Grocery store.

How Restrictions on SNAP Harm Health

By Molly Prothero

One of President Biden’s earliest actions in office was to sign an executive order asking Congress and the US Department of Agriculture (USDA) to expand the Supplemental Nutritional Assistance Program (SNAP).

President Biden proposed that Congress extend the 15% SNAP benefit increase, originally passed in late December. Biden’s executive order also directed the USDA to issue new guidance documents enabling states to increase SNAP allotments in emergency situations and update the Thrifty Food Plan, the basis for determining SNAP benefits, to better reflect the cost of a nutritious diet today.

President Biden’s actions stand in sharp contrast to Trump, who sought to limit the reach of SNAP benefits during his time in office. In December 2019, Trump’s USDA issued a final rule restricting SNAP eligibility for unemployed adults without dependents.

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U.S. Capitol Building at Night

How a Public Option Would Lead to Single Payer

By Abe Sutton

This past Democratic Party presidential primary season highlighted the differences between the health policy approaches championed by Senator Sanders and President Biden.

But, despite short-term distinctions and differences in services covered between Medicare For All’s single payer and a public option built on the Affordable Care Act, I believe that in the long run, these approaches are indistinguishable. This is because a public option would lead to single payer over time.

In this post, I walk through three ways that many public option proposals would pave the way for single payer.

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WASHINGTON, DC - OCT. 8, 2019: Rally for LGBTQ rights outside Supreme Court as Justices hear oral arguments in three cases dealing with discrimination in the workplace because of sexual orientation.

It’s Time to Update the ACA’s Anti-Discrimination Protections

By Jenna Becker

Assuming that the Affordable Care Act (ACA) withstands its most recent challenge in California v. Texas, the Biden administration should prioritize as a future reform the codification of clearer nondiscrimination standards.

The ACA’s Section 1557, which provides anti-discrimination protections, has been fraught with challenges. Section 1557 incorporates nondiscrimination protections from four separate civil rights statutes. This vague language allows administrations to offer widely differing interpretations of healthcare anti-discrimination protections.

In a 2016 rule, the Obama administration interpreted Section 1557 broadly, including protections based on gender identity and sexual orientation, as well as specific language access requirements. Many of these protections were eliminated in a 2020 rule promulgated by the Trump administration.

It’s time to end these fluctuating standards. The Biden administration should work with Congress to add clearer nondiscrimination protections to the ACA.

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U.S. Capitol Building at Night

Advantages of Using the Congressional Review Act to Revoke Health Care Waivers

By Matthew B. Lawrence

The Trump Administration has granted health care waivers that the Biden Administration will surely look to end, including work requirement waivers that the Supreme Court is going to consider in Azar v. Gresham. How the Biden Administration approaches this task may set precedents that last far into the future, which is one argument in favor of considering the Congressional Review Act as a potential path forward.

Waivers are a huge part of health policy. They entail a state seeking approval from the federal government to make various changes to ACA or Medicaid programs. Waivers are normally approved for several years at a time, and routinely renewed. They foster experimentation, and are also (or especially) a tool the federal government uses to steer national health policy by pushing states to adopt some reforms and not others, as I explain in a forthcoming article.

Over at the Yale Journal of Regulation blog, I describe how the Congressional Review Act (CRA) could potentially be used to revoke health care waivers (like community engagement, aka work requirement, waivers).

In brief, the CRA is a way Congress can change the law to revoke agency actions without the votes necessary to override a filibuster. The CRA might be a cleaner alternative for revoking health care waivers than administrative revocation by the Biden Administration. One big policy advantage of this route is that it wouldn’t come back to haunt health policy. Revocations through the administrative process would set a precedent that could undermine the stability of all waivers, but revocations through the CRA would not.

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a pill in place of a model globe

Issuing the Most Favored Nation Interim Final Rule Was a Mistake

By Abe Sutton

While the Most Favored Nation (MFN) Interim Final Rule (IFR) advances a well-calibrated policy to standardize pharmaceutical prices across developed nations, procedurally, its issuance was a mistake.

The Trump administration would have been wiser to issue a Notice of Proposed Rulemaking (NPRM) for two reasons: first, an NPRM would have circumvented some of the procedural vulnerabilities of the IFR. And second, had the Trump administration issued an NPRM, President-Elect Biden’s team would have faced significant pressure to finalize the policy.

In this post, I touch on what MFN is, examine why the interim final rule is legally vulnerable, explore why the Biden team likely would have adopted the policy had an NPRM been issued, and explain how industry should think about this situation.

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Close-up Of Stethoscope On Us Currency And American Flag.

Short-Term, Limited-Duration Insurance May Be Here to Stay

By Abe Sutton

Short-term, limited-duration insurance (STLDI) may be here to stay despite legal attacks, poor branding, and a potential Democratic victory in the upcoming Presidential election.

Though the Obama administration curtailed STLDI, it is now likely to endure due to black letter administrative law and changes in circumstance since 2016.

In light of this, a potential Biden administration should package legislation codifying the current regulations with legislation increasing individual market subsidies. A package along these lines could appeal to both sides of the aisle.

In this post, I provide an overview of what STLDI is, explain why administrative law precedents complicate the reversal of current regulations, and propose a path forward for a potential Biden administration. Read More

a stethoscope tied around a dollar bill, with a bottle of pills nearby

Can We Expect Legislation on Surprise Medical Billing? I’d Be Surprised

By Abe Sutton

Surprise medical billing has emerged as a top political priority amid a torrent of complaints about expensive balance billing.

Despite leaders such as President Trump, former Vice President Biden, and members of the 116th Congress pledging to address surprise medical billing, federal legislation is unlikely, due to powerful health associations’ divergent interests. To shake legislation loose, the President would need to publicly take a side and expend political capital on a creative solution.

In this piece, I walk through why federal legislative action has been stymied to date, and what it would take to get surprise medical billing legislation over the line.

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