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Planning for 2021: Is It Too Soon?

By Topic: Law Policy and Regulation Leadership Affordable Care Act By Collection: Blog


The beginning of a new administration always brings apprehension and anticipation. How dramatically will the President change the trajectory of the country, if at all? Who will take leadership roles in the Executive Branch, and will Congress enhance or defeat the new President’s priorities?

As I wrote on Jan. 27, President Biden taking on the COVID-19 pandemic is Job #1, protecting and strengthening the Affordable Care Act is a close second priority. The public’s attention will center on those two directives in 2021—what issues off the media grid will be of equal importance to healthcare executives?

Who Will be in Charge?

Senate hearings for U.S. Health and Human Services Secretary-Nominee Xavier Becerra have not been scheduled, although with Democrats in control, the confirmation process of the current Attorney General of California should be successful.

Within HHS, we do not know yet who will lead the Centers for Medicare & Medicaid Services, although a policy official instrumental in passing the ACA, Chiquita Brooks-LaSure, is said to be a leading candidate, as is Mandy Cohen, MD, the Secretary of the North Carolina Department of Health and Human Services. We are also waiting to know who will lead the U.S. Food and Drug Administration and most of the remaining 11 operating divisions under HHS.

These positions are instrumental in implementing President Biden’s healthcare priorities, and each will be filled with an individual with their own stamp and style. Even so, it is possible to make predictions in several areas, reliable enough for executives to start making plans before the Biden Administration is fully formed.

Planning for 2021

Despite the concerns of the industry, site-neutral payments are likely to continue under the Biden administration, especially because the D.C. Circuit Court of Appeals permitted HHS the authority to reduce reimbursements for off-campus provider-based hospital outpatient departments last July. (Check out resources from American Hospital Association on the site-neutral payment issue.)

Similarly, do not expect the new team at CMS to change course on Appropriate Use Criteria, requiring orders for advanced imaging (including MRIs and CT scans) on Medicare beneficiaries to cite the mandated “knowledge base” to be reimbursed. The AUC requirement begins January 2022; preparations to prevent reimbursement disruption for emergency rooms, outpatient departments, ASCs, physician offices and other providers will require focus throughout 2021. AHA has multiple resources on the AUC rules here.

A third initiative that will consume much of 2021, also a continuation of HHS policy under former President Trump, is the Price Transparency Rule, which went into effect on Jan. 1. Despite long-term protestation by both the insurance and hospital industries, with transparency a core foundation of the ACA, the Biden Administration is unlikely to roll back the regulation. The “many” hospitals that are delaying publication of pricing information, or those that are not meeting the required posting of at least 300 service prices, should not anticipate a kinder reception for noncompliance under the new federal leadership.

The new Physician Self-Referral Law (Stark) and Anti-Kickback Statute Regulations released Nov. 20 (to promote greater coordination of care and partnership possibilities between hospitals and physicians) were envisioned as long ago as 2009 and also will not change under the Biden Administration.

Other initiatives from the Biden-led HHS will be familiar to all healthcare executives; a continuing focus on value-based reimbursement models (including continuing the move from MIPS to MIPS Value Pathways announced September 2020), the quest for interoperability, the sustained advancement of telemedicine, and searching for effective containment of drug prices (it is arguable President Biden might want to follow Trump’s “Most Favored Nation” strategy, even though it is being challenged on procedural grounds under the Administrative Procedures Act.)

Are We on a New Course?

Does this list of healthcare initiatives sound remarkably familiar? Even boring?

The media focuses on how President Biden is following the trajectory of the Obama era. What would surprise many is how many Biden healthcare initiatives will be continuations of Trump policy, especially in the arenas of pricing, transparency and technology.

There are significant differences between this administration and the last, as demonstrated by President Biden’s executive orders addressing equity and “consistent and systemic fair, just and impartial treatment” of all individuals, the expansion of nondiscrimination protections for the LGBTQ community, and several orders that changed the nature of federal involvement in the COVID-19 pandemic.

However, under all that turbulent water, there are deep streams of consistent direction across all administrations for the last two decades.

The flow toward better outcomes from evidence-based care, achieving patient-centered care for all, enhancing workforce sustainability and bringing efficiency to our system is the “True North" of American healthcare. The Biden Administration will have its own diversions and mandates, but the direction will remain the same. Healthcare executives can chart their course on that certainty.


Sarah Fontenot joined the ACHE faculty in 2007 and has been the Adjunct Professor for health law in the Department of Health Care Administration at Trinity University since 1997. Her twice-monthly newsletter, “Fontenotes,” provides clear information about today’s healthcare system.