January 28 was designated as “health day” for President Joe Biden’s early push of executive orders, with two new executive actions added to a growing list. The Executive Order on Strengthening Medicaid and the Affordable Care Act and Memorandum on Protecting Women’s Health at Home and Abroad were described by President Biden as “restorative” of policies modified by the prior administration.
In the Strengthening Medicaid and the Affordable Care Act executive order (EO), President Biden directed a “Special Enrollment Period” for Affordable Care Act (ACA) exchange plans beginning February 15, 2021, and continuing through May 15, 2021. The order invokes the existing authority under the ACA and 45 CFR § 155.420(d)(9), which permits an exchange to open enrollment for individuals if such a person “meets other exceptional circumstances as the Exchange may provide.” The COVID-19 pandemic appears to be the “exceptional circumstance” upon which the Special Enrollment Period is based.
The order also directed the secretaries of multiple agencies to conduct a review and directive to eliminate any “policies that undermine the Health Insurance Marketplace.” The EO directed the US Department of Health and Human Services (HHS) to “reexamine” waivers and demonstration projects that may reduce populations potentially covered by Medicaid programs, including enrollment obstacles and work requirements. The EO contained a directive to review policies that undermine protections for individuals with preexisting conditions, specifically including COVID-19.
The Strengthening Medicaid and the Affordable Care Act EO explicitly repealed two executive orders. One was EO 13813, which permitted certain short-term limited duration policies as an alternative to the federal exchange programs. These policies did not offer the minimum essential benefits coverage provisions (such as assurances for those with preexisting conditions) required of ACA exchange programs. The order also repealed EO 13765, which directed agencies to use their discretion during the prior administration to assist minimal implementation of the ACA. The Strengthening Medicaid and the Affordable Care Act EO directed HHS and other agencies to conduct a review of regulatory actions taken under EO 13765 to determine whether such actions need to be suspended, revoked, or repealed. All of these actions signal a strong embrace of the use of the ACA framework as a means to expand access to insurance coverage.
In addition to this order, President Biden’s COVID-19 relief proposal contains recommendations to Congress for increased individual premium subsidies for ACA exchange plans and temporary COBRA premium subsidies. These changes would amplify the effects of the Strengthening Medicaid and the Affordable Care Act EO, which remains subject to the ACA’s legislative limitations. All of these initiatives target the concept of increasing the number of individuals covered by some form of insurance. As an outgrowth, provider networks may see an increase in insured patients and demand for covered services.
The Protecting Women’s Health at Home and Abroad memorandum took aim at policies the Biden administration deemed to be interfering with women’s comprehensive reproductive health. The memorandum immediately ended what has been referred to as the “Mexico City Policy,” which prohibited federal funding to nongovernment nonprofit organizations in foreign nations if they provided abortion counseling or referrals for such services. Agencies were directed to immediately waive those requirements and notify grant recipients of such waiver, as well no longer including them in future awards.
The memorandum also directed HHS to take action as soon as practicable to consider whether to rescind regulations under HHS’s Title X family planning program. This action specifically targeted a 2019 HHS rule finalizing changes to regulations governing the Title X program, titled “Compliance With Statutory Program Integrity Requirements,” 84 Fed. Reg. 7714 (Mar. 4, 2019), which prohibits recipients of Title X funds from referring patients to abortion providers and imposes other requirements on abortion providers.
The administration also released a fact sheet on the two actions.
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If you have any questions or would like more information on the issues discussed in this LawFlash, please contact the authors, Gregory N. Etzel, Bryan Killian, and Howard J. Young, or any of the following:
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Michele L. Buenafe
Kathleen McDermott
Scott A. Memmott
Albert W. Shay
Jacob J. Harper
Ariel Landa-Seiersen
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B. Scott McBride
Banee Pachuca
Sydney Reed
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Mark B. Stein
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W. Reece Hirsch