This story is part of a series of articles looking at the health policy challenges the Biden administration will face.
As vice president, Joe Biden played a key role in ushering the Affordable Care Act through Congress, transforming the healthcare industry in America and famously whispering to former President Barack Obama getting the law past the finish line was a "big f---ing deal."
But the law looks much different today.
Over the past four years, the last administration and Republican lawmakers reversed a slew of components Biden pledges to rebuild, and he's in a good position to do so with a Democratic Senate majority, though narrow. He's also picking other ACA advocates for his cabinet, like California Attorney General Xavier Becerra to lead HHS.
Some of the pieces will be easier to put back together than others, and additions or enhancements including a public insurance option will undoubtedly be hotly contested. But it all comes on the heels of a historic global pandemic — one that's underscored just how fractured the nation's healthcare system is.
Biden could take a number of paths to achieve his health policy goals with COVID-19 still center stage. Ongoing relief legislation is one way — his $1.9 trillion American Rescue Plan released last week proposes expanding premium subsidies and temporarily subsidizing COBRA continuation coverage for those now unemployed.
Because of the Democrats' slim Senate majority, the most likely avenue he'll take is through budget reconciliation legislation, which has to change spending or revenue and requires just a majority rather than a two-thirds vote, avoiding a filibuster. That process was used by Republicans in their 2017 tax cut bill that set the individual mandate penalty to $0 and put the ACA in front of the Supreme Court today.
Ahead of that decision expected this summer, Congress could actually revive the individual mandate by increasing the penalty through budget reconciliation.
But Biden's key focus will likely be "making sure that people have access to what the law allows them to have access to," Stuart Altman, professor of national health policy at Brandeis University and a former adviser to Obama and Clinton said.
Access: the annual enrollment period
The Trump administration was (so far) unsuccessful in obliterating the law completely, but policy experts say four years of regulatory tweaks did hamper two of its key tenants — access and affordability to health insurance on the exchanges.
In rebuilding the law, a feasible early goal would be to "reinforce an aggressive activity on the part of the federal government to make sure that everyone who is eligible for benefits knows about where to possibly get them," Altman said.
Funding for marketing and outreach was cut dramatically during the Trump era, along with funding for community-based navigators who assisted people in enrolling. In 2017 the sign-up period, too, was shortened. People now have 45 days through November and early December rather than 92 days extending through January to sign up for marketplace coverage.
Biden could push for a variety of enrollment period tweaks, including an emergency coronavirus-related sign-up period for 2021. The Trump administration rejected a special enrollment period for the pandemic in April.
It's unclear whether Biden plans to push extending the annual enrollment period. But if funding is restored for outreach and enrollment efforts he likely would to give those efforts more time to work, Sarah Lueck, senior adviser at the Center on Budget and Policy Priorities, said.
Restoring strong outreach efforts and the length of the sign-up period could help garner more awareness about eligibility, driving people to apply who otherwise wouldn't have known they were eligible for Medicaid based on their income or could get premium tax credits, Lueck said.
Affordability: tax credits and subsidies
A major complaint about the ACA, even among those who support it, has been affordability. Making coverage more affordable by expanding premium subsidies is another part of Biden's plan.
Right now, families making between 100% and 400% of the federal poverty level are eligible for tax credits to help pay for insurance on the exchanges. Biden campaigned on eliminating that income cap and lowering the limit on the cost of coverage to 8.5% of income.
He might pursue those changes through budget reconciliation legislation, and also push to revise the method for indexing marketplace subsidies that the Trump administration reduced modestly across the board starting in 2020.
That could help families with incomes above the cap that are still struggling to afford coverage, but "there continue to be large portions of folks with lower incomes who are still uninsured, they're clearly having trouble affording coverage even with the subsidies that are available," Lueck said.
"The premium tax credits specifically should be improved for folks that are already eligible but are still having trouble making the premium payments that they're required to make under the current structure," Lueck said.
Access and affordability: Limiting state waivers for non-ACA compliant plans
A final patch to get the law back near its original form is by reversing the Trump administration's guidance for Section 1332 state waivers that promoted non-ACA compliant plans.
Those waivers expanded access to cheaper plans with what critics call junk coverage, namely short-term insurance plans designed to fill gaps in coverage for people transitioning between jobs. New rules allowed them to be sold for longer than they had before — now with a three year renewal option instead of three months.
Typically cheaper and attractive to younger, healthier adults, many short-term plans are exempt from the 10 essential health benefits under the ACA that ensure coverage of services like emergency and maternity care. They also widely discriminate against patients with pre-existing conditions, a probe conducted by House Democrats last year found.
That's an area Biden and his team can work on quickly, Altman from Brandeis University said, "to grant waivers that are consistent with the law and expand coverage, and reject those waivers which are thinly veiled attempts at reducing coverage."