• Executive actions Trump could take to change the ACA

    This post was coauthored by Nicholas Bagley and Adrianna McIntyre. 

    The executive order President Trump signed on Friday does not have any immediate policy effect, but it does call attention to the wide range of administrative actions that a Trump administration could take to change the Affordable Care Act—all without legislation from Congress.

    We’ve compiled a list of those actions. It’s not exhaustive; there is a lot more a Trump administration could do. Nor do we mean to suggest that these actions would be legal. Declining to enforce the individual mandate, in particular, would be problematic, although the Trump administration might seek cover from dubious enforcement decisions made by the Obama administration (like the “like it, keep it” fix and employer mandate delays).

    Whether and which actions a Trump HHS chooses to pursue will depend on the administration’s willingness to gamble the stability—already quite fragile, in some states—of the individual market. And it will depend, too, on what Congress is willing to do through legislation. If Congress wipes out the individual mandate, for example, there’d be no need to change the rules governing hardship exemptions.

    Individual insurance market

    • End the cost-sharing payments to insurers.
    • Narrow the essential health benefits rule.
    • Refuse to settle the risk corridor litigation.
    • Change the rules governing risk adjustment.
    • Reduce reinsurance payments to insurers.
    • Expand or curtail hardship waivers from the individual mandate.
    • Decline to enforce the individual mandate.
    • End the “like it, keep it” fix.
    • Alternatively, expand the “like it, keep it” fix to exempt a wider range of plans from insurance rules.
    • Limit special enrollment periods.
    • Reduce insurer assessments for participating on HealthCare.gov.
    • Make it easier for online brokers like eHealthInsurance to sell subsidized coverage.

    Medicaid

    • Allow work requirements, premiums, and more cost-sharing under 1115 waivers.
    • Allow states to limit how long beneficiaries can be continuously enrolled in the program under 1115 waivers.
    • Permit more states to use Medicaid dollars to subsidize private exchange coverage.

    Other

    • Expand the reach of the contraceptive mandate accommodation (currently available to religious nonprofits and closely-held for-profit companies).
    • Striking contraception from the list of women’s preventive services, or eliminating women’s preventive services altogether.
    • Delay enforcement of the employer mandate.
    • Delay enforcement of taxes on the insurance, pharmaceutical, and medical-device industries.
    • Eliminate the Hill fix.
    • Delay enforcement of the Cadillac tax in 2020.
    • Allow commingling of savings for 1115 and 1332 budget neutrality calculations.
    • Adjust the guidelines for 1332 waivers.
    • Adopt rules under section 1333 to enable more flexible cross-state insurance sales.
    • Pull the plug on mandatory (or voluntary) demonstration projects through the Innovation Center.
    • Curb nondiscrimination protections, which the Obama administration interpreted to cover gender identity.

    @nicholas_bagley & @onceuponA

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