When President Trump took office this January, he signed an Executive Order directing HHS and other federal agencies to “waive, defer, grant exemptions from or delay implementation of any provision or requirement ”of the Affordable Care Act (ACA) “to the maximum extent permitted by law.” This Executive Order was touted as the first step in repealing the ACA and many people began wondering what practical effect the Order would have. Some even theorized the Employer and Individual Mandate penalties would be waived.
In practicality, the Executive Order is more of an ideological statement because executive orders cannot change existing law. Under the Administrative Procedures Act (APA), agencies cannot rescind existing laws until they engage in a new notice-and-comment rulemaking process (including required public comment period and delayed effective dates) and follow other procedural requirements. This makes it very hard for a President to overturn final regulations without the cooperation of Congress. Since the Employer Mandate and Individual Mandate penalties are written into law, it would take an act of Congress to amend or repeal the monetary amount of the penalties. However, Congress has not passed any amendments or repeal provisions so the Employer Mandate and Individual Mandate penalties are still law.
In fact, the Department of the Treasury issued 4 opinion letters from April to June 2017 which confirm what we already knew: ACA penalties are still in effect. Taxpayers are still required to follow the law and pay what they may owe.
Applicable Large Employers (ALEs) should continue to offer affordable, minimum value coverage to their full-time employees and minimum essential coverage to dependents. If individuals are not eligible or not offered employer-sponsored coverage, they must still have minimum essential coverage (or qualify for an exemption) for each month of the year.
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