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Biden may step up regulations for U.S. insurers, bolster Affordable Care Act in pandemic fight

NEW YORK (Thomson Reuters Regulatory Intelligence) - *To read more by the Thomson Reuters Regulatory Intelligence team click here: bit.ly/TR-RegIntel

U.S. President-elect Joe Biden holds a face mask as he speaks to reporters about efforts to confront the coronavirus disease (COVID-19) pandemic after meeting with members of his "Transition COVID-19 Advisory Board" in Wilmington, Delaware, U.S., November 9, 2020.

U.S. President-elect Joe Biden is said to be preparing to implement his agenda as soon as he enters the White House in January, but U.S. insurers may see his plans of a dramatic regulatory overhaul tempered if his Democratic party’s drive to win a majority in the Senate fall short. Insurers will, however, have to watch out for more executive orders and rulemaking from a Biden administration with regard to pandemic-related coverage, the Affordable Care Act and Medicaid.

Biden won last week’s presidential election after capturing the battleground state of Pennsylvania, which according to major-media network projections on Saturday pushed him over the 270 electoral votes needed to secure the White House. Whether Democrats can capture the Senate remains uncertain, with some races still undecided, including two in Georgia that will not be resolved until runoffs in January. If Republicans keep control of the U.S. Senate, they would likely block large parts of his legislative agenda, including those on financial regulation. President Donald Trump has yet to concede, and plans legal challenges that analysts give little chance of succeeding.

With the prospect of Republicans retaining control of the Senate, thus ensuring a divided Congress, Biden may face steep hurdles to his plan of hiking the corporate tax rate to 28 percent from 21 percent and a minimum 10.5 percent tax rate on book income -- both proposals dreaded by insurers.

Similarly, Biden’s strong support for shoring up the Affordable Care Act may be challenged, on the right by Republicans, and on the left by the progressive wing of his own party which advocates for universal government-funded health coverage. The ACA is also currently facing a battle in the Supreme Court over its constitutionality. Though the justices’ tone in the oral arguments earlier this week signalled the entire law was unlikely to be overthrown, public health experts have cautioned against relying too much on the justices’ line of questioning during the oral arguments and not preparing for a scenario where over 20 million would, among other benefits, lose coverage.

A Biden administration could advance policy priorities through executive orders, regulations, and rules promulgated through the federal agencies it controls.

Given the focus on the pandemic by the Biden campaign, the biggest early impact of such regulatory actions could arguably be felt by health insurers.

COVID-19 RESPONSE MAY BE STEPPED UP THROUGH ACA

Biden has strongly criticized President Donald Trump’s response to the pandemic and will be under pressure to control the spread of the virus from the start. Biden may try to unleash all the existing provisions of the ACA to close health coverage gaps and assist uninsured at least for the duration of the pandemic.

A pandemic-related enrollment provision on the individual healthcare market may be allowed for people who do not sign up for coverage during the open enrollment period that is currently running through Dec. 15. The Department of Health and Human Services could take this decision in conjunction with the Centers for Medicare and Medicaid Services.

“There are many health care challenges that our nation must face together – from continuing to battle the COVID-19 crisis, to making health care and prescription drugs more affordable, to protecting patients from surprise medical bills, to ensuring stable coverage markets for those who need it most,” said AHIP, an association of health insurers.

If Congress fails to pass a generous COVID-19 aid package, Biden’s administration could use the existing Medicare and Medicaid programs to roll out more uniform testing and treatment coverage requirements for insurers catering to that market. He could also encourage them to provide similar provisions to all their patients to avoid COVID-19 related surprise bills to patients.

“Many insurers have voluntarily reduced copays and premiums for beneficiaries in light of COVID. Insurers serving state Medicaid markets have gone further, working with governors to return excess profitability before year-end. Others have been progressive in covering the costs of testing for COVID. A Biden administration would be cognizant of these market moves, and might want to standardize some of these efforts across markets to ensure beneficiary protection,” said Dan Mendelson, founder of Avalere Health, a healthcare consultancy.

MEDICAID BOOST

Biden could use the HHS and CMS to boost the Medicaid program that uses federal aid to provide states with more funding for additional coverage.

One of Biden’s first moves during his presidency is expected to be an increase in the percentage of federal aid (Federal Medical Assistance Percentages or FMAP) provided to states to boost coverage under the Medicaid expansion program. The FMAP varies by state and averages at 50 percent but several Democrats and health experts have called for an increase in that funding rate to 100 percent for the duration of the public health emergency.

Biden has floated the idea of a public option funded by the federal government as a middle road between Republicans calling for the invalidation of the ACA and some Democrats calling for universal government coverage. The program, if implemented, will provide a shot in the arm to people in states with large coverage gaps by automatically enrolling consumers who cannot afford coverage on the healthcare exchanges nor qualify for their state Medicaid programs.

RULES SEEN AS DISCRIMINATORY MAY BE OVERTURNED

A Biden administration may not lose time in undoing recent policy provisions of the Trump administration perceived as discriminatory to women, the LGBTQ community, and people of color.

Notably, the CMS’ removal of rules requiring insurers to provide information in more than one language, recognition of gender according to the biological sex assigned at birth, and regulations curtailing women’s reproductive rights may be reversed.

Planned Parenthood, the women’s health care provider, said it expected Biden and Vice President-elect Kamala Harris to support reproductive health care.

LIFE AND ANNUITIES

While Biden may not be able to tighten new best-interest standards for investors, his pick for a new chief of the U.S. Securities and Exchange Commission in 2021 could consider introduce tougher customer-care standards on the sale of financial products related to retirement savings.

(Antonita Madonna, Regulatory Intelligence)

This article was produced by Thomson Reuters Regulatory Intelligence - bit.ly/TR-RegIntel - and initially posted on Nov. 9. Regulatory Intelligence provides a single source for regulatory news, analysis, rules and developments, with global coverage of more than 400 regulators and exchanges. Follow Regulatory Intelligence compliance news on Twitter: @thomsonreuters

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