Healthcare Analyst: Real Potential for Bipartisan Healthcare Policy Changes Going Forward

A healthcare consumer advocate and healthcare policy analyst has examined the potential for legislative, regulatory, and other federal healthcare policy changes in 2021, especially those impacting healthcare consumers nationwide, in Health Affairs online.

In “Biden And New Congress Tackle COVID-19, ACA,” Katie Keith analyzes a broad range of potential policy changes that could come in 2021 through actions of President Biden and the Biden administration, and/or through the U.S. Congress. Keith is a principal at Keith Policy Solutions, LLC, an appointed consumer representative to the National Association of Insurance Commissioners, and an adjunct professor at the Georgetown University Law Center. She is also a Health Affairs contributing editor.

Keith comments on a broad range of potential healthcare policy outcomes for 2021, beginning with the passage of the No Surprises Act and the passage of the Competitive Health Insurance Reform Act. It amended the McCarran-Ferguson Act of 1945, which had exempted insurers from federal antitrust laws and left antitrust regulation to the states.

Keith writes that, going forward, “Bipartisan legislation remains a possibility, a prospect perhaps bolstered by the recent cross-party cooperation on surprise medical bills and other issues. Even so, health policy experts have a renewed interest in the budget reconciliation process, which requires only a simple majority of votes in the Senate. There are limits to the reconciliation process—notably, it can only be used once per budget for matters with budgetary effects that are not “merely incidental” to their nonbudgetary effects. But this process could be used to advance some ACA enhancements, such as expanded subsidies. (It is not yet clear whether Congress will attempt to address the California v. Texas lawsuit pending before the Supreme Court by, for instance, adding back a penalty for not having coverage, thus potentially rendering moot the claim that the mandate is no longer constitutional as a tax now that its penalty has been set to zero.)”

And she notes that “President Biden has proposed a $1.9 trillion plan for additional pandemic relief. Among many elements, the package would fund public health measures (such as a national vaccination program and public health jobs program), provide subsidies for Consolidated Omnibus Budget Reconciliation Amendment continuation coverage through September, and temporarily expand and increase the value of premium tax credits under the ACA.”

What’s more, she notes, “The onset of a new Congress also has implications for regulations adopted late in the Trump administration. The incoming Congress has authority under the Congressional Review Act (CRA) to summarily reverse certain rules and guidance by a simple majority vote in both chambers. This is a powerful, but blunt, tool to be used within a certain time frame. Importantly, since an agency may not issue a regulation that is “substantially the same” as the one invalidated under the CRA, rules where the Biden administration wants to adopt a different interpretation, or omnibus rules that address multiple issues, are likely not strong candidates.” In that regard, she discusses several rules enacted by the outgoing Trump administration that could possibly be reversed by the Biden administration, including one that was finalized one day before President Biden’s inauguration, which would have allowed states to “transition away from a centralized Marketplace like HealthCare.gov to decentralized enrollment,” among other things.

Very importantly, she notes, “The Biden administration has already taken several executive actions to expand comprehensive coverage. In a letter to governors, HHS indicated that the declared public health emergency is likely to remain in effect for the entirety of 2021 and that states will be provided with sixty days’ notice before the declaration is terminated or allowed to expire. This means that states will continue to operate under approved emergency waivers and receive enhanced federal Medicaid matching funds so long as they maintain Medicaid enrollment and eligibility standards. President Biden signed several executive orders that focus on bolstering the COVID-19 response, advancing racial justice and health equity, and requiring LGBTQ nondiscrimination.”