What Actions Did the President Take?
The Executive Order did not change regulations on its own; instead, it instructed Cabinet Departments to propose changes to rules shortly:
- Within 60 days, the Department of Labor will introduce regulatory changes regarding Association Health Plans (AHPs). Regulations here will look to expand the definition of groups that can qualify as an “employer” under the federal Employee Retirement Income Security Act (ERISA). AHPs have two advantages: First, all association health plans regulated by ERISA are federally pre-empted from state benefit mandates; second, self-insured plans governed by ERISA are exempt from several benefit mandates imposed by Obamacare—such as essential benefits and actuarial value standards.
- Within 60 days, the Departments of Treasury, Labor, and Health and Human Services (HHS) will propose regulatory changes regarding short-term health plans. Regulations here will likely revoke rules put into place by the Obama Administration last October. Last year, the Obama Administration limited small projects to 90 days in duration (down from 364 days) and prevented renewals of such coverage—because it feared that such plans, which do not have to meet any of Obamacare’s benefit requirements, were drawing people away from Exchange coverage. The Trump Administration regulations will likely modify, or eliminate entirely, those restrictions, allowing people to purchase plans not compliant with the Obamacare mandates. (For more information, see my Tuesday article on this issue.)
- Within 120 days, the Departments of Treasury, Labor, and HHS will propose regulatory changes regarding Health Reimbursement Arrangements (HRAs), vehicles where employers can deposit pre-tax dollars for their employees to use for health expenses. A 2013 IRS Notice prevented employers from using HRA dollars to fund employees’ health insurance premiums—because the Obama Administration worried that doing so would encourage employers to drop coverage. However, Section 18001 of the 21st Century Cures Act, signed into law last December, allowed employers with under 50 employees to make HRA contributions that workers could use to pay for health insurance premiums on the individual market. The Executive Order may seek to expand this exemption to all employers, by rescinding the prior IRS notice.
- Within six months—and every two years thereafter—the Departments of Treasury, Labor, and HHS, along with the Federal Trade Commission, will submit reports on industry consolidation within the healthcare sector, whether and how it is raising health care costs and actions to mitigate the same.
How Will the Order Affect the Health Sector?
To some extent, the full impact of the Executive Order will remain unclear until the respective Departments release their proposed regulatory changes. For instance, it is unclear how far the Department of Labor can go in re-defining the term “employer” concerning who can join an Association Health Plan—so it’s hard to predict the scope of the changes the rules themselves will propose.
In general, however, the issues discussed by the Executive Order will:
- Give individuals more options, and more affordable options. Premiums on the individual market have more than doubled since 2013, due to Obamacare’s regulatory mandates. AHPs would allow workers to circumvent state benefit mandates through ERISA’s federal pre-emption of state laws; self-insured AHPs would also gain exemption from several federal Obamacare mandates, as outlined above. Because virtually all of Obamacare’s mandated benefits do not apply to short-term plans, these would obtain the most regulatory relief.
- Allow more small businesses to subsidize workers’ coverage—either through Association Health Plans, or by making contributions to HRAs, and allowing employees to use those pre-tax dollars to buy the health coverage of their choosing on the individual market.
When Will the Changes Occur?
The Executive Order directed the Departments to announce regulatory changes within 60-120 days; the Departments could, of course, move faster than that. If the Departments decide to release interim final rules—that is, laws that take effect before a notice-and-comment period—or sub-regulatory guidance, the changes could take effect before the 2018 plan year.
However, any changes that go through the usual regulatory process—agencies issuing proposed rules, followed by a notice-and-comment period, before the regulations taking effect—likely would not take effect until the 2019 plan year. While the Executive Order directed the agencies to “consider and evaluate public comment on any regulations proposed” under the Order, it did not specify whether the Departments must evaluate said comments before the regulations take effect.
Does the Order Represent a Regulatory Overreach?
Sen. Rand Paul (R-KY) was asked about this issue Thursday, given conservatives’ prior criticisms of Barack Obama’s “pen and a phone” strategy. In the case of short-term health plans and Health Reimbursement Arrangements, the Executive Order could lead the Departments merely to rescind President Obama’s previous regulations—which almost by definition cannot represent regulatory overreach.
However, concerning Association Health Plans, some conservatives may take a more nuanced view. Conservatives support allowing individuals to purchase insurance across state lines, believing that such freedom would enable consumers to buy the plans that best suit their interests.
However, AHPs accomplish this goal not through Congress’ Commerce Clause power—i.e., explicitly allowing, for instance, an individual in Maryland to buy a policy regulated in Virginia—but instead through federal pre-emption—individuals in Maryland and Virginia buying policies regulated by Washington, albeit in a less onerous manner than Obamacare’s Exchange plans. As with medical liability reform, therefore, some conservatives may support a state-based approach to achieve regulatory relief for consumers, rather than an expanded role for the federal government.
Finally, if President Trump wants to overturn his predecessor’s history of executive unilateralism, he should cease funding cost-sharing reduction payments to health insurers. The Obama Administration’s unilateral funding of these fees without an appropriation from Congress brought a sharp rebuke from a federal judge, who called the action unconstitutional. If President Trump wants to end executive overreach, he should abide by the ruling, and halt the unilateral payments to insurers.