- On January 23, 2017
On Friday evening, as one of his first acts as President, Donald Trump signed an executive order concerning his Administration’s intentions with regard to the Affordable Care Act (ACA). The one-page order does not change any existing provisions of the law or its related regulations, or suspend any current requirements for individuals, employers or other entities. It does call on his new executive branch officials 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.”
The new executive order is both symbolic and substantive. By signing this document within hours of the commencement of his presidency, President Trump showed his commitment to taking immediate action on changing the ACA, just as he promised during his campaign. He outlined the major priorities of his Administration when it comes to health policy change, including easing the financial and administrative burden of the law on individual consumers, doctors, insurers, other purchasers of health insurance, and the companies that make medical care devices, products, and medications. The order also signifies his intention to grant flexibility to the states wherever possible, including encouraging the purchase of health insurance across state lines, two other central campaign promises.
The most substantive note of the order is contained in the line calling on all executive branch agencies with authority over the ACA to “take all actions consistent with law to minimize the unwarranted economic and regulatory burdens of the Act.” The executive order cannot—and specifically does not—change the structure or content of the ACA, which still remains law for the time being. However, it highlights the President’s most concrete powers to affect the law right now—regulatory content and enforcement power. There are over 40,000 pages of regulations currently in effect that direct how insurers, employers, providers, state governments, and other stakeholders must implement the law. The order explicitly notes that “if carrying out the directives in this order would require revision of regulations issued through notice-and-comment rulemaking” the heads of relevant agencies should take immediate steps to change them, but they must abide by the existing regulatory process, which takes months to complete.
This order also directs the relevant departments and agencies of the federal government to do whatever is in their power within the confines of the law to minimize the burden on Americans through their enforcement authority, which is where the Trump Administration yields significant power that can be marshaled quickly. President Obama used his power of enforcement many times during the last six years of ACA implementation, including the extension of deadlines, creating extensive “hardship exemptions” from the individual mandate, delaying enforcement of the employer mandate for a year, and allowing for the phase-in of market reforms. President Trump is now doing the same thing by ordering his staff to use their enforcement powers and ability to tweak regulations through established processes to make the law more market friendly. Bottom line, no new changes come immediately from this order, but once the federal agencies that oversee health reform are staffed, we can expect to see significant amounts of new guidance and revised regulations that will like impact employer plans and individual health insurance consumers significantly.
By Jessica Waltman, Special Contributor
Jessica Waltman is a health reform strategist, with more than 20 years of experience in health insurance markets and health policy. She is the former Senior Vice President, Government Affairs, for the National Association of Health Underwriters.