The Senate confirmed Rep. Tom Price as health and human services secretary very early Friday morning, officially putting him in charge of the agency that will oversee Obamacare repeal and replacement efforts.
Price will need to wait for congressional action to dismantle most major parts of the health care law. But there’s also a lot he can do right this very moment, through executive action. The fantastic Nicholas Bagley and Adrianna McIntyre have done heroic work tracking down 26 separate executive actions that a Trump administration could take. I’ve narrowed those down to 17 that it appears Health and Human Services could regulate on, possibly in joint rulemaking with other agencies (like the Treasury Department or the IRS).
Lots of these would likely face legal challenges from those who would argue that the Trump administration isn’t carrying out the Affordable Care Act as written. How those legal challenges would fare — and how long they would take to resolve — is still quite unknown.
Secretary Price, alongside other Trump administration agencies, may have the authority to:
- Decline to enforce the individual mandate. This is arguably one of the biggest executive authorities Price could choose to exercise. In conjunction with Treasury, he could significantly relax federal efforts to collect penalties from people who do not have health insurance, or stop collecting the fees altogether.
- Expand or curtail hardship waivers from the individual mandate. The Affordable Care Act allows the HHS secretary to exempt people who would face “hardship” obtaining coverage from the mandate — and leaves Price significant leeway to define what counts as “hardship.”
- Striking contraception from the list of women’s preventive services, or eliminating women’s preventive services altogether. The birth control mandate is one of the few Obamacare benefit requirements that Price can strike unilaterally. A full explanation of why is available here.
- Expand the reach of the contraceptive mandate accommodation (currently available to religious nonprofits and closely held for-profit companies). More companies could get the Hobby Lobby exemption.
- Narrow the essential health benefits rule. The Affordable Care Act mandates that insurers have to cover 10 “essential benefit” categories, including things like maternity care and mental health services. Price can’t change that part of the law — but he could issue new regulations that would give insurers a narrower definition of what it means to cover each category.
- Limit special enrollment periods. The Trump administration appears to already be taking steps in this direction, reportedly issuing a regulation that would require more documentation from those who want to sign up outside of open enrollment.
- End the “like it, keep it” fix. This is an administrative fix the Obama administration issued in November 2013 that allowed people to keep certain non-ACA-compliant insurance plans.
- Alternatively, expand the “like it, keep it” fix to exempt a wider range of plans from insurance rules.
- Reduce insurer assessments for participating on Healthcare.gov.
- Make it easier for online brokers like eHealthInsurance to sell subsidized coverage.
- In Medicaid, allow work requirements, premiums, and more cost sharing under 1115 waivers. Trump’s nominee to run the Centers for Medicare and Medicaid Services (CMS), Seema Verma, has shown great interest in these types of changes. States are able to propose Medicaid experiments through something called a 1115 waiver — and it’s almost certain that the Trump administration will be interested in approving different experiments than the Obama administration previously did.
- In Medicaid, allow states to limit how long beneficiaries can be continuously enrolled in the program under 1115 waivers.
- Permit more states to use Medicaid dollars to subsidize private exchange coverage. This could be similar to how Arkansas handled its Medicaid expansion.
- Delay enforcement of the “Cadillac tax” in 2020. Again, this is another Affordable Care Act fee that the Obama administration has already delayed. This one might be especially easy to put off, given that it hasn’t taken effect yet.
- Adjust the guidelines for 1332 waivers. These are the waivers that allow states to adopt an insurance expansion completely different from the Affordable Care Act so long as it can provide “coverage that is at least as comprehensive as the coverage” provided in the ACA, and do it in a budget-neutral way. A Price-run HHS could write different regulations that define what “at least as comprehensive” means.
- Adopt rules under section 1333 to enable more flexible cross-state insurance sales. This part of the health care law allows the secretary to write rules around “health care compacts,” where a group of states band together to allow sales across state lines. Price is now at the helm of deciding what regulations around that process look like, in consultation with state insurance regulators.
- Pull the plug on mandatory (or voluntary) demonstration projects through the Innovation Center. Price has been an outspoken critic of the Center for Medicare and Medicaid Innovation, a division of CMS created under Obamacare to run experiments in how to provide and pay for patients’ care. Price has repeatedly criticized CMMI as having “overstepped its authority” by not involving Congress enough in some of the decisions of how it funds different experiments.
Suffice it to say Price has a lot of options on his plate. The question isn’t whether he can act unilaterally on Obamacare — it’s whether he wants to, and where he starts.
Again, a huge thanks to McIntyre and Bagley, who compiled the original list that this post draws from. You can read their list, which has even more executive actions that other agencies could take, here.
Kliff’s Notes: Today’s top 3 health policy reads
“Trump administration strips down healthcare.gov”: “The pared-down insurance website now links to fewer details about the healthcare law's insurance reforms and coverage expansions. Entire sections praising the law's impact on costs, coverage and care have been removed. Some pages, including some that explain emergency room access and doctor choice, have been removed entirely.” —Paige Winfield Cunningham, Washington Examiner
“Safety net hospitals could lose $40 billion if ACA is repealed”: “That amount represents lost coverage and cuts to Medicaid and Medicare disproportionate share hospital (DSH) funding from 2018 through 2026. The ACA called for those cuts because hospitals would have theoretically needed that funding less as more people gained coverage on the marketplaces and through Medicaid expansion.” —Virgil Dickson, Modern Healthcare
“Anger erupts at Republican town halls”: “On Thursday night, two Republican members of Congress -- Reps. Jason Chaffetz of Utah and Diane Black of Tennessee -- were each confronted with impassioned constituents during simultaneous events. The shouted questions, emotional pleas and raucous protesters of the evening crystalized the GOP's tough political road ahead as it forges ahead with rolling back Obama's accomplishments, including the Affordable Care Act.” —M.J. Lee and Eric Bradner, CNN