As with any new Administration, regulatory changes are to be expected when a new President comes into office. However, for the time being, any regulations issued under the Obama Administration, which were effective prior to January 20, 2017, remain in place, and can only be revised through a notice and rule-making process.
On January 20, in keeping with actions by the two previous presidents, the new White House issued an executive order addressing regulatory actions by the federal government. Essentially, the order instructs federal agencies to withhold any new regulations until they can be reviewed by the incoming Administration’s secretaries and agency directors, and postpones regulations not effective prior to January 20, 2017.
Executive Order Seeks to Minimize Fiscal Burdens of Affordable Care Act
President Trump also signed an executive order addressing the Affordable Care Act (ACA). A purely symbolic order, it does not change any of the statutory authority currently existing under the ACA.
The order directs the agencies to minimize the economic and regulatory burdens of the Act and to afford states more flexibility and control to create a more open healthcare market.
It instructs the U.S. Department of Health and Human Services (HHS) and other departments or agencies with responsibilities under the Act 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 various groups, including individuals, providers, purchasers of health insurance, and insurers.
It is unlikely that provisions affecting employer-sponsored group health plans would be affected by the executive order. It is anticipated that most of the early regulatory changes to the ACA will focus on what is considered preventive care that must be covered and administrative rules regarding enrollment in the marketplace or state exchanges, and encouraging state Medicaid waivers that modify the Medicaid program toward a program that has work requirements or Heath Savings Account (HSA)-like accounts.
In fact, new regulations were proposed on February 17, 2017, that amend standards relating to special enrollment periods, guaranteed availability, and the timing of the annual open enrollment period in the individual market for the 2018 plan year.
Fair Pay and Safe Workplaces Order Could be Rescinded
The Fair Pay and Safe Workplaces Order was issued by President Obama and required federal contractors to report all labor violations. The regulations implementing this controversial executive order was largely enjoined by federal courts prior to the Trump Administration taking office. Nonetheless, the U.S. House of Representatives has moved to formally rescind the regulations.
The Congressional Review Act (CRA) is a rarely used law that affords Congress the opportunity to rescind regulations during a narrow period of time after regulations have been finalized. The CRA requires action by both the House and the Senate as well as signature by the President.
The regulations for the Fair Pay and Safe Workplaces Order would be potentially subject to the CRA, which authority the House acted under in early February. On March 6th, the Senate also passed the rescission. It is believed that President Trump will likewise approve the rescission. ♣
