With the new Trump administration and Republican control of Congress, there has been a lot of discussion about eliminating the Affordable Care Act and replacing it with a different set of rules. Legislation has passed the House but not the Senate, and it appears that legislative changes are going to be much slower than anticipated.

However, there are many other changes to the ACA that do not require legislation. Here are a few of those changes:

Rulemaking about coverage for contraception:
There have been several lawsuits about the requirement to provide contraceptive coverage if the employer is a religious organization or has moral objections. The Trump administration is in the process of issuing a broad rule that would permit for-profit companies (including publicly traded companies) to choose not to provide coverage for contraceptives if the company has a religious or moral objection. The effect of that will be that women covered under those policies may seek to be covered under a spouse’s policy or through the exchanges in order to obtain that coverage.

Shorter sign up window for 2018:
T0he administration has said there will be a 45 day window for sign up. There has been less advertising. Some commentators believe that this means fewer healthy people will sign up because only sick people will be persistent when it is more difficult to sign up. If this is true, it could further burden the exchanges.

More waivers for states.
Alaska has already been granted a waiver to create a reinsurance program to cover certain conditions. More states are likely to seek waivers to create their own programs and having more state choice is a feature of the House passed legislation.

Curbs on “special enrollment periods”
The exchanges have a once a year sign up period. In order to sign up outside that period, a consumer must have a “qualifying event.” Insurers believe that these have been too easily granted, allowing some people to sign up only when they need costly treatment. The new administration is enforcing these rules more strictly requiring proof of a qualifying event.

Use of brokers:
New rules this year now allow insurance brokers and insurers to handle the entire enrollment process for consumers obtaining insurance on the exchanges. Some welcome this change as making enrollment easier for consumers. However, some consumer advocates fear that consumers will not be informed about all of their options and that the brokers have a financial interest in steering consumers to policies that may not be the best choice. This new rule applies in the 30 states that participate in the federal marketplace but not to states that run their own marketplace exchanges.

Questions about enforcement:
There was already concern about the IRS enforcement of penalties when the IRS announced it would not reject ‘silent returns.” Those returns which do not indicate whether the person had qualifying coverage will eventually be matched against the Form 1095 database. However, many people think that the ACA is either going away or will not be enforced. Declining budget resources are also likely to mean less enforcement. We are likely to see mostly “passive enforcement” through data matching, rather than active enforcement through investigation or audits.

We should expect to see continued changes to the ACA as the new administration makes changes to rules, regulations, policy guidance and enforcement priorities.

By Elizabeth Atkinson of LeClairRyan