Individuals and employers should probably wait for more information before using the new Trump administration Affordable Care Act executive order to avoid complying with ACA requirements.
Edward Fensholt, a longtime ACA legal analyst at Kansas City, Missouri-based Lockton Companies, emphasizes the limits of the effects of the order in a new client alert.
President Trump signed the order Friday, shortly after his inauguration. The order calls for all federal agencies to do what they can, “to the maximum extent permitted by law,” to ease the burden of ACA requirements on individuals, families, health insurance providers and other groups of people.
What the order can actually accomplish is unclear, Fensholt writes.
The ACA itself is still the law of the land, which means that while the ACA is in effect, the ACA itself may limit what agencies can do, Fensholt writes.
What the agencies can, or think they can, do to ease ACA burdens “won’t become clear until the agencies begin to issue guidance implementing their interpretations of the order,” he says. “But the order sets no timetable for such guidance.”
In addition to the ACA, other forces that could limit the scope of the relief provided by the order include state insurance laws and regulations, and the Employee Retirement and Income Security Act, Fensholt says.
If, for example, Trump administration agencies decide to stop enforcing certain ACA provisions, and an employer with a self-insured health plan deletes benefits related to those provisions from its plan, employees might try suing to make the employer provide the benefits still required by federal law, Fensholt says.
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