In the hit Broadway play Hamilton
, Angelica Schuyler sings a song in which she ‘rewinds’ her memories back to the night she first met the future U.S. Treasury Secretary, passes him up, and makes an introduction to her sister, Eliza. Alexander Hamilton and Eliza Schuyler would go on to marry, much to Angelica’s personal regret.
Over the past two weeks, the Biden Administration has similarly started taking steps to ‘rewind’ many of the Trump Administration’s health policies, putting those policies back to Obama Administration footing, including through the following broad changes and initiatives:
President Biden signed an Executive Order on January 28 to reopen the Affordable Care Act’s (“ACA”) federal insurance health plan marketplace for open enrollment for a three-month period commencing February 15. Open enrollment usually occurs only between November 15 and the end of each calendar year. This move will allow individuals in 36 States who use the Federal exchange to enroll in health plan coverage under the ACA. States which operate their own exchanges are anticipated to follow suit. Federal funding will also be restored to market the exchanges to consumers and to pay navigators to assist with individual enrollment issues.
In his comments when signing the Executive Orders, President Biden noted that it was his intent to restore the ACA to its Obama era status. To achieve this goal, Biden is expected to take steps to reverse initiatives which diluted the comprehensiveness of ACA plans, and which threatened the viability of ObamaCare overall. In this regard, it is expected that the Biden Administration will greatly reduce the availability of so called “skinny” plans – policies which allow consumers to buy only a limited amount of coverage, or which impose strict caps on benefits, as opposed to providing a comprehensive set of benefits and coverage. It is also anticipated that the availability of short-term plans under the ACA will be reduced in favor of ensuring individuals are covered for at least one year.
It is also likely that the Biden Administration will drop lawsuits currently pending in the U.S. Supreme Court challenging the constitutionality of the ACA. Those suits, California et al. v. Texas et al.,
seek to invalidate the ACA on the basis that Congress’ elimination of the individual mandate’s tax penalty on individuals who decline to maintain health coverage renders the entire ACA unconstitutional. The case has been argued in front of the Supreme Court, but no decision has yet been issued. Dropping a lawsuit pending in the Supreme Court is unusual, but neither unprecedented nor unexpected given President’s Biden’s service as Vice President in the Obama Administration and his campaign promises to preserve and expand the ACA.
Biden’s January 28 Executive Order also included a directive to review numerous Trump policies affecting the Medicaid Program. It is anticipated that the Biden Administration will roll back or eliminate numerous Trump initiatives intended to make it more difficult for individuals to enroll or remain in State Medicaid programs. Policies expected to be targeted include waivers granted to various States which permit the imposition of work or volunteer requirements as a condition of coverage. The use of block grants to the States allowing for Medicaid program design flexibility are also likely to be rolled back, particularly where those designs are used to increase barriers to coverage, or to reduce the available benefits and coverage to beneficiaries.
As is customary for Presidential transitions where the opposing Party takes power, Biden issued a sixty-day pause on all rules, guidance or other agency actions which were not yet effective when he took office on January 20. These regulations will be subject to review before they are allowed to take effect. Many of those proposed rules would impact the Medicare program. These include pending rules:
- Intended to make additional human organs available for transplant, and to shorten transplant wait times.
- Tying the reimbursement available for certain Medicare outpatient prescription drugs to international prices for those drugs.
- Requiring the value of certain drug discounts be made available directly to Medicare beneficiaries, and prohibiting pharmacy benefits managers from receiving discounts or rebates based on a percentage of drug sales or costs of drugs sold.
- Requiring Medicare Drugs plans to notify prescribers whether pre-authorization is required at the time a prescription is issued for certain types of drugs.
- Requiring certain health centers to pass on discounts they receive for insulin and epinephrine directly on to Medicare and Medicaid beneficiaries.
- Prohibiting the U.S. Department of Health and Human Services from using agency guidance documentation as the sole basis for taking civil enforcement actions.
- Reducing certain barriers to the disclosure of patient health information, and reducing the response time to requests for the production of patient health information to 15 days.
It is important to note that the pause on these rules does not mean that they won’t eventually become effective. If after review the new Administration agrees with them, then they will become law effective March 30. Those rules that the Administration disagrees with, however, will be withdrawn.
In a move consistent with Democratic Presidential transitions, President Biden revoked the Mexico City Policy, a requirement which prohibits foreign non-governmental recipients of U.S. aid from performing or actively promoting abortions. The policy has been intermittently imposed and revoked from Republican to Democratic administrations since Ronald Reagan.
Domestically, Biden also ordered that the so called ‘gag rule’, preventing organizations receiving Title X family planning funding from referring patients for abortion services, be reviewed. Because the rule has been duly promulgated, it could not be repealed immediately without following the proper rulemaking notice and comment procedures, however.
Biden reinstated the White House’s National Security Council Directorate for Global Health Security and Biodefense. This Office coordinated the national strategy for responding to pandemics in the Obama Administration, but was shut down by President Trump early in his Presidency. The United States will also rejoin the World Health Organization and will collaborate again on global health issues, including COVID-19.
While not a rewind to the Obama days, Biden also took immediate action to mandate adherence to CDC guidelines, including the wearing of facemasks, social distancing and other public health measures to prevent the spread of COVID-19 for all on-site Federal employees, contractors, and persons in Federal buildings and on Federal lands. In addition, masks are now mandated in all ports, airports and on common carrier interstate flights, trains, ferries and buses.
It is anticipated that these are only the beginning steps of a broad strategy to unwind Trump policies which weakened the ACA and gave more autonomy to State Medicaid programs to curtail benefits and eligibility. As many Trump changes are already promulgated in federal regulations, it will require notice and comment rulemaking to reverse or amend those rules, which will take time. Many of these rollbacks will likely have to wait until the current COVID-19 emergency has been resolved before they can occur.