So, you thought the presidential election would be over and the Supreme Court (SCOTUS) would settle the Affordable Care Act (ACA) once and for all and you could get on with planning. Guess again. It is 2020 and nothing is predictable. As we await the results of the presidential election to be certified, we are also looking at the Georgia runoff elections to determine control of the U.S. Senate. Without single-party control of both houses and the executive branch, healthcare change is going to be difficult to push through. Last week, SCOTUS indicated, as expected, that ACA would not be stricken in its entirety. Looking at congressional intent, SCOTUS stated informally, that if they wanted to do so, Congress could have reversed ACA and they didn’t. So, it is pretty clear that the individual mandate may be overturned, but that the balance of ACA will remain. That’s good for the Biden administration whose healthcare platform works off of expanding what ACA started.

Viewpoints from Craig Hasday

The first priority and perhaps toughest challenge will be to get COVID-19 under control.

And with the appointment of Biden’s COVID-19 taskforce and the potentially successful development of a vaccine, a plan seems to be in formulation. Biden has indicated upon taking office, he will make it a priority to reverse President Trump’s executive orders. The two he may find most objectionable are:

  • Presidential Executive Order Promoting Healthcare Choice and Competition Across the United States (which allows association and short-term medical insurance plans)
  • Minimizing the Economic Burden of the Patient Protection and Affordable Care Act Pending Repeal (which orders all executive departments to use best efforts to thwart the Affordable Care Act)
Another at-risk executive order

is the one allowing Health Reimbursement Arrangements to pay for individual insurance purchased on the exchanges.

But there is no doubt the Biden administration will seek to expand access and lower the cost of healthcare.

A Biden administration without Senate control will not likely be able to introduce a public option or further expand Medicaid. And the chances of increasing subsidies or lowering the Medicare eligibility age will be low given the fiscal constraint Americans will be facing. All of these changes would be tough to get through even with Democratic control of the Senate. But progress will be made in any event on Trump’s efforts to eliminate surprise billing, to increase transparency and reduce pharmaceutical prices. The battle to change healthcare in America is raging. This election is a new page and hopefully, we will see much more bipartisan cooperation and that the change results in progress.


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EPIC offers these opinions for general information only. EPIC does not intend this material to be, nor may any person receiving this information construe or rely on this material as, tax or legal advice. The matters addressed in this article and any related discussions or correspondence should be reviewed and discussed with legal counsel prior to acting or relying on these materials.


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Craig Hasday

President, National Employee Benefits Practice