Biden Executive Order To Reopen HealthCare.gov, Make Other Changes


On January 28, 2021, President Biden took two health care executive actions, including issuing an executive order that directs the Department of Health and Human Services (HHS) to expand access to Affordable Care Act (ACA) coverage and bolster the Medicaid program. These directives were long expected and make clear that the Biden administration considers HealthCare.gov and Medicaid to be critical tools in its pandemic response toolbox.

In particular, the executive order directs HHS to consider establishing a broad special enrollment period for HealthCare.gov and reassess rules and policies that undermine access to ACA and Medicaid coverage. In response, HHS quickly announced the new special enrollment period, which will begin on February 15, and committed to spending $50 million on outreach and education. These policies could have a significant impact by enabling millions of uninsured people to enroll in comprehensive coverage.

The marketplaces have been undoubtedly important during the pandemic: millions have relied upon ACA subsidies and comprehensive coverage that includes COVID-19 testing, vaccines, and treatment. Enrollment through HealthCare.gov increased for 2021, and significant coverage losses do not appear to have materialized thanks in large part to Medicaid and employers maintaining coverage for workers. But enrollment by new consumers continues to decline, and the Trump administration did little to promote ACA coverage as an option. With this executive order, the Biden administration makes clear that it is reversing course and will fully leverage the ACA and Medicaid in its pandemic response.

Separately, the White House issued a presidential memorandum on protecting women’s health and bolstering access to comprehensive reproductive health care.

Unpacking The Executive Order

Executive orders cannot change existing law but can direct federal agencies to draft new rules or guidance consistent with the administration’s existing legal authority. How quickly an executive order can be implemented depends on the underlying policy that is being directed. Changes that are largely operational, such as a special enrollment period, can be made swiftly while changes that require new rules or revisions to existing rules require notice-and-comment rulemaking processes that take months.

Overall Policy In The New Executive Order

President Biden’s executive order states that it is the “policy” of the Biden administration to “protect and strengthen Medicaid and the ACA and to make high-quality healthcare accessible and affordable for every American.” Agency officials are directed to consider new action to more fully enforce this policy. In adopting this policy, President Biden notes that the uninsured rate dropped significantly because of the ACA, which has extended consumer protections to millions more people, but that many potentially eligible people remain uninsured and face barriers in obtaining coverage.

The policy goals laid out in President Biden’s executive order are in stark contrast to those in President Trump’s very first executive order, which stated that the policy of his administration was to seek repeal of the ACA, minimize its burdens, waive its requirements, and provide state flexibility. The Biden executive order revokes this Trump executive order and an October 2017 executive order that directed federal agencies to expand access to short-term plans, association health plans, and certain health reimbursement arrangements.

President Biden’s executive order also directs each agency to consider suspending, revising, or rescinding any action that is related to or arose from these Trump-era executive orders. This could include taking regulatory action (such as issuing a new rule) to suspend, revise, or rescind related prior rules so long as doing so is consistent with existing law and the policy laid out in the executive order.

Special Enrollment Period

The executive order directs the Secretary of HHS to consider establishing a special enrollment period through HealthCare.gov that will run from February 15 to May 15, 2021. It cites provisions of the ACA governing the marketplaces and federal regulations that allow a special enrollment for “exceptional circumstances”—here, these circumstances are the ongoing COVID-19 pandemic.

HHS immediately announced the HealthCare.gov special enrollment period in a press release and fact sheet. The special enrollment period will be available to all qualifying consumers who submit a new application or want to update an existing application (i.e., for current enrollees). State-based marketplaces can, but do not have to, allow for a similar special enrollment period, although some states have already announced that they will do so. Coverage is prospective, meaning it will begin on the first day of the month after a consumer enrolls through HealthCare.gov. Current enrollees will need to revise their current application to claim the special enrollment period and receive an updated eligibility determination. HHS’s fact sheet makes clear that applicants should face no heightened application questions or verification requirements (such as documentation to show they qualify for a special enrollment period).

At the same time, HHS announced that it would commit $50 million to outreach and education to raise awareness of the special enrollment period. This is incredibly important since awareness of the marketplaces remains low, and the HealthCare.gov advertising and marketing budget was cut by 90 percent under the Trump administration. HHS can easily pull these funds from the user fees that insurers pay for the use of HealthCare.gov. A recent analysis from the Kaiser Family Foundation found that HHS currently has more than $1 billion in unused federal user fee revenue. These funds could be tapped to invest in HealthCare.gov marketing and advertising and the navigator program, as well as make other consumer-friendly improvements to HealthCare.gov and the call center. (Under the partial final payment rule for 2022, HHS would further cut the user fee for HealthCare.gov.)

All but one state-based marketplaces provided broad COVID-19 special enrollment periods—leading, in some states, to record-high enrollment—and many invested in additional outreach and marketing. But the Trump administration refused to do the same for HealthCare.gov, despite widespread support from stakeholders such as insurer associations, gig economy companies (such as Postmates and Instacart), members of Congress, governors and attorneys general, and a broad coalition of more than 200 organizations. The refusal to allow a special enrollment period led to a lawsuit, although the new executive order and HHS action in response may lead to settlement or dismissal of that lawsuit.

A special enrollment period, paired with an aggressive advertising and marketing campaign, could have a significant impact. An analysis by the Kaiser Family Foundation suggests that nearly 9 million currently uninsured people could enroll in free or subsidized coverage through HealthCare.gov. Of these, 4 million would qualify for a no-premium bronze plan. An additional 6 million uninsured people could qualify to purchase unsubsidized ACA coverage if they can afford it. The executive order notes that people of color—Black, Latino, and Native American people, in particular—are more likely to be uninsured even while being disproportionately affected by the COVID-19 pandemic.

This broad special enrollment period is likely to be good for the marketplace risk pools rather than lead to adverse selection. State-based marketplaces have indicated that their COVID-19 special enrollment periods helped bring in younger enrollees. And the same Kaiser Family Foundation analysis notes that the remaining uninsured who could qualify for free or low-premium coverage are more likely to be young adults. For instance, 39 percent of the 4 million uninsured people who qualify for a no-premium bronze plans are between the ages of 19 and 34.

Directing Other ACA And Medicaid Actions

The special enrollment period is the only specific action directed by the executive order. But President Biden also directs federal agencies to reexamine 1) policies that undermine protections for people with preexisting conditions under the ACA; 2) demonstrations and waiver policies under Medicaid or the ACA that may reduce coverage or undermine those programs; 3) policies or practices that undermine the ACA marketplace or private health insurance markets; 4) policies or practices that make it more difficult to enroll in Medicaid and the ACA through unnecessary barriers (including for mid-year enrollment); and 5) policies or practices that reduce affordability of coverage or financial assistance, including for dependents. This review should extend to all existing regulations, orders, guidance, policies, and any other agency action to ensure that agency efforts are consistent with the executive order.

These directives are broad and do not give much specific insight into what actions the agencies will prioritize. But the order is likely to trigger a range of activity to reverse Trump administration policies and adopt a proactive agenda. Indeed, the language of the executive order provides multiple grounds upon which the agencies can reverse Trump-era policies. As discussed more here, this might include rolling back access to non-ACA plans, extending the annual open enrollment period, revising the premium adjustment percentage methodology, eliminating special enrollment period verification requirements, and more. Some of these efforts to adopt changes may be bolstered by ongoing litigation.

The executive order also mentions improving the affordability of coverage or financial assistance, including for dependents. This appears to be a veiled reference to fixing the family glitch, a move that would extend ACA subsidies to millions of family members of low-income workers who currently do not qualify for subsidized ACA coverage. This would require the Treasury Department to reinterpret its current regulations, which it has the authority to do using notice-and-comment rulemaking procedures.

And while the executive order does not directly reference Medicaid work requirements waivers, the Biden administration is expected to soon turn to addressing that issue, in no small part because there is pending litigation before the Supreme Court over the validity of work requirement waiver approvals in Arkansas and New Hampshire. HHS needs to take a range of action to address work requirements, including rescinding Trump-era guidance that encouraged work requirements, denying pending waiver applications, and beginning the process of revoking approved waivers.

Memorandum On Women’s Health

President Biden also issued a separate memorandum on protecting women’s health at home and abroad and promoting access to reproductive health care. Among other directives, the memorandum rescinds the global gag rule and directs HHS to consider whether to suspend, revise, or rescind restrictive regulations under the Title X family planning program (known as the domestic gag rule).

In the Trump administration’s Title X rule, HHS barred the participation of providers that make referrals for abortion services, required pregnant patients to be referred to prenatal services, and required physical and financial separation from abortion services. That rule was challenged in court, and we are waiting to see if the Supreme Court will agree to hear that appeal. While President Biden’s actions on January 28 do not immediately resolve those lawsuits or the underlying rule (because doing so will require notice-and-comment rulemaking), they provide a strong indication that the policy will be rescinded or amended by the Biden administration.

(President Biden is rumored to plan to take similar action soon with respect to the public charge rule, which requires the consideration of participation in certain public benefits programs in assessing whether an immigrant is a “public charge.” Litigation over that rule is similarly pending before the Supreme Court.)

Other Recent Executive Orders

The January 28 actions complement other executive orders that President Biden has already issued. These orders focus on a range of issues, including public health and economic responses to the pandemic, climate change, the DACA program, racial equity and support for underserved communities, LGBTQ nondiscrimination, and immigration. Many of these executive orders and presidential memoranda could have implications for coverage issues as they are implemented.

For instance, in an executive order focused on a national COVID-19 testing and public health workforce strategy, President Biden directed federal officials to take action to facilitate free testing for the uninsured and “clarify” insurers’ obligations to cover COVID-19 testing, among other actions. As such, federal officials are likely to reverse Trump-era guidance that employers and insurers do not have to pay for COVID-19 tests when not used for diagnostic purposes (such as back-to-work or general screening tests). Similarly, the executive order on LGBTQ nondiscrimination—which directs government-wide implementation of the Supreme Court’s decision in Bostock v. Clayton County, Georgia—will have significant implications for revisions to HHS’s rule on Section 1557 of the ACA.

Other executive orders or memoranda set out new standards for the regulatory process under the Biden administration or revoked Trump-era executive orders related to burdensome regulatory processes. As expected, the White House issued a regulatory freeze memo that halts the publication of any pending rules until there is time for additional review. Several HHS rules will be affected by the freeze policy, including the partial final payment rule for 2022 and the sunset rule, among others.

Under the freeze policy, agencies can delay the effective date of rules that have already been published in the Federal Register but have not gone into effect. Agencies could postpone effective dates for 60 days and, at the agency’s discretion, consider opening a 30-day comment period as the agency reviews any questions of fact, law, and policy raised by the recently finalized rules. At the end of the delay, those rules would be finalized without change or otherwise addressed through notice-and-comment rulemaking.



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