The stunning election of Republican Donald Trump as President of the United States triggers many questions, including what will happen to the Affordable Care Act (ACA) when the new President Trump takes office in January. President-elect Trump made campaign statements, both verbally and in written position papers, that the ACA should be completely repealed, stating that on the first day of his administration “we will ask Congress to immediately deliver a full repeal of Obamacare.” In addition, President-elect Trump wants to allow insurers to sell across state lines, provide individuals with tax deductions for health insurance premiums, make Health Savings Accounts (HSAs) more flexible, require price transparency from all healthcare providers, give states block grants to address local needs for Medicaid, and remove barriers that interfere with consumers being able to access to prescription drugs outside the U.S. Mr. Trump believes that these changes will increase competition and lower healthcare costs for Americans.

Is it likely to happen? Full repeal, of course, requires Congress to act and that may be easier said than done in terms of coming to agreement on how and what the healthcare arena should look like if the ACA is no longer law. Although there is a Republican majority in the Senate, getting 60 votes needed to get past Democratic filibusters against repeal of the law may prove difficult. In addition, deconstructing a complex set of laws and regulations that have evolved over the last six years and affect virtually all consumers and the healthcare industry is not an easy task. On that note, it will be interesting to see what actions, if any, the current administration will take before the end of the year regarding the ACA’s troublesome Reinsurance, Risk Adjustment, and Risk Corridor programs, commonly referred to as the “3Rs,” including the current litigation by insurers regarding the Risk Corridor payments.

Alternatively, without wholesale repeal the new President Trump could significantly impact how the ACA works through administrative agency action or inaction. For example, he could shift the direction of the continuing implementation of the law through the Health and Human Services Department (HHS) by suspending certain regulations that he believes are problematic. In addition, he could take steps such as dropping the appeal addressing a federal court’s ruling that Congress did not appropriate funds for the ACA’s cost sharing reduction subsidies, institute new rulemakings to tweak troublesome aspects of the law as currently implemented, and get smaller scale changes to the law passed by Congress. Leaving the ACA in place and revising it significantly through permissible means without full repeal may provide the flexibility to maintain the one clearly popular aspect of the law, which is increased health insurance coverage for individuals and families without preexisting condition or underwriting requirements, something President-elect Trump has commented that he wants for the American people. Although Mr. Trump could impact many aspects of the law through executive or administrative agency means, he may be reluctant to do so given his comments referring to overreaching regulatory agencies.

What will happen to the ACA in the Trump administration is murky and initial guesses are speculative at best. What is clear, however, is that the change the healthcare industry has experienced since 2010 continues at an even more rapid pace with Mr. Trump’s election, indicating an unknown future ahead. We will follow the upcoming developments closely.

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Photo of Deborah Dorman-Rodriguez Deborah Dorman-Rodriguez

Deborah Dorman-Rodriguez is a Partner at Freeborn & Peters LLP, and is the leader of the Healthcare Practice Group.

Deborah has diverse experience as a healthcare attorney representing insurers, providers, and other healthcare entities. Most recently she served as the Senior Vice President, Chief Legal Officer, and Corporate Secretary at Chicago-based Health Care Service Corporation (HCSC), which operates BlueCross and BlueShield plans in Illinois, Montana, New Mexico, Oklahoma and Texas.

At HCSC Deborah was responsible for providing legal advice and consultation on such issues as federal and state regulatory implementations, litigation, mergers and acquisitions, corporate governance and compliance.  She oversaw HCSC’s legal strategy during a period of unprecedented turbulence in the healthcare industry and helped the company navigate the regulatory and business upheaval associated with the passage of the Affordable Care Act (ACA).

With her experience in serving as CLO of a large organization and in representing healthcare clients over the past 20 years, Deborah understands that no legal decision exists in a vacuum, and that it is vitally important to offer legal advice that is business focused, efficient, practical, and solution-oriented.

Before serving as HCSC’s Chief Legal Officer, Deborah was Vice President and General Counsel of Blue Cross and Blue Shield of New Mexico, an attorney with the law firm of Simons, Cuddy & Friedman in  Santa Fe, New Mexico, where she represented health insurers, physician groups, and other healthcare organizations, Special Counsel to the New Mexico Superintendent of Insurance, and a former New Mexico Assistant Attorney General specializing in health insurance and telecommunications regulatory issues.

Photo of David Kaufman David Kaufman

David Kaufman is a Partner at Freeborn & Peters LLP, and he serves as a key member of the Firm’s Healthcare Practice Group.

David has practiced health law for more than 25 years, representing a range of entities responsible for ensuring cost effective and equitable access to healthcare, including health insurers, physicians groups, and regulators.

David has significant experience in federal and state-level regulatory and administrative law gained through private practice as well as in the public sector, serving as General Counsel to the New Mexico State Corporation Commission, Counsel to the New Mexico Superintendent of Insurance, and an Assistant Attorney General for the State of New Mexico.

Admitted to the state bars of New Mexico, New York, California, and Illinois, David’s prior experience in private practice includes work with national law firms in Chicago and Los Angeles, working on transactional healthcare matters and labor and employment issues, as well as Medicare and Medicaid reimbursement.

Before joining Freeborn, David served most recently as General Counsel for Blue Cross and Blue Shield of Illinois, where he was responsible for advising the company on regulatory and business issues in general and on the implementation of the Affordable Care Act.