The upcoming November election will have a significant impact on health care nationwide. Policy proposals championed by candidates at the federal and state levels could radically change health law and policy in ways that will reverberate in 2025 and beyond.
In this new blog series, the experts at NHeLP will analyze and discuss how various policies would positively or negatively impact access to care for millions of low-income people, people with disabilities, Black, Indigenous, and people of color, LGBTQI+ folks, pregnant people, and those who live at the intersection of those identities. Follow along with NHeLP through Election Day as we explore opportunities and threats to health care in the United States.
In 2017, various efforts were undertaken both in Congress and through administrative actions, to undermine the gains of the Affordable Care Act (ACA). Most of those efforts failed in part because people around the country raised the alarm about the millions of individuals who would lose coverage as a result of the repeal efforts. Less talked about, but equally concerning, were efforts to reduce access to key health care services that are essential for low-income individuals, people with pre-existing conditions, people with disabilities, Black, Indigenous, and People of Color (BIPOC), LGBTQI+ individuals, among others. The outcome of the upcoming federal election will be crucial in determining the fate of these essential services.
The ACA not only reduced the number of uninsured people in the U.S., but it also significantly reduced levels of underinsurance. Prior to the enactment of the law, private plans offered scant coverage for services we now consider basic, such as maternity and newborn care, mental health and substance use disorder services, and rehabilitative and habilitative services and devices. Through the Essential Health Benefits (EHB) provision, the ACA required all non-grandfathered individual and small-group market plans, as well as all Medicaid plans for expansion populations, to offer a minimum level of coverage for these basic services. The EHB requirements have vastly improved coverage and has contributed to improvements in health equity because many of these services are particularly important for underserved populations.
Potential Threats to Essential Health Benefits Coverage
Detractors of the ACA have targeted EHBs, arguing that healthy individuals would be better off purchasing cheaper and less comprehensive plans. As NHeLP said during the 2017 ACA repeal efforts, without the EHB protections, insurers will most likely stop covering critical services and leave individuals without access to the health care they need.
While repeal or undermine efforts did not come to fruition in Congress, the previous administration also engaged in others efforts to undermine the efficacy of the EHB requirements. For instance, the administration finalized regulations that allowed private plans to substitute required benefits for other benefits in a different EHB category. That move essentially allowed insurers to pick and choose benefits avoiding higher cost benefits in certain areas that are particularly beneficial for individuals with chronic conditions.
The finalized rules also required states to report annually to the U.S. Department of Health and Human Services (HHS) whether the state had passed new coverage requirements through state action and was therefore required to use state funds to pay for those services, a process called “defrayal”. This burdensome requirement was meant to disincentivize states from addressing coverage gaps through state action even when the ACA allows them to do so without having to worry about defrayal.
Finally, the previous administration established a new regulatory framework that allowed states to significantly pare down their EHB through the benchmarking process. At least one state considered significantly cutting prescription drug coverage of important treatments for cancer, HIV, and hepatitis C, but fortunately dropped the effort after objections from advocates. The consequences of these actions, some of which were subsequently reversed by the Biden administration, would be to eliminate or limit access to services that are essential for vulnerable populations.
In the next years, Congress may again attempt to repeal the ACA, or significantly roll back its protections, including EHB. It is also possible that many of the above-mentioned administrative policies will return, putting at risk access to key services, especially important for those with higher needs.
Opportunities to Improve Access to Essential Health Benefits
There are also untapped opportunities to build upon the success of the EHB requirements. For example, the ACA requires HHS to periodically review coverage of EHBs and implement policies to address remaining gaps in coverage. HHS has not yet conducted that review despite the enormous opportunity it presents. The next administration will have to decide how to use that authority and whether to establish certain coverage standards that apply uniformly in all states in an effort to address gaps identified during the review process.
To date, HHS has allowed states to define EHB categories using a benchmark process whereby states select a model plan for other plans to follow. This approach has enabled states to expand coverage for certain benefits targeting the needs of their consumers, but it has also led to inconsistent coverage of some benefits and wide variability among states. The next administration could address such inconsistencies by standardizing coverage requirements for certain EHB categories. Detractors of the ACA want the opposite. For example, Project 2025 states that “[HHS] has been overly prescriptive in dictating what benefits and types of health plans may participate in the exchanges, thereby actually stifling market innovation and driving up costs.”
NHeLP has long called for uniform definitions in the areas of mental health and substance use disorders, children’s health, and maternal and newborn care. Similarly, we have stressed the need to strengthen the standard for prescription drug coverage in order to ensure access to key medications for individuals with chronic conditions. This authority to establish federal EHB standards is also the only way in which a federal administration could require plans to cover in-vitro fertilization (IVF) and other fertility treatment under current federal law, as some candidates have proposed. Efforts to undermine the ACA, however, would be contrary to that goal.
The next administration will also have an opportunity to provide guidance to enable states to use current EHB flexibilities. For instance, HHS should clarify the role of states in enforcing requirements related to non-discrimination in plan design. This EHB non-discrimination provision has not been widely enforced by HHS or states; therefore, a favorable administration would be in prime position to offer tools to states to ensure compliance by closely evaluating benefit designs.
In addition, HHS regulations allow states to pass coverage mandates outside of the EHB process without being subject to defrayal only when those mandates are necessary for compliance with federal law. This provision has been significantly underutilized, despite state interest, because lack of guidance from HHS has led to uncertainty and concern that states may nonetheless be required to cover the cost of those mandates. Clear guidance would give states the confidence to address gaps in coverage without having to undergo the entire EHB benchmarking process when lack of coverage for certain services leads to violations of federal non-discrimination laws, behavioral health parity requirements, and other federal laws.
Conclusion
The ACA’s EHB provision has been instrumental in improving access to basic services that were previously unavailable and in reducing health disparities. However, EHBs were targeted during the 2017 ACA repeal efforts and were subject to administrative actions that put their coverage at risk. Given the candidates proposals and approaches to health care policy, the upcoming November election will be decisive in the future of EHBs and for coverage of basic health care services throughout the country.
