Column: Even with a Republican Senate, Biden has lots of ways to save healthcare reform

Joe Biden
Joe Biden would still have a path to healthcare reform as president, despite a GOP Senate.
(Associated Press)

At first blush, the election outcome — a Biden presidency but the Senate still in Republican hands — spelled bad news for the cause of healthcare reform.

Those results would give the GOP a continued platform from which to stymie further expansion of health coverage for Americans, whether by strengthening the Affordable Care Act or moving toward a “Medicare for all” model.

All is not lost, however. A Biden administration will have numerous tools at its disposal to end four years of attacks on the ACA by the Trump White House and countermand many of Trump’s most dishonest and egregious acts of sabotage.

Some changes in health care and other areas using executive authority can happen quite quickly.

— Larry Levitt, Kaiser Family Foundation


Trump employed executive orders and administrative tools to undermine the ACA and Medicaid, in virtually every case aiming to strip working-class and low-income Americans of their access to coverage. What’s sauce for the goose works just as well for the gander: Biden can use the same tools in reverse.

Healthcare experts have been at the ready for months with suggestions for Biden, including encouragement for him to move fast.

“Keep in mind that some changes in healthcare and other areas using executive authority can happen quite quickly,” Larry Levitt, health policy expert at the Kaiser Family Foundation, tweeted at dawn Wednesday, “while others take much more time because they require following regulatory procedures.”

That said, the most evident threat to the ACA overall — a lawsuit by Texas and other red states aimed at declaring the entire 2010 law unconstitutional — is still alive. The case will be heard Nov. 10 by a Supreme Court with an augmented conservative bloc, now that Amy Coney Barrett has been seated.

The court is unlikely to issue a ruling until next spring at the earliest, but hopes that a Democratic Senate could render the case moot with a slight alteration of the law’s language have now evaporated. Still, most healthcare law experts see the lawsuit’s argument as ridiculous and believe that a wholesale rejection of the law is unlikely.

Let’s take a look at Biden’s options.

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Levitt listed five immediate actions. One is to “put scientists front and center.”

This would eradicate the resolutely anti-science approach of the Trump administration, which ignored scientific advice in fighting the COVID-19 pandemic (resulting in a toll that has reached about 1,000 reported American deaths and an average of more than 80,000 new cases a day).

Trump’s healthcare team has also relied on misinterpreted or even nonexistent data to justify some of its most destructive programmatic initiatives, such as the imposition of work requirements on Medicaid enrollees.


Levitt also suggests extending the open enrollment period for those signing up for ACA plans via the government’s website. Open enrollment lasted from Nov. 1, 2015, through Jan. 31, 2016, for 2016 plans and the same dates a year later for 2017 plans; the Trump administration rolled the deadline back to Dec. 15 for 2018 plans.

That had the potential to cut enrollment because health plans typically saw a surge in sign-ups during the final few weeks. After open enrollment, no sign-ups are permitted except for life changes such as the loss of other health insurance, marriage or the birth or adoption of a child. Several states extended open enrollment this year because of the pandemic, but not the federal site.

Biden could also reinstate outreach and marketing funding, which was cut by some 90% under Trump despite evidence that the spending had helped thousands of Americans navigate their way through complications in signing up for Obamacare plans.

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He also could reimpose limits on short-term health plans. Under President Obama, short-term plans, which lack the consumer protections established by the ACA, were limited to three-month nonrenewable terms, because they were designed as bridges between more serviceable coverage, whether Medicare, employer plans or full-scale ACA plans. Trump permitted them to offer one-year, renewable terms.

The short-term plans are often cheaper than full-scale plans because they can reject or surcharge applicants with preexisting conditions, can cap annual or lifetime benefits, and lack other consumer safeguards. Health insurance experts fear that these cheaper plans can siphon younger and healthier consumers away from ACA plans, driving up premiums in the ACA market.


Biden could take several pages from the detailed healthcare position paper issued by Sen. Elizabeth Warren (D-Mass.) during her own campaign for her party’s presidential nomination, which she ended in March. Some of her proposals, indeed, found their way into Biden’s own healthcare plank.

The centerpiece of Warren’s proposal was a transition to universal healthcare via Medicare for all. She would have given every American over 50 the right to join an expanded Medicare program and would make it free for children under 18 and families with income at or below 200% of the federal poverty level (or about $52,400 for a family of four).

That would require congressional assent, so it would appear to be off the table with a GOP-controlled Congress. Biden, to be sure, wasn’t a fan of Medicare for all.

Warren would have taken a number of obvious steps, and some not-so-obvious, to undo Trump’s sabotage. She would have restored outreach funding, banned policies such as Medicaid work requirements and restored the limits on short-term plans.

She would have eliminated Trump’s limits on reproductive health programs and coverage, including gag rules that prohibit healthcare providers that receive federal funding, such as Planned Parenthood, to provide abortion services or abortion counseling.

She would have scrapped a Trump proposal that would allow more employers to refuse to offer contraceptive coverage to workers, which is required under the ACA, if they claim religious or moral objections to contraception. (Those proposals are also in Biden’s plan.)


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Among the less intuitive options, Warren would have unwound a Trump administrative rule that reduced ACA premium subsidies by tampering with the subsidy formula. The rule resulted in increased premiums and maximum out-of-pocket costs for an estimated 7.3 million consumers, and by the administration’s own reckoning could cause 70,000 consumers to drop their ACA coverage every year because of higher expenses.

Warren also would have stepped up antitrust enforcement in the hospital market. This would be an important tool for stemming the rise of healthcare costs, as numerous studies have shown that hospital consolidation generally leads to higher prices (and crummier care).

Warren also targeted the ACA’s so-called family glitch, which denies subsidies to an entire family if even one parent is offered a workplace plan that meets the ACA’s definition of “affordable.” Some experts believe legislation would be needed to correct the glitch, but others say it can be corrected through administrative actions by the Department of Health and Human Services and the Treasury. If so, it’s imperative to do so.

Many items on Biden’s healthcare wish list, including the creation of a public option to compete with commercial health insurers, will have to await the advent of a Democratic-controlled Senate, if and when that occurs.

As my erstwhile colleague Tom Petruno observed Wednesday, health insurance shares surged in stock market trading as it became more evident that Republicans would be able to protect their franchises: Cigna rose by 14.5%, Anthem by 11.7% and UnitedHealth by 10.3%. At least a few people see a silver lining in governmental gridlock, though they may not be in families struggling to find medical care for themselves.

The truth is that if Biden continues on the path to victory, as he appeared to be doing late Wednesday, the cause of genuine healthcare reform in America is not lost. Indeed, its prospects are improved. Just not quite as much as we might have hoped ... for the moment.