Trump Executive Order On ACA: What It Won’t Do, What It Might Do, And When

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. 

Read Timothy Jost's full story on the Health Affairs Blog.

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