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5 big questions we have about Trump's health care executive order

Dylan Scott covers health care for Vox. He has reported on health policy for more than 10 years, writing for Governing magazine, Talking Points Memo and STAT before joining Vox in 2017.

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President Trump signed an executive order that could — emphasis on could — do substantial damage to the Obamacare marketplaces.

Trump's order sets out two goals with major consequences for the insurance market, if they come to pass:

  • Make it easier to set up association health plans and for those plans to be considered part of the large-group market
  • Expand the definition of "short-term limited-duration insurance" from three months to nearly a year

If you want the full wonky breakdown, I wrote about the order and its potential effects on the Affordable Care Act here. But this is the gist: The White House wants to make it easier for people to buy cheaper and skimpier coverage that doesn't comply with the Affordable Care Act's rules.

The risk, according to health policy experts, is that young and healthier people will flock to this skimpier coverage, making the Obamacare markets older and sicker. That is going to drive up premiums for people still buying coverage through the health care law.

But Trump's pen isn't magic. The executive order doesn't actually do anything on its own. Which is confusing! In fact, a lot about the executive order is hard to decipher.

Here are some of the big questions, and my best attempts to answer them.

1) When does this actually go into effect?

Trump has technically asked federal agencies to consider issuing new regulations that achieve the executive order's goals. That's all.

Federal rulemaking takes some time, months upon months. Senior administration officials told reporters today that they didn't expect any changes to be made before the end of the year.

2) Which Obamacare regulations are actually being targeted?

This answer comes in two buckets.

For association health plans: If they can be considered large-group plans, they no longer have to comply with Obamacare's requirement that they cover certain essential health benefits. Large employers are exempt from that rule, which is limited to individual and small-group plans.

For short-term insurance: These plans are completely free from the ACA's regulations. Carriers can deny people coverage based on their medical history, charge people higher premiums based on their health status, and limit their benefits significantly more than the health care law allows.

3) Can individuals buy into association health plans?

This is maybe the biggest question. Experts generally agree that if individuals are allowed to join the association plans, the impact on the Obamacare marketplaces will be much more severe.

The executive order itself seems to limit the plans to businesses. But administration officials, in their call with reporters, indicated that they will look at whether they can allow self-employed people to buy into these associations.

"That is both a legal and policy question," one official said, adding it was "potentially possible" to allow those people to join associations.

4) Will this coverage be considered compliant with the individual mandate?

This is another issue with huge consequences. The one deterrent for people absconding to these skimpy plans, particularly the short-term insurance, is that they could still be subject to the individual mandate because the plan doesn't qualify as minimal coverage.

But if that changes, people would have even more incentive to abandon Obamacare and buy these skimpier plans, which would further damage the law's markets.

In the call with reporters, administration officials were coy. They simply noted that the executive order didn't address what is considered minimal coverage. They did point out that large-group coverage, which is what many association plans may soon be considered, is generally found to satisfy the mandate.

Any further changes to that threshold, particularly if the Trump administration makes short-term coverage compliant, would be a game changer.

5) What can states do?

We won't know until we see the regulations how much the traditional state authority to regulate association health plans and short-term insurance will be preempted. But experts are watching closely.

If states still have significant oversight, they could — if they so chose — potentially do a lot to limit people migrating to these skimpier plans.

But the Trump administration may try to write the new rules to handcuff states as much as possible.

6) Can these changes be challenged in court?

We simply won't know for sure until the administration proposes some actual regulations.

"It’s just a set of marching orders," Nicholas Bagley, a law professor at the University of Michigan, said of the executive order.

"We can speculate about what the agencies might do, and whether what they might do might be unlawful," he added. "But it’s hard to handicap the odds of a challenge to something that hasn’t yet happened."

Chart of the Day

Commonwealth Fund

Big deductibles for short-term insurance. Here is a stark reminder of how much less comprehensive short-term coverage is than what the ACA requires. These are out-of-pocket maximums for three months for short-term insurance in few different states. The full year out-of-pocket max for marketplace plans is $7,150 for an individual and $14,300 for a family. Read more here.

Kliff’s Notes

With research help from Caitlin Davis

Today's top news

  • “Trump signs order to eliminate ACA insurance rules, undermine marketplaces”: “President Trump signed an executive order on Thursday intended to allow small businesses and potentially individuals to buy a long-disputed type of health insurance that skirts state regulations and Affordable Care Act protections.” —Amy Goldstein, Washington Post
  • “Republicans renew commitment to repeal Obamacare after Trump order”: “Congressional Republicans on Thursday swore they weren't done trying to repeal Obamacare after President Trump signed an executive order borne out of frustration over Congress' inability to eliminate the law.” —Robert King, Washington Examiner
  • “Trump administration hints at enforcing ObamaCare mandate”: “The Trump administration is hinting that it will continue to enforce the ObamaCare mandate requiring Americans to have coverage. An administration document obtained by The Hill that accompanies an executive order signed by President Trump Thursday states that "only Congress can change the law" when it comes to the mandate.” —Peter Sullivan, the Hill

Analysis and longer reads

  • “The Insufficiency Of Medicaid Block Grants: The Example Of Puerto Rico”: “Although the most recent block grant legislation did not reach the Senate floor, proponents have promised to continue to push for it. But one need look no further than the growing health crisis in Puerto Rico to understand why capped federal money and state flexibility will not solve serious health care issues.” —Vikki Wachino and Tim Gronniger, Health Affairs
  • “America is spending more on doctors and less on hospitals”: “Health care spending continues to grow faster than the rest of the U.S. economy, albeit at a slower rate than in past years, according to the latest data from Altarum's Center for Sustainable Health Spending. The Affordable Care Act's expansion of insurance, along with the continued rise of deductibles, has pushed more patients (and dollars) into outpatient settings and doctors' offices instead of hospitals.” —Bob Herman, Axios
  • “ACA helped reverse decline in U.S. trust, research shows”: “Despite attempts by Congress to dismantle the Affordable Care Act, the law has had positive implications even beyond the accessibility of healthcare, a new study suggests. Researchers from Umea and Lund universities in Sweden showed that the ACA might be key to reversing the trend of declining social trust that has characterized the United States since the 1970s.” —Jeff Lagasse, Healthcare Finance

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