On January 28, 2021, the White House issued President Biden’s Executive Order on Strengthening Medicaid and the Affordable Care Act (the “Executive Order”), which seeks to increase access to affordable health insurance and strengthen Medicaid and the Affordable Care Act, particularly in light of the ongoing COVID-19 pandemic. In addition to this Executive Order, the White House also announced President Biden’s Presidential Memorandum on Protecting Women’s Health at Home and Abroad (the “Presidential Memorandum”).

The Executive Order acknowledges that, in the year since the U.S. Department of Health and Human Services (“HHS”) declared COVID-19 a public health emergency, the pandemic has continued to spread and has had a disproportionate impact on Black, Latino, and Indigenous communities. Citing over 30 million Americans without health insurance and an overwhelmed health care system, the Executive Order directs the following actions:

Special Enrollment Period: The Executive Order directs the Secretary of HHS to consider establishing a “Special Enrollment Period” to provide an opportunity for under-insured and uninsured Americans to obtain coverage through the Federally Facilitated Marketplace’s healthcare.gov webpage. A Fact Sheet issued by the White House states that the Special Enrollment Period is expected to take place from February 15, 2021 through May 15, 2021.

Immediate Review of Agency Actions: The Executive Order directs the Secretary of the Treasury, the Secretary of Labor, the Secretary of HHS, and the heads of other executive departments and agencies relevant to Medicaid and the Affordable Care Act (collectively, “heads of agencies”) to review all existing regulations, orders, guidance, polices, and other agency actions (collectively, “agency actions”) to determine whether such agency actions are inconsistent with the policies set forth in the Executive Order. Namely, the heads of agencies are to review:

  • Policies undermining protections for pre-existing conditions, including complications related to COVID-19;
  • Policies that may reduce coverage under or undermine the Affordable Care Act or Medicaid;
  • Polices that may undermine the Health Insurance Marketplace or other insurance markets;
  • Polices that impose “unnecessary barriers” to access coverage through Medicaid or under the Affordable Care Act; and
  • Policies that reduce the affordability of or financial assistance for insurance coverage, including for dependents.

To the extent practicable and appropriate, the Executive Order directs the heads of agencies to suspend, rescind, or revise agency actions identified as inconsistent with the policies outlined in the Executive Order and, as applicable, publish for notice and comment any proposed rules necessary to accomplish the same. The Executive Order further directs the heads of agencies to consider any additional agency actions that may be necessary to more fully implement the policies set forth in the Executive Order.

Revocation of Certain Presidential Actions and Review of Associated Agency Actions: The Executive Order revokes two executive orders issued by the previous administration:

  • Executive Order 13765: Minimizing the Economic Burden of the Patient Protection and Affordable Care Act Pending Repeal, issued January 20, 2017; and
  • Executive Order 13813: Promoting Healthcare Choice and Competition Across the United States, issued October 12, 2017.

Additionally, the Executive Order directs the heads of agencies to identify agency actions related to the revoked orders and consider whether to suspend, revoke, or rescind such agency actions.

Presidential Memorandum on Protecting Women’s Health at Home and Abroad

Finally, the White House announced President Biden’s Presidential Memorandum aimed at expanding and protecting access to comprehensive reproductive health care. This Presidential Memorandum rescinds the “global gag rule,” also referred to as the Mexico City Policy, which barred international non-profits that provide abortion counseling or referrals from receiving funding from the United States. This Presidential Memorandum is consistent with prior memoranda issued by President Clinton and President Obama during their administrations. In an effort to further strengthen protections for reproductive health care access, the Presidential Memorandum directs HHS to consider whether to rescind the family planning program regulations under Title X.