March 04, 2021 HUMAN RIGHTS

The Next Four Years: How Will Health Care Coverage Change?

by Jane Perkins and Leonardo Cuello

When he ran for office in 2016, Donald Trump promised he would cover “everybody,” replace Obamacare with “something terrific,” and that he would not cut Medicaid. However, President Trump’s Obamacare replacement never materialized, while his repeal efforts proposed nearly a trillion dollars in Medicaid cuts. Despite his pledge to extend coverage to everyone, the number of uninsured adults went up (even before COVID-19), and, most shockingly, after falling for 10 consecutive years to a historic low in 2016, the uninsured rate for children increased each year between 2017 and 2020.

During the 2020 election campaign, voters repeatedly identified health care as a topic most important for the next administration to address. Candidate Joe Biden drew a sharp contrast to President Trump on health care and won the 2020 election. So, what can we expect over the next four years? Below, we identify four health care issues that demand attention: controlling the COVID-19 pandemic, protecting Obamacare (also known as the Affordable Care Act and ACA), resuming the path toward expanded health care coverage, and addressing health inequity.

During the 2020 election campaign, voters repeatedly identified health care as a topic most important for the next administration to address.

During the 2020 election campaign, voters repeatedly identified health care as a topic most important for the next administration to address.

TANG ON RAWPIXEL

Controlling the COVID-19 Pandemic: A Must-Do for the NEW Administration

The Biden administration took power in the middle of a pandemic, and controlling the public health emergency will be its first and most pressing health and economic priority. We expect the new administration to announce and implement what has been lacking thus far: a coordinated and clinically informed national strategy to address the pandemic.

Such a strategy will be much broader than health care, but leveraging existing health care programs like Medicaid and Medicare will be a critical part of the solution. These two programs cover large numbers of individuals who face a heightened risk of COVID-19 infection and illness, including older adults (many of whom are in nursing homes); people with disabilities; people with chronic health conditions; and Black, Indigenous, and people of color (BIPOC). Bolstering Medicaid and Medicare will facilitate COVID-19 testing, treatment, and vaccination, as well as treatment of other health conditions that have been exacerbated by the crisis, such as depression and substance use disorders.

At the same time, the Biden administration will seek to leverage more federal financial support for states that are struggling to finance their Medicaid programs amid the economic impact of COVID-19. The administration will need to find a way to reduce the financial strain on states while also protecting consumers and providers from harmful state cuts.

As we come out of the worst of the COVID-19 crisis, we expect the Biden administration to act on the lessons learned and pursue policies such as improving telehealth capacity, reducing barriers to care (such as work requirements and premiums), and implementing policies that promote continuity of coverage. In Medicaid, for example, states have been temporarily prohibited from terminating eligibility and benefits of enrollees during the public health emergency. The administration will need to develop protections to ensure that states do not rush to terminate coverage for millions of people the day after the emergency ends.

Protecting the Affordable Care Act: Health Coverage at Risk

President Biden walked into the Oval Office with a couple of potentially huge Obamacare problems. The Supreme Court is set to decide California v. Texas, concerning the ACA’s requirement that individuals have minimum health insurance coverage or pay a tax penalty (Texas v. U.S., 945 F.3d 355 (5th Cir. 2020), cert. granted sub nom. California v. Texas, 140 S. Ct. 1262 (2020)). In 2017, Congress reduced the penalty to zero while leaving the remainder of the ACA intact. Texas and some other states filed a lawsuit arguing that Congress’s action made the insurance mandate unconstitutional and that, as a result, the entire ACA is illegal. Questions from the justices during the November 2020 oral argument suggest that, if Texas has standing and the mandate is found unconstitutional, the remainder of the ACA will survive—an outcome that would be consistent with the chief justice’s recent admonition that courts should “use a scalpel rather than a bulldozer” when addressing statutory defects (Seila Law v. Consumer Financial Protection Bureau, 140 S. Ct. 2183, 2210-11 (2020)). The Biden administration would certainly support that outcome. If, on the other hand, the ACA falls, then the administration and Congress will need to find a way to undo the harm—which, among other things, could leave 20 million people uninsured.

Assuming that Obamacare survives, it will be important to reestablish, stabilize, and improve the ACA marketplaces—insurance hubs that make health insurance available nationwide. This includes improving marketplace eligibility, outreach to and protections for individuals using the marketplace (e.g., banning subpar plans that have sprung up in recent years), and making sure that insurance plans are affordable (e.g., shoring up premium tax credits).

The other big problem involves the ACA’s Medicaid expansion to low-income, non-disabled adults. Early on, the Trump administration announced its intention to upend the expansion by conditioning coverage for this group on work. Work requirements are dubious: People need health coverage so that they can work. The vast majority of adults on Medicaid are either already working or cannot work due to chronic conditions or caretaking responsibilities. Work requirements are extremely expensive to implement. They would jettison tens of thousands of people from Medicaid coverage, leaving them uninsured. Courts, including the D.C. Circuit, have invalidated Medicaid work requirements. In a surprise, the U.S. Supreme Court agreed to decide the legality of approved work requirement projects in Arkansas and New Hampshire (Gresham v. Azar, 950 F.3d 93, cert. granted, 2020 WL 7086046 (S. Ct. Dec. 4, 2020); Philbrick v. Azar, 2020 WL 2621222 (D.C. Cir. May 20, 2020), cert. granted, 2020 WL 7086046 (S. Ct. Dec. 4, 2020)). Briefing in these cases will straddle the Trump and Biden administrations. Candidate Biden opposed work requirements, and he needs to put his campaign statements into effect. The work requirement policies need to be rescinded, approved work requirement programs terminated, and pending work requirement requests denied.

Continuing the Path Toward Expanded Coverage: Moving Toward Access for All

In the coming years, we anticipate efforts to build on the existing health care safety net. As noted above, Obamacare expanded Medicaid to low-income adults as part of the effort to provide comprehensive coverage. However, in 2012, the Supreme Court decided that requiring states to expand Medicaid or face a loss in Medicaid funding was unconstitutionally coercive. As a result, deciding whether to expand Medicaid became optional for the states (Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012)). Most states expanded their programs, but 12 did not. Now, the federal government must ensure that Medicaid expansion occurs, nationwide.

We also expect health care coverage to expand as financing and delivery systems integrate successful practices employed during the COVID-19 pandemic. These include increased use of telehealth, particularly in rural and other underserved areas, and application programming interface (API) to allow diverse systems to more easily exchange data with one another.

Meanwhile, there are numerous proposals on the table for universal health coverage, including a range of “Medicare for All” proposals. While President Biden has not appeared interested in moving forward with the most aggressive Medicare for All designs (e.g., the Bernie Sanders’s single-payer version), he has indicated he will pursue a Medicare-like public option as a step toward universal coverage.

Commit to Health Equity: Addressing Disparities in Health Coverage and Status

We expect the Biden administration to take historic steps to remedy longstanding disparities in health coverage and status. The COVID-19 crisis has exposed these disparities for all to see, and the new administration must take action.

Policymakers can only address the disparities that they know about, so the Biden administration will need to develop a broad plan to ensure that data and information about health disparities are collected, reported, and sufficient to inform and evaluate health equity initiatives.

The Biden administration must find a way to more effectively tie personal health care to community health and the many factors impacting health outcomes for underserved communities. For example, the COVID-19 crisis tragically illustrates that health care alone is not enough to ensure equitable outcomes for BIPOC populations facing socioeconomic and environmental challenges. We expect the Biden administration to pursue models of care and innovation that seek to better integrate health care with a wider range of social services and support (e.g., housing assistance programs) that lead to better results for diverse enrollees.

The Biden administration should also expand health care coverage for immigrants. Many lawfully present immigrants are excluded from public coverage programs, and those who are not lawfully present are barred from purchasing private marketplace plans, the most important form of individual coverage. The current policies are unjust and morally indefensible as well as remarkably counterproductive as a matter of public health and national economic productivity.

Conclusion

At his first press conference after election day, President-elect Biden said his administration would do everything it can to ease the burdens of health care on individuals and their families. The incoming administration has its work cut out for it. We should all wish them well.

Entity:
Topic:

Jane Perkins

Legal Director, National Health Law Program; Vice Chair, Health Law and Ethics Committee, ABA Section of Civil Rights and Social Justice

Jane Perkins is the legal director of the National Health Law Program (NHeLP) and the Vice Chair of the ABA Section of Civil Rights and Social Justice’s Health Law and Ethics Committee. 

Leonardo Cuello

Director, Health Policy, National Health Law Program

Leonardo Cuello is NHeLP’s director of Health Policy. NHeLP advocates, educates, and litigates to improve access to quality health care for low-income and underserved people.