A Midterm Assessment Of President Biden’s Promise To Build On The ACA

By Sabrina Corlette and Joan Alker

As a presidential candidate, President Joe Biden promised that his administration would protect and build on the Affordable Care Act (ACA). We’re now halfway through President Biden’s first term, making it a good time to assess the progress he has made to fulfil that promise, and what work there remains to do.

The Big Picture

In January 2023, the state of health care coverage in the United States is the strongest it has ever been. This is in spite of unrelenting efforts by the Trump administration to undermine the ACA’s coverage expansions and a worldwide pandemic that is now into its fourth year. Indeed, the ACA’s Medicaid expansion and health insurance Marketplaces served as a critical coverage safety net during the economic disruptions caused by COVID-19. The uninsurance rate for non-elderly adults has dropped from 10.9 percent in 2019 to 10.2 percent in 2021. Enrollment in Medicaid and the Marketplaces is at an unprecedented high—16.3 million people signed up for a Marketplace plan for 2023, an almost 50 percent increase in enrollment since the president took office. As of September 2022, an estimated 90.9 million people were enrolled in Medicaid and the Children’s Health Insurance Program (CHIP), an increase of 28.6 percent since February 2020.

The coverage gains in the past two years are in large part due to legislative activity, including one major policy change signed into law by President Donald Trump. The Families First Coronavirus Response Act (FFCRA) was enacted in March 2020 to provide urgently needed economic relief at the height of the COVID-19 shut downs. One of its provisions prohibited states from involuntarily disenrolling anyone from Medicaid as a condition of receiving enhanced federal funding for Medicaid during the national public health emergency. This provision has helped fuel the dramatic growth in Medicaid enrollment.

For his first two years in office, President Biden prioritized the ACA in his legislative agenda. Early in his term, he signed the American Rescue Plan Act of 2021 (ARPA), which included a significant increase in premium subsidies for Marketplace enrollees, through 2022. The ARPA also enhanced already generous federal financing available as an incentive to the 12 states (at the time) that had not yet expanded Medicaid—although unfortunately only South Dakota, through a successful ballot initiative, has taken up the ARPA’s fiscal boost. The ARPA further gave states the option to extend Medicaid coverage for 12 months for postpartum individuals, an option that has seen robust uptake by states. In September 2022, President Biden signed the Inflation Reduction Act, which included a continuation of the Marketplace enhanced subsidies through 2025.

More recently, the Consolidated Appropriations Act of 2023 allows states to resume Medicaid eligibility redeterminations paused since March 2020, and to disenroll those they find ineligible or who fail to successfully complete the renewal process starting April 1, 2023. This Medicaid “unwinding” process could dramatically reduce the country’s recent coverage gains, with an estimated 18 million expected to have their Medicaid coverage discontinued. Federal estimates project that 6.8 million Medicaid beneficiaries (of whom 5.3 million are children) will lose coverage despite remaining eligible due to administrative issues such as long call center wait times, missed deadlines, and returned mail; the vast majority of these are likely to become uninsured at least for some period of time.

For the past two years of President Biden’s term, legislative action to expand the ACA is unlikely. The now Republican-led US House of Representatives is likely to block any such efforts. This will leave executive branch action as the primary locus for activity.

Looking Back: The Biden Administration Has Leveraged Executive Branch Powers To Expand Coverage Access

In its first two years, the Biden administration made extensive use of its executive branch powers to expand and improve the coverage available through the Marketplace. Another top priority has been rolling back Trump-era actions limiting access to Medicaid and the Marketplace. These executive branch actions include executive orders, regulations, guidance to health plans and other regulated entities, state waiver approvals and rescissions, funding, and operational upgrades. Below, we summarize some of the most significant administrative actions to date.

Expanding Access And Affordability In The ACA Marketplaces

One of the most impactful actions the Biden administration has taken may be its significant investment in outreach and consumer enrollment assistance. Combined with more affordable Marketplace premiums, this additional support has driven Marketplace enrollment to historic heights. Additional critical administrative actions to expand Marketplace enrollment and improve access to care have included:

Expanding enrollment opportunities. In 2021, the Biden administration created a months-long COVID-19 special enrollment period, extended the annual open enrollment period from 45 to 75 days, and created a continuous enrollment opportunity for people with incomes below 150 percent of the federal poverty level, effective in 2022.
Fixing the “family glitch.” Beginning in 2023, family members of workers with employer-sponsored insurance will no longer be disqualified from Marketplace subsidies if they have an offer of employer-based coverage that is affordable for the worker but not affordable for the worker’s dependents. This is expected to make coverage more affordable for an estimated 1 million spouses and dependents.
Improving the consumer experience. In the past two years, the Biden administration has implemented a number of changes to reduce the paperwork and plan selection burdens for individuals applying for Marketplace coverage. These include:

Increasing auto-verification of eligibility for special enrollment opportunities and reducing requests for documentation of income.
Providing an extra year for subsidized Marketplace enrollees to file a tax return with the Internal Revenue Service and reconcile any advance premium tax credits, before risking the loss of subsidy.
Requiring plans on the federally run Marketplace (gov) to offer plans with standardized benefit designs so that consumers can more easily compare.

Improving coverage adequacy. Plans offered on gov must now meet new, minimum standards for enrollee access to providers. The administration has also beefed up its reviews of plans’ provider networks prior to certifying them for participation.
Supporting states’ coverage expansions. Section 1332 of the ACA allows states to waive provisions of the law to advance local health reform objectives. Biden administration rules have strengthened statutory guardrails designed to maintain people’s access to affordable, adequate coverage. The administration has also approved 1332 waiver proposals from Colorado (creating a public option plan) and Washington State (expanding coverage to undocumented immigrants).

Strengthening Medicaid, Improving Maternal Health, And Advancing Equity

The FFCRA’s continuous coverage provision has been the major driver of coverage gains associated with Medicaid. However, the Biden administration has sought to advance coverage, access, and health equity goals through section 1115 waiver policy and regulatory activity.

An early priority for the Biden administration was the rescission of approved section 1115 demonstrations that allowed states to condition Medicaid eligibility on work requirements. Such waivers had been approved in 13 states by the Trump administration; in the first few months after taking office, the Biden administration rescinded them all—although a recent court order reinstated Georgia’s approval.

Additionally, the White House released a major new maternal health blueprint in June 2022, and has encouraged states to take up the new 12-months postpartum coverage option. States have been rapidly adopting the new option, with 34 states and the District of Columbia moving forward as of this writing.

More recently, the administration had advanced its coverage and health equity goals by approving section 1115 waivers such as Oregon’s Health Plan, which breaks new ground by offering continuous eligibility for children 0–6 years old and two years of continuous eligibility for everyone else.

Looking Ahead: Unfinished Business For The Executive Branch

By any measure, the Biden administration has made tremendous progress to fulfil its promises on the ACA, while simultaneously managing a worldwide pandemic and implementing other key health bills, such as the No Surprises Act. However, there remains considerable work on the regulatory agenda. Below we summarize some key policies the administration is likely to advance in the next two years.

Stabilizing And Improving Coverage And Equity In The Private Insurance Market

To build on the ACA, President Biden must undo his predecessor’s efforts to undermine the law. The Trump administration adopted two policies designed to roll back the ACA’s insurance reforms: encouraging the sale of short-term insurance products exempt from the ACA’s consumer protections and enabling insurers to market association health plans that do not have to comply with the ACA’s rating protections for small employers and individuals. The Biden administration has signaled its intention to reverse both of these policies.

The administration also has sought public input on the current definition of the ACA’s essential health benefit (EHB) standard, consistent with a statutory requirement that the Secretary of the Department of Health and Human Services periodically review and update the EHB to address any gaps in access to coverage or changes in medical evidence. Such a request is usually a precursor to federal rulemaking.

The Biden administration is also expected to soon finalize its interpretation of section 1557 of the ACA, which prohibits discrimination on the basis of race, color, national origin, sex, age, or disability under any federally supported health program. It is expected that the rule will extend nondiscrimination protections to LGBTQ people (reversing a Trump-era interpretation), strengthen language access requirements, and prohibit the use of discriminatory algorithms in health care decision making.

Strengthening Medicaid And CHIP

One of the Biden administration’s priorities for Medicaid and CHIP is to streamline eligibility and enrollment processes and remove barriers to coverage such as waiting periods for children in CHIP. Other rules due to be finalized include guidelines for mandatory state reporting of Child Core Set quality measures for Medicaid and CHIP and Adult Behavioral Health quality measures.

Also expected in the next few months is a major proposed rule to improve access to care in Medicaid managed care. This will be a complex but much needed regulatory undertaking to improve access to health and behavioral health care, advance racial equity, and tighten up oversight of private Medicaid managed care companies.

Impressive Progress To Date

Going forward, improving on the ACA will be challenging. Leaders in the US House may resist many policy improvements and a more conservative judiciary may push back on some executive branch actions. The Medicaid unwinding also presents major challenges and could reverse the recent dramatic improvement in the nation’s uninsured rate. Under the Consolidated Appropriations Act of 2023, Secretary Becerra has new enforcement tools to monitor and mitigate damage from the unwinding that he should use, but as this process will largely be in the hands of state policy makers, the federal government will have limited ability to reverse major coverage losses.

Beyond unwinding, over the next two years, expanding affordable coverage and improving access to care will largely depend on the executive branch acting either unilaterally through regulations and guidance, or by supporting state innovations through 1332 and 1115 waivers. However, at the mid-point of President Biden’s administration, the progress to date has been impressive.

Sabrina Corlette and Joan Alker, “A Midterm Assessment of President Biden’s Promise To Build On The ACA,” Health Affairs Forefront, February 3, 2023, https://www.healthaffairs.org/content/forefront/mid-term-assessment-president-biden-s-promise-build-affordable-care-act © 2023 Health Affairs by Project HOPE – The People-to-People Health Foundation, Inc.