Editor’s Note: This story originally ran January 19, 2021.
Strengthen the Affordable Care Act. Restore abortion protections. Lower drug prices.
President Joe Biden has a long list of health care promises – many of which center on reversing policies enacted by the Trump administration over the past four years.
However, it will take the President’s health officials time to address all of the measures, particularly as battling the coronavirus pandemic remains the top immediate priority. Some items would be easy to undo, but others involve regulations and waivers that can’t simply be voided. And some would need approval from Congress, which would be a challenge because Biden can’t afford to lose a single Democrat in the Senate – and few in the House, after his party lost seats in the chamber.
Also, lawmakers have yet to confirm Xavier Becerra, Biden’s pick for Health and Human Services Secretary, and the President has yet to name his administrator for the Centers for Medicare and Medicaid Services, who will play a central role in putting his agenda into place.
Here’s what’s on Biden’s health care checklist:
Saving and strengthening the Affordable Care Act: The central theme of Biden’s health care campaign, prior to the pandemic, was improving the Affordable Care Act. Though former President Donald Trump did not succeed in achieving his key 2016 pledge to repeal the law, his health officials made a multitude of changes to it. Reversing those will keep Biden’s team busy.
Among the top priorities will likely be saving the law itself from being declared unconstitutional by the Supreme Court. The justices are currently considering a case brought of a coalition of Republican state attorneys general – and backed by the Trump administration. It revolves around Congress reducing the penalty for not having health insurance to zero several years ago, which the states argue rendered the individual mandate unconstitutional and the entire law invalid.
The case will continue even if the Justice Department under Biden withdraws, because it originated with Texas and other Republican-led states. But the President-elect could work with the new Democratic majority in Congress to short circuit the GOP states’ legal argument – by setting the penalty at a $1, for instance.
As for shoring up and building on the Affordable Care Act, Biden has plans big and small.
Two of his campaign promises – instituting a government-backed public option and making federal subsidies more generous – would require congressional action. He’s already tucked his goal of expanding Obamacare’s subsidies so no one pays more than 8.5% of his or her income for coverage into the economic relief package he unveiled last week.
But there are many measures that would be an easier lift. They could restore the annual open enrollment period to three months, which it was before the Trump administration cut it to six weeks. And they could increase funding for marketing and enrollment assistance, both of which were deeply slashed in recent years. And they could pull back on allowing private brokers to advise consumers looking for policies, which Trump officials pushed.
Somewhat more involved would be reversing various measures the Trump administration put in place to chip away at the Affordable Care Act. These include broadening the duration of short-term health plans to a year, and, more recently, allowing Georgia to stop using the federal exchange, healthcare.gov, and shift to a private sector model instead. The Centers for Medicare and Medicaid Services went a step further in recent weeks, establishing a pathway for all states to do this for 2023.
Biden may also want to institute a special enrollment period for Obamacare to allow the uninsured to sign up, which Trump refused to do last year.
Bolstering Medicaid: The Trump administration made many historic changes to the health insurance program for low-income Americans, in line with Republicans’ long-standing wish list. Officials allowed states to introduce work requirements and just approved Tennessee’s request to shift its federal Medicaid funding to a type of block grant.
The Supreme Court recently agreed to consider the approval of work requirements in Arkansas and New Hampshire, which were voided by lower courts.
These measures run counter to Biden’s promise to expand access to Medicaid so his administration is expected to seek to limit or undo these waivers during his term, as well as possibly restore the criteria on waivers’ impact on increasing coverage.
Also, Congress has limited states’ ability to trim their Medicaid rolls during the public health emergency. The Biden administration may want to continue some of those provisions after it ends.
Changing abortion policy: The Biden administration is also moving to revamp federal abortion policy by rescinding a slew of restrictions implemented over the past four years.
Biden is set on Thursday to revoke the Trump administration rule blocking federally funded health care providers in the Title X family planning program from referring patients for abortions.
The President will also reverse the so-called Mexico City Policy, a ban on US government funding for foreign nonprofits that perform or promote abortions or related services. The Trump administration reinstated the restriction in 2017 by presidential memorandum and extended it to all applicable US global health funding under the “Protecting Life in Global Health Assistance” policy.
On the health insurance front, the incoming administration is expected to reinstitute guidance that states cannot bar Medicaid funds from going to qualified providers that also provide abortion-related services, such as Planned Parenthood. Medicaid funding does not cover abortions, except in cases of rape, incest or when the woman’s life is at risk, due to the 1976 Hyde Amendment.
Biden has pledged to protect Roe v. Wade, the 1973 landmark Supreme Court decision legalizing abortion nationwide prior to viability, which can occur at around 24 weeks of pregnancy. He has also indicated that his administration’s Justice Department will seek to combat state laws restricting abortion access, such as requirements for parental notification, waiting periods, and ultrasounds.
Biden appears unlikely to enforce a recent move by Trump officials to withhold $200 million in Medicaid funding from California in the first quarter of 2021 due to the state’s requirement that state insurance companies provide abortion insurance coverage.
The administration is also not expected to pursue Trump-era federal regulations that have been blocked by the courts, including measures that would have required insurers on the Obamacare exchanges that cover abortions to issue separate bills for that coverage, and the so-called conscience rule, which would have let health care workers who cite moral or religious reasons opt out of providing certain medical procedures, such as abortion, sterilization and assisted suicide.
Reducing drug costs: Like many presidents, including Trump, Biden has promised to lower drug costs. Among his preferred ways is to allow Medicare to negotiate prices, which is also favored by the Democratic-led House. But actually putting this into law would be a massive undertaking in Congress.
The Trump administration pushed through the bevy of drug price rules in recent months, including pegging Medicare reimbursements to drug costs in other countries, effectively banning drug makers from providing rebates to pharmacy benefit managers and insurers and establishing a path for states to import medication from abroad. Drug industry groups have already filed litigation against the first two and Canada has expressed its disapproval of the final one.
It remains to be seen what Biden’s Department of Health and Human Services will do with them.
Biden also supports allowing consumers to import prescription drugs from other countries.
Augmenting transgender health care rights: The Trump administration moved last year to nix an Obama-era regulation prohibiting discrimination in health care against patients who are transgender, but a federal judge later blocked the repeal.
With the rule still in place, Biden could try to reinforce it by issuing a new, more targeted rule that specifically prohibits that type of discrimination, going a step further than the department did in its 2016 regulation.
The incoming administration has also promised to take action on LGBTQ mental health services, something that will be key for members of the transgender community, which sees uniquely high rates of suicide attempts.