Without a doubt, the first priority the Biden Administration will tackle when it comes to the health of our nation is COVID-19. Our country needs relief from the unprecedented loss of life and the incredible strain on both the economy and our health care system. Beyond the pandemic, there are still many open questions about what will happen with health care, generally, after Biden takes office. For instance, what will happen to the Affordable Care Act (ACA)? What policy actions will the administration take? Here’s my guess at what the future holds:

The Senate stays R: When it comes to Affordable Care Act policy actions, their likelihood depends on what ultimately happens with the Senate balance. If the Republicans hold on to the Senate after the Georgia run-off races – either with a 51 or 52 majority – it is unlikely that any substantive legislation impacting the Affordable Care Act (ACA) will get enacted. However, there is a good chance that President-elect Biden and Congress would agree on legislation such as that intended to lower prescription drug costs. This could include imposing caps on costs for Medicare Part D beneficiaries and even pegging the price Medicare will pay for certain prescription drugs to the price charged by certain European countries.

The power of the executive: Although in this Senate scenario, President-elect Biden will be unable to make substantive changes to the ACA through legislation, the Biden Administration could seek to build on the ACA through regulations. In this case, we could expect the following administrative actions from the Biden Administration:

  • COVID “Special Enrollment” Period for Healthcare.gov: Since the pandemic does not seem to be slowing down even with the distribution of the vaccine underway, it is very possible that on January 20th (Inauguration Day) we will see the announcement of a COVID “special enrollment” period for Healthcare.gov.
  • “Standardized” Plans: Insurance carriers could be required to sell “standardized” plans through the ACA Exchanges. These “standardized” plans would have a prescribed set of benefits and services that would be covered under the plan, and also, have prescribed deductibles and copays for certain covered benefits (e.g., dollar caps on things like prescription drugs and physician visits and other outpatient services). This is a trend we are seeing develop in state-based exchanges as well.
  • Active Purchasing: HHS could be given more authority to negotiate with insurance carriers selling health plans through Healthcare.gov. The California Exchange is today an “active purchaser,” where the Exchange selectively contracts with insurance carriers and also requires insurance carriers to sell “standardized” plans. It may be too administratively burdensome to ask HHS to do more when it comes to working with insurance carriers selling Exchange plans, but it is something to look out for.
  • “Family Glitch”:  A Biden Treasury Department will likely fix the “family glitch,” thereby allowing spouses and children of employees who are offered an “affordable” employer-sponsored plan to access the ACA’s premium subsidies if income-eligible. 

The Senate flips D: If the Senate flips to Democrat control, however, we could see substantive changes made to the ACA, and even a Medicare buy-in for individuals age 60 to 64 or the addition of a public option. 

Regardless of the outcome, the January elections are enormously consequential for the direction of healthcare. In general, we should certainly expect to see a lot of focus on the Affordable Care Act in the upcoming years given the background of President-Elect Biden and his healthcare team.