Hours after taking the oath of office President Donald Trump signed a broadly worded executive order (“Order”) intended to minimize if not eliminate the impact of the ACA’s least popular provisions. With the Order President Trump can claim immediate action towards fulfilling a major campaign pledge while giving his administration and the Republican led Congress time to come up with a replacement plan.

The Order directs the secretary of HHS and other agency heads to, among other directives:

[E]xercise all authority and discretion available to them to waive, defer, grant exemptions from, or delay the implementation of any provision or requirement of the [ACA] that would impose a fiscal burden on any State or a cost, fee, tax, penalty, or regulatory burden on individuals, families, healthcare providers, health insurers, patients, recipients of healthcare services, purchasers of health insurance, or makers of medical devices, products, or medications. [And] [t]o . . . exercise all authority and discretion available to them to provide greater flexibility to States and cooperate with them in implementing healthcare programs. [And] [t]o . . . encourage the development of a free and open market in interstate commerce for the offering of healthcare services and health insurance, with the goal of achieving and preserving maximum options for patients and consumers.

The Order makes it clear that any agency actions under the order must be within the confines of the law and its existing regulations, both of which remain in place at least for now. The agencies still have the option of amending or repealing ACA regulations but the Order gives them the authority to take some action before going through the regulatory approval process.

Apparently, the agencies will decide which stakeholders’ costs and “burdens” under the ACA will be reduced. This presents them with an interesting challenge given the opposing interests inherent in the broad group of stakeholders expressly targeted for relief under the Order. For example, if the scope of the individual mandate (likely the prime target of the Order) were reduced relieving some individuals of the cost of buying health insurance, it would likely skew the risk pool of the exchange plans to less healthy participants increasing the cost and burden on the exchange’s insurers and those individuals who want to purchase insurance through the exchanges. That action could also end up reducing overall insurance coverage increasing the uncompensated care hospitals and other providers would be required to deliver.

Perhaps the most interesting aspect to watch, however, will be whether the Order ultimately has any significant substantive effect or simply ends up being a symbolic gesture. Some observers have contended that significant delays to, or gutting of, a portion of the ACA’s tightly woven and inter-related pieces mid-year 2017 would create chaos in the affected programs, like the health insurance exchanges, which are already underway this year. Therefore, there has been speculation that actions under the Order are not likely to be effective until 2018. The question is whether any actions under the Order, which are expressly limited to those that are permissible under the ACA, will mean anything in 2018 when it is almost certain that the ACA will have already been repealed.

Whether substantive or symbolic, clearly the first step in the ACA’s dismantling has been taken and we will be watching very closely as the administration and Congress take many more.

Consistent with what we have been seeing in our own practice, and consumers’ growing demand for better access to telemedicine services, a bi-partisan movement is growing in both houses of Congress to expand telehealth services, improve health outcomes, and reduce healthcare costs. On Wednesday February 5, 2016, U.S. Senators Brian Schatz (D-Hawaii), Roger Wicker (R-Miss.), Thad Cochran (R-Miss.), Ben Cardin (D-Md.), John Thune (R-S.D.), and Mark Warner (D-Va.) introduced the Creating Opportunities Now for Necessary and Effective Care Technologies (CONNECT) for Health Act (s. 2484), which seeks to overhaul Medicare’s treatment of the practice of telemedicine and its related technologies. Companion legislation was introduced in the House of Representatives by U.S. Reps. Diane Black (R-TN), Peter Welch (D-VT), and Gregg Harper (R-MS). According to the Senate bill’s sponsors, the CONNECT for Health Act would:

1. Create a bridge program to help providers transition to the goals of the Medicare Access and CHIP Reauthorization Act (MACRA) and the Merit-based Incentive Payment System (MIPS) through using telehealth and RPM without most of the 1834(m) restrictions contained in the aforementioned Senate bill;
2. Allow telehealth and Remote Patient Monitoring to be used by qualifying participants in alternative payment models, without most of the aforementioned 1834(m) restrictions;
3. Permit the use of remote patient monitoring for certain patients with chronic conditions;
4. Allow, as originating sites, telestroke evaluation and management sites; Native American health service facilities; and dialysis facilities for home dialysis patients in certain cases;
5. Permit further telehealth and RPM in community health centers and rural health clinics;
6. Allow telehealth and RPM to be basic benefits in Medicare Advantage, without most of the aforementioned 1834(m) restrictions; and
7. Clarify that the provision of telehealth or RPM technologies made under Medicare by a health care provider for the purpose of furnishing these services shall not be considered “remuneration.”

So far, the following organizations have publically endorsed the bill:

• AARP
• ACT | The App Association
• Airstrip
• Alliance for Aging Research
• Alliance for Connected Care
• Alliance of Community Health Plans (ACHP)
• Alzheimer’s Foundation of America
• America’s Essential Hospitals (AEH)
• America’s Health Insurance Plans (AHIP)
• American Academy of Neurology (AAN)
• American Academy of Physician Assistants (AAPA)
• American Association of Diabetes Educators (AADE)
• American Heart Association/American Stroke Association (AHA)
• American Medical Association (AMA)
• American Medical Group Association (AMGA)
• American Nurses Association (ANA)
• American Occupational Therapy Association (AOTA)
• American Osteopathic Association (AOA)
• American Psychological Association (APA)
• American Society of Nephrology (ASN)
• American Telemedicine Association (ATA)
• American Well
• Anthem
• Association for Ambulatory Behavioral Healthcare
• Association for Behavioral Health and Wellness (ABHW)
• CAPG
• Cerner
• DaVita
• Federation of State Medical Boards (FSMB)
• Hawaii Medical Service Association (HMSA)
• Health Care Chaplaincy Network
• Healthcare Leadership Council (HLC)
• Healthcare Information and Management Systems Society (HIMSS)
• Intel
• Kaiser Permanente
• LifeWIRE
• NAADAC
• National Association for Home Care & Hospice
• National Association for the Support of Long Term Care (NASL)
• National Association of ACOs (NAACOS)
• National Association of Community Health Centers (NACHC)
• National Council for Behavioral Health
• National Council of State Boards of Nursing (NCSBN)
• National Health IT Collaborative for the Underserved
• Personal Connected Health Alliance (PCHA)
• Population Health Alliance
• Qualcomm Incorporated (and Qualcomm Life)
• Telecommunications Industry Association (TIA)
• The ERISA Industry Committee (ERIC)
• The Evangelical Lutheran Good Samaritan Society
• The Jewish Federations of North America
• Third Way
• University of Mississippi Medical Center (UMMC) Center for Telehealth
• University of Pittsburgh Medical Center (UPMC)
• University of Virginia (UVA) Center for Telehealth

The full text of the bill can be found here.

A report recently released by the Federal Trade Commission (FTC) concludes that data brokers currently operate so far below the radar screen that most consumers are unable to exercise any real control over the collection and use of their personal information. In addition to shedding light on the data broker marketplace and its practices, the report also provides recommendations to Congress about legislation that could better protect consumers and begin to regulate this poorly understood industry.

Data Brokers: A Call for Transparency and Accountability is based on an in-depth study of nine leading data brokers, companies that collect consumers’ personal information and resell or share that information with others in the form of marketing, risk management, or people search products. Combined, data brokers currently collect and store billions of bits of data about nearly every consumer in the United States. According to the FTC, “Because few consumers know about the existence of data brokers, meaningful notice from the data source provides an important opportunity for consumers to learn that their data is shared with data brokers and how to exercise control over the use of their data.”

In order to promote transparency, the Commission recommended that Congress consider legislation:

– Enabling consumers to easily identify which data brokers may have data about them and where they should go to access such information and exercise opt-out rights.

– Requiring data brokers to clearly disclose to consumers that they not only use raw data (such as a person’s name, address, age, and income range), but that they also use data they derive with that information.

– Requiring data brokers to disclose the names and/or categories of their sources of data, so that consumers are better able to determine if they need to correct their data with an original public record source; require data brokers to allow consumers to correct erroneous information in their private databases.

– Mandating that consumer-facing entities to provide a prominent notice to consumers that they share consumer data with data brokers and provide consumers with choices about the use of their data, such as the ability to opt-out of sharing their information with data brokers.

More generally, the Commission called on the data broker industry to adopt several best practices:

– Implement privacy-by-design, considering privacy issues at every stage of product development.

– Refrain from collecting information from children and teens, particularly in marketing products.

– Take reasonable precautions to ensure that downstream users of their data do not use it for eligibility determinations or for unlawful discriminatory purposes.

Cozen O’Connor’s Health Law Informer will continue to monitor Congress and the data broker industry’s response to the FTC report.