On January 28, 2021, President Biden signed the “Executive Order on Strengthening Medicaid and the Affordable Care Act” which, among other things, ordered a special enrollment period (SEP) for the federal Health Insurance Marketplace offered by the HealthCare.gov platform. The Executive Order also directs the Secretary of HHS to review all existing regulations and agency policies to determine whether they are consistent with the stated goal to “protect and strengthen Medicaid and the [Affordable Care Act].” Finally, the Executive Order revokes two earlier orders invoked by the Trump Administration.

The Executive Order cites “the exceptional circumstances caused by the ongoing COVID-19 pandemic” as the reason for the SEP. Pursuant to the Executive Order, CMS announced that the SEP will be open beginning February 15, 2021 through May 15, 2021. The SEP will apply to the 36 states utilizing the federal Marketplace platform. CMS has encouraged states operating their own health insurance platforms to make a similar enrollment opportunity available to consumers in their states.

The Executive Order also charges the Secretary of HHS to perform an “immediate review” of its current regulations and policies to determine whether those regulations and policies are inconsistent with the goals of Medicaid and the Patient Protection and Affordable Care Act (ACA). The review pertains to existing regulations, orders, guidance documents, policies, and any other similar agency actions. Specifically, the following areas are enumerated in the Executive Order for review:

• policies or practices that may undermine protections for people with pre-existing conditions, including complications related to COVID-19, under the ACA;
• demonstrations and waivers, as well as demonstration and waiver policies, that may reduce coverage under or otherwise undermine Medicaid or the ACA;
• policies or practices that may undermine the Health Insurance Marketplace or the individual, small group, or large group markets for health insurance in the United States;
• policies or practices that may present unnecessary barriers to individuals and families attempting to access Medicaid or ACA coverage, including for mid-year enrollment; and
• policies or practices that may reduce the affordability of coverage or financial assistance for coverage, including for dependents.

Based on these parameters, the Secretary of HHS is to “consider whether to suspend, revise, or rescind” and publish for notice and comment its proposed rules regarding any suspensions, revisions, or repeals.

Finally, the Executive Order revokes Executive Order 13765 of January 20, 2017 (Minimizing the Economic Burden of the Patient Protection and Affordable Care Act Pending Repeal), and Executive Order 13813 of October 12, 2017 (Promoting Healthcare Choice and Competition Across the United States).

The Executive Order is available here.

CMS’s press release regarding the SEP is available here.