Biden Regs Could Target Payer Testing Liability, Medicaid

November 16, 2020

Biden Regs Could Target Payer Testing Liability, Medicaid

Biden Regs Could Target Payer Testing Liability, Medicaid

Reprinted with AIS Health permission from the November 13, 2020, issue of Health Plan Weekly

Now that the presidential race has been called for Joe Biden, policy experts are predicting that his administration’s health care agenda will be accomplished mainly through executive action. That’s a consequence of the likelihood of a divided Congress, along with the Trump administration’s reliance on executive authority to implement its health care policies, many of which the new administration will want to reverse.

Naturally, the most pressing issue for Biden will be the increasingly out-of-control COVID-19 pandemic. Along with vaccine planning and distribution, experts say that other areas of employer concern like testing and workplace safety are certain to see significant action from the White House. The new administration will also step up efforts to mitigate the devastation the pandemic has wrought on communities of color and low-income workers. Experts also predict the Biden administration will assess which Trump administration executive actions to revise or reverse, a process that could include Medicaid work requirements.

Avalere Health Founder Dan Mendelson suggests health insurers would do well to reach out to the new administration, especially since most carriers are sitting on unusually large cash reserves due to low care utilization early in the pandemic (HPW 10/30/20, p. 1).

“Health plans will have to work collaboratively with the federal government to figure out their place in coverage and payment for therapies and vaccines associated with COVID-19,” Mendelson says. Having served in the Clinton administration, Mendelson has extensive contacts in the Democratic Party health care policy community. “There are some members of Congress who will be coming into the administration who believe that health plans should be paying for a good portion of these costs through the excess profitability generated during these volume reductions.”

On a similar note, Ashraf Shehata, KPMG national sector leader for health care and life sciences, says that a change in administrations is an opportunity for the managed care industry to reintroduce itself to policymakers.

“I do think there will probably be an opportunity with any new administration to at least hear out the industry a little bit more,” Shehata tells AIS Health. “I think the payers specifically always want to have a more collaborative approach. There is obviously still a big set of activities in managing COVID and managing the vaccine distribution.”

So far, payers have responded warmly to the new administration. America’s Health Insurance Plans President and CEO Matt Eyles released a statement on Nov. 7 congratulating Biden on his election, adding that the trade group looks “forward to working with the new Administration to deliver a competitive system that leverages private sector innovation to improve on what is working.”

Though Shehata is cognizant of the financial risk to insurers posed by increased requirements for COVID-19 testing, he says a more muscular federal pandemic response — bolstered by payer input and cooperation — can help health plans offset some of that liability.

Coordination with the government will help plans “manage forward potential impacts with medical trend,” Shehata explains. “There’s still uncertainty: we’re seeing spikes again, and concern over infection rates. Certainly we’re seeing better management of hospitalizations, which is positive.”

Biden May Reconsider Guidance

Mendelson predicts that the Biden administration will likely revisit guidance issued by the Trump administration around testing payment requirements. At present, HHS has determined that only “medically necessary” testing be offered to plan members without cost sharing.

“I think that there will be a willingness to delimit what kind of testing is required, and to only include that as part of a benefit,” Mendelson says. “There are people who want to go much further and say up to a test a week is covered. Who’s to say what is medically necessary or not in this case? There are a lot of people who would like to be tested weekly because they have a loved one at home who has an issue, or because they are immunocompromised [themselves], and have their employers pay for it. The Biden crew has already said testing should be free. The question now is, who should be paying for it? So, OK, if it’s going to be free to the consumer, the choices are the health plans, the provider, the employer or the government.”

Along those lines, Michael Bagel, director of public policy for the Alliance of Community Health Plans, says he hopes the new administration will engage stakeholders as it develops testing policy.

“We look forward to working with the administration on a national testing strategy that brings together the federal government, health plans, providers, labs, employers and patient advocates,” Bagel tells AIS Health. That process would ensure “we’re not just pushing the burden on one [stakeholder], and we’re not leveraging it just for the ability to go back to work, or [only] social reasons or health reasons.” He says he hopes that the national testing plan will “divide the liability” for testing across all the stakeholders he mentioned.

Mendelson adds that employers can expect more detailed guidance on workplace safety from the Occupational Safety and Health Administration (OSHA), and that plans should track what sponsors are expected to do in the workplace. He observes that COVID-19 workplace issues are “interconnected,” and not solely the responsibility of either plan sponsors or carriers.

James Gelfand, senior vice president for policy for the ERISA Industry Committee (ERIC), also tells AIS Health that he expects action from OSHA, and adds that compliance with comprehensive OSHA guidance could accomplish some of the back-to-work liability protection that employers have sought in Congress.

If employers were sued by employees for catching COVID-19 on the job, Gelfand says “that [OSHA] guidance would potentially be used as a safe harbor.”

Focus Will Be on the Vulnerable

Meanwhile, experts say that the new administration will have a more positive view of Medicaid and the communities it serves than the Trump administration. Abner Mason, CEO of ConsejoSano, says that the effectiveness of the pandemic response will depend on how the administration works with vulnerable communities, including communities of color, and that Medicaid managed care plans are a necessary avenue to reach those patients. ConsejoSano is a health tech start-up that specializes in linguistically and culturally aligned Medicaid and Medicare patient outreach for health plans and health systems.

Mason suggests that, by issuing Medicaid guidance, the administration can offset some of the pandemic’s disproportionate impact on low-income workers and communities of color without getting new funding from Congress. He also encourages employers to coordinate with Medicaid managed care plans that serve their employees.

“We’ve got to design a testing strategy that takes into account low-income workers, many of whom are essential workers,” Mason says. “[While] the workplace may be a very good place to do that kind of testing for many of them…I think that the Medicaid managed care plans can be a big part of the solution here, because they already have access to that member and [to the] providers that have worked with that member.”

The Biden administration will also likely revisit controversial areas of the Trump administration’s Medicaid policy, including work requirements. Jerry Vitti, founder and CEO of Healthcare Financial, Inc., tells AIS Health that the Biden administration could have a flexible approach to work requirements, especially if revoking work requirement waivers will lead states to drop Medicaid expansion altogether.

“I’m looking at Medicaid work requirements through the lens of Medicaid expansion, one of the key planks of President-elect Biden’s platform,” Vitti says. “If his end-game is to get red states to expand, a key part of that strategy is to make it palatable for those states’ governors and legislatures to do so. To get buy-in, he will have to show flexibility by allowing states to design Medicaid programs that work for them. In President-elect Biden’s remarks so far, we can see that he’s not trying to shove everything down the throats of Republicans.…My hunch is that the new administration will leave Medicaid work requirements in place but discourage them going forward.”

Gelfand says the administration “could potentially try to develop a framework for partial Medicaid expansions,” though he expects the administration to “get rid of the work requirement stuff on day one.”

Contact Bagel via Dan Lemle at, Gelfand via Kelly Broadway at, Mason and Vitti via Joe Reblando at, Mendelson at, and Shehata via Bill Borden at


by Peter Johnson