January 24, 2017 By Ross Margulies
Categories: Medicaid , Medicaid News , Medicare
Summary
On January 20, 2017, President Donald Trump signed an Executive Order (EO) entitled “Minimizing the Economic Burden of the Patient Protection and Affordable Care Act Pending Repeal” to signal a clear message that “repeal and replace” of the Affordable Care Act (ACA) is a priority for the new administration. On the same day, the White House Chief of Staff, Reince Priebus, issued a memorandum to executive agencies ordering an immediate “regulatory freeze” and directing the Departments to send no regulation to the Federal Register “until a department or agency head appointed or designated by the President . . . reviews and approves the regulation,” and requesting agencies to temporarily postpone for 60 days from the date of the memorandum the effective date of regulations that have already been published in the Federal Register, but are not yet in effect.
While the Executive Order and memorandum to the Departments and Agencies do not create any new legal authority, it is a clear indication that the Administration intends to take immediate action to address the ACA. In particular, the EO specifically addresses mandates, taxes and other requirements under the ACA and affords states more flexibility in administering their own healthcare markets. The EO likely will prompt additional guidance and rulemaking from the executive agencies tasked with carrying out this Executive Order, including the Department of Health and Human Services (HHS), the Department of Labor, and the Internal Revenue Service. This memorandum analyzes the potential impact of the EO and regulatory freeze on key provisions of the ACA.The regulatory freeze is not uncommon and similar orders have been implemented by previous Administrations going back to at least the Carter Administration. Notably, however, these orders have delayed regulations for 60 days from their effective date, not from the date of the order. In this sense, the Trump Administration's order is different than those issued by prior Presidential Administrations.
Key provisions of the Executive Order:
The Executive Order contains six sections, each with commitments and/or challenges the new Administration will seek to address in the coming weeks and months in the lead-up to a Congressional health reform package.
Potential Administrative Actions under the Executive Order:
The chart below analyzes potential policy actions and describes whether these changes could be implemented through subregulatory guidance without further rulemaking. Note that many of these policy changes could be subject to legal challenge regarding the scope of agency authority to waive enforcement of ACA provisions.