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President Trump’s ACA Executive Order—Does it Impact Employers and Plan Sponsors?

Labor & Employment Alert John L. Barlament

As nearly everyone knows, Republicans are committed to modifying—if not outright repealing—the Patient Protection and Affordable Care Act (the "ACA"). The exact details of how Republicans will approach this are still a work in process. Republicans have scheduled a private meeting for later this week to discuss strategy in this area. Although the exact approach is unknown, President Trump on Friday, January 20 issued an Executive Order which heralds future actions.

What Does the Executive Order Do? The Executive Order is vague on details but clear on its overall goal. First, it states that the Trump administration will "seek the prompt repeal" of the ACA. No surprise there—this was a major campaign theme of President Trump. Note, though, that there is no mention of a "replacement" of the ACA. That is probably just an oversight—President Trump and the Republicans have generally committed to some type of replacement.

Second, the Executive Order directs various agencies (certainly including the U.S. Department of Health and Human Services, but also likely including the Internal Revenue Service and Department of Labor) to "exercise all authority and discretion available to them" to "waive, defer, grant exemptions from, or delay the implementation of any provision or requirement" of the ACA, if those provisions impose a "cost, fee, tax, penalty or regulatory burden on individuals, families, healthcare providers, health insurers, patients, recipients of healthcare services, purchasers of health insurance, or makers of medical devices, products, or medications." Note that this does not explicitly list employers and other plan sponsors (unless, perhaps, they are considered "health insurers" or "purchasers of health insurance"). Nor does it explicitly list vendors, such as third party administrators, who can be impacted by certain ACA provisions. We suspect, though, that employers will receive some relief under the Executive Order.

Will Currently-Delayed Provisions Continue to Be Delayed? The Executive Order does not identify any areas where the federal agencies have "authority" or "discretion" to modify or delay an ACA requirement. But the Obama administration exercised significant discretion in how it implemented the ACA. In fact, certain provisions of the ACA (such as nondiscrimination rules for nongrandfathered, fully-insured health plans) remain in limbo —on the books, but not enforced. Presumably the Trump administration will, at a minimum, continue to hold those provisions in limbo. So, yes, those provisions almost certainly will continue to be delayed.

What Other, New Relief Will Be Issued? This is the key question, but the answer remains unknown. On Sunday, January 22 a Trump adviser seemed to suggest that the Employer Shared Responsibility rules (i.e., the "Pay or Play Rules") could be subject to some relief. Employers received an entire year delay in these rules under the Obama administration. So some relief under the Trump administration seems likely. What that relief would entail is much less clear. Waiving all possible penalties seems unlikely, as the penalties are written into law and are revenue for the federal government. So something less than full waiver of the rules and penalties is more likely.

Another area which could see further relief is with respect to the filing of IRS Forms 1094 and 1095. We do not expect any significant relief with respect to 2016 coverage (i.e., the forms which will be filed in the next few months). But in November 2016 the IRS issued a one-year extension of the "good faith" standard for these forms. Under that standard, the IRS generally will not penalize employers for "good faith" mistakes on those forms, if the errors involve incorrect or incomplete information. Perhaps the IRS could extend that relief for 2017 and beyond. The IRS could justify such relief by noting that the information reporting obligation may disappear entirely after the ACA is revised or repealed and, therefore, employers should not be penalized for devoting few resources to this reporting.

So, Is There Anything an Employer Can or Should Do Right Now in Response to the Executive Order? Probably not. What, exactly, will change is unknown. Any significant changes to the ACA will almost certainly require changes to regulations or the law itself. Changing regulations can take months, if not over a year. And changing the ACA itself will likely take a few months, at a minimum. So, for now, plan sponsors should continue to monitor this situation as it develops.

If you have any questions, please contact John Barlament at (414) 277-5727/[email protected] or your local Quarles & Brady attorney.