Tagged Elections

Health Issues Carried Weight on the Campaign Trail. What Could Biden Do in His First 100 Days?

Joe Biden ran on an expansive health care platform during his 2020 presidential campaign, with a broad array of promises such as adding a government-sponsored health plan to the Affordable Care Act and lowering prescription drug prices. Perhaps most significantly, he pledged to get control of the covid pandemic that claimed more than 400,000 American lives by Inauguration Day.

President Biden now faces major challenges in accomplishing his health care agenda; among the biggest will be bridging partisan divides in both Congress and the nation at large.

Even with the Democrats’ newfound majority in the Senate — the result of victories by the Rev. Raphael Warnock and Jon Ossoff in Georgia’s runoff elections — differences in health policy between the party’s moderate and progressive wings will persist.

“With razor-thin Democratic majorities in both the House and the Senate and many other priorities in addition to health care, Biden is unlikely to succeed in accomplishing all of his health agenda,” said Larry Levitt, executive vice president for health policy at the KFF. (KHN is an editorially independent program of KFF.)

Still, Democratic control of the Senate will allow Biden to pursue some of his health care priorities “using a two-pronged strategy of legislation and executive actions,” Levitt said.

PolitiFact and KHN teamed up to analyze Biden’s promises during the 2020 presidential campaign and will monitor his policies over the next four years to see which ones materialize. But, for now, as Biden settles into the West Wing, what are his chances of making progress on health care?

The Covid Pandemic

In his first 100 days in office, Biden has promised to get 100 million doses of covid vaccine in the arms of Americans and — if Congress provides the funds to do so — get all kids back into schools safely. He asked people to wear face masks in public for those 100 days. He also has repeatedly promised he would get the covid pandemic under control.

Other covid promises include a pledge to double the number of drive-thru testing sites and create a national pandemic testing board. He said he wants to invest $25 billion in covid vaccine distribution and to ensure that every American has access to the vaccine at no cost. He’s also promised to use the Defense Production Act to ramp up personal protective equipment supplies and restore national stockpiles.

During his first two days in office, Biden took steps to accomplish these goals, using executive orders to put in place masking mandates regarding federal buildings and interstate travel — for example, in airports and on commercial aircraft, trains, ferries and intercity bus services — and re-engaging the United States with the World Health Organization. He also issued orders to create a covid response coordinator who will lead the federal government’s efforts for providing vaccination, testing and supplies, set up a national pandemic testing board, establish international travel protocols, use the Defense Production Act to provide necessary supplies and ensure minority communities are provided resources to combat the disease. The White House released a 200-page plan on Thursday that outlines the Biden administration’s strategy to address the covid-19 pandemic.

Some members of his covid leadership team — such as Jeff Zients, tapped to coordinate the White House’s covid response, and Dr. Rochelle Walensky, who will lead the Centers for Disease Control and Prevention — don’t require Senate confirmation, meaning they can get to work right away. But Biden’s pick for Health and Human Services secretary, Xavier Becerra, will need approval by the Senate, a step that will likely be eased because of Democrats’ Georgia victories. Still, how his nomination plays out — as well as Biden’s other selections for posts that require confirmation — could be an early sign of whether the new administration will face strong partisan resistance.

While the executive orders are strong signals of what Biden hopes to accomplish, he will need Congress to fund his plans to expand testing and vaccine distribution. Biden outlined the week before his inauguration in a $1.9 trillion proposal to address covid and the economy. However, the president could face difficulty in getting bipartisan agreement on this plan, with some Republicans criticizing it as too expensive.  It took Congress seven months to pass a second covid relief bill in December.

Other limiting factors include whether the supply of vaccine is adequate to reach 100 million doses and whether organized efforts are put in place to increase testing and ramp up production, said Dr. Georges Benjamin, executive director of the American Public Health Association.

One area in which Biden could face pushback: mask-wearing. Even though he has already issued executive orders regarding mask use in federal buildings, for instance, broader mask mandates fall under individual governors’ authority, and some Republican state executives remain resistant.

Even if Biden makes inroads on that front, Americans will have to accept this step as part of their daily lives. A December KFF survey showed that while most Americans, regardless of party, wear a mask whenever they leave their house, there is still a lag among Republicans.

“I think Biden’s biggest challenges in fulfilling his covid goals are in bringing a divided country together with the bully pulpit of the presidency,” said Levitt. “If testing and the vaccine and mask-wearing are successful in only blue America, then it will be hard to succeed overall.”

Health Insurance

As Barack Obama’s vice president, Biden was instrumental in the enactment of the Affordable Care Act, which expanded health insurance coverage to millions of people but has drawn fierce Republican opposition.

Biden’s health agenda promises to expand the ACA and undo many of the steps taken by President Donald Trump to dismantle it.

“I’ll not only restore Obamacare, I’ll build on it. You can keep your private insurance. If you like it, you can choose a Medicare-like public option,” Biden said during a campaign event in Pittsburgh on Nov. 2.

Adding a government-run public option to other ACA health care plans is one of Biden’s most ambitious pledges. It’s a controversial idea even within the Democratic caucus, where some members want instead to move to a single-payer health plan like “Medicare for All.” Remember the debates during the Democratic presidential primary?

Health policy experts we consulted said implementing a public option seems extremely unlikely in the current environment. So does lowering the Medicare eligibility age from 65 to 60, another divisive idea among Democrats. But both moderates and progressives — even lawmakers across the aisle — might be able to come together on initiatives that could shore up the ACA and make coverage more affordable, such as expanding eligibility for premium subsidies.

Biden doesn’t need Congress to restore parts of the ACA that were changed via regulations issued by the Trump administration. He can instruct agencies to issue new rules that would reverse such Trump initiatives as allowing states to implement work requirements for some adults who gained Medicaid coverage in the ACA expansion of that program. Still, regulatory changes take time. And, in some cases, altering them can be complicated.

Take, for instance, the Trump administration’s rules promoting short-term or association health plans. That metaphorical cat is already out of the bag, said Joseph Antos, a health care scholar at the American Enterprise Institute.

“There are a lot of people insured through those plans and so [changing that policy is] a very tricky thing,” said Antos. “I don’t think it would be wise for him to do anything to reverse that [rule] even though there has been a lot of noise from the left.”

In Antos’ view, the main advantage in gaining Senate control will be helping speed confirmation for key nominations, “which opens the door to new thinking on regulations.”

Drug Prices

On the campaign trail, Biden made clear his intent to bring down prescription drug prices. He promised to lower costs by 60%. Among the related policy ideas he floated: repealing the law that bars Medicare from negotiating lower drug prices and allowing the importation of prescription drugs from other countries.

But details of these proposals aren’t yet available, leaving some experts to question their feasibility.

Of course, the pharmaceutical lobby won’t be enthusiastic about any drug pricing legislation and would likely mount an aggressive campaign to defeat it. And just as with any other proposal, there will be the hurdle of getting Congress to agree on what to include in a drug pricing bill. Plus, given the rapid development of covid vaccines, Capitol Hill may be more sympathetic to the drug industry.

But Stacie Dusetzina, an associate professor of health policy at Vanderbilt University, said it’s possible Biden could succeed in lowering drug prices by limiting drug price increases to the rate of inflation and capping out-of-pocket spending for seniors covered by Medicare.

Both the House and Senate included similar proposals in past drug pricing bills, she said, and “those are both things I think could legitimately move forward, if anything moves forward.”

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.

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Only a Smokescreen? Big Tobacco Stands Down as Colorado and Oregon Hike Cigarette Taxes

Big Tobacco did something unusual in Marlboro Country last fall: It stood aside while Colorado voters approved the state’s first tobacco tax hike in 16 years.

The industry, led by Altria Group, one of the world’s largest tobacco companies, has spent exorbitantly in the past to kill similar state ballot initiatives. In 2018, Altria’s lobbying arm spent more than $17 million to help defeat Montana’s tobacco tax ballot initiative. That same year, it spent around $6 million to help defeat South Dakota’s similar measure.

And four years ago, Altria was the leading funder in a successful $16 million campaign to quash Colorado’s previous proposed tobacco tax increase.

In November, by contrast, Altria didn’t spend a penny in opposition and Colorado voters overwhelmingly approved the tax with two-thirds support. Likewise, in Oregon, Big Tobacco stayed on the sidelines while a tax hike passed there.

The tax measures are major wins for anti-smoking advocates after a string of defeats but, in an example of how politics makes strange bedfellows, Colorado’s tax might not have been possible without Altria’s help. And, advocates said, the way those measures passed could provide a blueprint for states to follow in future elections.

In Colorado, Altria, the parent company of Marlboro cigarette maker Philip Morris, insisted that a minimum price be included in the proposal, according to The Colorado Sun, citing emails between political consultants and Gov. Jared Polis’ office. So while supporters see an increased tobacco tax as more revenue for the state, a disincentive for kids to smoke and a win for public health, the measure could also allow America’s premium tobacco companies to gain market share.

The Colorado measure will increase the total state-levied tax from 84 cents to eventually $2.64 per pack by 2027. The tax rate on vaping products, not currently taxed, will be 30% of the manufacturer’s list price in 2021, gradually increasing to 62% by 2027. The proposition also set the minimum price per pack of cigarettes at $7 as of Jan. 1 and that floor rises to $7.50 in 2024. The change could effectively help premium cigarette companies corner the market, since discount cigarettes would rise to at least $7.

Discount cigarette companies Liggett Group, Vector Tobacco and Xcaliber International — which funded opposition to the tax initiative, Proposition EE — tried to sue the state over the minimum tax provision, alleging “Philip Morris will reap huge benefits from the new legislation” and the changes will “destroy their ability to compete in Colorado.” In December, a federal judge rejected the company’s request for a preliminary injunction. A spokesperson for Liggett said the company plans to appeal.

“When it came to entities like Altria and other stakeholders that we engaged in the legislative process, I think that they saw the writing on the wall,” said Jake Williams, executive director of Healthier Colorado and one of the key organizers behind Proposition EE. “And it helped us get through the legislative process, not just with Democratic votes, but Republican votes to refer the measure to the ballot.”

Altria officials said in a statement that their tobacco companies oppose excise tax increases, but they did not say whether they had worked with Colorado lawmakers.

“Altria did not advocate for or against Proposition EE, and after evaluating the content and intent of this measure, Colorado voters decided to vote in favor of it, some aspects of which were focused on tobacco harm reduction and may help transition adult smokers to a non-combustible future,” the statement said.

Polis’ office did not respond to a request for comment. The Colorado Attorney General’s Office said it would not comment on matters under active litigation. State Democratic Sen. Dominick Moreno and Rep. Julie McCluskie, both state sponsors for the legislation, declined to comment for the same reason. Fellow Democrats Rep. Yadira Caraveo and Sen. Rhonda Fields, also state sponsors for the legislation, did not respond to requests for comment.

Colorado campaign finance records show Altria and Altria’s lobbying arm in 2020 contributed to funds that support both Democratic and Republican candidates in the state — a pattern playing out nationally.

Williams said Altria’s absence of public opposition wasn’t the only factor in the initiative’s success. The tax revenue will initially fund revenue lost during the covid-19 pandemic, then fund tobacco use prevention and eventually preschool education.

The American Lung Association, which supported the Colorado measure, said it believes tobacco taxes are among the most effective ways to reduce tobacco use, especially among youths, who are more sensitive to changes in price. The organization cites studies that found every 10% increase in the price of cigarettes reduces consumption by about 4% for adults and 7% for teens.

“Without tobacco industry opposition, it’s very popular among the public,” Thomas Carr, the association’s director of national policy, said of the tax increase. “We’ve long seen it in polling on the subject.”

There was no major industry opposition to the Oregon increase, either. Its tobacco tax increase — Measure 108 — also got a resounding two-thirds of support. But Oregon didn’t negotiate with Altria lobbyists or set a minimum price provision, according to Elisabeth Shepard, campaign manager for Yes for a Healthy Future.

“I don’t know what the [Colorado] deal was,” Shepard said. “All I know is that before it even made it to the ballot, Altria indicated that they were not going to oppose the measure and stuck with their word.”

While Shepard worried until Election Day whether Big Tobacco would swoop in with opposition in Oregon, it didn’t. She believes her campaign worked because the effort had early resources and money, the tax was targeted to fund the Oregon Health Plan (the state’s Medicaid), and her campaign’s coalition had 300 endorsers, including those in health and business communities.

“We had the left, we had the right, we had the far-right, we had the far-left,” Shepard said.

Her campaign paid its advisory committee members, including representatives from affected communities such as Indigenous Oregonian tribes. At least 30% of American Indian and Alaska Native adults in the state smoke cigarettes. Oregon’s measure increases tobacco taxes $2 per pack, from $1.33 to $3.33, as well as creates a new tax for e-cigarettes. The revenues will help fund an estimated $300 million for the state’s health plan.

Altria did not respond to a request for comment about Oregon tobacco taxes, but the company has previously said it opposed Oregon’s measure.

Shepard believes her campaign model could work in other states. Other anti-smoking advocates took note of the 2020 election.

“We certainly support establishing minimum prices for all tobacco products in conjunction with tobacco tax increases, as we know increasing the price of tobacco products is one of the most effective ways to reduce tobacco use,” said Cathy Callaway, director of state and local campaigns for the American Cancer Society Cancer Action Network.

It could just come down to a state’s voters and its politics, according to Mark Mickelson, a former Republican in South Dakota’s legislature. Mickelson was behind creating his state’s failed 2018 tobacco tax ballot initiative.

“We just got beat,” Mickelson said. The opposition “got ahead of us on the message. They had a lot more money and had just played on doubts that the [tax revenue] money would go to tech ed.”

The average state cigarette tax is $1.88 per pack, but it varies across the country — as high as $4.35 in New York but only 44 cents in North Dakota, where a 2016 ballot initiative to increase that to $2.20 was defeated.

Tax increases can translate into hundreds of millions of dollars in new revenue for states, said Richard Auxier, senior policy associate at the nonpartisan Urban-Brookings Tax Policy Center.

“It’s a little easier to pass a tax on someone else, which is often how this is seen — passing this tax on smokers, rather than passing it on all working people, [compared to] if you were to increase income tax or … a sales tax.”

But not all voters get a say.

In Kentucky, which isn’t a referendum state, Republican state Rep. Jerry Miller said there’s not a lot of sympathy for tobacco companies anymore.

“The agriculture community, which used to be on the same page with cigarette companies, are now always in opposition because the cigarette companies are always trying to tweak their formula to use cheaper tobacco,” he said.

Miller’s recent vaping tax bill failed in the state legislature, but he’s working on a new one.

“We don’t have that tradition or the mechanism that somebody collects 10,000 signatures and they get a referendum on a ballot,” he said. “That’s why things like this have to go through the legislature — and so it really just depends on the state [government].”

Biden’s First Order of Business May Be to Undo Trump’s Policies, but It Won’t Be Easy

The party split in Congress is so slim that, even with Democrats technically in the majority, passing major health care legislation will be extremely difficult. So speculation about President-elect Joe Biden’s health agenda has focused on the things he can accomplish using executive authority. Although there is a long list of things he could do, even longer is the list of things he is being urged to undo — actions taken by President Donald Trump.

While Trump was not able to make good on his highest-profile health-related promises from his 2016 campaign — including repealing the Affordable Care Act and broadly lowering prescription drug prices — his administration did make substantial changes to the nation’s health care system using executive branch authority. And many of those changes are anathema to Democrats, particularly those aimed at hobbling the ACA.

For example, the Trump administration made it easier for those who buy their own insurance to purchase cheaper plans that don’t cover all the ACA benefits and may not cover preexisting conditions. It also eliminated protections from discrimination in health care to people who are transgender.

Trump’s use of tools like regulations, guidance and executive orders to modify health programs “was like an attack by a thousand paper cuts,” said Maura Calsyn, managing director of health policy at the Center for American Progress, a Democratic think tank. Approaching the November election, she said, “the administration was in the process of doing irreparable harm to the nation’s health care system.”

Reversing many of those changes will be a big part of Biden’s health agenda, in many cases coming even before trying to act on his own campaign pledges, such as creating a government-sponsored health plan for the ACA.

Chris Jennings, a health adviser to Presidents Barack Obama and Bill Clinton, said he refers to those Trump health policies as “bird droppings. As in you have to clean up the bird droppings before you have a clean slate.”

Republicans, when they take over from a Democratic administration, think of their predecessor’s policies the same way.

Though changing policies made by the executive branch seems easy, that’s not always the case.

“These are issue-by-issue determinations that must be made, and they require process evaluation, legal evaluation, resource consideration and timeliness,” said Jennings. In other words, some policies will take more time and personnel resources than others. And health policies will have to compete for White House attention with policies the new administration will want to change on anything from the environment to immigration to education.

Even within health care, issues as diverse as the operations of the ACA marketplaces, women’s reproductive health and stem cell research will vie to be high on the list.

A Guide to Executive Actions

Some types of actions are easier to reverse than others.

Executive orders issued by the president, for example, can be summarily overturned by a new executive order. Agency “guidance” can similarly be written over, although the Trump administration has worked to make that more onerous.

Since the 1980s, for example, every time the presidency has changed parties, one of the incoming president’s first actions has been to issue an executive order to either reimpose or eliminate the “Mexico City Policy” that governs funding for international family planning organizations that “perform or promote” abortion. Why do new administrations address abortion so quickly? Because the anniversary of the landmark Supreme Court abortion decision Roe v. Wade is two days after Inauguration Day, so the action is always politically timely.

Harder to change are formal regulations, such as one effectively banning Planned Parenthood from the federal family planning program, Title X. They are governed by a law, the Administrative Procedure Act, that lays out a very specific — and often time-consuming — process. “You have to cross your t’s and dot your legal i’s,” said Nicholas Bagley, who teaches administrative law at the University of Michigan Law School.

And if you don’t? Then regulations can be challenged in court — as those of the Trump administration were dozens of times. That’s something Biden officials will take pains to avoid, said Calsyn. “I would expect to see very deliberate notice and comment rule-making, considering the reshaped judiciary” with so many Trump-appointed judges, she said.

What Comes First?

Undoing a previous administration’s actions is an exercise in trying to push many things through a very narrow tube in a short time. Department regulations have to go not just through the leadership in each department, but also through the Office of Management and Budget “for a technical review, cost-benefit analysis and legal authority,” said Bagley. “That can take time.”

Complicating matters, many health regulations emanate not just from the Department of Health and Human Services, but jointly from HHS and other departments, including Labor and Treasury, which likely means more time to negotiate decisions among multiple departments.

Finally, said Bagley, “for really high-profile things, you’ve got to get the president’s attention, and he’s got limited time, too.” Anything pandemic-related is likely to come first, he said.

Some items get pushed to the front of the line because of calendar considerations, as with the abortion executive orders. Others need more immediate attention because they are part of active court cases.

“You have all these court schedules and briefing schedules that will dictate the timeline where they make all these decisions,” said Katie Keith, a health policy researcher and law professor at Georgetown University.

The Trump administration’s efforts to allow states to set work requirements for many low-income adults who gained Medicaid coverage under the Affordable Care Act’s expansion of the program is the highest-profile Trump action that falls into that latter category. The Supreme Court has agreed to hear a case challenging HHS approval of work requirements for Arkansas and New Hampshire in the next few months. Some Democrats are concerned about how the high court, with its new conservative majority, might rule, and the Biden administration will have to move fast if officials decide they want to head off that case.

But court actions also might help the Biden administration short-circuit the onerous regulatory process. If a regulation the new administration wants to rewrite or repeal has already been blocked by a court, Biden officials can simply choose not to appeal that ruling. That’s what Trump did in ending insurance company subsidies for enrollees with low incomes in 2017.

Allowing a lower-court ruling to stand, however, is not a foolproof strategy. “That raises the possibility of having someone [else] intervene,” said Keith. For example, Democratic attorneys general stepped in to defend the ACA in a case now pending at the Supreme Court when the Trump administration chose not to. “So, you have to be pretty strategic about not appealing,” she said.

Adding On?

One other big decision for the incoming administration is whether it wants to use the opportunity to tweak or add to Trump policies rather than eliminate them. “Is it undoing and full stop?” asked Keith. “Or undoing and adding on?”

She said there is “a full slate of ideologically neutral” policies Trump put out, including ones on price transparency and prescription drugs. If Biden officials don’t want to keep those as they are, they can rewrite them and advance other policies at the same time, saving a round of regulatory effort.

But none of it is easy — or fast.

One big problem is just having enough bodies available to do the work. “There was so much that undermined and hollowed out the federal workforce; there’s a lot of rebuilding that needs to done,” said Calsyn of the Center for American Progress. And Trump officials ran so roughshod over the regulatory process in many cases, she said, “even putting those processes back in place is going to be hard.”

Incoming officials will also have other time-sensitive work to do. Writing regulations for the newly passed ban on “surprise” medical bills will almost certainly be a giant political fight between insurers and health care providers, who will try to re-litigate the legislation as it is implemented. Rules for insurers who sell policies under the ACA will need to be written almost immediately after Biden takes office.

Anyone waiting for a particular Trump policy to be wiped from the books will likely have to pack their patience. But law professor Bagley said he’s optimistic it will all get done.

“One of the things we’ve grown unaccustomed to is a competent administration,” he said. “When people are competent, they can do a lot of things pretty quickly.”