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No Repeal and Replace Yet, But Regulatory Movement?

Guest Blogger 2/21/2017
Guest Blogger


Just over one month into the new Administration and uncertainty is still the name of the game when it comes to repealing and replacing the Affordable Care Act (ACA).  While things are evolving on a daily and sometimes even an hourly basis, there hasn’t been much forward progress.  Why?  Congressional Republicans are struggling to agree not only on the details of a replacement plan but even on strategy and timing.

The initial strategy was simple – repeal and delay.  Repeal the ACA immediately but delay the effective date so there would be enough time to agree on a replacement plan.  But many expressed concerned that repeal without immediate replacement could unravel the individual insurance market and leave millions of people uninsured.  In contrast, the Trump Administration’s preferred strategy is to repeal and replace the ACA simultaneously.  Of course, in order to do that, Republicans need to agree on a replacement plan.

There’s even disagreement about the scope of repeal and replace.  Facing the prospect of millions losing health insurance coverage, some key Republicans are shifting focus from repeal and replace to “repair.”  Others are adamant the entire law needs to be ripped out “root and branch.”

And when is all of this repeal and replace going to happen?  Well, it depends on who you ask.  House Speaker Paul Ryan (R., WI) is shooting for March.  Other Republicans say it’ll more likely be sometime later in 2017.  President Trump said in an interview on Super Bowl Sunday that it may not happen until 2018.

But repeal and replace isn’t the only game in town when it comes to changing the ACA.  While Congressional Republicans sort out their legislative differences, significant changes can be made through regulatory and subregulatory guidance from the executive branch agencies.  On his first day in office, President Trump signed an Executive Order directing the Department of Health and Human Services (HHS) and other agencies that administer the ACA to exercise their authority and discretion, to the extent permitted by law, to minimize burdens placed on individuals, families, health care providers, insurers and purchasers of health insurance.

blog_hhsWe’re now starting to see movement on the regulatory front.  HHS, with its new Secretary officially in place, released a proposed ACA Exchange market stabilization rule on Friday.  The proposed rule seeks to tighten up Exchange enrollment requirements, including shortening the next open enrollment period from November 1, 2017 – December 15, 2017 with an effective date for coverage of January 1, 2018, increasing pre-enrollment verification of eligibility for special enrollment periods and amending the guaranteed availability rules so that insurers can collect past due premiums before re-enrolling individuals in coverage.

And not to be left out, the Internal Revenue Service (IRS) is formalizing a previously informal policy of the Obama Administration that was set to expire this year.  The IRS confirmed it will not reject an individual’s tax return if it omits information about whether the filer had health insurance during the previous year.  Individuals are still required to have health insurance coverage or pay a tax but the IRS may have a hard time figuring out who actually owes the tax.

While there is no repeal and replace just yet, we’re likely to see more regulatory guidance coming from the agencies that will change the shape of the ACA.  Keenan continues to monitor ongoing developments and we’ll keep you informed about new guidance and, when they emerge, details on repeal and replacement.



blog_hortonAbout Regina Horton
Regina Horton is Legal Counsel at Keenan and actually spends much of the year working on the Affordable Care Act. In addition to presenting webinars and speaking at industry conferences, Regina authors many of our technical Briefings relating to the ACA and other employee benefit regulations.