Jan 21, 2017

The rapid response to Trump's Obamacare executive order

Pablo Martinez Monsivais/AP

The early consensus on President Trump's executive order is that it could cause problems with insurers — because it's so vague, but could be read as an attack on the individual mandate. Insurers want clear signals about what's next, so it's a good bet that muddying the waters isn't going to help.

The possible weakening of the mandate is the angle that's dominating the national coverage, including the Washington Post's writeup, and House Minority Leader Nancy Pelosi said in a statement Saturday that the order "appears to target the individual mandate."

There's an important caveat, though: The executive order doesn't do anything more than set goals for the agencies, which won't officially be under new leadership until President Trump's team is in place.

"This order doesn't by itself do anything. It sends marching orders to federal agencies but doesn't grant them any new powers," said Larry Levitt of the Kaiser Family Foundation. However, he said, "my reading is that the order is signaling loosening up on the individual mandate and required benefits, and giving states more flexibility."

Nicholas Bagley, a respected legal expert on Obamacare, has a good post up about how to decode the language on flexibility. He says the broad language on waivers or exemptions for costs, fees, taxes, and other burdens:

[R]eads like bureaucratic code for 'kill the individual mandate by any means possible.'

And here's how Andy Slavitt, the outgoing chief of the Centers for Medicare and Medicaid Services, responded to the executive order on Twitter:

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Levitt agreed that the uncertainty itself is the biggest problem: "Something we can be certain of is that this order creates much more uncertainty for insurers just as they're formulating their plans for 2018."

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