In one of his first actions in office, President Donald Trump signed an Executive Order to “Minimize the Economic Burden of the Patient Protection and Affordable Care Act Pending Repeal.” In a few short paragraphs, President Trump has given a very broad directive to federal agency heads, including the Department of Health and Human Services, to take steps to grant waivers, exemptions, and delay provisions of the ACA that impose costs on states or individuals.

Although the Order does not refer to employers specifically, the intent and breadth of its sweeping statements appear to direct agencies to take the same type of actions with regards to provisions of the ACA that similarly affect employers.

Importantly, the Order does not itself effect any change; rather, it acts as a road map to some of the desired changes of the administration, while urging the agencies to soften enforcement of pieces of the ACA until a repeal can be accomplished. It is clear that the Order cannot undo the ACA itself. As widely discussed, that will take a coordinated act of Congress. Trump and Congressional Republicans still have much work ahead in agreeing on the legislation that will repeal and replace the ACA, including taking into account the unsettling effect such initiatives will have on the health insurance market in general.

The language of the Order addresses the actions of agencies in the interim period before a repeal occurs, but does not grant any powers above what already exist. The Order also acknowledges that any required changes to applicable regulations will follow all administrative requirements and processes, including notice and comment periods. However, it leaves the important question of how much discretion the agencies have and in what manner (and on what timetable) will they exercise that discretion.

We will continue to closely monitor agency reaction to the Executive Order, especially as it relates to the responsibilities of employers.

Also on Inauguration Day, the President’s Chief of Staff told federal agencies in a memorandum (“Regulatory Freeze Pending Review”) not to issue any more regulations. Such regulatory freezes by new presidential administrations are common.

Please contact your Jackson Lewis attorney if you have with any questions.

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Photo of Joy M. Napier-Joyce Joy M. Napier-Joyce

Joy M. Napier-Joyce is a principal in the Baltimore, Maryland, office of Jackson Lewis P.C.

Joy counsels clients in a broad range of benefit matters, including general compliance and administration of qualified retirement plans under ERISA and the Internal Revenue Code. She also…

Joy M. Napier-Joyce is a principal in the Baltimore, Maryland, office of Jackson Lewis P.C.

Joy counsels clients in a broad range of benefit matters, including general compliance and administration of qualified retirement plans under ERISA and the Internal Revenue Code. She also assists clients with welfare plan issues involving cafeteria plans, health plans, flexible spending accounts, group insurance products, COBRA and HIPAA. Joy has a particular focus on assisting employers with the various compliance requirements associated with federal health care reform and has been a frequent speaker on the topic. Her practice also includes advice on non-qualified deferred compensation arrangements and other executive compensation matters, including issues related to compliance with Section 409A of the Internal Revenue Code.

As part of her practice, Joy frequently assists clients with a variety of benefits issues arising in corporate mergers and acquisitions and restructurings of all forms. This includes analyzing benefits risks for buyers, handling plan corrections and terminations, strategizing and implementing benefits arrangements post-closing and advising on controlled group considerations.

Joy represents clients in dealings with the Internal Revenue Service and the Department of Labor, including EPCRS applications, private letter rulings, determination letter applications and plan audits. She negotiates with outside benefits providers, including prototype plan sponsors, third party administrators, insurers, actuaries and auditors. She also counsels both public and private clients on a wide array of tax and securities law issues in relation to equity-based arrangements.