes of care, and medical homes.

However, the potential exists to take the CMMI in different directions. It could be used, for example, to restrain drug prices, even in the absence of broader authority for the federal government to negotiate with drug manufacturers. (The Trump administration used CMMI authority to issue a regulation recently tying the prices paid by Medicare for certain physician-administered drugs to those charged in other countries, but the regulation is being challenged in court and is considered likely to be overturned based on the procedures used to implement it.) Or it could be used to advance racial equity in health care and address underlying social determinants of health. The CMMI presents an opportunity to define health care innovation in a much more expansive way.

The Biden administration can also nudge health reform forward on a state-by-state basis through Medicaid and ACA waivers, charting a very different direction from the Trump administration.

In Medicaid, the Trump administration has encouraged waivers that allow states to restrict eligibility and benefits, including work requirements, elimination of retroactive coverage, and greater leeway in operating the program in exchange for a cap on federal financing (a version of a block grant). Under the ACA, the Trump administration has given states flexibility to redirect federal subsidies to short-term and other plans that do not cover preexisting conditions or other required benefits and permitted the elimination of health care.gov as an option to sign up for coverage, requiring enrollees to go through insurers or brokers. Waiver guidance said states should “foster health coverage through competitive private coverage” rather than public programs.

President-elect Biden is expected to reverse the Trump administration waiver rules. He could go further and encourage states to use flexibility under the ACA and Medicaid to expand coverage and improve affordability for patients. A federal public option may be difficult to achieve politically, but waivers could facilitate state public options. States might even experiment with single-payer or Medicare-for-All–type approaches, something Biden has opposed but might allow on a state-by-state basis.

There are, to be sure, barriers to state-level reform. Because Medicaid and ACA waivers must be budget neutral for the federal government, states would not have access to new resources. States also have their hands full right now with the COVID-19 pandemic and falling revenues.

But in the years ahead, the stars could align for 1 or more states to move ahead on health care reform. In much the same way that health reform in Massachusetts under former Gov Mitt Romney—using a Medicaid waiver—paved the way for the ACA, a new state experiment could be a model for a broader national health care debate.

Article Information

Open Access: This is an open access article distributed under the terms of the CC-BY License. © 2021 Levitt L. JAMA Health Forum.

Corresponding Author: Larry Levitt, MPP, Henry J. Kaiser Family Foundation, 185 Berry St, Ste 2000, San Francisco, CA 94107 (larryl@kff.org).

Conflict of Interest Disclosures: None reported.

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