How President-elect Biden might unwind Trump’s health policies

When President-elect Joe Biden assumes office, he will likely move quickly to undo a slew of Trump’s health care policies, reversing an agenda starkly at odds with his own vision for the country.

“There are a host of Trump health care administrative actions, ranging from relatively modest to hugely consequential, that the incoming Biden administration will likely look to scale back or reverse,” said Larry Levitt, the executive Vice President for Health Policy at the Kaiser Family Foundation.

But if Republicans maintain their majority in the Senate, executive orders and regulatory changes may be all Biden is able to accomplish in health care. A divided Congress likely means more ambitious health overhauls, such as creating a public option insurance plan or lowering the Medicare eligibility age to 60 would be tough to achieve, added Sabrina Corlette, a research professor, founder, and co-director of the Center on Health Insurance Reforms at Georgetown University’s McCourt School of Public Policy.

Still, those legislative obstacles don’t mean real health care change couldn’t happen, especially in areas such the pandemic response, immigrant health access and reinforcing the Affordable Care Act. Seasoned health policy observers, Levitt and Corlette both shared examples of Trump health care policies Biden could reverse without Congressional support. 

Overhauling the pandemic response   

Along with establishing a new coronavirus task force and creating a “COVID coordinator,” a Biden administration could close loopholes in COVID-19 testing reimbursements that have led to surprise medical bills, Corlette said.  

And, as COVID-19 cases soar this winter, a Biden administration could also immediately create a special enrollment period for Americans to sign-up for marketplace insurance plans.

Promoting the exchanges, again

Biden could invest in marketing and public awareness campaigns so that people know they can enroll in ACA coverage. Those advertising and outreach funds have been reduced by 90% under Trump. Meanwhile, navigator grants fell by 84%.

Biden would also have the option of lengthening the ACA open enrollment period, which the Trump administration cut in half, Levitt pointed out.

Stitching up ACA holes

While Trump’s promises to repeal the ACA failed in Congress, he did weaken the law through administrative actions — which Biden in turn could reverse. One example is the Section 1332 innovation waivers, which Trump has used to encourage states to loosen ACA protections designed to ensure the health insurance met certain standards of quality and affordability.

“Once recognized as a tool for states to improve health coverage in line with the ACA’s goals, the waiver program has been recast to offer states a way to undermine health insurance coverage protections for their residents,” writes Justin Giovannelli and JoAnn Volk in this post for The Commonwealth Fund. For instance, Georgia’s governor recently used the waiver to end access to HealthCare.gov for his state’s residents. That means the state’s residents must use private web sites or insurance brokers to search for federal marketplace plans.

“One thing to keep in mind is that undoing many of these regulations will take time. ... Those changes could take months if not years, especially if they are challenged in court.” — Larry Levitt, Kaiser Family Foundation

Similarly, the Trump administration’s Section 1115 waiver policy has emphasized that states can add restrictions on Medicaid enrolment, such as work requirements. Biden could restrict state Medicaid waivers that impose work requirements, as well as coverage lockouts for beneficiaries that don’t pay premiums, or Medicaid block grants, a plan that places a limit on federal contributions in exchange for less rules.

Trump also expanded insurance products such as short-term and association health plans. “These policies were the kind of skimpy, low-grade plans that Obamacare had sought to marginalize, if not outright eliminate,” wrote health policy reporter Dylan Scott at Vox. Biden would have to go through a through a formal Department of Health and Human Services (HHS) regulatory process to reverse this action, Corlette said.  

If the U.S. Supreme Court overturns all or part of the ACA health law, Congress would need to step in to create a temporary or permanent patch. Executive action alone couldn’t overcome that challenge. That said, remarks from at least five justices at the recent Supreme Court hearing in the case make it seem unlikely that the entire law would be struck down.

Easing immigrant fears on ‘public charge’

Under the Biden administration, the Department of Homeland Security could reverse the “public charge” rule.  The rule basically says if you’re enrolling in any sort of public benefit such as Medicaid or food stamps, that action could be used against you down the road if you’re applying for a green card, Colette said, adding:  “Even if you’re a lawfully present immigrant, they’ll look to see, did this person ever enroll in a public benefit?” 

The rule has kept millions of people “from accessing nutrition, health care, or housing programs because of fear and misinformation related to this rule,” according to the National Immigration Law Center. 

Even though this public charge rule does not apply to the premium tax credit offered through the marketplace health plans, it likely had a chilling effect. Corlette predicts this rule would be high on Biden’s kill list and could be achieved through another Department of Homeland Security rule. 

Similarly, Biden could also eliminate a proclamation requiring immigrants to demonstrate they have health insurance, Levitt said.

Reversing anti-abortion rules

The Biden administration could undo a rule that prohibits federal funding from going to organizations that provide abortion counseling, Levitt said.

That Title X family planning rule, which was finalized in 2019 by the Department of Health and Human Services, also resulted in hundreds of thousands fewer people getting contraception, who “are disproportionately people of color,” reported The Hill.

Biden could also reverse The Mexico City policy, which restricts U.S. aid for foreign organizations that promote or provide abortions, a move that has had a profound impact on countries worldwide.

Many changes will take time

While these categories represent some of the most significant and impactful changes Biden could make, there are plenty of “in the weeds” items — smaller regulations his administration could tackle over time, Levitt said. For example, the Trump administration tweaked the formula for increasing ACA premium subsidies from year to year to make them less generous, he said.

Some of these changes can be made more quickly than others. While executive orders and guidance can be changed with the stroke of a pen, actual regulations can only be altered by going through a lengthy procedural process, which includes public comment.

“One thing to keep in mind is that undoing many of these regulations will take time,” Levitt said. “… Those changes could take months if not years, especially if they are challenged in court.”

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