President Biden marks his first 100 days in office this week. Unsurprisingly, health care issues—especially the pandemic—have dominated his term thus far. During his first 100 days, President Biden signed the American Rescue Plan Act (ARPA) into law, issued executive orders, nominated cabinet secretaries and federal judges, and coordinated a national response to the pandemic. His administration has also responded to pending litigation, taken steps to implement ARPA, revoked state waivers, and issued new guidance and regulations. (Several news sources quantitatively compare Biden’s first 100 days to his predecessors and are worth reading.)
This post summarizes the first 100 days with an emphasis on the Affordable Care Act (ACA). These activities have been discussed in detail in prior posts, and many of the Biden administration’s actions have been consistent with predictions about what would happen to the ACA under a Biden administration and Democratic Congress. This post also discusses the White House’s highly anticipated American Families Plan proposal which was released on April 28 and could signal what comes next in Congress.
Working With Congress
On March 11, President Biden signed the American Rescue Plan Act of 2021 into law. The $1.9 trillion legislative package included many significant pandemic relief policies, including historic expansions of the ACA. The law’s enhanced premium tax credits, while temporary, significantly improve the affordability of marketplace coverage.
As discussed in more detail here, ARPA extends ACA premium tax credits to middle-income people who did not previously qualify (for 2021 and 2022); increases ACA premium tax credits for lower-income people who already qualify (for 2021 and 2022); offers maximal subsidies to those who receive unemployment benefits (for 2021); and prevents individuals from having to repay excess ACA subsidies at tax time (for 2020). ARPA also subsidizes COBRA continuation coverage for laid-off workers (from April 1 to September 30, 2021) and includes new incentives for states that have not yet expanded their Medicaid programs (for two years).
Following enactment, the Biden administration moved swiftly to implement many of ARPA’s provisions. Two of the three enhanced premium tax credits became available through HealthCare.gov on April 1—less than one month after ARPA was signed into law. The unemployment-linked enhanced subsidies are expected to be implemented later this summer. (Timelines for implementation vary in the 15 states (including DC) with their own state-based marketplaces.) Separately, the Department of Labor and the Internal Revenue Service issued guidance to implement ARPA’s subsidies for COBRA continuation coverage and provide relief from premium tax credit reconciliation for 2020, respectively. These are only some of the ARPA changes that each agency has had to implement quickly.
American Families Plan
On April 28, the White House issued a 15-page fact sheet to outline its priorities for the American Families Plan. This $1.8 trillion proposal is designed to build on ARPA, follows a separate legislative package known as the American Jobs Plan (issued in late March), and signals the White House’s priorities for the next broad legislative package. As with prior packages, the American Families Plan is broad and would fund new programs or initiatives for childcare, universal pre-school, higher education, paid family and medical leave, school meals, and unemployment insurance. Many of these policies promote health: early childcare and education, for instance, is linked to positive short- and long-term health outcomes. The White House emphasizes these impacts throughout its proposal.
The White House would pay for these and other policy changes by reversing the tax cuts made in the Tax Cuts and Jobs Act of 2017 (which set the ACA’s individual mandate penalty to $0) and increasing taxes on the highest-income Americans. The proposal identifies new sources of revenue, such as increasing the tax rate for those with incomes in the top one percent to 39.6 percent (i.e., the same level as before the 2017 changes).
The only specific health care or coverage-related policy in the White House blueprint is to make the ARPA’s premium tax credit enhancements permanent. The White House specifically references the two-year premium tax credit enhancements in ARPA, meaning the American Families Plan would continue to provide subsidies for middle-income people (those whose income exceeds 400 percent of the federal poverty level) and make subsidies more generous for lower-income people (those whose income is between 100 and 400 percent of the federal poverty level). The White House estimates that this is a $200 billion investment over ten years that will result in premium savings for 9 million people and extend coverage to 4 million uninsured people. The fact sheet also notes increased investments in maternal health and veterans’ health but provides no specifics.
The extension of ARPA subsidies is unsurprising. President Biden has long championed the ACA and the ARPA subsidies, as noted above, are temporary and were rolled out seamlessly. The White House is also likely thinking of potential political ramifications down the road. If ARPA’s subsidies are not extended, millions of Americans would learn of premium hikes for 2023 (as their subsidies were phased out) during the open enrollment period that begins in November 2022. This is at the same time as the 2022 midterm elections. To avoid this political outcome and higher costs for millions of Americans, the ARPA subsidy enhancements would need to be extended, either this year or next.
The rest of the White House proposal gives little indication of other policies that might be under consideration. So far, commentary has focused on what is not in the American Families Plan as Democratic members of Congress advocate for their own priorities—from allowing Medicare to negotiate drug prices to reducing the eligibility age for Medicare to enhancing Medicare benefits.
The White House gives a nod to these other proposals, many of which were championed by candidate Biden or recommended by the Biden-Sanders Unity Task Force. And in his address to a joint session of Congress, President Biden specifically called for lowering deductibles and using Medicare to negotiate lower prices for prescription drug. But the American Families Plan proposal notes only that President Biden “has a plan” to let Medicare negotiate drug prices, reduce individual market deductibles, create a public option and an option for people to enroll in Medicare at age 60, and close the Medicaid coverage gap. This is the only instance where that phrase appears in the fact sheet.
Conventional wisdom—echoed by President Biden in his address to Congress on April 28—is that the savings from allowing Medicare to negotiate drug prices could help pay for enhanced ACA subsidies and other coverage priorities. Indeed, in 2020, House Democrats passed the Patient Protection and Affordable Care Enhancement Act, which included ACA enhancements alongside parts of the Elijah E. Cummings Lower Drug Costs Now Act with the goal of using savings from the prescription drug negotiation provisions to help pay for the bill’s coverage expansions. President Biden noted in his speech that “the money we save” by allowing Medicare to negotiate lower prices for prescription drugs “can go to strengthen the Affordable Care Act—[and] expand Medicare coverage and benefits—without costing taxpayers one additional penny.” From here, we wait to see how Congress will proceed.
Executive Branch Efforts
President Biden has taken many COVID-19-related presidential actions and issued several health-focused executive orders. Most directly relevant to the ACA and Medicaid, President Biden issued an executive order on January 28 that directed the Department of Health and Human Services (HHS) to expand access to ACA coverage and bolster the Medicaid program.
In general, the executive order directed federal agencies to take action consistent with the Biden administration’s policy to “protect and strengthen Medicaid and the ACA and to make high-quality healthcare accessible and affordable for every American.” It rescinded prior executive orders from President Trump and urged each agency to consider suspending, revising, or rescinding any action that is related to or arose from these prior orders. It also broadly directed federal agencies to reexamine policies that undermine protections for people with preexisting conditions or marketplace coverage, waivers that reduce coverage, and policies that make it more difficult to enroll in or reduce the affordability of Medicaid or ACA coverage. The agencies have taken some action pursuant to the executive order, such as revisiting Medicaid work requirements waivers, but much work remains.
President Biden also directed HHS to consider establishing a broad special enrollment period for HealthCare.gov. The agency promptly did so, initially providing a three-month special enrollment period before extending it to six months, from February 15 to August 15. As of the end of March, enrollment had already risen by more than 528,000 people in the states that use HealthCare.gov. (In his address to a joint session of Congress, President Biden noted that an additional 800,000 Americans had enrolled during the special enrollment period, so we should expect updated data soon.) HHS separately committed to spending $50 million on outreach and education, which was recently doubled to $100 million to increase awareness of enhanced ARPA subsidies. HHS also provided an additional $2.3 million in funding for current navigator grantees and announced that it will invest $80 million in navigator funding for 2022, which represents the largest-ever investment in navigators.
Beyond these operational changes, the Biden administration has largely focused on issuing guidance (rather than new rules). In addition to guidance to implement ARPA, federal agencies have issued new guidance on COVID-19 testing and vaccines, relief for employers and employees in group health plans, health plan filing deadlines for 2022, pass-through funding amounts for states with Section 1332 waivers, user fee data, priorities for compliance review, mental health parity, the cost-sharing reduction reconciliation process, and the risk adjustment program. Most of these guidance documents are issued annually but some are specific to the COVID-19 pandemic or recent legislation.
We have not yet seen new rulemaking related to the ACA, although that could change soon as the Biden administration finalizes the remaining parts of the 2022 notice of benefit and payment parameters rule. The Trump administration proposed and then partially finalized the 2022 payment rule; the Biden administration must now finalize (or not) the remaining provisions of that rule. Where there has been other rulemaking, it has largely been in response to litigation (discussed more below) such as a proposed rule on the Title X program, a final rule rescinding the Trump-era public charge rule, and a delay in the effective date of the “sunset” rule. HHS has also issued several proposed Medicare rules, which are promulgated on an annual basis.
There are several reasons for potential delays in rulemaking, including prioritizing the pandemic response and ARPA implementation, a delayed transition process, and a continued dearth of political appointees at various agencies (many of whom do not require Senate confirmation). But it is worth noting that the Trump administration moved more quickly on rulemaking: HHS had already proposed and finalized the market stabilization rule, albeit with only a 20-day comment period, by mid-April 2017.
Responding To ACA-Related Litigation
As has been documented extensively on Health Affairs Blog, litigation has been one of the few constants during the ACA’s 11-year existence. There remain constitutional challenges as well as litigation over rules and regulations to implement the law. Some of these challenges date back to the Obama administration, while many challenges to the Trump-era rules are pending before courts across the country. An overview of these lawsuits is available in a three-part series found here, here, and here.
Judicial proceedings have been a priority for the Biden administration. In early February, the Department of Justice notified the Supreme Court that it had formally changed its position in California v. Texas, a global challenge to the ACA where a decision could be issued any day. As discussed here, this change was long expected given President Biden’s campaign and long-standing commitment to the ACA, the unusual position taken by the Trump administration in this lawsuit, and the weakness of the previous administration’s legal arguments. The change in position is unlikely to substantively impact the Court’s decision, but the Biden administration clearly felt it was important to make its position known.
Separately, the Department of Justice settled pending Supreme Court litigation over the public charge rule. It attempted to do the same with litigation over a rule related to the Title X program, although dismissal has not yet been granted as states have asked to intervene in the lawsuit. The Biden administration also began the process of revoking approved waivers for Medicaid work requirements for several states, including Arkansas and New Hampshire, where lawsuits over the validity of Trump-era approvals are pending before the Supreme Court. The Court agreed to put that litigation on hold, at least temporarily. The delay could be to provide time for the revocation process (begun on March 17) to proceed or to give more time for the Justices to write opinions (or dissents) on the Biden administration’s request to vacate and remand the lower courts’ decisions.
Beyond the Supreme Court, the Biden administration has asked for permission to put ACA-related litigation on hold, citing the need to consult with new agency leadership and assess the government’s position on the underlying rules and litigation. As a result of these and similar requests, litigation has been put on hold in challenges over the association health plan rule, the double billing rule, the provider conscience rule, an immigration proclamation, the “sunset” rule, and some (but not all) cases related to Section 1557 and the contraceptive mandate.
But these delays are temporary. The Biden administration will eventually have to decide whether and how to resolve these lawsuits, whether to continue defending underlying Trump-era rules, or whether to ask the court to remand the rules back to various agencies to make changes using notice-and-comment rulemaking procedures.
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