About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

LOG IN
LOG IN


1 [1] (January 24, 2017)

handle is hein.crs/crsmthmaohb0001 and id is 1 raw text is: CRS Reports & Analysis Legal Sidebar Affordable Care Act Executive Order: Legal Considerations 01/24/2017 On January 20, 2017, President Donald J. Trump issued an executive order (EO) declaring his intention to seek the prompt repeal of the Patient Protection and Affordable Care Act [ACA] while minimizing economic and regulatory burdens of the Act, ensuring that the ACA is efficiently implemented, and preparing to allow states more flexibility and control. Broadly, the EO issues the following three directives to executive branch agencies: First, it directs agencies with authorities or responsibilities under the ACA to waive, defer, grant exemptions from, or delay the implementation of' any ACA provision that would impose a fiscal or regulatory burden on states or a host of private entities (including individuals, health care providers, health insurers, and medical device manufacturers). Second, the EO directs those same agencies to provide greater flexibility and cooperation to states in implementing healthcare programs. Third, the EO directs all agencies with responsibilities relating to healthcare or health insurance to encourage the development of a free and open interstate market for health services and health insurance. While the EO does not amend any prior agency action or policy, it may potentially be seen as an articulation of the Administration's views on how the ACA should be implemented by executive agencies. Notwithstanding the significant modifications it may foreshadow, the EO does not purport to repeal the ACA, nor could it. Additionally, as is common practice with executive orders, the EO acknowledges that its directives are to be implemented to the extent permitted by law, including requiring the use of notice-and-comment rulemaking where required by the Administrative Procedure Act (APA). By directing agencies to use all available authority and discretion to provide waivers, deferrals, exemptions, and delays of ACA requirements, the EO may raise questions about the authority and discretion agencies currently have to implement the ACA, and the procedures that may be required in the exercise of those authorities. Additionally, some may ask how the policy enunciated in the EO will translate into action by the Trump Administration in the context of pending lawsuits challenging the ACA. In light of these questions, this analysis provides some initial impressions and takeaways. The ACA is a complex statute, and the Administration appears to have broad authority, at least with respect to certain provisions of the Act, to interpret and execute its requirements. In some cases, this authority can include the express power to waive an ACA provision, as in the case of the hardship exemption from the ACA's requirement to purchase health insurance (the so-called individual mandat), or the authority beginning in 2017 to provide Aat- innovaion waiver (under which a state may apply to the Secretaries of Health and Human Services (HHS) and Treasury for a waiver of specified ACA requirements with respect to health insurance coverage within that state). In other cases, the statutory text may be ambiguous such that an agency's interpretation of a provision will potentially be afforded ChQeron deference by a reviewing court, so long as the interpretation is reasonable. An example of this situation is the recent decision by the U.S. Court of Federal Claims upholding the Obama Administration's