Discussions of policies to advance health equity often focus on legislative change, and with good reason. Recent laws like the Affordable Care Act (ACA), the No Surprises Act, and the American Rescue Plan Act (ARPA) have had a huge impact in advancing health equity, improving coverage rates, and closing disparities in health care access. Focusing solely on legislation, however, ignores the meaningful changes that can and often do occur through administrative actions—decisions about how a law is implemented based on the priorities of different presidential administrations.
The impacts of administrative actions are especially important when control of Congress is divided, making new major legislation less likely. While a pair of court cases before the Supreme Court threaten to undermine presidents’ ability to prioritize how federal law is implemented, executive authority is currently a meaningful tool to advance health equity.
This commentary highlights some of the ways that the Biden administration has used administrative actions to advance health equity since inauguration. Afterwards, it outlines several additional actions the administration could take to build on this foundation and further advance health equity without any change to existing laws.
How the Biden Administration Has Advanced Health Equity
The Biden administration has made meaningful use of executive authority over the past three years. Many of these actions stem from two executive orders: Executive Order 13985, which stated that the policy of the Biden administration was to “pursue a comprehensive approach to advancing equity for all,” and Executive Order 14009, which stated that the policy of the Biden administration was to “protect and strengthen Medicaid and the ACA and to make high-quality healthcare accessible and affordable for every American.” This section outlines many of these actions, divided into three types: health coverage and access, maternal and reproductive health, and health care costs and affordability.
Health Coverage and Access
The Biden administration has executed multiple intentional efforts to expand eligibility for coverage, make it easier for people to enroll in affordable coverage, and grow consumer protections for quality, non-discriminatory coverage. Below are some examples in chronological order.
In February 2021, the Biden administration announced a Special Enrollment Period (SEP) to allow people to enroll in marketplace coverage due to the COVID-19 pandemic. Over the six months that the SEP was in operation, more than 2.5 million people enrolled in marketplace coverage, including 1.8 million newly enrolled people. In September 2021, the Biden administration expanded on this, creating a year-round SEP that would apply to anyone with incomes at or below 150 percent of the federal poverty level ($19,320 for a single individual in 2021, and $21,870 for a single individual in 2024). The SEP exists through 2025, and the Biden administration recently proposed making the period permanent.
In addition to these special enrollment periods, the Biden administration has taken steps to help people understand health insurance marketplaces and opportunities there for affordable coverage: funding navigators to explain terms of coverage and financial assistance to consumers. In 2021, the Biden administration awarded $80 million in grants for navigators, much more than the $10 million the Trump administration awarded in 2020, and quadrupled the amount of navigators funded. The administration further increased this amount in 2022 and 2023, awarding nearly $100 million in grants both years. These increases in navigator funds contributed to record enrollment in marketplace coverage in recent years, shown below in Figure 1.
Figure 1
More recently, the Biden administration worked to ensure that consumers are enrolling in high-value, comprehensive coverage. For example, the Centers for Medicare and Medicaid Services (CMS) issued regulations to prevent patients from being tricked into buying short-term plans under the belief that they are purchasing comprehensive coverage. These short-term plans often exclude many of the benefits and protections patients now take for granted, such as pregnancy care and protection from being charged more for pre-existing conditions.
The Biden administration has also taken steps to expand access to coverage and health services free of discrimination. In 2022, the Biden administration proposed regulations to reform how the ACA’s anti-discrimination provisions are enforced, expanding the protections to more health care settings, clarifying that sexual orientation and gender identity are protected classes under the law, and improving protections for patients with limited English proficiency. Similarly, the Biden administration proposed rescinding the Trump administration’s rule allowing providers and other health workers to refuse to treat LGBT patients in January 2023, and the administration issued a rule in April 2023 allowing DACA recipients (a group comprised of undocumented immigrants brought to the United States as children) to enroll in Medicaid and marketplace coverage.
Maternal and Reproductive Health
In addition to health coverage in general, the Biden administration has worked to improve access to maternal and reproductive health care, all the more necessary in light of the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization and the nation’s worsening maternal health outcomes.
As with health coverage, some of the administration’s actions focused on reproductive health have built on the ACA. For example, in February 2023, the Biden administration proposed a regulation which would create a new pathway for individuals whose employers object to providing coverage which covers contraceptives to still access those needed services. This approach would entirely remove employers from the coverage process, ensuring that people’s access to contraceptives is not based on their employer’s religious beliefs.
The Biden administration has named restoring and protecting abortion access as a priority since the overturning of Roe v. Wade (though more concrete action is needed: see below for further discussion). They have taken some action since the decision, including issuing executive orders to clarify guidance on access to medication abortion and the inclusion of abortion services under the Emergency Medical Treatment and Labor Act (EMTALA). The Department of Health and Human Services and CMS also invited states to submit Medicaid waivers to expand access to abortion for individuals traveling from states where access is restricted or banned.
When it comes to addressing the U.S. maternal health crisis, the Biden administration has taken a number of steps to expand coverage of maternal health services and to improve maternal health equity. One historic step has been working to ensure Medicaid enrollees have coverage for a full year postpartum, a critical period when too many new mothers lose access to health care. The administration has done this by encouraging states to take up a state plan amendment (SPA) for Medicaid coverage extension to twelve months postpartum, an option that became available in April 2022 and has since been made permanent thanks to the Consolidated Appropriations Act of 2023. CMS also released guidance for how states could implement the twelve-month extension option. As of today, forty-four states and the District of Columbia have implemented yearlong postpartum coverage for Medicaid enrollees.
Map 1
In June 2022, the Biden administration released the White House Blueprint For Addressing the Maternal Health Crisis, a compilation of fifty different actions across a number of agencies to comprehensively address the U.S. maternal health crisis. While some of the goals and priorities within the Blueprint have been accomplished, such as expanding the Rural Maternity and Obstetrics Management Strategies (RMOMS) program to enhance access to maternal and obstetric care in rural areas, the document can still serve as a guide for what can be done to advance maternal health equity.
Health Care Costs and Affordability
Finally, the Biden administration has taken steps to ensure that patients can better afford their health coverage and the care they need. One major example of this is the regulation issued in early 2022 by the IRS to fix the so-called “family glitch.” Under the family glitch, the standard for whether employer-sponsored insurance is considered affordable was based on individual coverage, not family coverage. As a result, even if family coverage would cost a significant portion of a household’s income, they were not eligible for subsidies to buy marketplace coverage if individual coverage was considered affordable. By fixing this glitch—which entailed issuing a regulation that interprets the ACA’s affordability standard based on both individual and family coverage—the Biden administration improved the affordability of coverage for more than 5 million people, about half of whom are children.
By fixing this glitch, the Biden administration improved the affordability of coverage for more than 5 million people, about half of whom are children.
The administration has also required insurers to use time and distance standards to determine if their provider networks meet patients’ needs, reimposing a policy eliminated under the Trump administration. While not directly related to prices, if patients do not have a sufficient network of providers to access, they are far more likely to seek care at more expensive, out-of-network providers or delay care altogether due to this increased price burden.
The administration has also worked to make prescription drugs more affordable. Under the Inflation Reduction Act, Medicare is empowered to negotiate prices with drug manufacturers for the first time in the program’s history. In August 2023, CMS announced the first set of drugs that Medicare would negotiate—a list that will help close racial disparities in drug affordability among seniors. Four of the ten drugs chosen treat diabetes, which many people of color are more likely to have.
In December 2023, the administration took an even more aggressive step: issuing a draft framework allowing for the use of price as a factor in determining whether prescription drugs developed using taxpayer dollars are accessible to the public. In cases where an available treatment, one that was developed using public funds, has not achieved “practical application”—in other words, has not been made reasonably accessible to the public—then federal law allows the president to eliminate that product’s market exclusivity and allow other manufacturers to produce that treatment as a competitor. The Biden proposal is the first ever framework to allow the use of price as a consideration of practical application, and it could help lower prices for all consumers, not solely those insured through Medicare.
The Biden proposal is the first ever framework to allow the use of price as a consideration of practical application, and it could help lower prices for all consumers.
Actions the Biden Administration Should Take Next
Many of the actions discussed in this commentary are still proposed regulations. The Biden administration should work to finalize these rules quickly, in order to minimize the risk of being overturned by a future administration or Congress before their implementation. The Congressional Review Act allows Congress to disapprove of final rules within sixty legislative days of their finalization. Because legislative days do not always align with calendar days, the first of these sixty days could be as early as May of this year, allowing a future Congress to overturn nearly any rule finalized this year.
In particular, three of the proposed rules would have an outsized effect on health equity and should be among the administration’s priorities:
- the rule allowing DACA recipients to enroll in public health insurance programs and marketplace coverage,
- the rule creating an alternate pathway to contraceptive coverage, and
- the framework including price as a factor to support march-in rights.
Each of these rules would promote access to needed care in an affordable manner in a way that is targeted at closing disparities in access.
In addition to finalizing these and other proposed rules, the Biden administration should build on the efforts already undertaken, expanding access to quality health coverage that meets people’s needs regardless of income or identity. One way to do so is to expand eligibility for the income-based SEP from 150 percent of the poverty line. As previous TCF research has demonstrated, even slight jumps in eligibility would significantly impact the number of marketplace beneficiaries eligible for this SEP, expanding access throughout the year.
Figure 2
As more states ban and restrict abortion, additional decisive action is needed to ensure meaningful, equitable access to abortion care. In addition to finalizing proposed regulations, such as the 1557 rules mentioned above—which would prohibit discrimination on the basis of termination of pregnancy—the Biden administration can use its messaging leverage to combat narratives of abortion stigma and dangerous misinformation. The administration has a responsibility to avoid harmful rhetoric that promotes stigma (and puts abortion patients and providers at even further risk of violence) and to instead name the need for all people to be able to access abortion care, no matter who they are or where they live.
The President Can Advance (or Hinder) Health Equity without Congress
While legislation can obviously have a major impact on advancing or undermining health equity, the ability of a president to impact people’s lives administratively should not be underemphasized. The Biden administration has taken many steps to ensure that federal law is enacted in a way that promotes people’s access to necessary, affordable care free of discrimination.
Many of the rules proposed by the Biden administration have not been finalized, however, and more action to expand access to affordable coverage administratively is possible. The Biden administration should work to enact these additional actions quickly to ensure their lasting impact.
Tags: health care, biden-harris administration, health equity
How the Biden Administration Has Advanced Health Equity
Discussions of policies to advance health equity often focus on legislative change, and with good reason. Recent laws like the Affordable Care Act (ACA), the No Surprises Act, and the American Rescue Plan Act (ARPA) have had a huge impact in advancing health equity, improving coverage rates, and closing disparities in health care access. Focusing solely on legislation, however, ignores the meaningful changes that can and often do occur through administrative actions—decisions about how a law is implemented based on the priorities of different presidential administrations.
The impacts of administrative actions are especially important when control of Congress is divided, making new major legislation less likely. While a pair of court cases before the Supreme Court threaten to undermine presidents’ ability to prioritize how federal law is implemented, executive authority is currently a meaningful tool to advance health equity.
This commentary highlights some of the ways that the Biden administration has used administrative actions to advance health equity since inauguration. Afterwards, it outlines several additional actions the administration could take to build on this foundation and further advance health equity without any change to existing laws.
How the Biden Administration Has Advanced Health Equity
The Biden administration has made meaningful use of executive authority over the past three years. Many of these actions stem from two executive orders: Executive Order 13985, which stated that the policy of the Biden administration was to “pursue a comprehensive approach to advancing equity for all,” and Executive Order 14009, which stated that the policy of the Biden administration was to “protect and strengthen Medicaid and the ACA and to make high-quality healthcare accessible and affordable for every American.” This section outlines many of these actions, divided into three types: health coverage and access, maternal and reproductive health, and health care costs and affordability.
Health Coverage and Access
The Biden administration has executed multiple intentional efforts to expand eligibility for coverage, make it easier for people to enroll in affordable coverage, and grow consumer protections for quality, non-discriminatory coverage. Below are some examples in chronological order.
In February 2021, the Biden administration announced a Special Enrollment Period (SEP) to allow people to enroll in marketplace coverage due to the COVID-19 pandemic. Over the six months that the SEP was in operation, more than 2.5 million people enrolled in marketplace coverage, including 1.8 million newly enrolled people. In September 2021, the Biden administration expanded on this, creating a year-round SEP that would apply to anyone with incomes at or below 150 percent of the federal poverty level ($19,320 for a single individual in 2021, and $21,870 for a single individual in 2024). The SEP exists through 2025, and the Biden administration recently proposed making the period permanent.
In addition to these special enrollment periods, the Biden administration has taken steps to help people understand health insurance marketplaces and opportunities there for affordable coverage: funding navigators to explain terms of coverage and financial assistance to consumers. In 2021, the Biden administration awarded $80 million in grants for navigators, much more than the $10 million the Trump administration awarded in 2020, and quadrupled the amount of navigators funded. The administration further increased this amount in 2022 and 2023, awarding nearly $100 million in grants both years. These increases in navigator funds contributed to record enrollment in marketplace coverage in recent years, shown below in Figure 1.
Figure 1
More recently, the Biden administration worked to ensure that consumers are enrolling in high-value, comprehensive coverage. For example, the Centers for Medicare and Medicaid Services (CMS) issued regulations to prevent patients from being tricked into buying short-term plans under the belief that they are purchasing comprehensive coverage. These short-term plans often exclude many of the benefits and protections patients now take for granted, such as pregnancy care and protection from being charged more for pre-existing conditions.
The Biden administration has also taken steps to expand access to coverage and health services free of discrimination. In 2022, the Biden administration proposed regulations to reform how the ACA’s anti-discrimination provisions are enforced, expanding the protections to more health care settings, clarifying that sexual orientation and gender identity are protected classes under the law, and improving protections for patients with limited English proficiency. Similarly, the Biden administration proposed rescinding the Trump administration’s rule allowing providers and other health workers to refuse to treat LGBT patients in January 2023, and the administration issued a rule in April 2023 allowing DACA recipients (a group comprised of undocumented immigrants brought to the United States as children) to enroll in Medicaid and marketplace coverage.
Maternal and Reproductive Health
In addition to health coverage in general, the Biden administration has worked to improve access to maternal and reproductive health care, all the more necessary in light of the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization and the nation’s worsening maternal health outcomes.
As with health coverage, some of the administration’s actions focused on reproductive health have built on the ACA. For example, in February 2023, the Biden administration proposed a regulation which would create a new pathway for individuals whose employers object to providing coverage which covers contraceptives to still access those needed services. This approach would entirely remove employers from the coverage process, ensuring that people’s access to contraceptives is not based on their employer’s religious beliefs.
The Biden administration has named restoring and protecting abortion access as a priority since the overturning of Roe v. Wade (though more concrete action is needed: see below for further discussion). They have taken some action since the decision, including issuing executive orders to clarify guidance on access to medication abortion and the inclusion of abortion services under the Emergency Medical Treatment and Labor Act (EMTALA). The Department of Health and Human Services and CMS also invited states to submit Medicaid waivers to expand access to abortion for individuals traveling from states where access is restricted or banned.
When it comes to addressing the U.S. maternal health crisis, the Biden administration has taken a number of steps to expand coverage of maternal health services and to improve maternal health equity. One historic step has been working to ensure Medicaid enrollees have coverage for a full year postpartum, a critical period when too many new mothers lose access to health care. The administration has done this by encouraging states to take up a state plan amendment (SPA) for Medicaid coverage extension to twelve months postpartum, an option that became available in April 2022 and has since been made permanent thanks to the Consolidated Appropriations Act of 2023. CMS also released guidance for how states could implement the twelve-month extension option. As of today, forty-four states and the District of Columbia have implemented yearlong postpartum coverage for Medicaid enrollees.
Map 1
In June 2022, the Biden administration released the White House Blueprint For Addressing the Maternal Health Crisis, a compilation of fifty different actions across a number of agencies to comprehensively address the U.S. maternal health crisis. While some of the goals and priorities within the Blueprint have been accomplished, such as expanding the Rural Maternity and Obstetrics Management Strategies (RMOMS) program to enhance access to maternal and obstetric care in rural areas, the document can still serve as a guide for what can be done to advance maternal health equity.
Health Care Costs and Affordability
Finally, the Biden administration has taken steps to ensure that patients can better afford their health coverage and the care they need. One major example of this is the regulation issued in early 2022 by the IRS to fix the so-called “family glitch.” Under the family glitch, the standard for whether employer-sponsored insurance is considered affordable was based on individual coverage, not family coverage. As a result, even if family coverage would cost a significant portion of a household’s income, they were not eligible for subsidies to buy marketplace coverage if individual coverage was considered affordable. By fixing this glitch—which entailed issuing a regulation that interprets the ACA’s affordability standard based on both individual and family coverage—the Biden administration improved the affordability of coverage for more than 5 million people, about half of whom are children.
The administration has also required insurers to use time and distance standards to determine if their provider networks meet patients’ needs, reimposing a policy eliminated under the Trump administration. While not directly related to prices, if patients do not have a sufficient network of providers to access, they are far more likely to seek care at more expensive, out-of-network providers or delay care altogether due to this increased price burden.
The administration has also worked to make prescription drugs more affordable. Under the Inflation Reduction Act, Medicare is empowered to negotiate prices with drug manufacturers for the first time in the program’s history. In August 2023, CMS announced the first set of drugs that Medicare would negotiate—a list that will help close racial disparities in drug affordability among seniors. Four of the ten drugs chosen treat diabetes, which many people of color are more likely to have.
In December 2023, the administration took an even more aggressive step: issuing a draft framework allowing for the use of price as a factor in determining whether prescription drugs developed using taxpayer dollars are accessible to the public. In cases where an available treatment, one that was developed using public funds, has not achieved “practical application”—in other words, has not been made reasonably accessible to the public—then federal law allows the president to eliminate that product’s market exclusivity and allow other manufacturers to produce that treatment as a competitor. The Biden proposal is the first ever framework to allow the use of price as a consideration of practical application, and it could help lower prices for all consumers, not solely those insured through Medicare.
Actions the Biden Administration Should Take Next
Many of the actions discussed in this commentary are still proposed regulations. The Biden administration should work to finalize these rules quickly, in order to minimize the risk of being overturned by a future administration or Congress before their implementation. The Congressional Review Act allows Congress to disapprove of final rules within sixty legislative days of their finalization. Because legislative days do not always align with calendar days, the first of these sixty days could be as early as May of this year, allowing a future Congress to overturn nearly any rule finalized this year.
In particular, three of the proposed rules would have an outsized effect on health equity and should be among the administration’s priorities:
Each of these rules would promote access to needed care in an affordable manner in a way that is targeted at closing disparities in access.
In addition to finalizing these and other proposed rules, the Biden administration should build on the efforts already undertaken, expanding access to quality health coverage that meets people’s needs regardless of income or identity. One way to do so is to expand eligibility for the income-based SEP from 150 percent of the poverty line. As previous TCF research has demonstrated, even slight jumps in eligibility would significantly impact the number of marketplace beneficiaries eligible for this SEP, expanding access throughout the year.
Figure 2
As more states ban and restrict abortion, additional decisive action is needed to ensure meaningful, equitable access to abortion care. In addition to finalizing proposed regulations, such as the 1557 rules mentioned above—which would prohibit discrimination on the basis of termination of pregnancy—the Biden administration can use its messaging leverage to combat narratives of abortion stigma and dangerous misinformation. The administration has a responsibility to avoid harmful rhetoric that promotes stigma (and puts abortion patients and providers at even further risk of violence) and to instead name the need for all people to be able to access abortion care, no matter who they are or where they live.
The President Can Advance (or Hinder) Health Equity without Congress
While legislation can obviously have a major impact on advancing or undermining health equity, the ability of a president to impact people’s lives administratively should not be underemphasized. The Biden administration has taken many steps to ensure that federal law is enacted in a way that promotes people’s access to necessary, affordable care free of discrimination.
Many of the rules proposed by the Biden administration have not been finalized, however, and more action to expand access to affordable coverage administratively is possible. The Biden administration should work to enact these additional actions quickly to ensure their lasting impact.
Tags: health care, biden-harris administration, health equity