United States: Post-Inauguration Outlook: ACA, Fiduciary Rule And Retirement-Related Tax Provisions

Robert Friedman is a Partner for Holland & Knight's Miami office.

Sepedeh Tofigh is an Associate for Holland & Knight's Miami office.


  • With Republican control of both houses of Congress and a new president who promised throughout his campaign to dismantle key existing laws, many are anticipating regulatory changes for retirement plan and healthcare-related rules.
  • After taking the oath of office last Friday, President Trump signed an executive order to dismantle the Affordable Care Act (ACA).
  • It is also anticipated that the Department of Labor will delay the Fiduciary Rule before its general effective date of April 10, 2017.

President Donald Trump took the oath of office on Jan. 20, 2017, officially ushering in Republican control of the executive and legislative branches of government. With Republican control of both houses of Congress, and a new president who promised throughout his campaign to dismantle key laws passed under former President Barack Obama, many are left wondering about the regulatory outlook for retirement plan and healthcare related rules.

In his first hours in office, Trump officials sent a memo to all federal agencies instructing them not to issue any new regulations, withdraw unpublished regulations, and temporarily postpone regulations that have been published but have not yet taken effect.

Specifically, President Trump has promised to repeal and replace the Affordable Care Act (ACA), and signed an executive order on his first day to dismantle the ACA. While the Trump Administration has not directly addressed the regulations issued by the Department of Labor in April 2016, which change the definitions of fiduciary and fiduciary advice (the Fiduciary Rule), it is anticipated that the Department of Labor will, at a minimum, delay the applicability of the Fiduciary Rule before its general effective date of April 10, 2017.

The Affordable Care Act

Last Friday, on his first day in office, President Trump signed an executive order giving federal agencies broad powers to unwind regulations created under the ACA. In the last week and a half, both houses of Congress approved parliamentary language allowing them to proceed with the repeal of parts of the ACA without filibuster. However, the Trump Administration and Republicans in Congress have not reached consensus regarding a transition period between the repeal of the ACA and replacement measures. Republican Senate leaders prefer at least a three-year transition period, the House Republican caucus prefers a maximum two-year transition period, and President Trump has continuously stated that there should be no gap between the repeal and replacement of the ACA. On Jan. 15, 2017, President Trump stated in an interview that he is almost ready to release his proposed plan to replace the ACA.1

Many attorneys are reviewing previous Republican legislation, namely the "Restoring Americans' Healthcare Freedom Reconciliation Act of 2015" (H.R. 3762), which was vetoed by President Obama, to try and anticipate the key provisions that Congress will pass to undo the ACA. These key provisions include:

  • repealing the premium tax credit and cost sharing subsidy
  • repealing the small business tax credit
  • ending the expansion of Medicaid
  • repealing individual and employer penalties for violation of mandates
  • repealing the Cadillac excise tax on high cost employer sponsored health coverage
  • repealing a number of provisions relating to health savings accounts, Archer medical savings accounts (MSAs), flexible spending accounts (FSAs), health savings accounts (HSAs) and health reimbursement accounts (HRAs) — namely their use for over the counter medications, lowering the tax on distributions from HSAs and Archer MSAs that are not used for medical expenses and repealing the salary reduction contribution limit for FSAs
  • repealing the taxes and fees on health insurers, brand name prescription drug manufacturers and medical devices
  • repealing the employee compensation limit that a health insurer may deduct

President Trump and the House Republicans both have signaled that they want to expand the use of HSAs and HRAs drastically, and retain some portions of the ACA, such as the ban on any exclusions for individuals with pre-existing conditions or the provision of dependent coverage up to age 26.

The Fiduciary Rule

The Fiduciary Rule is already effective, but revised provisions are not applicable until April 10, 2017. To date, President Trump has not stated that it will direct the Department of Labor to reevaluate the Fiduciary Rule. However, the legal community anticipates that the Trump Administration may delay the applicability date with an interim final regulation, subject to notice and comment. With the delay, the Trump Administration may re-evaluate the Fiduciary Rule and provide for modifications or exemptions. Of course, each modification would be subject to the notice and comment requirements. Given the timing requirements of the rulemaking process, we anticipate that the applicability of the Fiduciary Rule will remain uncertain for at least several months.

In addition to executive action by the Trump Administration to delay and revise the Fiduciary Rule, Congress is anticipated to review legislation that may replace the Fiduciary Rule, subject to an effort by Democrats in Congress to block such legislation. The Fiduciary Rule also continues to be challenged in federal court. (It is likely that the Trump Administration will direct the Department of Justice not to defend these cases, though legal advocacy groups would almost certainly take their place.) Regardless of the likelihood that the applicability of the Fiduciary Rule will be delayed, the Employee Benefits Security Administration released a set of frequently asked questions regarding the rule last week, and last Thursday published a proposed exemption from the Fiduciary Rule for certain fixed-annuity contract commissions for insurance intermediaries.

Retirement-Related Tax Provisions

While the Trump campaign did make some specific policy recommendations regarding the Internal Revenue Code or Treasury Regulations, many questions remain outstanding, especially with respect to retirement related provisions. The House and Senate Republican leadership, further, have not released detailed plans about reforming the Internal Revenue Code or Treasury Regulations with respect to the U.S. retirement system. However, House and Senate Republicans, under Obama's Administration, have generally sought to reduce tax expenditures, including with the Tax Reform Act of 2014. Tax incentives for retirement planning are some of the greatest tax expenditures under the Internal Revenue Code, and have therefore historically become a target of reform for House and Senate Republicans. The Tax Reform Act of 2014 includes the following provisions, which may be indicative of upcoming reform efforts:

  • aggregate and reduce the number of tax brackets
  • establish a limit on pre-tax contributions to plans
  • require all defined contribution plans to permit Roth contributions
  • impose a freeze on certain retirement contribution and benefit limits
  • subject all defined contribution plans to the contribution limits in 401(k) plans
  • eliminate certain plans such as traditional Individual Retirement Accounts (IRAs) and Simplified Employee Pensions (SEPs)


Under the Trump Administration, we believe it will be the goal of House and Senate Republicans to undo significant regulation passed under the Obama Administration. The retirement and health systems are likely to be greatly impacted, because they make up a large part of spending and tax expenditures in this country. 


1 Shear, Michael D. Trump Promises 'Insurance for Everybody' as Health Law Replacement, The New York Times, January 15, 2017.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions