(Bloomberg) — The Trump administration may stop enforcing the Affordable Care Act requirement that most Americans carry health insurance even before Congress repeals the law, Kellyanne Conway, a top adviser to the new president, said in interviews broadcast on Sunday.
Such a move would take the teeth out of former President Barack Obama’s healthcare law and could destabilize insurance markets, analysts say. It was not clear from Conway’s remarks whether President Donald Trump would try to use his executive authority to make the change, which would be much faster than writing new regulations or waiting on lawmakers.
"What President Trump is doing is, he wants to get rid of that Obamacare penalty almost immediately, because that is something that is really strangling a lot of Americans, to have to pay a penalty for not buying government-run health insurance," Conway, whose title is counselor to the president, said Sunday on ABC News’s "This Week"
When host George Stephanopoulos asked her if Trump would "stop enforcing that mandate," Conway responded: "He may."
Trump campaigned on a pledge to repeal and replace the ACA, a law he dubbed a “disaster.” The Obama administration estimated that it has led to about 20 million people who didn’t previously have health insurance gaining coverage, and the Congressional Budget Office said in a report last week that repealing the law without enacting an alternative policy would cause 32 million people to lose their insurance.
"We want to make very clear to everyone that those who are relying upon coverage will not lose it," Conway told Stephanopoulos.
On Friday, his first day in office, Trump signed an executive order declaring that his administration will seek “prompt repeal” of the law. The order also commanded federal agencies to try to waive or delay requirements of Obamacare that impose economic or regulatory burdens on states, families, the health-care industry and others.
That may have been a reference to the so-called individual mandate that requires Americans to carry insurance. Conway, in an interview broadcast Sunday on NBC News’s “Sunday Today With Willie Geist,” appeared to indicate that the law’s requirement that most employers offer coverage to their full-time workers would also end.
“We’re doing away with this Obamacare penalty,” she said in the NBC interview, which was conducted Thursday. “This tax has been so — such a burden on many Americans. And it’s also been a burden on many small business owners, many of whom complained to us that that Obamacare penalty, along with so many other draconian regulations, are just a stranglehold.”
Limits of orders
Presidents can’t use executive orders to end laws unilaterally, so it’s unlikely that Trump’s order would entirely end the Obamacare mandates, according to Timothy Jost, a professor with expertise in health law at Washington and Lee University School of Law and a contributor to Bloomberg View. But the administration could give more flexibility for people to avoid the requirement by saying it poses a hardship.
Undoing the ACA’s requirement that all people have coverage could destabilize the market. That’s because healthier people might choose not to buy health plans, leaving only sick people covered. If the administration doesn’t enforce the mandate, that could be enough to push some insurers from the market, according to California Insurance Commissioner Dave Jones.
“This executive order is likely to destabilize health insurance markets across the United States,” he said Saturday in a statement.
New York Gov. Andrew Cuomo provided an early indication of how some states may push back on Trump’s pledge to undo the health law. On Saturday, he proposed rules requiring New York’s health insurers to cover birth control and medically necessary abortions, even if the President Barack Obama’s healthcare overhaul is repealed.
Repeal and replace
Ultimately, it’ll be up to Congress to repeal the health law and pass a replacement policy. Republican lawmakers have taken initial steps to begin repealing Obamacare using the congressional budget process, though they haven’t provided details on which pieces of the law will end or what they’ll enact instead.
Trump has said his administration will lay out its replacement plan once his nominee for Health and Human Services Secretary, Representative Tom Price of Georgia, is confirmed. Price faces a hearing on Tuesday before the Senate Finance Committee, which will then vote on whether to put his nomination before the full Senate.
Republicans have faced questions about whether their health policy will result in Americans losing insurance coverage, particularly those who buy plans with subsidies in the new markets created by Obamacare, and those who are covered in the law’s expansion of Medicaid. Conway joined Trump in saying that people will keep their plans, though she qualified her remarks.
“President Trump has said that people will not go without coverage. And he means that,” she said in the NBC interview. She later said that “there will be ways for people to access affordable, quality health insurance if they’d like to get it.”
Conway mentioned two features of Trump’s Obamacare replacement. She said Medicaid funds will be provided to states in the form of block grants. And she said the plan will include health-savings accounts, which are a way for people to put aside money to pay for health expenses with tax advantages. They’re typically linked to high-deductible health plans, and are already available under the Affordable Care Act.
Conway said those accounts would lead to individuals taking more ownership over their health-care choices.
“Very few people take the car to the car wash before they return it to the rental station,” she said. “You don’t have ownership of it. And this way you do. It’s a great analogy, actually, so that people can understand what it means to have a health savings account.”
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