5 predictions for President Biden's first 100 days

Shortly after taking the oath of office, Biden is expected to issue a raft of executive orders, including one mandating mask use. Public health experts and hospital leaders for months have pointed to face masks as one of the key actions people can take to reduce community spread of the new coronavirus. This is more important than ever, as hospitals and health systems across the country are overrun with Covid-19 patients and again are considering delaying scheduled procedures to free up capacity—another potential financial hit for the many hospitals that are still recovering from the previous waves.

The big question is how to legally achieve universal mask use? States and localities have the power to mandate mask wearing in public, but states' policies vary, and several have no mask requirements on the books. This patchwork approach to mask wearing led many to ask whether the federal government should—or even could—issue a national mask mandate under the Public Health Service Act.

But, according to early reports, the Biden administration appears to be circumnavigating the murky constitutionality of a national mask mandate by stopping short of requiring all U.S. residents to wear masks in public. Instead, Biden's executive order is expected to require mask wearing on only federal properties and during interstate travel, such as on planes. Going forward, I'd expect Biden's administration to issue stronger mask wearing and social distancing guidance and lean heavily on states to issue their own mandates—a move that, if states engage, health system leaders nearly unanimously say will reduce community spread while the country works on vaccine distribution.

Biden set a goal of signing a new Covid-19 relief bill by January 30—and that outcome is looking increasingly likely as Democrats in the Senate now have enough votes to approve House-passed funding with support from Harris.

Biden's proposed package, called the "American Rescue Plan," includes many of the items Democrats campaigned on: $350 billion for state and local governments; $50 billion for testing; $20 billion to expand vaccination distribution and cover 100% of FMAP for Medicaid vaccination administration costs; funding to hire 100,000 health care works for contact tracing and vaccine outreach; an additional $1,400 for consumers making less than $75,000; and more. And while the current proposal doesn't include additional Provider Relief Funds, it does include $30 billion for the Disaster Relief Fund, which is likely to help hospitals struggling to get needed supplies—and it's possible Democrats could use their majorities to put Provider Relief Funds back on the table. Biden has said that he’s hoping to get this bill passed with bipartisan support; otherwise Congress will have to resort to the budget reconciliation process, a longer process that Congress has only limited opportunities to use in 2021. It could be an interesting test case to see how much compromise the administration and party are willing to accept.

Expanding access to ACA-compliant health coverage was a pillar of Biden's presidential campaign. And while his plan to create a public option—or, as he dubbed it, "Obamacare 2.0"—is unlikely to see much progress in his first 100 days, Biden can take several actions to rollback Trump-era rules that some critics argue undermine the ACA. For example, Biden can rescind a 2017 executive order that directs federal agencies to consider changes that would loosen federal requirements on association health plans and short-term health plans, which do not have to comply with the ACA's essential health benefits.

HHS under Biden also make administrative and regulatory changes to bolster ACA-compliant coverage, such as reinstituting the 90-day open enrollment period for the federal health insurance exchanges, restoring funding to exchange navigators and outreach, and using the Public Health Emergency to implement a special enrollment period that will allow people who have lost their employer-sponsored coverage to purchase subsidized coverage on the exchanges. And those subsidies are also likely to see a boost, as Biden included additional funding in his "American Rescue Plan."

One of the most interesting things to watch will be how CMS handles Medicaid waivers to implement work requirements and block grant programs, including a first-of-its kind Medicaid block grant waiver for Tennessee. Rolling back these waivers is expected to be a big priority for the Biden administration, but how they go about doing so is complicated.

The process to halt any new approvals is fairly straightforward: CMS can issue new guidance rescinding Trump-era guidance permitting states to enact work requirements and block grant or per-capital funding models. But the approved waivers are trickier.

If the Supreme Court, which is to weigh in on the legality of the Medicaid waiver approvals in Arkansas and New Hampshire, strikes down the waivers, that should close the door on work requirements. But if the Court upholds the waivers, CMS will need to take action. Legally, there are two main paths: CMS could work with states to modify their waivers to remove work requirement language, or CMS can use its authority to withdraw waiver approval on the basis that that the waivers don't align with Medicaid objectives. That said, there isn't a lot of precedent for waiver withdrawal, and the Tennessee waiver goes to great lengths to explain how it supports Medicaid's objectives—at least as they are viewed by the Trump administration. So, I will be watching to see what comes next.

Between the Tennessee waiver and the upcoming Supreme Court case on Medicaid work requirements, Medicaid is sure to be an early focus for the Biden administration.

The new coronavirus put a big spotlight on health care inequities in 2020, and I'd both expect and encourage health care leaders to prioritize health equity in 2021. Biden has made it clear that addressing health inequities will be a key focus for his administration. In addition to making Marcella Nunez-Smith the first-ever presidential adviser who will focus solely on combating racism and racial disparities in health care, Biden has also nominated California Attorney General Xavier Becerra to be HHS Secretary—making him, if confirmed, the first Latino to serve in that role—and Pennsylvania Health Secretary Rachel Levine as assistant secretary of health, making her the first openly transgender federal official requiring Senate confirmation.

Biden's stated focus on health inequities suggest HHS could quickly move to reinstate Obama-era protections that the Trump administration rolled back, such as reversing 1557 regulations that permit providers to discriminate against patients on the basis of gender identity, sex-stereotyping, and sexual orientation. In addition, Biden is likely to repeal an executive order directing federal agencies to consider regulations to address "conscience-based objections" to providing certain health care services.

As I noted, Biden's first 100 days in office are likely to be dominated by the new coronavirus response efforts, impeachment proceedings against Trump, and quickly reversing Trump-era regulations related to health insurance and discrimination in health care. But don't be fooled into thinking Biden's health care agenda throughout his entire term won't include some bigger-ticket items.

Once a majority of Americans are vaccinated and we begin to see Covid-19 cases ease, I'd fully expect Biden to shift his attention to tackling Medicare insolvency, high consumer drug prices, and anti-trust efforts, as well as bolstering price transparency requirements and working to increase participation in value-based payment models.

Joe Biden gets sworn in today as our country's 46th president—and with vaccine distribution and strengthening the Affordable Care Act among his administration's highest priorities, the early days of the new presidency promise to have major health care implications.

Join us tomorrow at 3 p.m. ET as Advisory Board's Christopher Kerns and Ford Koles discuss what Biden's first 100 days may hold for the health care industry and the country at large.