While Congressional Republicans appear far from united on how to proceed with a plan to fully repeal and replace the Affordable Care Act, President Donald Trump wasted no time putting in place an executive order that could significantly impact existing law, potentially unraveling the entire ACA private insurance marketplace.
Trump’s executive order directed federal agencies to “waive, defer, grant exemptions from, or delay the implementation of any provision or requirement” of the ACA that would “impose a fiscal burden” on states, health care providers or individuals.
The order is limited in scope, since much of the ACA can only be undone by an act of Congress. However, the directive may very well undo much of the enforcement that underpins the ACA marketplace, including of the individual mandate to purchase insurance and a variety of mandates on employers, including the requirement to provide full-time employees with coverage or pay a fine.
“Interestingly, the executive order did not specifically mention employers, but the broad language would seem to sweep them in as a group that is similarly burdened by the ACA,” Joy Napier-Joyce, leader of the employee benefits group at law firm Jackson Lewis in Baltimore, tells the Society for Human Resource Management.
Furthermore, the employer mandate is nearly impossible to enforce without robust enforcement of employer reporting. The IRS has broad discretion in enforcing reporting deadlines, and a new commissioner of the agency could largely kill the mandate by waiving reporting deadlines.
Nevertheless, adds Scott Behrens, a benefit attorney speaking with SHRM, “Prudent employers will want to continue to comply with the ACA, including the play-or-pay mandate and reporting requirements … until formal guidance relieves them of those compliance obligations.”
Health policy commentators say that Trump’s action was relatively predictable. In contrast to the president’s repeated flaunting of long-established expectations of political behavior, he so far appears to be playing within the rules that govern health policy.
Tim Jost, a law professor at Washington and Lee University who studies health policy, suggests in an interview with Vox that he is relieved by Trump’s action.
“I was worried [Trump] would do something unpredictable, but this is what I expected,” he says. “I think he’s been advised that he can’t repeal the Affordable Care Act through executive action, and now we see where this goes.”
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