Executive Order of Health Care Administration
On September 24, 2020, President Donald J. Trump released a new decree on health care (EO). The EO ostensibly focuses on protecting people with pre-existing conditions and eliminating surprise medical bills, but will have little or no immediate effect. Instead of presenting a specific plan or action to be taken, much of the OE is devoted to recounting the administration’s health policy priorities and general agency guidelines (such as “to give Americans more health care choices ”). The IB’s approach is generally in line with the bulleted list of seven items published by the campaign at the end of August.
The OE appears designed to attempt to blunt criticism of President Trump for 1) moving forward with the appointment of a new Supreme Court justice following the death of Justice Ruth Bader Ginsburg; and 2) repeatedly promising but not deliveringis lying a healthcare plan ahead of the 2020 election. The EO is also trying to blunt criticism of the president’s record in protecting people with pre-existing conditions from insurance discrimination. As discussed here, protecting people with pre-existing conditions is easier said than done. In California v. Texas, President Trump, even during the objection from his cabinet officials– asked the Supreme Court to strike down the entire Affordable Care Act (ACA), including the law’s ban on discrimination against people with pre-existing conditions.
The limits of executive orders
Executive orders can not modify the law in force. Congress is vested with the power to make, amend, or expand federal law while the executive branch implements and administers laws passed by Congress. No matter how badly she wishes, a president cannot extend his own legal authority. Article 6 of President Trump’s latest EO admits this, noting that the ordinance “shall be implemented in accordance with applicable law and subject to the availability of credits.” This is a standard language included in OEs because OEs are limited to what is possible under current law.
Executive orders can be used to order federal agencies to write new rules or guidelines consistent with the administration’s existing legal authority. Even then, this process can take a long time. Agencies should develop and publish proposed rules that are sensitive to the EO, then solicit and respond to public comments before finalizing the rules. This process takes months, if not years. Only then would changes to an EO come into effect and be legally binding on stakeholders.
Summary of the OE
This is far from the first time President Trump has issued an OE on health care. The last OE is, in many ways, an OE relating to other OEs. This EO cites previous EOs on the expansion of non-ACA plans, price and quality transparency, Health Insurance, kidney health, rural health, Mental Health, the pandemic, and prescription drug policy (at the center of several EOs over the past three years), among others. Indeed, the vast majority of EO is devoted to describing past efforts and achievements in health care. Many of these and other Trump-era health policy efforts are described in more detail here.
From there, the OE declares that it is the “policy” of the United States to offer patients “more choice, lower costs and better care and to ensure that Americans with ailments pre-existing ones can get the insurance of their choice at affordable rates. . “A lot could be said about this ‘policy’, but I’ll just focus on a few caveats.
First, protections for people with pre-existing conditions are already the law of the land under the ACA. No new policy is needed as these protections currently exist under federal law and remain in place, at least for now. Second, the stated policy objective of an EO is ambitious and does not create new law or impose new legal requirements on stakeholders. This may be the “policy” of the government, but this policy must be implemented through regulatory interpretations, guidelines, agency priorities and budgets. And the Trump administration’s record in implementing this policy has been widely criticized.
Third, just saying that you will protect people with pre-existing conditions doesn’t make it true. If ACA protections are invalidated, an EO will not protect a consumer against denial of coverage or higher premiums due to their medical condition. This point notwithstanding, the OE simply states – without any back-up plan – that “access to health insurance despite underlying health conditions must be maintained” even if the law is struck down by the Supreme Court.
Beyond this “policy”, the OE includes general guidelines that sound good but have no practical impact. For example, the OE asks various cabinet officials to maintain and build on existing actions to “expand access and affordable health care options,” “ensure consumers have access to meaningful information on price and quality before the delivery of care “,” reduce waste, fraud and abuse in the health system “,” improve the quality of service delivery to veterans “and” promote medical innovations to find new and improved treatments ”. These are widely accepted goals, but that’s it. The EO does not impose any underlying policy changes to make these goals a reality and falls far short of a comprehensive health plan.
The OE is more specific on surprise medical bills, but largely takes this issue to Congress, where progress has stalled despite strong previous momentum and bipartite and bicameral support for comprehensive protections. Recognizing that progress has stalled, the OE orders Sec. Azar will work with Congress on a legislative solution to address surprise medical bills by the end of the year. In the absence of legislative action, the secretary is urged to take “administrative measures” in 2021 to prevent patients from being billed for expenses they could not have reasonably foreseen.
There are viable executive options for limiting surprise medical bills, although none offer a solution as comprehensive as federal law. Although the IB does not ask the secretary to adopt a specific policy (apparently in response to industry opposition), it seems to give a nod to the idea of ”network match”. There is also recent precedent to condition the use of federal health care funds on a ban on balancing bills: Earlier this year, the Trump administration imposed this condition on health care providers for certain uses of the Provider Relief Fund.
The IB would also require changes to the Medicare.gov Hospital Comparison Website to view 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 does the hospital take legal action against patients to, for example, garnish wages or place a lien on a patient’s home. This kind of aggressive medical debt collection was a serious problem even before the pandemic and had a disproportionate impact on communities of color. While disclosure of these practices alone will not be enough to protect all patients, it could be a promising potential tool to deter abuse and expose these practices more widely.
Finally, the Trump administration issued a final rule on September 24 to create a potential route for states to safely import prescription drugs. This is in line with one of the OE guidelines to “expand access to affordable medicines”. But I’ll leave it to other experts to comment on this rule, how this new path will be implemented and whether this option should result in savings for patients.