On January 28, 2021, President Biden issued an Executive Order entitled Executive Order on Strengthening Medicaid and the Affordable Care Act (“Executive Order”). “In light of the exceptional circumstances caused by the ongoing COVID-19 pandemic”, the Executive Order creates a special enrollment period in states that operate Federally-facilitated exchanges from February 15, 2021 – May 15, 2021, using existing authority under the Affordable Care Act’s implementing regulations found at 45 C.F.R. §155.420(d)(9). The fifteen states that presently operate State-based exchanges may choose to offer up a special enrollment period, and it is anticipated that many will. In the past, health plans have been concerned about adverse selection, but America’s Health Insurance Plans supported the move, as did the American Hospital Association.
The Executive Order provides that “it is the policy of [the Biden] Administration to protect and strengthen Medicaid and the ACA and to make high-quality healthcare accessible and affordable to every American.” Foreshadowing future action by the Biden administration, it directs the Secretaries of Health and Human Services, Labor, and Treasury to review agency actions to and examine:
- “policies or practices that may undermine protections for people with pre-existing conditions, including complications related to COVID-19, under the ACA;
- demonstrations and waivers, as well as demonstration and waiver policies, that may reduce coverage under or otherwise undermine Medicaid or the ACA;
- policies or practices that may undermine the Health Insurance Marketplace or the individual, small group, or large group markets for health insurance in the United States;
- policies or practices that may present unnecessary barriers to individuals and families attempting to access Medicaid or ACA coverage, including for mid-year enrollment; and
- policies or practices that may reduce the affordability of coverage or financial assistance for coverage, including for dependents.”
The Executive Order repeals two Executive Orders issued by the previous administration. Executive Order 13765, which President Trump issued on his first day in office, announced the administration’s policy “to seek the prompt repeal” of the ACA and instructing executive agencies to minimize the regulatory burdens of the ACA. Executive Order 13813 prioritized association health plans; short-term, limited-duration insurance, and health reimbursement arrangements. These policies are emblematic of the forthcoming strengthening of the ACA from the Biden administration and Democratically controlled House and Senate and will increase the number of Americans with coverage through Medicaid and the Exchanges.
The Biden administration also issued the Fifth Amendment to Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19. The changes permit physicians, registered nurses and practical nurses whose license or certification has expired or lapsed in the past five years to prescribe, dispense, or administer COVID-19 vaccines. The individual must have been active and in good standing prior to their license or certification expiring. Prior to prescribing, dispensing, or administering the COVID-19 vaccine, the individual will be required to complete the Centers for Disease Control and Prevention COVID-19 Vaccine Training Modules.
Norton Rose Fulbright lawyers will continue to provide relevant updates on the COVID-19 PHE on the Health Law Pulse.