Biden uses executive orders to address COVID-19, other health care issues

Early signings indicate a desire to quickly reverse Trump administration policies and outline his own priorities

President Joe Biden sits in the Oval Office as he signs a series of orders at the White House after being sworn in on Jan. 20, 2021. (Jim Watson/AFP via Getty Images)
President Joe Biden sits in the Oval Office as he signs a series of orders at the White House after being sworn in on Jan. 20, 2021. (Jim Watson/AFP via Getty Images)
Posted January 21, 2021 at 7:00am

President Joe Biden’s extensive use of executive orders Wednesday to jump-start his presidency and his plans to sign several more this month demonstrate his desire to act swiftly, without waiting for congressional approval, on issues such as COVID-19. 

Experts expect him to continue to leverage executive powers to advance his health care agenda. The early wave of executive actions suggests he’ll try to quickly reverse current policies from the Trump administration and outline his own priorities as the United States approaches the grim milestone, projected as soon as next month, of half a million COVID-19 deaths.

The orders Biden signed on Wednesday include one creating the office of “COVID-19 response coordinator.” Another mandates that people wear face masks on federal property. A third reverses the United States’ withdrawal from the World Health Organization. 

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National strategy

The orders come as Biden seeks to advance a national strategy to address the health crisis, which the administration argues has been missing for the past year.

“For almost a year now, Americans could not look to the federal government for any strategy, let alone a comprehensive approach to respond to COVID, and we’ve seen the tragic costs of that failure,” Jeff Zients, the White House COVID-19 response coordinator, told reporters on a Wednesday press call.

On Thursday, Biden is set to sign 10 more orders or directives to address the pandemic, including plans to safely reopen schools and businesses, expand testing, protect workers and set clear public health standards.

One of those orders seeks to shore up supplies such as N95 masks, gloves, gowns and nitrocellulose material for rapid antigen tests, including by invoking the Defense Production Act. That would also apply to supplies needed to manufacture and distribute COVID-19 vaccines, a top priority for the new administration. Biden also plans to direct the Federal Emergency Management Agency to reimburse states at 100 percent for costs related to National Guard personnel and supplies to respond to the pandemic.

Biden also would create a governmentwide testing board.

The administration is also moving to ramp up distribution of vaccines, including by establishing federally supported community vaccination centers and a program to make vaccines available at local pharmacies through the Centers for Disease Control and Prevention. The Public Health Service Commissioned Corps is expanding its workforce and preparing to be deployed as part of that effort.

Biden plans to sign another order directing the departments of Education and Health and Human Services to provide guidance for schools and day cares to safely reopen and collect data about school reopenings and closures.

Another would direct the Occupational Safety and Health Administration to release guidance on how employers can keep workers safe during the pandemic and require people to wear masks in airports and on certain forms of transportation, such as trains, airplanes and some buses. 

Another order would also create a COVID-19 health equity task force, to be led by Biden administration official Marcella Nunez-Smith.

Biden will also seek to bolster the United States’ global leadership with a directive to support the international health and humanitarian response to the pandemic.

Anthony Fauci, director of the National Institutes of Allergy and Infectious Diseases and Biden’s chief medical adviser for COVID-19, is set to deliver remarks to an executive board meeting of the WHO early Thursday.

The effort to reengage with the WHO comes as new variants of the coronavirus are emerging and the incoming administration attempts to reset the nation’s vaccination effort.

The early focus on the pandemic underscores what Biden has said is a top concern for the new administration.

“His biggest priority is to get this under control,” said Dan Mendelson, a former Clinton administration Office of Management and Budget health official.

One of the additional health care actions that Biden is expected to take in the coming days is an order to rescind the Mexico City policy, also known as the global gag rule, which prohibits international aid to nongovernmental organizations that perform or promote abortions outside the United States.

Insurance, drug pricing policy options

The incoming administration is likely to reverse Trump administration policies affecting the 2010 health care law, women’s health and Medicaid. Biden froze rules that had not yet taken effect, such as an annual rule affecting HealthCare.gov and the insurance marketplaces that the Trump administration finalized on Jan. 14, months ahead of schedule.

The administration could take steps to reverse Trump administration policies that reduced funding for the HealthCare.gov advertising budget and the navigator program that helps people sign up for insurance coverage; expanded health plans that don’t comply with the 2010 health care law, including short-term plans; and added Medicaid work requirements for some states.

The Biden administration also will “want to make sure they are not just having a defensive agenda but also thinking about how to advance their policy goals,” said Allison Orris, a partner at the legal and consulting firm Manatt Health.

The administration could try to inch toward accomplishing campaign promises like expanding health care coverage or allowing Medicare to negotiate drug prices through regulatory actions or state waivers, but officials may first see how Congress approaches those debates, said former Senate Finance Committee staffer Matt Kazan, an Avalere Health principal.

Role for Innovation Center

Officials could try to approach some goals under the sweeping authority housed within the Center for Medicare and Medicaid Innovation, known as CMMI or the Innovation Center. The office was created under the 2010 health care law to test payment demonstrations under the two federal programs, with the goal of improving cost and quality of care. 

“Because Georgia went the way it went, we probably are going to see more legislative stuff on health care, whether it’s ACA or coverage reform, and potential pay-fors for that are drug pricing issues,” Kazan said, referring to two Senate Democratic seats won in Jan. 5 runoff elections in Georgia. “A question for [the] Biden administration on CMMI is how does a controversial CMMI model being proposed interact with some of those Hill negotiations that may be going on.”

Congressional Republicans targeted the Innovation Center for repeal before Trump took office. Then HHS slowly embraced its power to compel stakeholders to participate in pilot programs that threaten their payment levels. The build-up culminated with Trump’s “most favored nations” drug pricing demo, which would have tied drug reimbursements in the Medicare Part B outpatient program to prices paid by other wealthy nations.

That demo was halted by federal courts last month over the Trump administration’s decision to bypass federal rule-making procedures. Policy experts expect the Biden administration to let the rule die, but the cases mark the first instance in which CMMI’s authority will be tested. An adverse ruling could significantly restrict the Innovation Center’s power and limit Biden. 

Biden will also have to contend with the financial viability of Medicare after massive spending during the pandemic. The Congressional Budget Office now projects that spending could begin outstripping revenues in Medicare’s hospital fund as soon as 2024.

In the past, Congress acted each time the trust fund’s shortfall outlook dipped below five years, and Biden will need lawmakers’ help in staving off Medicare’s demise. Lawmakers can choose to target either high-volume or high-margin sectors of the program, Spencer Perlman, director of health care research at Veda Partners, said in an investor note. 

Changes to Medicare Advantage payment benchmarks and the prescription drug benefit design are the most likely, Perlman said.

“On the other hand, we note that Congress is almost evenly divided politically, meaning extreme legislative policies are very unlikely to emerge from the lawmaking process,” he wrote. “Bipartisanship is likely to play a critical role in developing healthcare policy and Republicans are generally supportive of MA and prescription drug manufacturers.”