United States: Trump Signs New Executive Order Threatening ACA (Beltway Buzz - October 13, 2017)

The Beltway Buzz is a weekly update summarizing labor and employment news from inside the Beltway and clarifying how what's happening in Washington, D.C. could impact your business.

Trump Signs New Executive Order Threatening ACA. Following last month's senatorial defeat on full repeal-and-replace—after which Congress vowed to move on to tax reform and other lower hanging fruit—the Trump administration is trying a new tactic by issuing a comprehensive executive order (EO) on October 12, 2017. Though administration officials intend for the new EO to be the "first steps to providing millions of Americans with Obamacare relief," critics fear the order might cause the present health care marketplace to implode like the Washington Nationals in the playoffs, resulting in widespread loss of quality coverage. Although details are few at this time, the EO expands the availability of three already existing alternatives to ACA-covered health plans:

  • association health plans (AHPs);
  • short-term, limited-duration insurance (STLDI); and
  • health reimbursement arrangements (HRAs).

Each of these alternative arrangements are exempt from certain "onerous and expensive insurance mandates and regulations," such as the individual mandate.

The EO is drafted so as to shift responsibility for hammering out details to the secretaries of the Department of Labor (DOL), Internal Revenue Service (IRS), and Health and Human Services (HHS), who are directed to "consider proposing regulations or revising guidance, consistent with law" (emphasis added) to accomplish these goals within 60 or 120 days from the date of the EO (i.e., by December 11, 2017 or February 9, 2018, as applicable). The EO also imposes significant new reporting requirements on these federal agencies. By directing federal agencies to essentially rewrite the rules, opponents fear that the EO will accomplish what Congress could not—strip away significant patient protections and other ACA benefits. As a legal matter, there is likely to be buzz—and possibly litigation—over whether the EO exceeds the lawmaking authority granted to the executive branch. This is still developing, so we will, of course, keep you informed as further details emerge. (Hat tip to Stephanie A. Smithey, Timothy G. Verrall, and Richard C. Libert.)

Trump Announces Cutoff of Future Cost Sharing Reduction Subsidies. Coming within hours of Thursday's new EO affecting the ACA, the president announced that he intends to cut off all future cost sharing reductions (CSRs) paid to insurers that sell on the ACA market exchanges. Though it might have come as a surprise, the move was not entirely unexpected—the administration has been under no legal obligation to fund these payments following a 2016 federal district judge's ruling that Congress had not specifically authorized these payments. Although the Obama administration had appealed the decision, the current administration abandoned the appeal, essentially keeping the lower court ruling in place. The administration had been making CSRs on a monthly basis, but it was anticipated that the payments would be discontinued at some point.

The announcement did not specify when the changes will become effective; however there are reports that place the effective date as early as November. Given the precarious legal situation surrounding CSRs, some stakeholders will welcome the move to cut off future CSRs. Critics, on the other hand, view the action as a calculated political move to further undermine the ACA and force Democrats to the negotiating table. However viewed, the maneuver is expected to cause temporary chaos in the insurance industry, and will most likely affect the ability of many lower-income residents to afford coverage. Like your ace pitcher melting down in a series-clinching playoff game, this is a significant development. (Hat tip to Stephanie A. Smithey, Timothy G. Verrall, and Richard C. Libert.)

Congressional Schedule and Nominations. The Senate was in recess this week, and the House will be in recess this coming week. This means that there was no progress on the nominations front, though the Senate Health, Education, Labor and Pensions (HELP) Committee has scheduled an executive session for Wednesday, October 18, to consider the following nominees:

  • Patrick Pizzella—Deputy Secretary of Labor
  • Cheryl Stanton—Wage and Hour Division Administrator
  • David Zatezalo—Assistant Secretary of Labor for Mine Safety and Health
  • Janet Dhillon—Member of the Equal Employment Opportunity Commission and upon confirmation designated chair 
  • Daniel M. Gade—Member of the Equal Employment Opportunity Commission 
  • Carlos G. Muniz—General Counsel, Department of Education
  • Peter Robb—General Counsel, National Labor Relations Board
  • Gerald Fauth, III—Member, National Mediation Board
  • Kyle Fortson—Member, National Mediation Board
  • Linda Puchala—Member, National Mediation Board

We'll have more on this matter next week.

Disability Claims Procedure Regs Effective Date Delayed 90 Days. On October 12, the DOL issued proposed regulations that would delay, until April 1, 2018, the effective date of the final regulations issued last December for disability benefits provided under retirement plans or welfare benefit plans. Interested parties and members of Congress had expressed concern that the final regulations could drive up disability benefit costs and reduce coverage. Pursuant to Executive Order 13777, which directed federal agencies to evaluate existing regulations and recommend changes that might make them less burdensome, the DOL concluded that it is appropriate to grant additional time to seek further commentary on the final regulations. The 90-day extension is intended to provide this opportunity—but both commentators and employers that have been nervous about the impact of the final regulations might find the fleeting reprieve less than ideal. (Hat tip to Stephanie A. Smithey, Timothy G. Verrall, and Richard C. Libert.)

EBSA Nominee Announced Soon? In more benefits news, the White House will nominate Senate Finance Committee staffer Preston Rutledge to be assistant secretary for the Employee Benefits Security Administration. If confirmed, Rutledge will oversee, among other matters, the disability claim regulation discussed above, as well as the fiduciary rule, parts of which (like the best interest contract exemption) are postponed until July 1, 2019. And, speaking of the fiduciary rule, representatives Virginia Foxx (R-NC) and Phil Roe (R-TN) outline their legislative proposal to fix the rule here.

OSHA Injury Tracking Rule is . . . on Track. As we've previously reported, the administration has delayed the effective date of the Occupational Safety and Health Administration's (OSHA) 2016 injury and illness reporting regulation from July 1, 2017 to December 1, 2017. Additionally, according to the Spring Regulatory Agenda, the administration has promised to issue a Notice of Proposed Rulemaking (NPRM) sometime this month "to reconsider, revise, or remove provisions" of the rule. Well, it looks like that timetable may actually still be somewhat accurate. In a status report filed this week in a lawsuit challenging the regulation, attorneys for the Department of Justice wrote, "OSHA has drafted substantial portions of the NPRM, including draft regulatory text and a summary and explanation of the proposed changes, and that OSHA's economists have made significant progress on the economic analysis and continue to refine it. Once the analysis is finalized, the draft NPRM will proceed through the agency clearance process." With about two weeks left in October, we will see if OSHA meets its own prediction for release of the NPRM.

DACA Update. On October 8, President Trump sent congressional leaders a letter that details "reforms that must be included as part of any legislation addressing the status of Deferred Action for Childhood Arrivals (DACA) recipients." Among the priorities are the construction of a border wall (no surprise there), accelerating the return of Unaccompanied Alien Children, eliminating loopholes in the asylum system, addressing the immigration court backlog by seeking to hire an additional 370 immigration judges, blocking grants to sanctuary cities, strengthening the removal process for visa overstays, and mandatory use of E-Verify. These demands won't go over well with Democrats and even some Republicans.

As for what is happening in Congress, take a look at the status of the SUCCEED Act in the Senate.

"I, For One, Welcome Our New Robot Overlords." Technology and automation certainly have an impact on employment policy, and, in a glimpse of what's to come, last week the Senate Commerce Committee reported out the bipartisan "American Vision for Safer Transportation Through Advancement of Revolutionary Technologies (AV START) Act" (S. 1885). The bill is intended to ease regulations that make it harder to get self-driving cars on the road. Some consumer groups worry that the legislation doesn't do enough to ensure that driverless cars are sufficiently safe for passengers and other motorists. Conversely, disability advocates support the measure as a vital way to increase mobility for individuals with disabilities.

Gridlock Experts Take to The Gridiron. Our representatives certainly are both charitable and competitive. Indeed, we've recently covered their participation in baseball games and spelling bees. On Wednesday night, it was football, as members of Congress—with the help of former professional football players like Santana Moss and Herschel Walker—took on the Capitol Police officers in the Congressional Football Game for Charity. The game raises money for the U.S. Capitol Police Memorial Fund and other charities. In what must have been a riveting contest, the Capitol Police won 7–0 (it's no wonder that the congressional team couldn't get anything done). Perhaps the congressional team would have fared better if Steve Largent and Heath Shuler were still elected representatives. Next up for the winners? The N.Y. Giants, who are an early underdog.

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