Pres. Trump Signs Executive Order on PPACA Enforcement

On Jan. 20, 2017, Pres. Trump signed an executive order relating to PPACA enforcement. The order states that it is the policy of Pres. Trump’s administration to seek the prompt repeal of PPACA. In the meantime, to minimize unwarranted economic and regulatory burdens relating to PPACA, the order directs the agencies charged with implementing the law (e.g., HHS, DOL and IRS, as well as any other sub-regulatory agencies) to exercise all authority and discretion available to them to waive, defer, grant exemptions from, or delay implementation of any PPACA provision that would impose a fiscal burden. That would include costs, fees, taxes, penalties or regulatory burdens on individuals, families, health care providers, health insurers, patients, employers or others who purchase or provide health insurance on behalf of employees, and makers of medical devices, products or medications.

The order, signed on Pres. Trump’s inaugural day in office, signals the new administration’s intent to delay or waive many of PPACA’s requirements (and eventually repeal and replace PPACA). But the order does not by itself delay or waive any specific requirements and it is too soon to determine what changes will result from this order. While regulatory agencies now have directed authority to delay or waive requirements, there are administrative and procedural hurdles that must be considered.

To begin with, several of Pres. Trump’s potential cabinet members (including Tom Price as Secretary of HHS) are still in the nomination confirmation process. In addition, the agencies have previously proposed or finalized regulations on many, if not all, of PPACA’s requirements, and agencies may be bound to specific processes and procedures with respect to undoing or disregarding them. Finally, some requirements (such as reporting) may be necessary to continue providing subsidies for those covered in the public marketplace, and therefore may be difficult to immediately repeal or delay.

As a result, a timeline for specific delay, waiver or exemption from PPACA remains unclear. Nevertheless, the order grants those agencies with the authority to make adjustments to the regulations, delay due dates, ignore penalties or otherwise avoid full implementation of the law. So, employers (and the health care and insurance industry as a whole) can expect big changes eventually.

For employers, as discussed above, the executive order itself does not immediately repeal or delay any specific PPACA requirements. The employer mandate and other PPACA provisions were enacted through Congressional action and cannot be overridden by an executive order. Thus, until further specific action is taken, employers should continue to comply with the employer mandate (offering affordable coverage to all full-time employees and their dependents), employer reporting (providing employee statements/Forms 1095-B/C and filing with the IRS), Form W-2 informational reporting and other PPACA requirements (e.g., SBC distribution, prohibition on excessive waiting periods, etc.). We will continue to monitor and report on developments, including any announcements on specific exemptions or delays relating to employer compliance.

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