The Biden Administration’s Health Insurance Priorities

by Patrick McGovern 

The Biden Administration wasted no time in implementing some of the new President’s campaign promises relating to health insurance and the Affordable Care Act (“ACA”). First, on February 10 the Department of Justice filed a letter with the Supreme Court reversing the position it took under the Trump Administration asking the Court to invalidate ACA. The Justice Department advised the Court that it no longer adheres to the conclusions of the brief it first filed with the Court, and now argues against the main argument made by the States of Texas and 17 others that ACA became unconstitutional once Congress removed from ACA the individual mandate’s penalty, but left the mandate, in 2017. The Trump Administration argued that once the penalty was removed from ACA, the individual mandate became unconstitutional. The Justice Department now urges the Court to find that despite the elimination of the individual mandate penalty, ACA still gives Americans a choice between lawful options for securing health coverage without paying a penalty. Alternatively, the Justice Department argues that if the Court finds that the individual mandate is unconstitutional because it carries no penalty, it can sever this provision and leave the rest of ACA intact. The Administration’s position is now aligned with the position advocated by 15 states and the Governor of Kentucky. The Court’s decision is expected by June 2021. So far, the Biden Administration has not publicly discussed a fall back plan if the Court finds ACA unconstitutional, and one explanation for this may be that the new Administration is encouraged by the Court’s failure during oral argument to embrace the “all or nothing” position taken by Texas. A possible legislative stratagem the Biden Administration may consider is adding back to ACA the individual mandate and thereby restore the status quo pre-2017. Texas v. California; California v. Texas.

Second, in January President Biden signed an executive order that authorizes a special 90-day enrollment period for ACA coverage through the federal exchanges, beginning on February 15. This extra enrollment period is available to persons in the 36 states that use federal exchanges.

The new Administration faces a more time-consuming task in reversing two Trump Administration regulations that expanded the religious exemption from ACA’s rules regarding abortion-causing drugs and contraceptives. During the 2020 campaign President Biden vowed to secure for women who are employed at faith-based organizations rights to access contraceptives through third-party administrators, despite the Supreme Court’s July 2020 decision upholding the Trump ACA religious freedom rules in Little Sisters of the Poor v. Pennsylvania. Although these Trump rules can be reversed without an act of Congress, the administrative process associated with new rulemaking is time-consuming and any final rule issued by the Biden Administration will likely be challenged in the courts for years. In related litigation, the Biden Administration has asked the 9th Circuit Court of Appeals to hold in abeyance a Trump Administration appeal from lower court rulings that vacated the “provider conscience” rule which protects health care workers who refuse for religious or moral reasons to participate in such procedures as abortion, assisted suicide and sterilization, and also asked the 9th and 4th Circuits to freeze their consideration of Trump Administration appeals from lower court rulings setting aside the HHS “double billing” rule which requires that plan participants be billed separately for certain abortion services.

On Inauguration Day President Biden’s chief of staff issued a memo directing the heads of executive departments and agencies to withdraw regulations not yet submitted to or published by the Federal Register and consider a 60-day delay for published regulations that were not yet effective. Among the regulations that were withdrawn at that time were the long-awaited EEOC regulations on wellness programs under the ADA and GINA, and proposed HIPAA privacy regulations. The regulations that are now in a 60-day holding status pending further comments include the Medicare Part D regulations that would eliminate the drug rebate program, and the discrimination rules for self-insured group health plans under IRC Section 105(h) that make the discrimination rules compatible with individual coverage HRA’s. Two regulatory initiatives of the Trump Administration that are unaffected by the January 20 regulatory freeze are the health care transparency regulations, which require health insurance issuers and third-party administrators to provide plan participants with an explanation of benefits before they receive medical care, and the COVID-19 vaccine and testing requirements interim final regulations, which implement the CARES Act requirement that group health plans cover COVID-19 preventive services with no cost-sharing.

Finally, the D.C. Circuit Court of Appeals is considering a challenge by Democratic attorneys general to the Trump Administration’s rule which expands association health plans. The attorneys general won round one in the lower court and the Government appealed. The Biden Administration has asked the Court of Appeals to hold the appeal in abeyance while new agency leadership considers the case. And a second case pending before the D.C. Court of Appeals and challenging a Trump Administration rule expanding access to short-term, limited duration insurance resulted last month in a decision upholding the rule on the grounds that it was not inconsistent with ACA or HIPAA. The Biden Administration will need to decide whether to undo this rule if the Supreme Court affirms the Court of Appeals.

Cases presenting additional issues relating to ACA requirements are currently proceeding through the federal courts, including the correct interpretation of ACA Section 1557, which prohibits discrimination based on race, color, national origin, sex, age, or disability in certain health programs or activities and whether Section 1557 extends to gender identity and termination of pregnancy. Another group of pending cases will resolve the extent to which an accommodation must be made under the ACA contraceptives mandate, to balance the right of access to contraceptives with religious freedom. Ultimately, given the promises made during his presidential campaign, President Biden will need to weigh in on these issues as well.