TRUMP'S EXEC ORDER: ACA Repeal Pt 1

Friday night, from the newly redecorated Oval Office, President Trump signed his first executive order, titled "Minimizing the Economic Burden of the Patient Protection and Affordable Care Act Pending Repeal." Earlier this week, Vice President Pence said,

“Any American who has insurance today, through an ‘Obamacare’ exchange or through the Obama plan itself, should have no anxiety about losing their insurance.”

But the signing of this executive order suggests an ACA repeal will happen sooner than later. This executive order expresses an urgency to move as swiftly as the law allows. Until the federal law can be fully repealed and defined, Trump plans to use the executive order to relieve the economic and regulatory burdens by...

• Empowering HHS and other agencies. HHS (The Department of Health and Human Services), CMS, CCIO and other agencies may be allowed to waive, delay or grant exemptions from ACA provisions for virtually anyone "harmed" by the law... whatever that means. This order could mean waiving the individual mandate, forgiving the penalties for not having coverage, eliminating the insurance carrier tax or the large employer mandate and reporting. This section may become more clear in the next week or so after HHS Secretary nominee Tom Price is confirmed, possibly as early as next week. During the confirmation hearing this week, Price downplayed his role as just an "administrator" with only limited authority.
• Will let states decide what stays or goes. HHS has authority to extend or suspend enrollment dates, delay provisions and other actions within the authority of the HHS. It means HHS will work with states to provide greater flexibility in dealing with the ACA. This is possibly one of the most questionable parts of the order, which seems to offer immediate relief for states but insurance carriers have already implemented their rates and decided their participation for 2017. So, does this even have any impact before 2018? Carriers do not like uncertainty and unpredictable risk. Which makes the next one harder to deliver...
• Work to encourage competition and create a more free and open healthcare market. HHS will encourage the development of free market health insurance and health care services. This part is critical. 18 states currently have only one or two carriers offering plans in the individual marketplace. Without the individual mandate and subsidies, carriers are worried the risk mix will create even greater losses as healthier people will not be compelled to enroll. Experts are concerned an early repeal of the ACA could hasten an insurance market collapse in 2018. They also believe selling across state lines and association plans are not the answer. So what could work?
• It says the administration will be transparent with proposed changes and updates. HHS has rules and procedures to follow and must post notices and allow time for public comment. You can expect many stakeholders will be watching closely and engaged in this process to voice concerns and opinions. And whatever is decided, Congress and the Office of Management and Budget must approve the funding.

Hopefully, the administration will listen to what Trump voters really want and expect as an alternative to the ACA. Focus groups and post-election surveys show Trump voters actually like many of the ACA provisions (just don't call it Obamacare) and more want a careful replacement instead of immediate repeal.

Here's the full text of the executive order...

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MINIMIZING THE ECONOMIC BURDEN OF THE PATIENT PROTECTION AND AFFORDABLE CARE ACT PENDING REPEAL

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

Section 1. It is the policy of my Administration to seek the prompt repeal of the Patient Protection and Affordable Care Act (Public Law 111-148), as amended (the "Act"). In the meantime, pending such repeal, it is imperative for the executive branch to ensure that the law is being efficiently implemented, take all actions consistent with law to minimize the unwarranted economic and regulatory burdens of the Act, and prepare to afford the States more flexibility and control to create a more free and open healthcare market.

Sec. 2. To the maximum extent permitted by law, the Secretary of Health and Human Services (Secretary) and the heads of all other executive departments and agencies (agencies) with authorities and responsibilities under the Act shall exercise all authority and discretion available to them to waive, defer, grant exemptions from, or delay the implementation of any provision or requirement of the Act that would impose a fiscal burden on any State or a cost, fee, tax, penalty, or regulatory burden on individuals, families, healthcare providers, health insurers, patients, recipients of healthcare services, purchasers of health insurance, or makers of medical devices, products, or medications.

Sec. 3. To the maximum extent permitted by law, the Secretary and the heads of all other executive departments and agencies with authorities and responsibilities under the Act, shall exercise all authority and discretion available to them to provide greater flexibility to States and cooperate with them in implementing healthcare programs.

Sec. 4. To the maximum extent permitted by law, the head of each department or agency with responsibilities relating to healthcare or health insurance shall encourage the development of a free and open market in interstate commerce for the offering of healthcare services and health insurance, with the goal of achieving and preserving maximum options for patients and consumers.

Sec. 5. To the extent that carrying out the directives in this order would require revision of regulations issued through notice-and-comment rulemaking, the heads of agencies shall comply with the Administrative Procedure Act and other applicable statutes in considering or promulgating such regulatory revisions.

Sec. 6. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

DONALD J. TRUMP

THE WHITE HOUSE,

January 20, 2017