The American Health Care Act is out and the ACA is here to stay for now — though likely in a more conservative form. Because Obama administration used considerable executive authority in interpreting the ACA, the Trump administration will have the same power to interpret the law.
Here are 10 ways HHS can shape healthcare policy without relying on a vote in Congress.
1. Actuarial value of plans on the exchange. CMS issued proposed regulations in February to adjust the actuarial value of plans on the exchanges, according to Politico. This change gives payers the flexibility to offer cheaper plans by lowering the minimum standards for coverage. This could increase the amount consumers have to pay out of pocket on deductibles and co-pays, but could ultimately "help stabilize premiums, increase issuer participation and ultimately provide some offsetting benefit to consumers," according to a filing with the Federal Register.
2. Authorization of subsidies. During the Obama administration, the House questioned the constitutionality of the funding for the subsidies provided under the ACA to low-income enrollees,If the Trump administration sides with the House and does not back the subsidy funding in court, payers risk losing considerable funding, according to The New York Times.
3. Individual mandate. On his first day in office, President Donald Trump signed an executive order that could effectively end the ACA's individual mandate. Politico called this move "symbolic" of the president's intent to reform healthcare. The mandate allows HHS to create additional hardship exemptions from the penalty, paving the way for looser enforcement of the mandate. Reports in February indicated the Internal Revenue Service has already begun to reduce enforcement of the individual mandate on tax returns.
4. Enrollment periods. As part of the regulations proposed mid-February, CMS suggested constricting the enrollment period for ACA signups to align dates with the employer-sponsored market and Medicare. The proposal would cut down the enrollment period by half a month.
5. Marketing. HHS also decided to dial back some spending on television and digital ads plugging ACA enrollment deadlines, according to Politico. While most of the major cuts were reversed, the decline in ads may have had an effect on enrollment this year, which garnered 1.6 million fewer signups than projected, according to the Politico report.
6. Verification requirements for special enrollment. In February, the Trump administration proposed changes to special enrollment, adding extra verification requirements, according to Politico. The proposal expands the documentation required of people who enroll in marketplace coverage outside of normal enrollment periods.
7. Benefit requirements. Under the Obama administration, all health plans were required to cover 10 essential health benefits. In the final hours before a vote on the AHCA, Republicans targeted this requirement for repeal to help sway conservative members of the House to vote for the bill. While these requirements cannot be entirely eliminated without Congress, they can be adjusted, according to The New York Times. Contraceptive coverage is a likely target, Politico reports.
8. Medicaid waivers. Shortly after Seema Verma was sworn into office as administrator of CMS, she coauthored a letter with her boss, HHS Secretary Tom Price, MD, calling for states to submit more Medicaid waivers. In the letter, she made it clear the new administration would approve waivers with work requirements for Medicaid beneficiaries — which the Obama administration denied. Based on her work on Medicaid in Indiana, The New York Times also noted she will be likely to approve Medicaid waivers that include small premiums and cost sharing provisions for beneficiaries.
9. Medicare demonstrations. Through the Center for Medicare and Medicaid Innovation, which was created under the ACA, HHS can use mandatory demonstration projects to change Medicare, according to The New York Times. How Dr. Price chooses to use this authority remains to be seen — he may focus on dialing back demonstration projects launched under the ACA due to his opposition to CMMI. During the Senate health committee hearing on his nomination, he voiced his opposition to CMMI, saying, "Because it carries the full force of the federal government and the payment for those services, it means we are answering the question of who decides about what kind of care patients receive, by saying the answer on that ought to be Washington, D.C. I simply reject that that is where those decisions ought to be made."
CMS has already begun to exercise some of this power — delaying the implementation of the cardiac care bundled payment program and the expansion of the Comprehensive Care for Joint Replacement model.
10. State innovation waivers. Earlier this month, Dr. Price sent a letter to governors calling for Section 1332 waiver submissions, according to The New York Times. This waiver allows states exemption from "the law's burdens" if they can propose a five-year plan that provides residents with similar coverage options without increasing the federal deficit. HHS is currently reviewing a 1332 waiver for Alaska, which seeks to expand a reinsurance program for 2018.
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