From Containing COVID-19 to Expanding the ACA, What can we Expect From the First 100 days of the Biden Administration? | Deloitte US has been saved
By Anne Phelps, principal, US Health Care Regulatory leader, Deloitte & Touche LLP and Sarah Thomas, managing director, Deloitte Center for Health Solutions, Deloitte Services LP
Shortly after the November election, we offered our thoughts about what health care and life sciences organizations could expect from a Biden administration. Now that the new president has been sworn in, we decided to take a deeper dive. Suffice it to say, President Biden and Vice President Harris have many challenges ahead of them.
The pandemic is Job #1
The administration’s top priority is to contain the COVID-19 pandemic and ramp up vaccine production and distribution. No one should minimize this challenge. Countries around the world are trying to do the same thing and are having mixed results. Even countries that seemed to have the virus under control last summer are now struggling to contain surging infection rates, limited hospital beds, and the tragic loss of life.1 Like the US, many countries are also dealing with inefficient vaccine distribution and are trying to remove vaccine hesitancy.
President Biden has committed to a strong federal response to address the pandemic and has proposed adding significantly more federal funding for state and local public health efforts. Some of his first actions include securing support from Congress for a major financial investment in both the economy and public health measures. In addition to this proposal, which the Congress would need to act upon, we have also seen a slew of executive orders. At the same time, the new administration is working to confirm its cabinet and other leaders.2
On January 21, the Biden administration released its National Strategy for COVID Response and Pandemic Preparedness.3 The proposal and funding, however, will need approval from Congress before it can be enacted. On February 1, the president met with a group of Republican senators to discuss the legislation. Some of the president’s proposals specific to health include:
Executive Orders target COVID-19
Not long after being sworn in on January 20, the new president signed a series of Executive Orders (EOs), which don’t need to be approved by Congress. The EOs include the administration’s early priorities. These include a 100-Day Masking Challenge that urges Americans to “mask up” through the first 100 days of his administration. It requires people to wear masks in places where the federal government has authority—namely on federal property and in transit. Other EOs include reengaging with the World Health Organization, creating the position of COVID Response Coordinator, and restoring the National Security Council Directorate for Global Health Security and Biodefense. Another executive order launches the whole-of-government initiative to advance racial equity. It is aimed at improving equity federal policy-making, programs, and institutions.5 More executive orders have followed.
What other legislative activity is expected?
In the run-up to the election, Biden’s platform included health issues such as shoring up the Affordable Care Act (ACA), introducing a public option, reducing the cost of prescription drugs, working to address health equity, and strengthening our public health system. Climate change, which is another public health issue, is also high on the president’s agenda.
Most of these proposals will require legislation, and we do not minimize the challenges in forging consensus in Congress, particularly with a 50-50 split in the Senate. If Congress is able to reach agreement on another COVID-19 relief package, it might include some targeted changes to shore up insurance coverage. For example, the administration is asking Congress to expand and increase the value of the premium tax credits available through the ACA to reduce or eliminate health insurance premiums and ensure that enrollees (including those who never had health coverage through their jobs) will not be required to spend more than 8.5% of their income on coverage.
The realities of the calendar and budget
Putting aside the formidable task of forging consensus in Congress, a major constraint for the new administration is going to be the Congress’ time, priorities, and focus. Moreover, with or without another major COVID-19 response package, the administration and Congress are facing a significant budget deficit. Lawmakers will likely have significant concerns about any proposals that would cost the government more money or would require new taxes to fund them. Add to this the Medicare Part A Trust Fund—one estimate predicts the fund will become insolvent as soon as 2022 or 2023.6
This Medicare issue might get swept up in a bigger health care package—and Congress usually looks for policies that the Congressional Budget Office (CBO) will score as saving the government money to help offset the costs of any expansions. One way to read the tea leaves is to look at some of the policy recommendations put forward by the CBO7 and the Medicare Payment Advisory Commission.8
What can the administration do without legislation?
The Biden administration will likely use regulations, EOs, and sub-regulatory guidance to quickly overturn some areas of health care policy pursued by the Trump administration. Likely candidates include Medicaid work requirements and short-term health care policies, among other issues.
We also expect that health equity will be a major focus for the administration, which is likely to result in new regulations and requirements. New rules could become incorporated into federal agencies and change how they conduct business and how they measure success. This could require some new investments in data quality and reporting to support better visibility into disparities and drivers of health (also known as social determinants of health).
The considerable amount of time and effort involved in following the administrative process might be among Biden’s biggest constraints on the regulatory policy front. The administration will need to have the political leadership in place to make decisions, navigate the stakeholders, prioritize initiatives, and force action. Assembling teams across federal agencies—cabinet secretaries, White House leadership and agency heads—will take time. The Democratic Senate majority will help the administration confirm leaders that require confirmation, but the process of vetting and hiring the rest of the team can be a long process.
Which policies do we expect will continue?
Making predictions is always risky, but we both agree that some policies are likely to continue because of their bipartisan appeal and support of most policy wonks.
Which policies might be rolled back or changed?
President Biden has expressed a desire to reduce the cost of prescription drugs, and he might find some bipartisan support in Congress on that issue. But he might take a different approach than his predecessor. In the last months of the Trump administration, two significant regulations came out regarding payments to pharmacy benefit managers (PBMs) and drug companies. One regulation would eliminate the rebates that drug companies pay to PBMs in Medicare. The other, called Most Favored Nation, would limit payments for many Medicare Part B physician-administered drugs to the lowest amount paid in a group of other countries. Most Favored Nation has been halted in the courts but could restart if the Biden administration follows the Administrative Procedures Act process to do so. The administration could roll back or change both of those regulations.
What’s the bottom line?
We agree that the major focus of the new administration, at least in the near term, is going to be on the pandemic. We expect it will take some time to make broader and deeper health policy changes. Any activity on the legislative side will take time and we expect plenty of notice and debate before major policy can be enacted. Staying on top of political leadership and their goals will likely be helpful in anticipating regulatory activity from the administration.
1. Countries struggling with Covid-19 vaccine supply, distribution: WHO expert, Business Standard, January 26, 2021
2. Biden requests $415 billion from Congress to ramp up the country’s Covid-19 response, STAT, January 14, 2021
3. National strategy for the COVID-19 response and pandemic preparedness, The White House, January 21, 2021
4. Biden to reopen ACA insurance marketplaces as pandemic has cost millions of Americans their coverage, Washington Post, January 25, 2021
5. Executive Order on advancing racial equity and support for underserved communities through the federal government, The White House, January 20, 2021
6. Another problem on the health horizon: Medicare is running out of money, National Public Radio, July 21, 2020
7. Options for reducing the deficit: 2021 to 2030, Congressional Budget Office, December 9, 2020
8. June 2020 report to the Congress: Medicare and the health care delivery system, MedPAC, July 15, 2020
Anne Phelps is a Deloitte & Touche LLP principal in the Life Sciences and Health Care practice. As the US Health Care Regulatory leader for Deloitte, she manages the Health Care Strategic Regulatory Implementation Services practice. In this capacity, she helps clients navigate the complex world of health care regulatory changes to set their business priorities and strategic opportunities in the midst of a dynamic environment.