Executive Order from President Trump on the ACA
by Vita, on January 23, 2017
On Friday, January 20, 2017, President Trump signed his first Executive Order, titled "Minimizing the Economic Burden of the Patient Protection and Affordable Care Act Pending Repeal."
The Executive Order instructs the Secretary of the Department of Health and Human Services (HHS) and the heads of all other executive departments and agencies with authority, or responsibility, under the Patient Protection and Affordable Care Act (ACA) to exercise all authority and discretion to waive, defer, grant exemptions from, or delay the implementation of any provision or requirement of the ACA that would impose a fiscal burden on any state, or cost a fee, tax, penalty, or regulatory burden on individuals, families, health care providers, health insurers, patients, recipients of health care services, purchasers of health insurance, or makers of medical devices, products, or medications.
Notably, employers are not specifically enumerated in the list of those being protected from fiscal burdens, although arguments could be made that they are "purchasers of health insurance."
The Executive Order also indicates that, as required, heads of agencies must comply with the Administrative Procedure Act and other applicable statutes in considering or promulgating such regulatory revisions. Essentially, the required notice-and-comment process of rule making still stands as required.
Risk-averse employers are advised to wait for confirmation of changes in regulations from the appropriate federal agencies before halting ACA-required processes (notably, ACA-related reporting). Without confirmed Cabinet members for the Secretary of HHS, the Secretary of the Treasury, and the Secretary of Labor, there will likely be a lag in information directly from any one agency.