The Patient Freedom Act: The First Step Towards Replacing the Affordable Care Act?

By Jamie Zveitel Kwiatek and Alexia M. Noble

It is full steam ahead from the executive and legislative branches on plans to “repeal and replace” the Affordable Care Act (ACA). As a result, employer medical plan coverage may again be significantly altered. On January 23, 2017, Senators Bill Cassidy (R-LA) and Susan Collins (R-ME) proposed the Patient Freedom Act 2017, to serve as a replacement for the ACA. The key feature of the proposed legislation would allow states to select the form of health care regulation to implement for residents. Under the legislation, states may either:

  • Opt to comply with the ACA, including mandates;

  • Opt not to seek federal assistance; or

  • Opt to receive funding equal to 95% of the federal premium tax credits and subsidies and federal match for Medicaid expansion. Such funding would be used to create Health Savings Accounts (HSA) for residents.

The legislation further provides that states would be allowed to select the regulatory format of their choice in 2018, and start providing coverage by 2019. 

Under the proposal, the individual mandate, employer mandate and benefit mandates of the ACA would be repealed. However, consumer protections such as the prohibitions on annual and lifetime limits on coverage, pre-existing condition exclusions and discrimination will remain in place. Additionally, the Patient Freedom Act would continue to allow dependent children to remain covered by their parents’ insurance until age 26, and would provide coverage for serious mental health and substance abuse disorders. 

The introduction of the Patient Freedom Act follows an Executive Order by President Trump that instructs the Department of Health and Human Service (HHS) to “waive, defer, grant exemptions from, or delay the implementation” of provisions of the ACA. While the Executive Order does not fully repeal the ACA, it provides HHS with discretion regarding the extent to which the law will be enforced. 

Polsinelli will continue to monitor developments surrounding this issue. Please contact the authors or your Polsinelli attorney if you have any questions.