How Biden can address health care reform ― without the Senate

Joanne Kenen

About Joanne Kenen

Joanne Kenen, (@JoanneKenen) the health editor at Politico, has been AHCJ’s topic leader on health reform and curated related material at healthjournalism.org. Follow her on Facebook.

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Photo: medipics1066 via Flickr

In my last post, I addressed President-elect Joe Biden’s proposals for expanding the Affordable Care Act and the slim likelihood that programs like a public option could get through a closely divided Senate ― particularly if Republicans end up with a narrow one- or two-seat majority after the Georgia run-offs.

But Biden and the leaders he picks to run HHS and CMS will have broad executive power to shape health care, just as President Donald Trump and his appointees did. Remember that Trump and the congressional Republicans failed to repeal the ACA, despite nearly a year of trying. But the Trump administration did go on to use its executive powers to weaken the ACA and tried to significantly change Medicaid as well. Biden can use those same powers ― executive orders, regulations, waivers, guidance, etc. ― to bolster the health law and address Medicaid. Some moves are relatively straightforward, but others likely will face court challenges as everything in health care tends to nowadays.

In the “easy” category: Biden can restore the funds Trump has cut for ACA marketing, outreach and assistance via navigators (and he can utilize free media and social media). Biden doesn’t take office until a month after the current enrollment season ends on Dec. 15, but these steps would encourage enrollment in future years. Biden also can create a special enrollment period (SEP) to make it easier for people who lost their jobs and insurance during the pandemic to get covered. Trump chose not to create a SEP for the pandemic, nor did he streamline the regular somewhat cumbersome SEP process, or launch a public awareness campaign as the economy cratered. The new administration also could extend the open enrollment season, which under Trump runs only six weeks.

A Biden administration could reverse, or at least modify in consumer-protective ways, some Trump regulations that made it easier for people to buy health plans that don’t meet ACA standards. Short-term limited-duration health plans, for instance, are much cheaper than ACA-compliant plans, but they also don’t offer the full suite of benefits and patient protections. Such plans were permitted under President Barack Obama but primarily as a temporary stop-gap for up to three months. Under the Trump administration, they can be extended for up to three years. Biden could leave the plans on the market for some period, but improve labeling and consumer information, so people understand how little coverage these plans provide if someone gets sick or injured. Ditto for association health plans (AHPs) offered by trade or business groups. These aren’t as skimpy as many short-term plans, but they don’t comply with the ACA. For now, the courts have blocked them, so it may be easier for Biden to pull authorization of AHPs without significant political blowback since he’s not taking anything that someone already has (though business groups that favor AHPs would object).

There are several Trump rules that Biden can reverse ― again, maybe with court battles. These include restoring nondiscrimination rules that protect gay and transgender people, resuming federal funding for Planned Parenthood under Title X and opposing state efforts to bar Planned Parenthood from participating in Medicaid.

There are tons of waivers in health care, some directly created by the ACA, others that pre-existed, so to speak. On Medicaid,  the Trump administration used waivers to allow block grants (no state has pursued that so far, although Tennessee is considering a variant.). Block grants would fundamentally change Medicaid, which currently is an open-ended entitlement. Block grants would cap spending for the first time. Biden opposes that.

Similarly, several states have used Medicaid waivers to add work requirements. The courts have blocked work rules so far, but that battle isn’t over. Biden certainly would not want more states going down that path, but whether he would reverse waivers or seek to modify them is unclear. It’s also possible that state waivers would come up for renewal even before the courts rule.

The most dramatic waiver is one given recently to Georgia. It allows the state in 2021 to leave the ACA exchanges and HealthCare.gov. and put brokers in charge. While new administrations tend not to reverse a state waiver totally, this one may be an exception ― or at least a place where the feds will step in to change it. (Here’s the CMS release explaining the Georgia waiver. Here’s a piece from the Atlanta Journal Constitution’s Ariel Hart on the waiver, as well as this one from Vox’s Dylan Scott.)

But remember, while a state like Georgia used a 1332 waiver (a state flexibility waiver under the ACA) to unwind the health law, other states can use the same waivers to strengthen it. Several liberal and conservative states have used waivers to restrain premiums. Under Biden, they also could experiment with ways to expand coverage and bring down costs ― even by taking some of the steps that Biden is not likely to get through Congress for the entire nation.  A state could offer its own public option; Washington state is doing that, although in a somewhat limited way. Under a Biden administration, more could follow.

Finally, there are many ways to run pilot programs in Medicare and Medicaid ― some through the CMS Center for Medicare & Medicaid Innovation (CMMI) or earlier programs. These will continue as not all are controversial. But Trump looked at using some of these programs to lower drug costs when his initiatives didn’t get past Senate Republicans. Biden may well do the same.

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