Biden Administration Signs Health Care Executive Orders, Puts Welcome Mat Back Out

photo of someone standing on a welcome mat

Today January 28th  is Health Care theme day for the Biden Administration, which is in the midst of releasing a carefully orchestrated set of Executive Orders (EO) on a range of issues. Two Executive Orders were signed by the President today, the first to strengthen the Affordable Care Act and Medicaid, and the second to reverse harmful policies on reproductive choice.  A White House factsheet explaining the Executive Orders is available here.

In short, today’s Executive Order is at its core a signal from the Biden Administration that four years of attempts to undermine the Affordable Care Act and the Medicaid program are over, and that the federal government is now focused on helping kids and families get the health insurance coverage they need rather than trying to take it away.

A key aspect of the EO is to announce that the federal marketplace will open for a special enrollment period from February 15 to May 15;  my colleague Edwin Park provides more details on what that means.

With respect to Medicaid, the EO makes a couple of key points. In general, the President directs federal agencies to “reexamine” a number of things including: “demonstrations and waivers, as well as demonstration and waiver policies, that may reduce coverage under or otherwise undermine Medicaid or the ACA”.  The factsheet from the White House accompanying the EO mentions work requirements specifically.

The Department of Health and Human Services will be the key agency to reexamine demonstrations (a.k.a. waivers) – both Section 1332 waivers, which pertain to the ACA, and Section 1115’s, which pertain to Medicaid.

I like the broader language that the EO uses emphasizing reexamining waivers that “may reduce coverage … or otherwise undermine Medicaid,” because while work requirements have gotten the most attention and have a long list of well-documented harms, other pernicious policies such as lockouts, premiums, and limits on retroactive eligibility are also problematic barriers.

A great deal of harmful activity has occurred on the Section 1115 Medicaid waiver front during the Trump Administration as readers of SayAhhh! know, ranging from the last-minute approval of Tennessee’s risky block grant approach to very last minute 10-year approvals for states run by political allies Texas and Florida. These “midnight” waiver approvals, as my colleague Andy Schneider calls them,  followed on the heels of a multi-year effort to encourage states to impose work requirements and other barriers to coverage. (The Kaiser Family Foundation has a great waiver tracker that details which states received waivers of various Medicaid provisions.)

I blogged a while back about how the Biden Administration could unwind these waivers, though no sooner did I write the blog than Administrator Verma tried her level best to make the process harder after she left. Hopefully, her efforts will not ultimately be successful but the intricacies in answering that question remain to be seen. And of course, there is ongoing litigation, most prominently regarding Arkansas, that is pending with the Supreme Court.

But I am optimistic that soon-to-be HHS Secretary Becerra can unwind much of the damage here since Section 1115 waivers are granted at the discretion of the Secretary. It may take some time and it will not be a simple matter, but the EO clearly establishes the goal of unwinding waivers that reduce access to coverage. After all, the key objective of Medicaid is to provide health insurance for low-income individuals who are eligible under federal law.

The EO also states that agencies must review “policies or practices that may present unnecessary barriers to individuals and families attempting to access Medicaid or ACA coverage” (think red-tape reduction here!) Various rumored and behind-the-scenes efforts by the Trump Administration to make it harder for families to enroll in and maintain their Medicaid coverage (such as stricter eligibility reviews) had been a contributing factor to the alarming rise in the number of uninsured children seen over the past four years.  It will be critical to make it easier for eligible individuals and families to newly enroll, especially with millions losing their jobs and employer-sponsored health insurance due to the pandemic.  It’s also important to remember that 57.4 percent of uninsured children are eligible for Medicaid and CHIP but unenrolled.

Moreover, while Medicaid’s current disenrollment freeze as a consequence of the public health emergency has put a stop to these kinds of red tape losses for already enrolled people now, it will be critical to avoid considerable Medicaid losses when the freeze is lifted – likely sometime in 2022 – and to get back on track with enrollment and renewal simplification efforts. My esteemed colleague Tricia Brooks has many ideas to share on that topic.

There is much work to be done on all of these fronts going forward. But the EO is an important signal that the Biden Administration intends to put the welcome mat back out for Medicaid and CHIP. The war on public insurance, at the federal level at least, is over for now.

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