Administration Health Care Executive Order

Table of Contents

On September 24, 2020, President Donald J. Trump issued a new health care executive order (EO). The EO ostensibly focuses on protecting people with preexisting conditions and eliminating surprise medical bills but will have little or no immediate effect. Instead of laying out a specific plan or action to take, much of the EO is devoted to recounting the administration’s health policy priorities and general agency directives (such as “giving Americans more choice in healthcare”). The EO’s approach is generally consistent with the seven-item bulleted list released by the campaign in late August.

The EO seems designed to try to blunt criticism of President Trump for 1) moving forward with nominating a new Supreme Court justice following the death of Justice Ruth Bader Ginsburg; and 2) repeatedly promising but not delivering a health care plan ahead of the 2020 election. The EO also attempts to blunt criticism of the President’s record on protecting people with preexisting conditions from insurance discrimination. As discussed here, protecting people with preexisting conditions is easier said than done. In California v. Texas, President Trump—even over the objection of his cabinet officials—has asked the Supreme Court to invalidate the entire Affordable Care Act (ACA), including the law’s ban on discrimination against people with preexisting conditions.

The Limits Of Executive Orders

Executive orders cannot change existing law. Congress is vested with the authority to make, change, or expand federal law while the executive branch implements and administers the laws that Congress passes. No matter how much she might want to, a President cannot expand her own legal authority. Section 6 of President Trump’s latest EO admits as much, noting that the order “shall be implemented consistent with applicable law and subject to the availability of appropriations.” This is standard language included in EOs because EOs are limited to what is possible under current law.

Executive orders can be used to direct federal agencies to draft new rules or guidance consistent with the administration’s existing legal authority. Even then, this process can take a significant amount of time. Agencies must develop and publish proposed rules that are responsive to the EO and then solicit and respond to public comments before finalizing the rules. This process takes months, if not years. Only then would any changes from an EO go into effect and be legally binding on stakeholders.

Summarizing The EO

This is far from the first time that President Trump has issued an EO on health care. The latest EO is, in many ways, an EO about other EOs. This EO cites prior EOs on the expansion of non-ACA plans,  price and quality transparency, Medicare, kidney health, rural health, mental health, the pandemic, and prescription drug policy (the focus of multiple EOs over the past three years), among others. Indeed, the vast majority of the EO is devoted to describing prior health care efforts and accomplishments. Many of these and other Trump-era health policy efforts are described in more detail here.

From there, the EO states that it is the “policy” of the United States to give patients “more choice, lower costs, and better care and to ensure that Americans with pre-existing conditions can obtain the insurance of their choice at affordable rates.” Much could be said about this “policy,” but I will focus on only a few caveats.

First, protections for people with preexisting conditions are already the law of the land under the ACA. No new policy is needed because those protections currently exist under federal law and remain in place—at least for now. Second, an EO’s stated policy goal is aspirational and does not create new law or impose new legal requirements on stakeholders. This may be the government’s “policy,” but that policy must be given effect through regulatory interpretations, guidance, agency priorities, and budgets. And the Trump administration’s record on effecting this policy has been widely criticized.

Third, simply saying that you will protect people with preexisting conditions does not make it true. If the ACA’s protections are invalidated, an EO will not protect a consumer from being denied coverage or charged higher premiums because of her health status. This point notwithstanding, the EO simply states—without any back-up plan—that “access to health insurance despite underlying health conditions should be maintained” even if the law is invalidated by the Supreme Court.

Beyond this “policy,” the EO includes general directives that sound nice but have no practical impact. For instance, the EO directs various cabinet officials to maintain and build upon existing actions to “expand access to and options for affordable healthcare,” “ensure consumers have access to meaningful price and quality information prior to the delivery of care,” “reduce waste, fraud, and abuse in the healthcare system,” “improve quality in the delivery of care for veterans,” and “promote medical innovations to find novel and improved treatments.” These are widely agreed upon objectives, but that is as far as they go. The EO directs no underlying policy change to make these goals a reality and falls far short of a comprehensive health plan.

The EO is more specific on surprise medical bills but largely punts this issue to Congress, where progress has stalled despite strong prior momentum and bipartisan, bicameral support for comprehensive protections. Recognizing that progress has stalled, the EO directs Sec. Azar to work with Congress on a legislative solution for addressing surprise medical bills by the end of the year. Failing legislative action, the Secretary is directed to take “administrative action” in 2021 to prevent patients from receiving a bill for expenses that they could not have reasonably foreseen.

There are viable executive options to limit surprise medical bills, although none would provide as comprehensive of a solution as federal legislation. Though the EO does not direct the Secretary to adopt a specific policy (reportedly in response to industry opposition), it appears to give a nod to the idea of “network matching.” There is also recent precedent for conditioning the use of federal health care funds on a ban on balance bills: earlier this year, the Trump administration imposed that condition on health care providers for certain uses of the Provider Relief Fund.

The EO would also require changes to the Hospital Compare website to display hospital billing practices. Once this policy was implemented, the website would display whether the hospital has complied with the Trump administration’s rule on price transparency, whether a patient receives an itemized receipt after a hospital stay, and how often the hospital pursues legal action against patients to, say, garnish wages or place a lien on a patient’s home. This type of aggressive medical debt collection was a serious problem even before the pandemic and disproportionately impact communities of color. While disclosure of these practices alone will not be enough to protect all patients, this could be a promising potential tool in discouraging abuses and exposing these practices more broadly.

Finally, the Trump administration issued a final rule on September 24 to create a potential pathway for states to safely import prescription drugs. This is consistent with one of the EO’s directives to “expand access to affordable medicines.” But I will leave it to other experts to comment on that rule, how this new pathway will be implemented, and whether this option is expected to result in savings for patients.

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