Now that the American Health Care Act has suffered a defeat in Congress and President Trump has said he’ll move on to other matters, the Affordable Care Act will stand as the law of the land.
The big question hanging over the law, however, is the executive order that Trump signed shortly after taking office in January. While that order did not abolish the legislation, it set the stage for agencies to act immediately on regulations that are deemed overly burdensome.
However, the administration has not indicated what it will do now that the AHCA has ground to a halt.
While the executive order still stands, it’s now abundantly clear that the ACA will not be repealed this year, but what’s not certain is how the agencies will enforce the law’s regulations.
They can choose, for example, not to enforce the penalties for applicable large employers who do not provide acceptable health insurance for their employees, or to enforce the penalties for individuals that do not secure health insurance if none is offered by their employer.
There are two main agencies that have enabling regulations in place for the ACA: the
Department of Treasury and the Department of Health and Human Services (HHS). There has been no indication or announcement from these agencies that they will or will not enforce the regulations currently in place or whether they are in the process of starting to write new ones.
Regardless, whatever they chose to do, rule-making takes time… often years. In fact, the regulations that enabled the ACA took four years to unfold as the agencies were busy writing them and putting them out for public comment.
And any rules would still have to be changed within the confines of the ACA, and it’s unclear how much leeway the agencies have in deviating from that law.
The executive order reads:
“…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.”
It also said that the HHS secretary and other agency heads “shall exercise all authority and discretion available to them to waive, defer, grant exemptions from, or delay the implementation of any provision… 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.”
Meanwhile, Trump has expressed willingness to work with the Democrats to get a new law pushed through, but the chances of that are slim if he insists on repealing the ACA. They are more likely to be open to changes to address some of the problems with the law, particularly the lack of participation by private insurers in health exchanges in some parts of the country.
So what does this mean for you, an employer? It means you should continue providing insurance for your employees if you are an applicable large employer, and continue submitting the required forms to the IRS.
For now, do what you’ve been doing.
This blog is not intended to provide legal advice, but rather perspective on recent regulatory issues, trends and standards affecting health insurance, voluntary benefits, 401(k) plans and other employee benefits. Please consult your broker or legal counsel for further information on the topics covered herein.