On Friday evening, Jan. 20, just hours after taking the oath of office, President Donald J. Trump signed an executive order, one of his first, giving federal agencies the authority to work within their scope of authority to undo unspecified regulations pertaining to the Affordable Care Act (ACA) of 2010. Exactly how such authority might be used, and under what circumstances and to what extent, was left extremely unclear; but the order did signal Pres. Trump’s previously stated intentions to help to overturn the ACA, though only the U.S. Congress can actually fully repeal the legislation.
At 9:15 p.m. eastern time on Friday, CNN published the full text of the executive order. The order begins by stating that “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.”
The four substantive sections of the executive order read thus:
“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.
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.
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.
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.”
As The Washington Post’s news article on the issuance of this executive order, noted, “The order, several paragraphs long, does not identify which of the many federal rules that exist under the ACA the new administration intends to rewrite or eliminate. In general, federal rules cannot be undone with a pen stroke but require a new rulemaking process to replace or delete them.”
Ashley Parker and Amy Goldstein wrote the Post article, which was published at 10:39 p.m. eastern time. Parker and Goldstein quoted Larry Levitt, senior vice president at the Kaiser Family Foundation, as saying that “Potentially the biggest effect of this order could be widespread waivers from the individual mandate, which would likely create chaos in the individual insurance market.” In addition, he said, the order suggests that insurers may have new flexibility on the benefits they must provide. “This doesn’t grant any new powers to federal agencies, but it sends a clear signal that they should use whatever authority they have to scale back regulations and penalties. The Trump administration is looking to unwind the ACA, not necessarily waiting for Congress,” Levitt told the Post reporters.
Meanwhile, Julie Hirschfeld Davis and Robert Pear, writing in a New York Times article also published late Friday, wrote that “The one-page order, which Mr. Trump signed in a hastily arranged Oval Office ceremony shortly before departing for the inaugural balls, gave no specifics about which aspects of the law it was targeting. But its broad language gave federal agencies wide latitude to change, delay or waive provisions of the law that they deemed overly costly for insurers, drug makers, doctors, patients or states, suggesting that it could have wide-ranging impact, and essentially allowing the dismantling of the law to begin even before Congress moves to repeal it.”
They also noted that “The order has symbolic as well as substantive significance, allowing Mr. Trump to claim he acted immediately to do away with a health care law he has repeatedly called disastrous, even while it remains in place and he navigates the politically perilous process of repealing and replacing it.”
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