One of President Trump’s first acts in the Oval Office on Friday was to sign an executive order directing federal agencies to scale back on enforcing and implementing the Affordable Care Act wherever they can, while the new administration and Congress work on dismantling the 2010 law.
The order — the full text of which is at the bottom of this post — provides no specifics in terms of which federal agencies should be reining in ACA implementation, or which particular aspects of the legislation are to be targeted.
Instead, it directs the agencies to “take all actions consistent with law to minimize the unwarranted economic and regulatory burdens of the [ACA], and prepare to afford the States more flexibility and control to create a more free and open healthcare market.”
The President’s order asks the head of all relevant agencies 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 one-page directive uses very broad language, and it’s important to note the repeated use of phrases like “To the maximum extent allowed by law,” as some costly aspects of the ACA are baked into the law and therefore can not simply be halted by the White House.
One facet of the existing law that appears to be the unnamed target of this order is the so-called “individual mandate” — the general requirement for many taxpayers to have some form of health insurance or pay a penalty.
This mandate was key to the structure of the Affordable Care Act, but it’s believed that this order could grant enough latitude for agencies to waive or pause enforcement of that requirement for many Americans.
Since neither Congress nor the White House have come forth with new proposals for replacing Obamacare, the nonpartisan Congressional Budget Office recently released its analysis of the possible effects of a previous GOP repeal legislation that made it all the way to the White House before being vetoed by President Obama in early 2016.
That law — introduced in 2015 by Rep. Tom Price (GA), who is Trump’s nominee for Secretary of Health & Human Services — sought to remove the individual mandate and the requirement for larger employers to provide workers with a certain level of insurance.
According to the CBO estimates, some 18 million Americans would drop or lose their insurance within the first year of repealing those mandates. Additionally, the Price plan retained popular aspects of the ACA like its ban on denying coverage for pre-existing conditions. The CBO contends that this combination would result in higher premiums, since fewer people would be purchasing insurance and those that retained coverage would be more likely to need medical care.
Last week, Congress moved forward on its effort to dismantle the ACA piecemeal through a budget resolution. Full repeal of the law would likely not make it through Congress as it would need 60 votes in the Senate, but a budget resolution that includes targeted repeal initiatives can be passed by the Senate with a simple majority.
Relevant Senate and House committees had been given a deadline on Jan. 27 for releasing their first repeal proposals, but that date is flexible.
Here is the full text of the Trump executive order, as released on Jan. 20 by the White House Office of the Press Secretary:
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.
More reading on this executive order:
• Bloomberg
• Wall Street Journal
• NY Times
• Washington Post
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