January 31, 2017
President Trump issued the Executive Order on January 20, 2017, one of his very first actions upon taking the oath of office.
President Trump issued the “Executive Order Minimizing the Economic Burden of the Patient Protection and Affordable Care Act Pending Repeal” on January 20, 2017, one of his very first actions upon taking the oath of office. The Executive Order directs the Department of Health and Human Services (HHS) and “heads of all other executive departments and agencies with authorities and responsibilities under the Act” to “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.” The Executive Order acknowledges that the agencies can only act as he has instructed “to the maximum extent permitted by law.” President Trump reiterated in the Executive Order that “[i]t is the policy of my Administration to seek the prompt repeal of the [ACA].”
In short, the Executive Order mandates that the fines and penalties associated with the ACA not be enforced as long as their enforceability is not mandated by law. The admonishment applies to any of the agencies charged with enforcing the ACA and specifically mentions HHS but the Internal Revenue Service (IRS) and Department of Labor (DOL) are two other agencies with significant responsibilities under the ACA. The issue becomes determining where the ACA has given the agencies latitude in deciding when fines or penalties for compliance under the ACA can be waived or what other practical solutions the agencies have to honor the Order, such as delaying all attempts to pursue fines and penalties. The Executive Order also states that the agencies may promulgate new rules and issue Notice of Proposed Rule Making as required by the Administrative Procedures Act, possibly as encouragement to do so as most ACA compliance requirements are contained in Regulations as opposed to the ACA itself. Further, those agencies to whom the Executive Order is directed are the ones who have recently worked so intently to educate, promulgate, pass and enforce the regulations amplifying provisions of the ACA since it as passed in March 2010.
While the news of the Executive Order is no surprise, it is difficult to know how to react to it. The difficulty is enhanced by President Trump’s contradictory statements about retaining certain aspects of the ACA such as his comments after being elected in November 2016, wherein President Trump said that he would like to retain the ACA requirements that health insurance plans cover Americans with pre-existing conditions or young adults on their parents’ plans until age 26. The safest practice for employers and individuals alike is to continue to abide by the ACA until these issues are resolved by Congress.