Q: How and when will the new Executive Order administered by the Trump administration affect us?
A: One of the first acts of the new administration was to issue an Executive Order on the Affordable Care Act (ACA).
Before this can affect business, the nominees for Secretary of Labor (Andrew Puzder) must be confirmed. Secretary of Health and Human Services (Tom Price) was just confirmed on February 9th and Treasure Secretary Steven Mnuchin was confirmed on February 13th. Upon confirmation, they are instructed to look for ways to ease the fiscal burden created by the Affordable Care Act on its stakeholders.
Secretary power:
- With the reality of the procedural requirements of repeal and replace—and the consequence of implementing a repeal and replace—the new focus will be to “repair” (amend) the Affordable Care Act.
- They can delay implementation of rules that are not currently being implemented such as the nondiscrimination rules for insured health plans or the Cadillac tax.
- Possible relief from certain taxes and fees (which may be suspended before repeal, but would have to have IRS, DOL, and HHS responses to the Executive Order), such as the Patient-Centered Outcomes Research Institute (PCORI) Fee.
- Presumably, the Secretaries cannot change rules that went through the formal rule-making process.
Actions that cannot be done without Congressional approval may be a slow process, as the Senate does not have a filibuster-proof majority to pass a Republican Health Care bill. The Congress has promised to repeal the law through reconciliation, which does not require 60 votes, only 51.
Given President Trump has only been President for little more than a month, the growing consensus is that parts of the ACA are going to remain. Dependent children up to age 26 can likely remain on their parents' health insurance; there likely cannot be a preexisting condition clause in the policies; there can be no lifetime or annual limits.
The prudent advice is to continue to follow the Affordable Care Act and its mandates, including the employer reporting. Changes will occur under the new administration—however, change is slow.
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