On January 20, 2017, Donald Trump was sworn in as President of the United States. True to his word, on his first day in office he issued an executive order addressing the Affordable Care Act. It may not be, however, all that his supporters expected.
On the foreign policy side, where the President’s authority is very broad, executive orders can address the minutiae of relationships with particular countries. On the domestic side, however, where the president’s power is subject to more constraints, executive orders are used for setting broad policy directions. They cannot be used to change laws or regulations, and are not appropriate for establishing detailed guidance addressing specific issues.
Not surprisingly, therefore, President Trump’s Executive Order sets a broad policy direction with respect to the ACA. After reciting the administration’s commitment to seek the repeal of the ACA, it directs the Department of Health and Human Services and other agencies involved in administering the ACA “to the maximum extent permitted by law” 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;
provide greater flexibility to States and cooperate with them in implementing healthcare programs; and
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.
The order reminds the departments and agencies—as well as his supporters who might want more immediate action—that “to the extent that carrying out the directives in this order would require revision of regulations issued through notice-and-comment rulemaking,” which would generally be the case, they must comply with the Administrative Procedures Act and other applicable statutes.
It also notes the Executive Order does not affect the authority of the executive departments and agencies or the role of the Office of Management and Budget (which plays a major role in rulemaking), and is subject to appropriations. Finally, it states:
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.
In sum, nothing happens yet, nor is it likely to happen until the heads of HHS, Treasury, and probably Labor, as well as the CMS Administration and IRS Commissioner are in place; even then it will take a while for changes to be put into motion. In the long run a great deal may change, but we have known that since election night.
But change will only be “to the maximum extent permitted by law.” There may be, for example, a fairly dramatic shift in the interpretation of section 1332 of the ACA, which permits HHS to grant innovation waivers to states, but waivers will still have to be granted subject to section 1332’s requirements. Sale of insurance across state lines is already permitted by the ACA, but subject to state approval and consumer protections that will have to be observed. New categories of hardship exemptions to the individual responsibility requirement may be created, but they will have to qualify as hardships. Section 1115 Medicaid waivers will be granted more liberally, but that was expected, and until they are changed, 1115 waiver regulations promulgated by the Obama administration will continue to apply.
A number of commenters have noted that the Order seems to instruct HHS to liberally grant waivers from the individual responsibility requirement of the ACA. The ACA gives HHS discretion in granting “hardship” waivers and current regulations authorize HHS to do this through guidance. The Obama administration authorized hardship waivers in a number of circumstances, and one can imagine Trump’s HHS granting hardship exemptions even more broadly, perhaps even through guidance.
But surely the term “hardship” is not meaningless—simply being required to purchase health insurance is not in itself a hardship, because that is what the individual responsibility law requires. Were the Trump administration to effectively repeal the mandate, it would certainly be sued. Individuals with preexisting conditions left in a market without healthy enrollees would have a strong argument for standing. Also, as the Congressional Budget Office has acknowledged, repealing the individual responsibility requirement could have a devastating effect on the individual insurance market if it is not replaced by another means of encouraging healthy people to enroll. Would the Trump administration want to risk destroying the individual market through executive action? We will see.
An interesting question is what effect this will have on Congress. At least some in Congress, perplexed as to how to proceed with repealing and replacing the ACA, may see this as giving them some breathing space. They may say that with Trump taking steps to reduce the burden of the ACA they can take more time to figure out how best to change it. If the order allows Congress to proceed more deliberately, that may not be a bad thing.
ACA Round-Up: Last Obama ACA-Related Actions Include Contraceptive Coverage Procedures, Enrollment Snapshot, External Review Procedures
On January 19, 2017, CMS issued the last FAQs of the Obama administration at its REGTAP.info website (registration required). One of these FAQs provides that where CMS collects from insurers the marketplace user fee for state-based marketplaces that use HealthCare.gov, insurers that fund contraceptive coverage provided by third-party administrators for employers exempt from providing contraceptive coverage because of their religious beliefs may receive a corresponding reduction of their marketplace user fee, which will be subtracted from the federal share of the marketplace user fee.
On January 18, 2017, CMS released a HealthCare.gov enrollment snapshot for weeks 10 and 11 of the fourth open enrollment period, covering January 1 to 14. During that time 63,190 consumers selected plan through HealthCare.gov; the total of plan selections for the fourth open enrollment period is now 8,825,544. This does not include enrollments in state-based marketplaces that do not use HealthCare.gov. Although enrollments have slowed considerably, they are still running ahead of next year and are expected to spike again as we near the close of open enrollment on January 31, 2017.
On January 18, 2017, HHS also released federal poverty guidelines for 2017. The federal poverty guideline for an individual in the continental United States for 2017 is $12,060; for a family of four it is $24,600. This is up from $11,880 for an individual, $24,300 for a family of four in 2016. The 2016 guidelines are used for determining premium tax credit eligibility, but the 2017 guidelines are used for Medicaid eligibility.
Also on January 18, 2017, the Internal Revenue Service released a notice explaining that individuals eligible for the hardship exemption from the individual mandate recognized last August—for people who were eligible for the Health Coverage Tax Credit (HCTC) but were not enrolled for one or more months between July 2016 and December 2016 in HCTC qualifying coverage—may claim the exemption on their tax return and do not need to apply to the marketplace for the exemption.
On January 11, 2017, HHS released a technical guidance setting out Standards for Self-Insured Non-Federal Governmental Health Plans and Health Insurance Issuers Offering Group and Individual Health Coverage Using the HHS-Administered Federal External Review Process. The guidance was accompanied with instructions for health plans and insurers for electing the federal external review process through the Health Insurance Oversight System (HIOS).
The ACA external review process has been in effect since 2010, although regulations and guidance have evolved since that time. Under current regulations, non-grandfathered group health plans and health insurers offering non-grandfathered group or individual coverage must comply with their applicable state external review processes if those processes include at a minimum consumer protections set forth in the Uniform External Review Model Act issued by the National Association of Insurance Commissioners and are binding on the plan or insurer (although through the end of 2017 a state’s external review process is deemed to meet the NAIC requirements if it meets lesser standards established by guidance). If a state’s processes do not meet this standard or if the plan is not subject to state insurance regulation (which would be true for self-insured plans), the plan or insurer is required to implement an external review plan that meets minimum standards established by federal regulations or by HHS through guidance.
Insured coverage not subject to state external review processes and self-insured non-federal governmental plans may use either the Federal Independent Review Organization (IRO) external review process, as set forth in 45 C.F.R. 147.136(d)(2) or the HHS-administered federal external review process as described in technical guidance. The requirements in the January 11 guidance largely track the regulatory requirements for the Federal IRO process, including the procedures for requesting an external review, the qualifications for IROs, preliminary review procedures, the review process, the review decision, and expedited review procedures. The primary difference between the guidance and earlier HHS guidance is the HHS-administered federal review process is now initiated through MAXIMUS Federal Services rather than through the Office of Personnel Management, as was earlier the case.