Xavier Becerra, Biden’s HHS Appointee, Anticipated to Support ACA, Access to Care, and Reproductive Rights

Seyfarth Shaw LLP

Xavier Becerra was recently named by President Elect Joe Biden as his appointee to be Secretary of the Department of Health and Human Services. Now that Mr. Biden has been inaugurated, and coupled with the recent change in the control of the Senate, what can we anticipate in health policy from Mr. Becerra’s appointment?

Mr. Becerra served 12 terms in the U.S. House of Representatives, beginning in 1993, representing downtown Los Angeles. Since then, beginning in 2017, he has served as Attorney General of California. During his term as a representative, he supported the Affordable Care Act (ACA), and was a staunch supporter of women’s reproductive rights, receiving a 100 percent rating from NARAL Pro-Choice America and Planned Parenthood in 2012.

He also has been a supporter of a Medicare-for-All or a single payor health care system, although as a member of the Biden Administration it is more likely that he will support robust enforcement, implementation and expansion of the ACA. Mr. Becerra has been a strong defender of ACA in court, in his role as California Attorney General, suing the federal government numerous times to protect ACA. Mr. Becerra can be expected to advance renewed efforts to promote ACA’s subsidized health insurance, persuade states to extend Medicaid to more low income residents, narrow the racial gap in  health care outcomes, and create a public alternative to private  health care plans.

With respect to costs, Mr. Becerra may be expected to support a more aggressive policy on drug pricing and combating the market power of providers and insurers. For example, as Attorney General of California, Mr. Becerra sued a major health system in Northern California, alleging they violated California antitrust laws by engaging in a series of actions, including anticompetitive acquisitions. The health system consists of at least 24 hospital facilities, 31 ambulatory surgical centers, 9 cancer centers, 6 specialty care centers and 8,200 physicians, located in 19 counties in Northern California. This suit is pending.

We also anticipate a more robust enforcement of the Stark Law and the federal health care program Anti-Kickback Statute (AKS) than during the Trump administration. We do not expect a rollback of the regulatory modernizations and reforms to the exceptions and safe harbors adopted under these laws in December, 2020. Nevertheless, a higher level of scrutiny to arrangements among health care providers, particularly those involving physicians, in our view is to be expected.

Finally, as Secretary of HHS, Mr. Becerra will be responsible for the roll out and implementation of the nation’s COVID-19 vaccination program. This will be one of his most important responsibilities, and President Biden has already signaled that COVID will be a key initial priority of the Biden administration. Mr. Becerra’s four years leading the California Department of Justice, a sprawling agency where he was seen as a capable manager, will help on that front. But at least as important will be his ability to attract talented administrators to run the Centers for Medicare and Medicaid Services, which has been the tip of the spear for federal health policy.

Beyond the foregoing, one of the main roles played by the Secretary of HHS is to set the tone for the Department. Becerra’s record shows that, rather than minimization and disengagement, he will stand for outreach and expansion of the role of the federal government in health care.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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Seyfarth Shaw LLP

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