With Pandemic as National Emergency, Biden Could Enact Medicare for All by Executive Action—But Will He?

Common Dreams – by Kenny Stancil – November 17, 2020

Journalist David Dayen presented a convincing case Tuesday that President-elect Joe Biden, once sworn into office come January, would have the legal authority to immediately provide complete Medicare coverage to everyone in the country via executive action due to the Covid-19 pandemic—though the very serious question remains: would he?

During the primary season in March, Biden said he would veto a Medicare for All bill should one ever reach his desk, but with the coronavirus infection rate surging—and some scenarios projecting an overall death toll as high as 360,000 by the time the inauguration takes place—is it possible that conditions on the ground could move him on the popular demand for a single-payer solution to the nation’s public health crisis?

“I do not expect Joe Biden to use this power on Inauguration Day to instantly turn the United States into a single-payer country,” Dayen wrote in The American Prospect. “But there’s nothing in the law that would appear to prevent him from doing it.”

According to Dayen, the government has “pick[ed] up the exorbitant healthcare costs for individuals… subject to a dangerous environmental hazard” before. Explaining the precedent, he wrote:

The people of Libby, Montana, population 2,628, share something in common with the rest of the developed world, but not their compatriots in the United States. They all have access to a single-payer, Medicare for All system.

As part of the Affordable Care Act, the residents of Libby, who were exposed to hazardous airborne asbestos from a vermiculite mine owned by the W.R. Grace Company, were made eligible for Medicare, for free, at the discretion of the Social Security Administration and the Department of Health and Human Services (HHS). It was codified in Section 1881A of the Social Security Act.

While Section 1881A was used to protect the residents of Libby who were exposed, “through no fault of their own,” to deleterious conditions “that would trigger long-term medical complications,” Dayen noted that “the language of the statute refers to any individuals subject to an ‘environmental exposure'” and therefore conveys a principle that could be applied more broadly.

What is the coronavirus pandemic, if not a public health catastrophe on a much grander scale than the one experienced in a small town in Montana?

“There’s an environmental health hazard spreading through the entire country right now,” Dayen wrote. “It’s infecting people unsuspectingly and killing hundreds of thousands. It’s bound to saddle those who survive with long-term and potentially debilitating health consequences.”

By invoking Section 1881A, Dayen continued, “the incoming Biden administration can give all 11 million people infected with Covid-19 [or] all Americans who have tested positive for coronavirus the option of free Medicare coverage, immediately.”

“The executive branch is also given the authority to establish ‘optional pilot programs’ to any area subject to a public health emergency declaration,” which, according to Dayen, means that “HHS could create a specific pilot program around Covid-19.”

The entire United States has been under a public health emergency since near the beginning of 2020 due to the coronavirus pandemic. As Dayen explained, if Biden’s Environmental Protection Agency administrator declared “a separate public health emergency under the Superfund law to comply with the statute,” then individuals who “have spent six months in the geographic area subject to the emergency”—the whole country—would be eligible for Medicare.

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Posted by Teri Perticone

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