Biden Hits the Ground Running Signing Executive Orders on First Days … Affects Employee Benefits Plans

President Biden wasted little time putting pen to paper on 17 executive orders on his first day in office – starting on inauguration day – including orders that imposed a mask mandate on all federal property and rejoining the Paris Climate Accord and World Health Organization. On January 28, 2021, Biden signed into law an executive order intended to bolster the Affordable Care Act (ACA) by opening up open enrollment for the Exchange Marketplace. Additionally, a regulatory freeze will halt any new rules from taking effective until after March 31, 2021. See below for details on this, as well as the other Biden executive orders to-date.

Executive Orders

Topic	Summary
COVID-19 Economic Relief	Biden’s “Buy American” executive order beefs up requirements for the federal government to source American products. Organize the White House to combat COVID-19.
Equity	Support for under-served communities to create equal opportunities. Eliminate private prisons. Prohibiting Transgender/Gender Identity or Sexual Orientation Discrimination. Require review of all laws to amend in consideration of equal treatment mandate, regardless of gender identity or sexual orientation by April 30^th, 2021. All plans will be required to cover (again!) treatments for transgender treatment. Revises Section 1557 regulations that recently removed such protections, and updating plan documents and notices as necessary.
Climate	Back in the Paris Climate Accord in 30 days. Moratorium on Trump Administration oil and gas leasing in the Artic Wildlife Refuge. Revoking Keystone XL oil and gas pipeline. Evaluation of Trump Administration freeze on vehicle mileage and emissions standards.
Healthcare (Thursday Jan. 28^th)	Rescind policy blocking federal funding for non-governmental organizations that provide abortion services. Expand Exchange Marketplace open enrollment from February 15 to May 15, allowing more to sign up for health insurance. Order review of existing rules to address affordability and access to healthcare. In Support of Affordable Care Act protections. Remove block grants that allowed States to include work provisions for Medicaid eligibility. Read the White House Fact Sheet
Immigration	Border processing and refuges policies family reunification. Ending Muslim ban. Ending construction of the border wall. Deferred Action for Childhood Arrivals (DACA) preservation — Trump ending of the program under court challenge currently. Reverse Trump plan to exclude illegal residents from being counted in the census. The every-ten-year census is used to determine how many congressional seats and electoral college votes each states receives, as well as distribution of federal spending dollars.
Student Debt	Extend pause on federal student loan payments through Sept 30 (set to expire in January). Extended twice under Trump. A massive debt forgiveness pushed by other Democrats was not included in the Biden order, opining such an action should come from Congress. Foreclosures & eviction moratorium until March 31, 2021.

Biden’s Regulatory Freeze and What it Means for Health Plans. It’s Important!

Biden issued a regulatory freeze Memorandum on January 20^th prohibiting the Office of Management and Budget (OMB) (responsible for Federal Register regulations promulgated in the post legislation signing and during the rulemaking process effectuating the new law or rule). The “OMB” is prohibited by the Memorandum from publishing new rules absent an emergency. This rule attempts to stop the so-called “midnight regulations,” left over from the Trump Administration and passed in his final days. These regulations will be halted and reviewed pursuant to the Congressional Review Act. Any rules within the look-back period (this year going back to August 21, 2020) may be halted for review to give the new Administration the opportunity to review any rules the Trump administration tried to finalize in its last days.

For any new rules already published in the Federal Register but not yet effective, the OMB is to consider postponing the rules’ effective dates for 60 days after the date of the Executive Order (3/22/21) and consider a public comment period of 30 days during this time.

Rules this may affect include a non-exhaustive list of the following:

Proposed rules on wellness program discrimination.
Transparency in Pricing.
Prohibited Transaction Exemption for investment advice fiduciaries; set to take effect February 16^th, 2021.
Health insurer and cost-sharing/coverage transparency.
Short-term Limited Duration Health Plans (a.k.a., STLDI) – Trump Administration made it easier to substitute ACA-compliant plan in the individual market with coverage of limited scope and duration (less than 12 months, instead of pre-Trump 6 months).
Codifying definition of “independent contractor” (set to become effective on March 8^th).
Individual Coverage Health Reimbursement Arrangement / Excepted Benefit HRAs (ICHRA and EBHRA, respectively), including new final regulations addressing the application of the Affordable Care Act (ACA) Applicable Large Employer and Nondiscrimination Rules for ICHRA.
ACA grandmothered plan extension of non-ACA compliant individual and small group policies.
Expanding employer coverage for contraceptives and rescinding policy requiring separate payments for abortion coverage (set to be a consequence of Executive Order for January 28^th).
Payment Notice Parameters governing the Affordable Care Acts (ACA) Exchange Marketplaces and insurance plans, including eliminating Marketplace enrollment function in favor of agent/broker enrollment.

Rulemaking, and the undoing of the rules, takes time. The effects will sometimes be unintended but should include some lead time to begin compliance with any changing rule. Be sure to sign up for Leavitt Group news alerts at news.leavitt.com for upcoming details as Congress works through the Biden stimulus proposal package and any industry-relevant Orders, including which regulation to expect further delays or postponed effective dates. Leavitt Group is your trusted advisor for compliance!

The information herein is educational only and not intended as legal advice.