Joe Biden’s New Health Care Agenda

The details vary but the story is always the same: every candidate’s big plans for health care morph, shrink, and change after they are elected and confronted with new political and economic circumstances. That will be true in spades for President-elect Biden. Very narrow margins in both houses of Congress means two of the big ideas he campaigned on may get a hearing but are highly unlikely to pass, the public option and early eligibility for Medicare. But Democratic control of the Senate opens up different if more modest opportunities for legislation to expand access and make health care more affordable, while narrow margins provide the political benefit of lowered expectations for big health legislation to go with it. And there is a long list of actions the president-elect can take with executive and administrative authority that cumulatively could really make a difference.

With Democratic control of the Senate, President-elect Biden can pick anyone he wants for two key unfilled health posts, Centers for Medicare & Medicaid Services (CMS) and Food and Drug Administration (FDA). He may also be able to find support for legislation to nullify the suit against the Affordable Care Act (ACA) before the Supreme Court or pass expanded ACA premium tax credits through the budget reconciliation process with a simple majority vote.  Another example: he may be able to garner support for legislation incentivizing states that have not done so to expand Medicaid, including the big hold outs: Texas, Florida, and Georgia, where the Democratic senators who just claimed victory campaigned on the issue.

Then there are over fifty actions the Biden administration can take by executive and administrative action that can add up to significant change in health care. Together they would affect virtually every dimension of the health care system: COVID-19, the ACA, Medicaid, Medicare, mental health, reproductive health, LBGTQ health, long-term care, immigration, behavioral health, and HIV.

Some actions can happen fairly quickly, such as reopening ACA enrollment, disallowing state waivers for policies such as Medicaid work requirements, rescinding the Mexico City Policy on family planning funding, re-entering WHO, and participating in the global vaccine agreement.

Other actions require going back through the regulatory process and will take a little longer, such as repealing restrictions on immigration like the public charge rule, or removing limits on funding for Planned Parenthood clinics, or making skimpy short term insurance plans extended by the Trump administration short term again. It will also take time to reinstate funding for ACA outreach.

Most of the changes dealing with health financing and access will be carried out by CMS, the agency with responsibility for Medicare, Medicaid and the ACA and more than a trillion dollar budget, which will be called on to play a much more proactive role harkening back to its formative days in the Carter administration when it was called the Health Care Financing Administration (HCFA). Then HCFA viewed its mission as using its purchasing power to drive change throughout the health care system. Its name was changed to CMS in 2001 by Republican Health and Human Services (HHS) Secretary Tommy Thompson to signal that the agency would be less aggressive and more responsive to states and providers, in keeping with a more conservative view of the role of the federal government. (Disclosure: I am a bit of a CMS booster. I worked there in the HCFA’s formative days, and was asked to run HCFA by first President Bush but withdrew my nomination after a disagreement with his Chief of Staff about my independence).

CMS will likely be asked to use demonstration and waiver authorities to accomplish on a smaller scale what cannot be accomplished in Congress, working with interested states to test out ideas like the public option or a broad range of approaches to addressing the underlying social causes of poor health and racial disparities in health care. Under the Biden administration we could see the most proactive use of waivers yet from CMS.

I have received waivers in state government, helped to give them in HCFA, and studied them at KFF.  I once received a waiver from the Reagan administration at 2 a.m. in the White House after an intense marathon negotiation, just hours before our New Jersey welfare reform program went live. Waivers have always occupied an arcane, semi-technical, even more political corner of health policy through which a great deal can get done.

With its huge role and budget, it may be time for CMS to have a new name that signals a broader purpose, if only to instill a clearer sense of mission in the agency and help it attract the talent it will need in the future (a return to its original name would not be a bad choice, nor would Health Security Administration).  The head of the agency, one of the most important leadership positions in American health care and arguably the top position in health policy, plays a far larger role than the title “administrator” conveys.

It is never worth using up too much political capital over fights about names or bureaucratic restructuring.  But, with the ability to move the health system every time it sneezes, at the right opportunity in the future it may also make sense to consider making CMS and the vast federal health financing enterprise it oversees a separate cabinet agency.

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