Only hours into the new administration, steps were taken to eliminate, or at the very least minimize the impact of, the Patient Protections and Affordable Care Act (“ACA”). In his first Executive Order, President Trump affirmed his intent to repeal the ACA and further sought to minimize the economic burden of the ACA. The order instructs the Secretary of Health and Human Services and the heads of all other executive departments and agencies to, “take all actions consistent with the law to minimize the unwarranted economic and regulatory burden of the act, and prepare to afford the states more flexibility and control to create a more free and open healthcare market.”
This is not a repeal of the ACA (the President cannot unilaterally do that). However, what it means is that the agencies responsible for overseeing ACA implementation (HHS, Treasury, and Labor) are tasked with finding ways to lessen the law’s impact. That can only be done through future rule making and other guidance. While we do not have a crystal ball, we expect to see several more sets of FAQs that will mitigate the impact of the law and potentially a suspension of the enforcement of such items as the employer play or pay mandate and the individual mandate. Whether any of that comes to fruition remains to be seen, but it seems reasonable to expect that the less popular aspects of the law will be the initial targets of future guidance.
What does this mean for employers faced with compliance obligations and potentially onerous noncompliance penalties? It’s too early to tell for certain and definitely too early to abandon compliance obligations. The secretaries of the three agencies have not been confirmed yet, and in fact, the Labor Secretary-designate Puzder is not scheduled to have his first confirmation hearing until February 2. The best course is still the one we advised in an earlier post: continue your compliance obligations – and keep your eye on twitter.