January 27, 2017

NAAOP Outlines Recent Developments in ACA Reform

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The National Association for the Advancement of Orthotics and Prosthetics (NAAOP) has written a letter to its members in which NAAOP General Counsel Peter Thomas, JD, outlines recent developments in Affordable Care Act (ACA) reform, and notes that “it will be an extraordinarily busy year from a legislative and regulatory perspective.” The letter was emailed to members and can also be found on the organization’s website, http://naaop.org/latest-news. A summary follows:

Budget Reconciliation Bill: The House and Senate have already passed a budget reconciliation bill that enables Congress to consider repealing and replacing the ACA through expedited procedures. A reconciliation bill allows the Senate to pass legislative provisions with only 51 votes, rather than the 60 required for other legislation.

Repeal and Replace Takes Hold: In recent weeks, the message of ACA supporters to not repeal without replacing the ACA at the same time has taken hold. The professed goal at this point is to pass both a repeal and a replacement of ACA by the end of April.

House and Senate Begin Drafting Repeal and Replace Bill: Several House and Senate committees are examining proposals to repeal and replace the ACA through this reconciliation legislative vehicle, and individual groups of senators are also beginning to introduce different versions of replacement legislation. Indications are that these committees will bring forward public proposals in February or March.

Reconciliation Bill Contents: A reconciliation bill can only include provisions that impact the federal budget; budget neutral provisions in the ACA cannot be addressed through this mechanism.

Setting Expectations: President Trump; Vice President Pence; the U.S. Department of Health and Human Services (HHS) nominee for secretary, Representative Tom Price (R-GA); and various legislators have all sent signals that the “rug will not be pulled out” from under current ACA enrollees.

HHS Secretary Nominee Tom Price: Price has now been through two hearings and will soon be scheduled for a vote to confirm his nomination. Democrats have raised ethical concerns and have been frustrated by the lack of specificity of his responses to committee members’ questions. Price has suggested that the repeal-and-replace legislation is Congress’ prerogative and he will administer whatever Congress passes. Because his confirmation only requires 51 votes, he is expected to have a favorable vote.

Executive Order on ACA: Trump’s first Executive Order, issued on January 20, was a directive to all federal agencies “to waive, defer, grant exemptions from, or delay the implementation of any provision or requirement of the Act 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.” The question now is how this directive will be interpreted by the federal agencies.

Memorandum From White House Chief of Staff on Federal Regulations: Also on January 20, Reince Priebus, assistant to the president and chief of staff, issued a memorandum to the heads of the departments and agencies placing a 60-day moratorium on federal regulations, with certain exceptions, pending agency review. This will impact healthcare regulations, including Medicare and Medicaid, but will not impact public comment periods for pending regulations.

Impact of Executive Order: The key question for Price is whether he will use these executive authorities to limit or eliminate federal subsidies under the ACA or otherwise eliminate the individual and employer mandates. Factors weighing against implementation of this Executive Order include the fear that if certain portions of the ACA are no longer in effect, the whole system may implode.

Additional Executive Orders: Most recent statements from the administration indicate that Trump will sign additional Executive Orders to roll back the ACA. There appears to be an emerging consensus to extend the ACA for two years with no coverage changes under the ACA repeal-and-replace legislation to promote market stability.

Recent ACA Findings: Recent findings by various organizations are raising the level of pressure to find an ACA replacement plan that can attract eight Democratic votes in the Senate.

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