Trump Signs Executive Order Intended to Expedite ACA Repeal Process

Hours after being sworn in as the 45th President of the United States, Donald Trump signed an executive order that marks his administration’s first step towards unraveling the Affordable Care Act (“ACA”). The order instructs all agencies in the executive branch to “waive, defer, grant exemptions from or delay” any part of the ACA that places a regulatory or financial burden on those it covers and to weaken it “to the maximum extent permitted by law.” While President Trump has the authority to significantly undermine the ACA through executive order, the order’s effectiveness remains largely unknown.

The order could allow federal agencies, like the Department of Health and Human Services, United States Department of the Treasury and the IRS to undo the executive orders and guidance issued by the Obama Administration to implement the ACA. Most notably, the Trump Administration could stop enforcing the ACA’s individual mandate that requires individuals to purchase health insurance. The order also directs agencies to provide relief to states, which many believe is intended to allow for more liberal Section 1332 waivers that would allow states to institute more conservative elements, like work requirements, into the law.

However, it is highly unlikely that any significant action will be taken to carry out the executive order until President Trump’s nominee for Secretary of Health and Human Services, Rep. Tom Price (R-GA), is confirmed by the Senate and assumes its leadership. Moreover, many of the actions that could be carried out under the order, like expanding hardship exemptions from the individual mandate, could hinder the efforts of Republicans on Capitol Hill to draft ACA replacement legislation. Since a number of leading congressional Republicans had been calling for President Trump to take executive action against the ACA when reaching office, the order may be intended to serve more of a symbolic purpose to alleviate political pressure on Congress to take immediate action.

Trump Institutes Regulatory Freeze

On January 20, the Trump administration issued a 60-day regulatory freeze that prevents federal agencies from publishing any new regulations or guidance documents unless approved by a Trump appointee. The memorandum, which has been standard practice for incoming administrations, also states that any Obama-era regulations that have been published but not yet taken effect be postponed 60 days for review. The document also states that regulations and guidance subject to statutory or judicial deadlines should be excluded from the regulatory freeze. CMS has three outstanding rules under review by the Office of Management and Budget that have been impacted: a proposed rule on Medicaid Supplemental Payment and Accountability; a final rule on program integrity; and an interim final rule on preexisting condition insurance plan program updates.

Senate Holds Formal Confirmation Hearing for HHS Secretary

On January 24, Rep. Price appeared before the Senate Finance Committee for his formal confirmation hearing. The hearing struck a similar tone to Price’s hearing before the Senate HELP Committee last week with members focusing on Price’s views towards Medicare, Medicaid and replacement of the ACA. Price indicated the Trump administration does not intend to use executive authority to eliminate the individual mandate before Congress takes action to replace the law, which gives support to the belief that President Trump’s executive order is intended to serve as political cover for Republican lawmakers. Price also used the hearing to double down on several comments he made last week. These include support for telemedicine and the CMS Innovation Center and criticism of many Obama-era regulations, including EHR meaningful use and the impact it has on rural providers.

Since every Senate Republican has signaled they support the Price nomination, Democrats do not have enough votes to block his appointment. A full Senate confirmation vote is expected as early as next week.

Pair of ACA Replacement Bills Introduced in the Senate

On January 23, Republican Sens. Bill Cassidy (R-LA) and Susan Collins (R-ME) introduced an ACA replacement bill aimed at attracting bipartisan support. The Patient Freedom Act of 2017 calls for states to choose from three options: keep the current ACA system; reject any federal assistance; or transition to a state alternative program that will automatically enroll eligible individuals in a high-deductible plan linked to a health savings account. The bill also includes a three-year replacement timeline. In 2018, states could choose between keeping the ACA or opting into a state alternative. In 2019, states would implement a plan of their choice, and by 2020, the transition would be complete. A number of Senate Democrats were quick to distance themselves from the legislation saying millions would lose health coverage under the proposal.

Also this week, Sen. Rand Paul (R-KY) released a more conservative ACA replacement bill. That measure would remove various parts of the ACA, including the individual mandate, while leaving others. It would also provide a two-year window for people with preexisting conditions to sign up for coverage and new provisions such as an expanded ability for insurers to sell plans in multiple states. Reports indicate the Paul proposal is unlikely to attract support from Senate Democrats.

Health-Related Bills Introduced This Week

Rep. Markwayne Mullin (R-OK) introduced the Preserving Access to Medicaid for Americans Act (H.R. 682). The bill would eliminate the CHIP maintenance of effort requirement and eliminate DSH cuts for states not implementing the ACA Medicaid expansion.

Rep. Lynn Jenkins (R-KS) introduced a bill (H.R. 662) to update current CMS regulations to enable hospital-based nursing programs to retain their accreditation and maintain payments under Medicare to hospitals for the costs of such programs.

Rep. Glenn Thompson (R-PA) introduced a bill (H.R. 626) that would amend Title XVIII of the Social Security Act to include recreational therapy modalities that constitute an intensive rehabilitation therapy program in an inpatient rehab hospital or unit.

Next Week in Washington

The House and Senate both return on January 30 for a full week of work. On January 31, the House Energy and Commerce Subcommittee on Oversight will hold a hearing examining ways to strengthen the Medicaid program. The Senate HELP Committee will hold a February 1 hearing on the ACA’s exchange markets and ways to fix them.

Also next week, House Energy and Commerce Chairman Greg Walden (R-OR) is expected to introduce a bill covering health insurance consumers with preexisting conditions.