Potential Health Policy Administrative Actions Under President Biden

• Renew declaration that COVID-19 is a national emergency, under the National Emergencies Act (NEA). The current emergency declaration is due to expire on February 28, 2021. President Trump proclaimed COVID-19 to be a national emergency under the NEA effective March 1, 2020 and granted the Secretary of Health and Human Services (HHS) authority under Section 1135 of the Social Security Act (SSA) to temporarily waive or modify certain requirements of Medicare, Medicaid, the Children’s Health Insurance Program (CHIP), the Health Insurance Portability and Accountability Act (HIPAA), and other provisions through the duration of a public health emergency declaration (see below). An NEA declaration expires automatically after one year.

• Renew declaration that COVID-19 is a public health emergency (PHE), under Section 319 of the Public Health Service Act. The current emergency declaration is due to expire on January 20, 2021 (Inauguration Day). A PHE declaration allows the Secretary of HHS to take certain actions to respond to the emergency including, if an emergency has also been declared under either the NEA or the Stafford Act, the authority under Section 1135 of the SSA to waive or modify certain Medicare, Medicaid, CHIP and HIPAA requirements. The Secretary of HHS first declared COVID-19 to be a PHE on January 31, 2020 and has renewed it several times since, including most recently on October 23, 2020. A PHE declaration expires automatically after 90 days unless renewed by the Secretary.

• Retract notification of withdrawal of membership in the World Health Organization (WHO). Notification was formally transmitted to the UN Secretary General by the Trump Administration on July 6, 2020 and it becomes effective one-year later on July 6, 2021. Biden has said he would restore the U.S. relationship with WHO

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• Announce that the United States will join the COVAX, a multilateral initiative designed to pool resources and guide coronavirus vaccine research, development, procurement, and distribution across countries. The U.S. remains one of the only countries to have not joined.

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• Restore the National Security Council’s Directorate for Global Health Security and Biodefense. The Directorate, charged with overseeing pandemic response, was first created under the Obama Administration. It was dissolved by the Trump Administration under an NSC reorganization in 2018. Biden has said he would restore the Directorate.

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• Convene daily White House COVID-19 briefings led by scientists and public health experts to update the public on the status of the pandemic and the federal response. The Trump Administration, which held briefings in the spring, has largely ended them. Biden has said he would immediately establish daily expert-led briefings.

• Launch a nationwide campaign on COVID-19 vaccines to promote acceptance and counter misinformation. HHS has said it has a campaign, but nothing has been launched, and each state has been asked to prepare its own communications plan.

• Establish a national system to manage COVID-19 testing capacity issues across the country. Biden has said he would create a Pandemic Testing Board, with members from the public and private sectors, to oversee a nationwide testing campaign which would include surge production of test kits and lab supplies; coordination of distribution across the country; and clear guidance on who needs a test, among other things.

• Issue national guidance with strong, clear recommendations for states, localities, and individuals, on social distancing including for schools, and on face mask requirements. Biden has said he would provide clear, consistent, and evidence-based guidance. He has also said he would work with Governors and local authorities to encourage mask mandates. The Trump Administration has given inconsistent and contradictory messaging on social distancing, resulting in significant variation across the country.

• Expand the use of the DPA to address ongoing nationwide shortages of COVID-19 supplies. Biden has said he would use the DPA to increase production of masks, face shields, and other PPE, and ensure equitable distribution in at-risk communities, particularly those with vulnerable populations.

• Establish a COVID-19 Racial and Ethnic Disparities Task Force to address the disproportionate impact of the pandemic on people of color. Biden has said he will create such a Task Force to provide recommendations and oversight on disparities in the public health and economic response, and it will become a permanent Infectious Disease Racial Disparities Task Force after the emergency has ended.

• Create a national COVID-19 dashboard to provide the public with transparent, clear, and up-to-date data on the pandemic. Biden has said he would create a National Pandemic Dashboard with real-time data.

• Review the CDC’s “Order Suspending Introduction of Certain Persons from Countries Where a Communicable Disease Exists’ (most recently extended on Oct 13) and accompanying DHS policy (most recently renewed on Oct 22), which turn away undocumented individuals, including asylum seekers, at the border
• Implement policies to reduce COVID-19 risk among individuals in immigration detention facilities and reduce the number of individuals held in detention to mitigate risk of spread. Biden has said he would reduce the number of people in custody by releasing to their families or community-based care organizations those individuals in immigration detention, parents and children, who pose no risk to the community.

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• Restore navigator funding for healthcare.gov states, reversing Trump Administration spending cuts
• Restore the minimum number of navigator programs in each federal Marketplace state to two (reversing Trump Administration reduction to 1)
• Restore the requirement for navigators to maintain a physical presence in their service area
• Reverse other Trump Administration changes that reduced services provided by navigators

• Ensure “no wrong door” enrollment process to help potential enrollees find financial assistance
• Maintain access to Healthcare.gov. A recent proposed regulation would allow states to eliminate use of healthcare.gov or state-run marketplace websites and rely entirely on web broker sites, instead.
• Strengthen standards for commercial web-broker sites (called enhanced direct enrollment sites, or EDEs) to require the same consumer protections and information of healthcare.gov. The Trump Administration has reduced standards for web brokers, which can also sell short-term plans and other non-ACA-compliant plans. Secret shopper investigations found EDEs that did not correctly screen for Medicaid eligibility and/or that selectively displayed plan information in ways intended to steer consumer choice.

• Restore consumer protection standards under Section 1332 waivers
• Revise Trump Administration standards for state waivers under Section 1332 of the ACA that changed federal standards in ways that could result in a decline in coverage or affordability, particularly for key vulnerable populations, including people with low incomes or pre-existing conditions. Recently the Trump Administration proposed to codify these waiver standards in regulation; it remains to be seen whether the proposed regulation will be finalized before January 20, 2021.

• Extend open enrollment duration, reversing a 2017 Trump Administration change that shortened the annual open enrollment to 45 days (November 1 – December 15)
• Follow lead of state-run marketplaces, nearly all of which established an emergency pandemic special enrollment period (SEP) of at least several months during which individuals could enroll regardless of a qualifying event. CMS has broad authority to authorize emergency SEPs, which it has done in the past following hurricanes and other disasters
• The number of SEPs in the federal marketplace fell from 1.6 million in 2015 to 535,000 in 2017 as a result. A recent proposed regulation would require state-run marketplace to adopt similar verification requirements by 2024.

• Reverse the 2018 Trump Administration cuts to user fees on healthcare.gov plans, which help finance a large portion of marketplace operating expenses, including review of plan compliance with ACA rules, navigator assistance, and marketing and outreach, and could be used for more marketing and outreach
• A recent proposed regulation would further reduce healthcare.gov user fees (to 2.25% in 2022, vs 3% in 2021 and 3.5% previously) and provide for even lower user fees in states that eliminate use of healthcare.gov

• While Biden could not implement his proposed expansion of ACA subsidies without Congress, he could revise the Trump Administration method for indexing marketplace subsidies that beginning in the 2020 plan year resulted in a modest reduction in marketplace subsidies across the board. As a result of this change, the maximum out-of-pocket limit on cost-sharing in all plans would also increase by 6.4% to $9,100 in 2022.

• Suspend enforcement of APTC repayment for tax years during the pandemic, an administrative option similar to House Democrats’ proposal to substantially relax the APTC repayment caps as part of COVID-19 relief. Both the Trump and Obama Administrations used executive authority to temporarily suspend enforcement of other ACA tax provisions, including the employer mandate penalty (Obama) and individual mandate penalty (Trump)

• Revise Trump Administration standards for short-term policies that expanded the period of enrollment to nearly three years, for example by limiting future enrollment or reducing opportunities for renewal. These plans typically will not cover individuals with pre-existing conditions, like HIV or pregnancy.
• Strengthen standards for short-term policies to limit their sale and/or apply stronger consumer protections.

• Revise Trump Administration standards for association health plans (AHPs), which allowed certain AHPs to be considered single employer plans (and so exempt from rules applying to individual and small employer group coverage)
• Restore prior regulations that “looked behind” association health plans to determine characteristics of AHP enrollees and require otherwise applicable ACA market standards to apply to AHP coverage for small employers and for individuals

• End flexibility for health plans to substitute benefits within and across EHB categories
• Revise 2018 Trump Administration rules for Essential Health Benefits that gave insurers flexibility to substitute benefits within and across EHB categories

• Rescind CMS guidance that invites state waivers to condition Medicaid eligibility on work requirements and to elect capped financing
• Revise Section 1115 waiver approval criteria to again include the impact on increasing coverage
• Stop defending waiver approvals involving work requirements and other restrictive provisions in lawsuits in AR, NH, IN, and MI
• Reject pending work requirement waivers in AL, ID, MS, MT, OK, SD, and TN
• Reject pending waiver seeking modified block grant financing, closed prescription drug formulary, and other restrictions in TN
• Reject pending waivers in SC and TN that would exclude providers like Planned Parenthood from offering Medicaid family planning services because they also offer abortion services outside of Medicaid
• Approve pending waivers to extend postpartum coverage period beyond 60 days in IL, IN, MO, and NJ
• Review provisions in currently approved waivers and waiver renewal requests to determine whether authorities are not promoting program objectives and should be withdrawn, such as work requirements and restriction on free choice of provider for family planning services

• Revise CMS guidance on increasing eligibility verification requirements and state Medicaid claiming

• Rescind pending regulations that would:
  • limit state financing mechanisms
  • remove the process for states to document that Medicaid fee-for-service payments are sufficient to ensure equal access to providers
• Revise or no longer pursue planned proposed regulations that would:
  • change Medicaid eligibility determination rules in ways that could create procedural barriers leading to eligible people losing coverage
  • change the methodology for recouping improper payments
  • reduce enhanced federal funding for eligibility workers
• Finalize pending regulations on Medicaid eligibility and appeals
• Revise published regulations, including:
  • final Medicaid managed care rule that relaxes network adequacy, quality oversight, and beneficiary protections
  • interim final Medicaid COVID-19 maintenance of effort rule that allows states to make certain changes to eligibility and benefits while receiving temporary enhanced federal matching funds during the COVID-19 public health emergency
  • final regulations removing sexual orientation and gender identity as prohibited bases of discrimination in state Medicaid programs, Medicaid managed care, and PACE programs

• Rescind pending regulations that would
  • withdraw HHS agency guidance if not included in a repository (which could increase administrative burden for the agency and result in guidance with beneficiary protections lapsing)
  • adopt stricter standards for SSI continuing disability reviews (which could limit Medicaid eligibility)

• Renew the COVID-19 public health emergency and national emergency declarations to allow states to retain Medicaid emergency authorities tied to these declarations while the pandemic continues
• Approve pending COVID-19 waiver requests to use Medicaid funds to help states respond to COVID-19
• encouraging states income verification and maximize use of presumptive eligibility
• encouraging states to waive Medicaid   prior authorization and revise co-pay requirements
• Encourage states to adopt policies to keep people enrolled in Medicaid during the public health emergency
• Support Medicaid essential providers by encouraging states to adopt retainer payments similar to Medicare advance payments

• See Long-Term Care Section for information about policies pertaining to skilled nursing facilities, nursing facilities, and home and community-based services.

• Issue new regulations to replace Trump Administration Title X regulations in order to:
  • Require Title X family planning sites to provide non-directive pregnancy options counseling that includes abortion and referrals to abortion services upon request
  • Allow Title X sites to use non-federal funds to provide abortion services
  • Note: Litigation challenging this regulation is ongoing, and the parties have petitioned for Supreme Court review.

• Issue regulations similar to Obama Administration regulations that prohibit states from blocking family planning providers that also provide abortions from participating in Title X

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• Revise regulations to replace Trump Administration regulations requiring ACA Marketplace plans to charge enrollees a separate monthly premium for non-Hyde abortion coverage. (The Trump regulations are currently blocked by court orders.)

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• Replace the Trump Administration regulations to narrow the scope of employers who are exempt to assure more women have no cost contraceptive coverage

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• Issue guidance similar to Obama Administration guidance that reaffirmed the Medicaid “free choice of provider” provision, which allows beneficiaries to receive family planning services from any qualified, participating provider
• See Medicaid Section for information about state waivers and the impact on women’s health

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• Rescind the “Protecting Life in Global Health Assistance” policy (formerly known as the Mexico City Policy and called the Global Gag Rule by opponents) which had been reinstated and expanded by President Trump. The expanded policy requires foreign non-governmental organizations to certify that they will not “perform or actively promote abortion as a method of family planning,” even with their own funds, as a condition of receiving most U.S. global health assistance.

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• Re-enter the United States into the World Health Organization and exit the anti-abortion Geneva Consensus Declaration
• Rejoin the United Nations Human Rights Committee consensus that promotes safe, legal and affordable access to sexual and reproductive health care, including abortion
• Restore funding to UNFPA; the Trump Administration has invoked the Kemp-Kasten amendment to withhold funding from the agency

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• Reverse the Trump Administration policy to require ethics review for any research grant that involves fetal tissue from elective abortions

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• Revise regulations to replace Trump Administration 1557 regulations (currently blocked by court orders) that permit providers to discriminate against patients on the basis of termination of pregnancy, and would allow providers to deny care to patients in need of abortion or other health care services that violate a provider’s religious beliefs
• See LGTBQ Health section for details on anti-discrimination regulatory provisions

• Rescind Trump Administration regulations expanding and consolidating the Office for Civil Rights authority of 25 federal health care conscience laws, allowing a broad range of people, entities, corporations, states, etc. to object to facilitating abortion, sterilization procedures, assisted suicide, advance directives and other medical care. (Regulations have been blocked by court orders and have not been implemented.) The Biden Administration could revert to 2011 regulations implemented by the Obama Administration or promulgate new regulations with greater civil rights protections
• Repeal executive order directing federal agencies to expand religious protections, which had potentially laid groundwork for denying care to people who seek abortion care
• See LGBTQ section for details on the how the Trump regulations permitted discrimination based on LGBTQ status

• Condition receipt of federal criminal justice grants on adequate provision of primary care and gynecological care for incarcerated women

• Issue new guidance to protect survivors of sexual assault on college campuses to reverse Trump Administration Title IX guidance, which permits colleges to allow alleged perpetrators to cross-examine their accusers and apply a stricter standard of evidence for sexual assault cases than for all other student conduct cases 

• Establish a national center of excellence for reducing veteran suicide and publish a comprehensive public health approach to addressing suicide in veterans
• Standardize VA performance around urgent mental health services and eliminate wait times for veterans with suicidal ideation to ensure immediate treatment
• Direct the VA to more ER psychiatric staff and peer specialists and expand crisis line capacity
• Implement mental health promotion programs that encourage veterans to seek out help from the VA

• Ensure school and community-based suicide prevention programs follow best practices set by the U.S. Department of Education

• Increase the number of psychologists, counselors, nurses, social workers, and other health professionals in schools
• Direct the Secretary of Education to complete a study of mental health needs and services in schools.
• Support research to develop more effective teen suicide prevention programs

• Increase access to mental health treatment by enforcing full mental health parity

• Direct the Justice Department to investigate the role of pharmaceutical companies and executives in the opioid crisis, and consider criminal and civil enforcement
• Direct public insurance programs (e.g. Medicaid, Medicare, and the VA) to accelerate integration of substance use disorder care into standard health care practice
• Remove “undue” regulatory restrictions on the prescribing of medications used to treat substance use
• Direct the FDA and FTC to investigate “misleading” advertising of substance use treatment facilities not offering evidence-based services
• Direct HHS to develop provider trainings on pain management and require those seeking a DEA license to prescribe pain relievers to undergo training
• Ensure a multi-agency approach to stem the flow of illicit drugs from other countries into the United States

• Reinstate the DACA program, reversing Trump administration attempts to terminate and limit the program, which grants permission to certain undocumented youth who came to the U.S. as children to stay in the U.S. and work for temporary renewable periods. Following the June 2020 Supreme Court ruling that the Trump administration’s attempt to terminate the program violated federal law, the administration issued a memorandum that eliminated eligibility for new applicants and reduced the renewal period from two years to one. The memorandum remains subject to ongoing litigation, with recent court rulings finding it unlawful and ordering the Trump administration to fully reinstate the program.
• Review TPS designations to prevent people from being returned to countries that are unsafe. The Trump administration ended TPS designations for people from several countries; these terminations have been subject to ongoing litigation.

• End policies that limited avenues to claim asylum, including the Migrant Protection Protocols, under which families with children are sent to Mexico to await their U.S. asylum cases; direct resources to facilitate processing of asylum applications; and increase government resources to support migrants awaiting assessment of their asylum claims.
• Rescind travel and refugee bans, also referred to as “Muslim bans”
• Reverse a proclamation suspending entry of immigrants unless they provide proof of health insurance within 30 days of entry or have financial resources to pay for reasonably foreseeable health insurance costs, which the courts have blocked from implementation

• Reverse policies that separate families at the border, including ending the prosecution of parents for minor immigration violations, and prioritize the reunification of any children still separated from their families
• Reverse a 2017 executive order that expanded the scope of individuals targeted for removal and reprioritize enforcement activities to focus on removing threats to national security and public safety, end workplace raids, and prevent enforcement actions in sensitive locations, such as hospitals and schools

• Revise Trump administration regulatory changes that expanded the federal government’s ability to detain migrant children with their parents for indefinite periods of time, which has been blocked from implementation by the courts
• Reinvest in alternatives to detention and non-profit case management programs and take steps to protect immigrant families, pregnant women, and children

• Revise Trump administration regulatory changes to public charge inadmissibility policies that imposed new barriers to obtaining LPR status or immigrating to the U.S. and newly took into account potential future use of certain health, nutrition, and housing programs, including non-emergency Medicaid for non-pregnant adults, when determining whether to allow entry or adjustment to LPR status. Implementation of the changes to public charge have been subject to ongoing litigation.

• Restore penalty levels to obtain facility compliance with quality standards

• Reinstate regulatory ban on binding arbitration agreements to resolve cases of resident harm or death from facility negligence
• Reject pending regulations that would relax current requirements for an infection preventionist, psychotropic drug use, grievance process, staffing data retention, and quality assurance and performance improvement programRevise interim final rule in response to public comments to require nursing facilities to report COVID-19 cases and deaths by race/ethnicity

• Ensure adequate staffing and training to meet resident needs
• Increase frequency and scope of facility inspections
• Strengthen protections against inappropriate resident discharge
• Require Office of Inspector General audit of nursing home cost reports and ownership data

• Ensure effective point-of-care testing and contact tracing is available at every facility and ensure updated public health guidance on testing frequency for residents and staff is followed
• Invoke the Defense Production Act to increase production of personal protective equipment and ensure effective distribution to frontline essential workers and at risk populations
• Require facilities to conduct regular open sessions with residents and families and allow entry of state long-term care ombudsman while facilities are closed to visitors

• Identify best practices in self-directed home and community-based services and encourage states to adopt these policies
• Fully implement and enforce the Medicaid home and community-based settings rule

• Reinstate White House Office of National AIDS Policy (ONAP), left vacant by Trump Administration.

• Release a new comprehensive National HIV/AIDS Strategy, building on the strategy first implemented under the Obama Administration, which currently runs through 2020 (HHS released a draft strategy in December 2020 under the Trump Administration but it has not been finalized)

• Revise regulations to replace Trump Administration 1557 regulations that permit providers to discriminate against patients on the basis of gender identity, sex-stereotyping, and sexual orientation
• See Women’s Health section for details on anti-discrimination regulatory provisions related to protections for people who have terminated a pregnancy

• See ACA-Other Private Insurance section for details.

• Update FDA blood donation policy to ensure it is based on science (not an individual’s identity). The current policy includes a 3 month deferral period for men who have sex with men (recently reduced from 12 months due to the COVID-19 pandemic).

• Rescind Department of Defense (DoD) “deploy or get out” policy requiring service members who have been “non-deployable” for 12 months to be processed for separation from military, reportedly used to discharge members with HIV

• Rescind the “Protecting Life in Global Health Assistance” policy (formerly known as the Mexico City Policy and called the Global Gag Rule by opponents) which had been reinstated and expanded by President Trump. The expanded policy requires foreign non-governmental organizations to certify that they will not “perform or actively promote abortion as a method of family planning,” even with their own funds, as a condition of receiving most U.S. global health assistance, including the President’s Emergency Plan for AIDS Relief (PEPFAR).

• Revise Trump Administration 1557 regulations that permit providers to discriminate against patients on the basis of gender identity, sex-stereotyping, and sexual orientation
• See Women’s Health section for details on anti-discrimination regulatory provisions related to protections for people who have terminated a pregnancy

• Rescind Trump Administration regulations expanding and consolidating the Office for Civil Rights authority of 25 federal health care conscience laws, allowing a broad range of entities to object to providing care or culturally competent care to LGBT individuals. (Regulations have been blocked by court orders and have not been implemented.) The Biden Administration could revert to 2011 regulations implemented by the Obama Administration or promulgate new regulations with greater civil rights protections.
• Repeal executive order directing federal agencies to expand religious protections, which had potentially laid groundwork for denying care to LGBTQ individuals, couples, and families
• See Women’s Health section for details on the how the Trump regulations permitted discrimination based on people seeking abortion services, and sterilization

• Ensure collection of data on sexual orientation and gender identity in federal surveys and federally funded programs and address gaps in data collection and research related to LBGTQ+ health