Compliance Alert: Executive Orders Don't Change Anything Yet

The Administration has been busy this week. First, an interim rule expanding employer's ability to opt-out of the contraceptive mandate was released. Importantly, the rule still requires a health plan  to cover contraceptives at no cost share when no ‘regulatory recognized object exists’ by the employer sponsoring the health plan. This means that the new rules offer an exemption to employers or insurers who object based sincerely on religious beliefs to offering the coverage, and those who have ‘moral convictions’ against it.

Exemptions granted for ‘moral objections’ will only be an option for nonprofit employers, or for-profit employers with no publicly traded ownership interests. It is not a blanket reversal of the contraceptive mandate.

Next, on October 12, an executive order making significant changes to the current insurance market was signed, followed later that evening with an announcement that an end to the Marketplace subsidies was imminent. It is important to note these changes are not presently applicable, as further department action is required before the orders become ‘law’. As the New York Times reported on October 12:

“Most of the changes will not occur until federal agencies write and adopt regulations implementing them. The process, which includes a period for public comments, could take months. That means the order will probably not affect insurance coverage next year, but could lead to major changes in 2019.”

Following the executive order, the President announced an end to Marketplace subsidies, which again will not be effective for quite some time. For the time being, employers should continue to prepare their 1094 and 1095 reports and proceed with open enrollment plans with all presently effective ACA mandates and penalties in mind. As the departments act to implement the orders in the coming months (likely not until next year), all changes and related courses of necessary action will be outlined and communicated.

In the meantime, here is a brief summary of the main elements of the October 12 executive order:

  • Facilitate the purchase of insurance across state lines

  • Expanded access to association health plans

  • Make improvement in three areas in the near term:

    • association health plans (AHPs),

    • short-term, limited-duration insurance (STLDI), and

    • health reimbursement arrangements (HRAs) by expanding the permitted use