President Trump’s executive orders and their impact on employer health programs
Since taking office, President Trump has signed a flurry of executive orders that overturned many of President Biden’s executive orders and addressed campaign promises on a wide range of issues, including energy production, immigration, and DEI and gender-related initiatives. Some may require immediate action by business and HR leaders – in fact, the Wall Street Journal has reported that some CEOs have set up “war rooms” to prepare for and respond to changes affecting their organizations.
Benefit professionals may be feeling pressure to sort through the growing list of orders to understand the possible implications for their programs. We’ve outlined the current executive orders that could most directly affect employer health plans below. However, none of these necessitates immediate action and their impact is not yet clear. It’s important to understand what an executive order is – and isn’t – so let’s start with that.
What is an executive order?
An executive order is an official document presidents use to manage the federal government – directing the federal agencies to take or stop taking action. They identify the president’s policy priorities and directives, and in some cases, they directly or indirectly impact private businesses. To learn more about the purpose and limits of an executive order, check out this AP article.
The effective dates of executive orders can vary. Some of a president’s directives can be implemented immediately while others may require a longer period to study an issue and propose and finalize a solution. Agency efforts to carry out executive orders may also be delayed by congressional action or litigation.
Executive orders that may impact health benefits
We have identified three orders with possible implications:
- “Regulatory Freeze Pending Review” – A regulatory freeze is standard operating procedure for all new administrations. The executive order: prevents the proposal or issuance of any new rule; withdraws any rules sent for publication in the Federal Register; and delays for at least 60 days (at least until Mar. 21) the effective date of all new published federal rules published in the Federal Register, until administration officials review and approve them. The recently proposed HIPAA Security Rule To Strengthen the Cybersecurity of Electronic Protected Health Information will likely be affected by this freeze.
- “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” – This executive order instructs the federal government to recognize only two sexes, male and female, and they are not changeable. Rescinds Biden-era policies intended to prevent discrimination based on an individual’s gender identity. There is likely to be implications for how the government will continue – or discontinue – its enforcement and defense of the Biden-era rules implementing the ACA Section 1557’s ban on sex discrimination in health programs and activities receiving federal funds. Under those rules, the term “sex” includes gender identity. Legal challenges seem likely.
- “Protecting Children from Clinical and Surgical Mutilation” – This executive order seeks to prohibit gender affirming care for children ages 18 or younger. Among other measures, the order aims to condition federal research and education grants for healthcare facilities (e.g., hospitals and medical schools) and provider participation in Medicare and Medicaid programs on the termination of gender affirming care for minors, which will likely cause disruptions in care and limit future access. New or amended federal regulations stemming from this executive order could directly impact group health plans. Employers may want to closely monitor future guidance and work with their health plan partners to respond.
- “Initial Rescissions of Harmful Executive Orders and Actions” – This executive order rescinded two of Biden’s directives aimed at strengthening Medicaid and the ACA (e.g., boosting ACA public exchange enrollment) and testing new payment and delivery models that would potentially lower drug costs.
While it’s a good idea to stay on top of the orders that might affect benefit programs and to start thinking through possible implications, it’s also important to remember that it is early days and there is much more to learn before any tangible action is needed. We will continue to report on developments here on the blog – stay tuned.
Blog contributors: Katharine Marshall, Dorian Smith, Tracy Watts, Geoff Manville, Wade Symons, and Vikki Walton