Possible Legal Content of an Executive Order on Health Care

This is a legal and not a political post.  I am neither an expert in all aspects of federal health care law nor a political insider, and this is beyond the scope of what I normally address on this blog.

The reason for the post: interesting news has begun to swirl the last few days about whether the President might issue an executive order on health care, specifically an order on association health plans (see here and here for example).  This would be a significant event for the law and the nation and would affect my clients and blog readers.

The topic of the post: what might the legal content be of an executive order on healthcare.

One guess is this:  it might reverse prior Department of Health and Human Services (HHS – a federal executive branch agency) guidance.  It is my understanding that in the wake of the Affordable Care Act passage in 2010, insurers were unclear on whether the law prohibited association health plans (plans where professions or trades group together).  HHS took the position that association health plans were not permitted (except under very narrow ERISA exceptions) and that federal law would preempt state law.

It would appear that for any new associational plans to issue, this guidance would have to be somehow altered.  And this appears to be something the executive branch might be able to accomplish without legislative action, since the prior guidance was given the same way.

Others with more knowledge of the situation may disagree or have more educated guesses – please feel free to let me know or comment.  Or it may never come about.  Or it may come about a different way.  This was just the first thought that came to mind when I heard the news this morning.