Gabriel Perna | February 3, 2021
As predicted by numerous health policy experts, President Joseph R. Biden Jr. began his administration by acting on health care policy through executive order and memorandums. Of course, executive orders can’t move the needle like a substantive legislative bill and many experts have speculated that some Trump-era changes will take months and years to unwind. Biden’s EOs, however, set the tone for this administration’s health care policy intentions.
Like we did with President Trump’s executive orders on drug pricing last year, Health Evolution has examined each of these orders and memorandums and how they might impact health care. Here is what we found.
ACA gets new life
On January 28th, Biden signed an executive order titled, “Strengthening Medicaid and the Affordable Care Act.” The order created a special ACA enrollment period from February 15, 2021 – May 15, 2021.
The regular enrollment period ended in December, reaching 8.2 million Americans through the federal marketplace, according to a CMS estimate. Despite the rise in unemployment due to the pandemic and recession, this number dipped from the enrollment period in 2019. Over the past four years, enrollment has declined from a high in 2016 as the Trump administration significantly cut spending on outreach and actively said it would repeal the health law. Many of the state-based marketplaces saw a decline over the four years of the Trump administration as well.
The extension of this enrollment period—plus added spending into outreach—could have a significant impact on how many people choose to acquire insurance through the ACA. A Kaiser Family Foundation (KFF) analysis reveals that there are “15 million uninsured people who could be purchasing Marketplace coverage, but aren’t taking it.” Of those 15 million, 8.9 million could receive free or subsidized care. The reasons are varied across a wide range of demographics, but mainly come from a lack of information about available options, fear over high deductibles and being priced out all together by high unsubsidized premiums. If the Biden administration expands outreach, KFF says there is “$1 billion in unspent federal user fee revenue that has accumulated and could be used to invest in changes that would make it easier for consumers to enroll in health coverage.”
Another significant part of this executive order asks federal agencies to revisit demonstrations and waivers under Medicaid and the ACA that would reduce coverage, such as work requirements. Experts say, however, unwinding work requirements could be “easier said than done.” According to Morning Consult, former CMS Administrator Seema Verma made moves to prevent the Biden administration from undoing the waivers. “It’s going to take a lot of time, and a lot of very careful legal work,” Nicholas Bagley, a law professor at the University of Michigan who focuses on health policy, said to Morning Consult. Furthermore, the Supreme Court is deciding on the legality of these waivers in an upcoming case.
The executive order also asked federal agencies to review any policies that “undermine protections for people with pre-existing conditions, including complications related to COVID-19,” and “reduce affordability of coverage or financial assistance, including for dependents.” It also reverses two ACA-related executive orders from the Trump administration, one on Trump’s first day in office and another in October of 2017 that directed federal agencies to expand access to short-term, association plans. According to Health Affairs, the broad language of this executive order will allow agencies to take multiple actions to reverse other Trump-era regulations and policies regarding the ACA and health insurance.
COVID-19: Responding on a number of fronts
Another pre-inauguration prediction that came true was that Biden would focus immediately on COVID-19 through executive orders. On his first day in office, he signed an executive order that covered a number of COVID-19-related topics, including creating the position of Coordinator of the COVID-19 Response (Jeff Zients was tapped in this role) and having him report directly to the President. He required federal agencies to report about COVID-19 readiness within their agencies to Zients.
Biden also enacted an order that require mask wearing by federal employees, contractors, across government buildings and lands, as well as the creation of a federal taskforce to provide guidance to heads of agencies on the operation of the federal government, the safety of its employees, and the continuity of government functions during the COVID-19 pandemic. On day two, he signed an order requiring mask wearing on airplanes, trains, public maritime vessels, intercity bus services and all forms of public transportation.
Beyond mask wearing and setting up a structure for COVID-19 response at the federal level, Biden signed an order to accelerate the development of novel COVID-19 therapies, provide surge assistance to critical care and long-term care facilities, and expand programs that address the long-term health needs of patients recovering from COVID-19.
As part of another executive order, the President also requested thst the HHS Secretary create a national COVID-19 testing and public health workforce strategy, facilitate free COVID-19 testing to those who lack comprehensive health insurance, clarify insurers’ obligation in providing coverage for COVID-19 testing and expand equitable access to COVID-19 testing.
Another order focused on public health data reporting for COVID-19 response and the coordinated collection of relevant information to inform decision making. The order directs various agency heads to “facilitate the gathering, sharing, and publication of COVID-19-related data,” in coordination with the COVID-19 Response Coordinator and calls for a review of public health data systems’ interoperability capabilities and effectiveness. Over the Summer, the Trump administration shifted all hospital data reporting of COVID-19 data from the CDC to HHS, which used a company called Palantir to harmonize that data. It’s unclear if the Biden administration will shift reporting requirements back to the CDC.
President Biden also used an executive order to invoke the Defense Production Act, enabling federal agencies to review and fulfill shortfalls of materials, treatments, and supplies needed to combat COVID-19, including personal protective equipment (PPE).
Health equity amid the pandemic and beyond
Through the COVID-19 response, Biden has also been focused on serving communities of color and other underserved populations. He issued an executive order, Ensuring an Equitable Pandemic Response and Recovery, on the first full day of his administration that created a task force focused on “mitigating the health inequities caused or exacerbated by the COVID-19 pandemic.” The task force will offer recommendations on how local governments can allocate resources to reduce the high rates of COVID-19 infection, hospitalization, and mortality among communities of color.
Ensuring it will be a major part of his administration, Biden created a health equity role within HHS, tapping Marcella Nunez-Smith, MD, an academic researcher from the Yale School of Medicine, to lead the efforts. As the COVID-19 vaccine gets administered more throughout the country, the Biden administration will have a lot of work to do in ensuring equitable distribution. A recent report reveals that the government lacks data on race and ethnicity for half of the people who have been immunized. Experts say that communities of color are among the least likely to get vaccinated.
The new administration’s focus on health equity isn’t just limited to communities of color. Biden has signed executive orders aiming to protect women and the LGTBQ community as well. In terms of the latter, the administration has directed a reversal on Trump-era guidance that delayed application of a Supreme Court case that ruled discrimination on the basis of sexual orientation and gender identity is a form of prohibited sexual discrimination. This ruling protects people from discrimination against gender identity and sexual orientation when receiving health care services.
Biden’s order won praise from LGBQ advocates. “By fully implementing the Supreme Court’s historic ruling in Bostock, the federal government will enforce federal law to protect LGBTQ people from discrimination in employment, health care, housing, education, and other key areas of life,” Alphonso David, President, Human Rights Campaign, said in a statement.
For women’s health, Biden signed a memorandum that rescinds the Mexico City Policy, which bars international non-profits that provide abortion counseling or referrals from receiving U.S. funding. He also requested HHS review and rescind the Trump administration’s actions that overhauled the Title X federal family planning program. This action stripped millions in grants to Planned Parenthood.
Trump drug pricing rules frozen
On the drug pricing front, the biggest action was a freeze of the Trump drug rebate rule issued in mid-2020. Biden delayed the effective date until 2023. The policy would prevent drugmakers from providing rebates to third-party intermediaries, such as pharmacy benefit managers. It is the focus of a lawsuit from the Pharmaceutical Care Management Association and other trade groups, many of which applauded Biden’s move.
“We are encouraged by this important first step in ensuring this bad policy does not go into effect. The delay will provide a much-needed pause to allow the Administration ample opportunity to better understand the rebate rule’s harmful impact on millions of Americans,” said Matt Eyles, President and CEO of America’s Health Insurance Plans (AHIP).
The administration is also temporarily freezing a rule that offered low-income patients the ability to access affordable insulin and injectable epinephrine from Federally Qualified Health Centers (FQHCs) at a price that aligns with the cost at which the FQHC acquired the medication under the 340B Prescription Drug Program. The National Association of Community Health Centers urges Biden to rescind the rule permanently.
“Health centers, bipartisan members of congress and leaders within the Department of Health and Human Services have indicated that this rule will do more harm than good at a time when too many people are suffering,” said Tom Van Coverden, President and CEO of NACHC. “We hope that this is further acknowledgment that a pandemic is no time to destabilize the safety net.”