Trump Aims at Preexisting Conditions, Surprise Billing in Executive Orders, but Details Are Sparse

September 24, 2020

The announcement comes just 6 weeks before the Supreme Court is set to hear oral arguments in Texas v Azar, upon which the future of the Affordable Care Act (ACA)—which counts among its many provisions protection for patients with preexisting conditions—hinges, and which the administration is trying to get overturned.

En route to a campaign event in North Carolina, Trump administration officials said Thursday the president would sign 2 executive orders, one seeking to protect people with preexisting conditions and one on surprise medical bills. But details of what the orders would do, or what power they would have over the health care and insurance industry, were not immediately clear.

The announcement comes just 6 weeks before the Supreme Court is set to hear oral arguments in Texas v Azar, upon which the future of the Affordable Care Act (ACA)—which counts among its many provisions protection for patients with preexisting conditions—hinges, and which the administration is trying to get overturned.

HHS Secretary Alex Azar and CMS Administrator Seema Verma discussed the intent of the orders as they traveled with the president to Charlotte, North Carolina, where he was slated to deliver a health care–related speech later in the day.

The order on preexisting conditions would state, “It is the policy of the United States to provide protections to ensure that Americans with preexisting conditions are protected, regardless of whether the Affordable Care Act is unconstitutional and its protections for preexisting conditions invalidated,” Azar said.

The second, on surprise medical billing, is less of an order and more of a directive to Azar, instructing him to work with Congress to get legislation passed on surprise medical billing by January 1, 2021.

If such a law is not passed, then Azar is instructed to “investigate executive actions and regulatory actions.”

Azar was asked on the media call what legal authority the president has to attempt to protect Americans with preexisting conditions via executive order, noting that President Barack Obama, in 2010, had to get that shield included in the ACA. The reporter, from The New York Times, also asked how insurers would be forced to comply if the ACA is struck down. Azar did not directly answer the question.

Another question, from a representative of the Association of American Physicians and Surgeons (AAPS), raised concerns about any action on surprise medical billing and called it a method of "price controls" decided by payers. The AAPS, which opposed the ACA in 2010 and continues to oppose it, wanted Azar to answer "how do you protect the patient's ability to get care if physicians cannot afford to provide it?"

"The details are for you all to be working out with Congress," Azar said, saying efforts so far to pass surprise billing legislation have not succeeded.

Asked why the executive order is, essentially, a message to go talk to Congress, Azar was asked why there was not actually any concrete action within it. Azar responded, "It is what it is, as described."

However, with the election just 40 days away, the chance of any legislative success for the administration as time winds down in 2020 is virtually nil.