On his first day in office, US President Donald Trump issued an Executive Order to begin the process of dismantling the Patient Protection and Affordable Care Act (ACA). While this action is largely symbolic—the repeal and replacement of the ACA will require congressional action—the Executive Order Minimizing the Economic Burden of the Patient Protection and Affordable Care Act Pending Repeal (Order) is consistent with the president’s stated position supporting the repeal and replacement of the ACA. However, the Order does not contain any references to employers or self-insured group health plans.
The Order affirmatively states the new administration’s intent to seek repeal of the ACA and, pending that action, to minimize the “unwarranted economic and regulatory burdens” of the ACA and provide more flexibility and control to the states. Of particular importance is Section 2 of the Order, which directs the various federal agencies to delay implementation and enforcement of certain provisions or requirements of the ACA:
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. (Emphasis added.)
As noted, employers and self-insured group health plans appear to be missing from this list of potentially impacted parties. It’s not clear whether this is intentional or an oversight, but read literally, it raises the question of whether the agencies are permitted to delay or suspend enforcement of the ACA employer mandate and its associated tax penalties. Until further guidance or action is taken, employers should maintain compliance with the ACA, including the employer mandate and ACA reporting requirements.
Any regulations issued to carry out the directives of the Order are subject to the Administrative Procedure Act and will require a notice-and-comment period. So while the wheels of “repeal and replace” have been set in motion, for the time being, employers should continue to comply with ACA requirements.