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Trumping the Affordable Care Act? Not So Fast – Impact of Executive Order on Employers Unclear

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On January 20, 2017, President Trump signed an Executive Order (“Minimizing the Economic Burden of the Patient Protection and Affordable Care Act Pending Repeal,” hereinafter referred to as the “Order”) relating to the future of the Affordable Care Act (“ACA”).  The stated goal is to direct the agencies (IRS, HHS, and DOL) to waive or defer provisions of the ACA that would “impose a fiscal burden on any State or 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.”  Notoriously absent from this list is any mention of employers or plans. 

From an employer’s perspective, this Order permits few, if any, changes.  The Order appears to be directed toward addressing the individual mandate, and other less favorable requirements, rather than the provisions of the ACA that tend to impact large employers.  Most notably, the Order does not grant relief to employers regarding reporting requirements under Code Sections 6055 and 6056, the large employer penalties under Code Section 4980H, or the Public Health Service Mandates that apply to employer group health plans, such as coverage for children to age 26, the ban on preexisting condition exclusions, no lifetime limits on essential health benefits, etc.  For additional information on employer reporting requirements, see our November 28, 2016 blog post “A Little Breathing Room: IRS Extends ACA Reporting Deadline and Good Faith Penalty Relief.”

It remains to be seen what the IRS, HHS, and DOL will do in reaction to this Order.  Until the agencies issue additional guidance with more specificity, employers should continue to comply with the requirements of the ACA. 

For additional information regarding Section 6055 and 6056 reporting requirements and large employer penalties, see our November 9, 2016 “2016 End of Year Plan Sponsor ‘To-Do’ List – Health & Welfare.”