Providers - For Profit

The hero has disappeared in a cloud of suspicion and is presumed dead, so much so that supposed friends are found to be celebrating his passing.  This is just as it should be at the end of Act II.  Remember when Republicans rejoiced over the apparent abandonment of H.R. 3200 in October 2009?  It furnished the foundation for H.R. 3590, which became Public Law 111-148 (one of the two statutes that comprise the ACA) in March 2010.  Capitol Hill is short on many things, but there are plenty of plot devices available to move this story forward before the elections in November 2018.  Passing the 2015 partial repeal bill again soon probably is a long shot.  But ACA subsidies may seem less sacrosanct after ACA taxes really begin to bite in early 2018, and ACA architects may rue their decision to give the HHS Secretary such wide discretion to grant § 1332 waivers.

When lawyers talk about “waivers,” we normally have in mind contracts to surrender certain legal rights in exchange for something else deemed more desirable.  Section 1332 waivers are something entirely different.  Codified as 42 U.S.C. § 18052, this ACA text empowers the Secretary to approve state plans to alter, and perhaps dispense with, these ACA provisions, for up to five years:

  • ACA § 1301-1304 (including “essential health benefits” and “qualified health plan” definitions);
  • ACA § 1311-1313 (state-operated ACA Exchanges);
  • ACA § 1402 (cost-sharing subsidies); and
  • Code § § 36B (premium subsidies), 4980H (employer mandate) and 5000A (individual mandate).

The Secretary may grant a state’s waiver request only after finding that it would achieve at least equivalent coverage and cost-sharing protections without increasing the federal deficit.  But the ACA also required the former Administration to do things that it didn’t do, and to enforce things it didn’t enforce.  Employer mandate taxes were to accrue beginning in 2014.  There was no “transition relief.”  The ACA killed so-called “grandmothered plans” outright.  Those and many other politically problematic dictates were delayed, ignored or amended administratively, sometimes very informally. We won’t be surprised if this Administration uses § 1332 waivers to allow states to “fix” perceived ACA problems that can’t or won’t be fixed by Congress.

Of course, facile findings made to facilitate waivers would provoke years of litigation ending with Supreme Court pronouncements… after November 2018 …maybe after November 2020.  So maybe we should discount that possibility.  [Insert your preferred emoji here.]

Update:  Well, that accelerated quickly.  The Senate Budget Committee web site now features a link to an 18-page draft bill called The Obamacare Repeal Reconciliation Act of 2017.  Here are highlights of what seems clear on first reading.  The bill appears to –

  • Uncap the recapture of excess premium tax credit payments;
  • Terminate at the end of 2019 the ACA’s small business tax credits, premium tax credits and cost sharing payments, while expressly authoring cost-sharing payments to be made through 2019;
  • Set the individual mandate and employer mandate taxes at $0, retroactive to January 1, 2016;
  • Defund Planned Parenthood for one year, offset by boosting Community Health Center funding by $422M;
  • Phase-out Medicaid expansion;
  • Repeal DSH payment reductions;
  • Suspend Cadillac plan taxes until 2026;
  • Repeal taxes on over-the-counter medications, repeal the prescription medicine tax, repeal the medical device tax, the tanning tax and the health insurance tax beginning January 1, 2018;
  • Repeal the net investment tax retroactive to January 1, 2017;
  • Repeal FSA contribution limits beginning January 1, 2018;
  • Authorize $1.5B of new anti-addiction spending in FY2018-19.

This is the simplest, skinniest health care “repeal” bill you are likely to read, so you should.

 

Lots of wrecks happen because drivers, staring at what’s directly in front of them, are unaware of dangers coming from other directions. This is an ACA blog, so right now we’re staring at the ACA changes being proposed by the Senate majority, but we want you to remain aware that collateral developments could spell trouble for your group health plan.  Here are two.

On June 16, 2017, the three ACA enforcement agencies (DOL, HHS, IRS) issed new FAQ guidance about non-quantitative treatment limintations (NQTL) and assoiciated disclosure obligations, including a draft form to be used to request such disclosures from employer-sponsored group health plans.

Four federal statutes work together to forbid such plans to impose financial requirements and treatment limitations for mental health and substance use disorder (MH/SUD) benefits exceeding the predominant financial requirements and treatment limitations that apply to substantially all medical and surgical benefits, and to force such plans to make related disclosures so that plan participants, and their authorized representatives, can assess compliance. NQTL examples include “medical necessity criteria, fail-first policies, formulary design, or the plan’s method for determining usual, customary, or reasonable charges.”  Often, out-of-network providers make related disclosure requests as their patients’ authorized representatives.

This new guidance also clarifies that “if a group health plan or a health insurance issuer provides coverage for eating disorder benefits,” those are “mental health benefits” fully subject to parity and disclosure standards.

“Boom!” While you were focused on mental health parity rules, the U.S. District Court for the Eastern District of Texas applied the Americans with Disabilities Act (ADA) to an exclusion of coverage for Applied Behavior Analysis Treatment for autism spectrum disorder. See Whitley v. Dr Pepper Snapple Group, Inc., E.D. Texas No. 4:16-cv-00362, Memorandum Opinion and Order (Doc. 4) entered May 4, 2017.  The claimant, mother of a child needing that treatment, claimed that the employer amended its plan to exclude that treatment after and because she sought coverage.  Denying the employer’s summary judgment motion, the Court wrote:

Plaintiff alleges Dr. Pepper changed the 2016 Summary Plan Description in response to and in retaliation for her inquiries regarding whether the Plan covered ABA Treatment. Dr. Pepper responds that the 2016 Summary Plan Description “clarification” did not single out Plaintiff or her son because it applied to all participants. However, Plaintiff alleges that Dr. Pepper modified the 2016 Summary Plan Description to single out and exclude coverage for a particular disability after becoming aware that Plaintiff’s son suffered from that disability. Plaintiff has sufficiently established that the modification and denial of fringe health insurance benefits were an adverse employment action. Plaintiff has made a prima facie showing of discrimination.

The employer contended that ABA Treatment had never been covered and that the 2016 amendment just clarified that lack of coverage. Viewed in the light most favorable to the claimant, said the Court, the evidence supported her claim that the plan was changed to drop coverage after and because she sought coverage, in violation of the ADA.

So, we’ll stare along with you at the ACA changes made in the Senate bill to be released today, but keep your head on a swivel because there are dangers in every direction.

In the wee hours of May 5, 2017, a state governor awoke, startled.  Late on May 4, he or she had been briefed on the Patient and State Stability Fund and the Federal Invisible Risk Sharing Program described in § 132 of the American Health Care Act.    The reptilian brain was working, as always, in the background until it brought the body bolt upright in bed.  Our governor mumbled, “Billions would flow annually to states and insurers to fix the problems that Washington couldn’t fix.  The governor who succeeds will be the next President.”

Our hypothetical governor wasn’t dreaming.  If the AHCA becomes law, beginning in 2018, over $15B annually will be spent on this experiment.  Most of that money will fund state waiver programs that will be auto-approved, from 2018 through 2026, unless affirmatively rejected by CMS within 60 days of filing.  See AHCA § 132, adding to the Social Security Act new § 2203.

Of course, strings will be attached.  Applications for 2018 funding must be submitted within 45 days of AHCA enactment, in a form and manner yet to be prescribed by CMS.  Each application must certify, “that the State will make, from non-Federal Funds, expenditures for such purposes in an amount that is not less than the State percentage required for the year under section 2204(e)(1).” And, CMS will have to decide what to do if different state officials submit competing state plans, because the statute does not address that issue.  If no 2018 plan is received, or if the state plan is rejected, then CMS will coordinate a Default Federal Safeguard program with the state’s insurance commissioner.

This isn’t Medicaid expansion by another name.  The use of funds permitted by new § 2202 is broader, including assistance to high risk individuals, individual and small group market stabilization, facilitating access to preventive services, and payments directly to providers.  Plainly, the AHCA seeks to encourage local innovation.

Somewhere, perhaps soon, some governor will study this with staff, come up with something others consider crazy, and repeat these words famously spoken by Dr. Frederick Fonkensteen – “IT . . . COULD . . . WORK!”

____________

*See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting)

 

Most EEOC retaliation charges are dismissed if the supporting evidence is flimsy.  So why should employers expect ACA retaliation charges to be more costly?  Here’s why:  Gallas v. The Medical Center of Aurora, DOL Administrative Review Board No. 15-076 (Slip Op. April 28, 2017).

Long story short, Ms. Gallas, a registered nurse, was fired from her job as a psychiatric evaluator.  She attributed her discharge to her refusal to perform those functions using telemedicine tools provided by her employer.  In her view, psychiatric evaluation, other than face-to-face, provided substandard care, in violation of the Emergency Medical Treatment and Labor Act (EMTALA), the Health Insurance Portability and Accountability Act (HIPAA), state laws, and ethics rules.  Her employer carefully considered her contentions and rejected each one after investigation, but she persisted.  One day, Ms. Gallas refused to perform a remote evaluation.  Since no other evaluator was available, she was allowed to perform it face-to-face.  She was fired the next day.

The Administrative Law Judge assigned to her ACA claim dismissed it, since Ms. Gallas “failed to identify any specific provisions of the ACA which she reasonably believed the Respondent violated.”  That requirement seems to appear on the face of the statute, 29 U.S.C. § 218c(a), which reads, in relevant part:

No employer shall discharge or in any manner discriminate against any employee … because the employee … has—

(1) […];

(2) […];

(3) […];

(4) […]; or

(5) objected to, or refused to participate in, any activity, policy, practice, or assigned task that the employee (or other such person) reasonably believed to be in violation of any provision of this title (or amendment), or any order, rule, regulation, standard, or ban under this title  (or amendment).

(Emphasis ours.)  However, under the former Administration, DOL adopted rules and issued decisions that relaxed that standard markedly.  So, according to the Board, a claimant need not allege any ACA violation.  She “need only allege activity or disclosures ‘related’ to ACA’s subject matter.”  Though HIPAA and EMTALA are separate laws, they address some of the same health care problems as the ACA, so employee objections to perceived HIPAA or EMTALA violations will substitute, for this purpose, for the ACA’s requirement that the employee objected to what she reasonably believed to be an ACA violation.

Effectively, this standard blocks dismissal of such ACA retaliation claims unless the employer can show that the employee’s objection was not reasonably related to any reasonably perceived violation of any federal or state law relating to health care or health care financing. If the EEOC took the same view of the anti-retaliation statutes it administers, employers would be required to prove that employee complaints bore no reasonable relationship to any federal or state law or rule requiring fair employment practices.  Whether intended or not, a principal consequence of this approach is to enhance the settlement value of even the flimsiest retaliation claims.

Here are the highlights we took (quickly) from this afternoon’s Congressional Budget Office Cost Estimate for the American Health Care Act.

The AHCA “would reduce federal deficits by $337 billion over the 2017-2026 period.”

In 2018, “14 million more people would be uninsured under the [AHCA] than under current law. Most of that increase would stem from repealing the penalties associated with the individual mandate.”  Mostly due to reduced Medicaid rolls, that number would rise to 21 million by 2020 and then to 24 million by 2025.

“[T]he [individual health insurance] market would probably be stable in most areas under either current law or the [new] legislation.”

“Even though the new tax credits would be structured differently from the current subsidies and would generally be less generous for those receiving subsidies under current law, the other changes would, in the agencies’ view, lower average premiums enough to attract a sufficient number of relatively healthy people to stabilize the market.”

“The [AHCA] would tend to increase average premiums in the [individual health insurance] market prior to 2020 and lower average premiums thereafter, relative to projections under current law.”

“Under the [AHCA], insurers would be allowed to generally charge five times more for older enrollees than younger ones rather than three times more as under current law, substantially reducing premiums for young adults and substantially raising premiums for older people.”

“With less federal reimbursement for Medicaid, states would need to decide whether to commit more of their own resources to finance the program at current-law levels or whether to reduce spending by cutting payments to health care providers and health plans, eliminating optional services, restricting eligibility for enrollment, or (to the extent feasible) arriving at more efficient methods for delivering services.”

“Beginning in 2020, the [AHCA] would repeal [ACA actuarial value] requirements, potentially allowing plans to have an actuarial value below 60 percent. However, plans would still be required to cover 10 categories of health benefits that are defined as “essential” under current law, and the total annual out-of-pocket costs for an enrollee would remain capped. [C]omplying with those two requirements would significantly limit the ability of insurers to design plans with an actuarial value much below 60 percent.”

CBO expects that, “businesses that decided not to offer insurance coverage under the [AHCA] would have, on average, younger and higher-income workforces than businesses that choose not to offer insurance under current law.”

“The [AHCA] would eliminate [the ACA’s DSH] cuts for states that have not expanded Medicaid under the ACA starting in 2018 and for the remaining states starting in 2020, boosting outlays by $31 billion over the next 10 years.”

“The [AHCA] would provide $2 billion in funding in each year from 2018 to 2021 to states that did not expand Medicaid eligibility under the ACA. Those states could use the funding, within limits, to supplement payments to providers that treat Medicaid enrollees.”

“The [AHCA] would make a number of additional changes to the Medicaid program, including these:

  • Requiring states to treat lottery winnings and certain other income as income for purposes of determining eligibility;
  • Decreasing the period when Medicaid benefits may be covered retroactively from up to three months before a recipient’s application to the first of the month in which a recipient makes an application;
  • Eliminating federal payments to states for Medicaid services provided to applicants who did not provide satisfactory evidence of citizenship or nationality during a reasonable opportunity period; and
  • Eliminating states’ option to increase the amount of allowable home equity from $500,000 to $750,000 for individuals applying for Medicaid coverage of long-term services and supports.”

Screenplays, new business ventures and major legislation typically have problems in Act II.  Hopes were raised so high in Act I.  Now, things seem to drag on and on, pointlessly.   Friends tell you to give up or start over and enemies . . . well.

Last week, two House committees – Energy and Commerce, Ways and Means – produced the budget reconciliation bill drafts, sub nom the American Health Care Act – that were scheduled to have been delivered to the House Budget Committee by January 27.  The Budget Committee (remember, this is budget reconciliation) now will seek to deliver to the House floor an AHCA draft that can get 218 votes despite a feared CBO analysis that may be published today.  Here are highlights of the current bills.

Individual mandate taxes and employer mandate taxes are repealed, sort of.  Technically, the employer mandate tax (26 U.S.C. § 4980H) is set at $0 for tax years beginning after December 31, 2015.  Puzzlingly, however, ACA coverage reporting mandates and penalties are untouched.    So, if you were hoping to avoid dealing with the IRS about 2015 tax assessments, or Form 1095-C reporting issues, you’ll need Budget Committee or House floor amendments.  And, while the individual mandate dies, the AHCA authorizes insurers to charge a 30% premium for people who want to buy coverage after they become ill or injured.  That’s the trade-off for keeping the ACA mandate to sell coverage to people with pre-existing conditions.

Medicaid expansion, which the ACA promised to fund only to 2019, is repealed after 2019.  Further, states will be paid a capped amount per individual enrolled in Medicaid.  However, the AHCA restores DSH payments that hospitals lost under the ACA and gives states much more authority to police Medicaid eligibility and ferret-out fraud.

ACA premium and cost sharing subsidies are repealed and replaced with tax credits based on age and family size.

Almost all the ACA’s new taxes are repealed, along with the ACA’s FSA limits.  The big exception is the Cadillac Plan tax, which gets buried and then rises from the grave, zombie-like, in 2025.

We don’t plan to get too excited about anything until we see (a) what the House sends the Senate and (b) what HHS Secretary Tom Price does to reform, by administrative rule and sub-regulatory guidance, what cannot be changed by budget reconciliation legislation.  For example, in a March 10 news release, the Secretary promised to do, “everything within our authority to provide our nation’s governors and state legislatures with greater flexibility on how they utilize Medicaid resources in caring for those in need.  This will include a review of existing waiver procedures to provide states the impetus and freedom to innovate and test new ideas to improve access to care and health outcomes.”  We suspect that new HHS rules (and, later, IRS and DOL rules) will become bargaining chips in negotiations over legislation that will need 60 Senate votes.

We’re in the middle Act.  It’s messy and we’ll need a while to see where we’re going.  As Quasimodo would have said, “The bills . . . the bills!”

Update:  On March 16, 2017, the House Budget Committee approved (19-17) the AHCA without amendment.

During the week reviewed, no new bill was introduced which, if passed, would repeal or replace the Affordable Care Act, and little else happened at the three main ACA enforcement agencies – DOL, HHS and IRS.

Department of Labor

The Department of Labor still has no Secretary and the nominee, Andrew Puzder, has not yet been given a hearing.  A DOL.gov site redesign was apparent, but it says nothing regarding the agency’s implementation, or not, of Executive Order 13765, which commands ACA enforcement agencies to –

exercise all authority and discretion available to them to waive, defer, grant exemptions from, or delay the implementation of any provision or requirement of the Act 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,

“to the maximum extent permitted by law.”

Health and Human Services

Former Congressman Tom Price (R-GA) was confirmed as the new HHS Secretary February 9, 2017.  On that date, most HHS web pages related to the ACA remained substantially as they were the day before President Trump’s inauguration. There was no mention of E.O. 13765.  Nevertheless, the Price confirmation may be the most significant development of the week.  If majority leaders in the House and Senate cannot produce soon a repeal/replace bill supported by a majority of each majority, the new HHS Secretary figures to become the project manager by default.

Internal Revenue Service

The Internal Revenue Bulletins for February 6 and February 13 include no reference to the employer mandate tax assessment procedures forecast to be rolled-out in “early 2017.”  We doubt that this prolonged silence was provoked by the regulatory freeze executive order, since a February 2 White House Memorandum seems to confine that freeze to “significant” regulations, and the employer mandate regulations were not deemed “significant” by the IRS.  See 79 Fed. Reg. 8,577 (Feb. 12, 2014, left column).  And no, the IRS website doesn’t mention E. O. 13765 either.

We doubt that Gershwin tune, “I Got Plenty O’ Nottin’,” was intended as political prophecy.  It just turned out that way.

Nothing resembling a repeal/replace consensus bill emerged from any committee in either chamber during the survey period.  Instead, in a Fox News interview broadcast just before the Super Bowl, the President confessed that ACA repeal may require more than a year.  A concise summary by Peter Sullivan in The Hill is online here.

Consistent with that impression, ACA bills introduced last week just nibble around the edges.

H.R. 710 assumes that the ACA is not repealed and so amends it to better align ACA non-payment grace periods with those established in state laws.

H.R. 708 would relax the present ACA age banding rules and H.R. 706 would tighten special enrollment eligibility verification requirements.

Like H.R. 849,  S. 260 (Sen. Cornyn, R-TX) and S. 251 (Sen. Wyden, D–OR) would repeal only the ACA’s Independent Payment Advisory Board.  The same Senators filed similar Independent Medicare Advisory Board disapproval resolutions – S.J. Res. 17 (Cornyn) and S.J. Res. 16 (Wyden).

The video of the February 1, 2017 ACA hearing held by the Senate H.E.L.P. Committee is online here.  On February 2, the House Ways and Means Committee posted some early information about its “concept of a health care backpack” in lieu of the present ACA structure.

The IRS has posted two editions of the Internal Revenue Bulletin since our last update, neither detailing ACA tax and penalty assessment procedures.

The ACA was not repealed or replaced on Day 1; neither is likely to happen by Day 100.  What Winston Churchill said.

As previously reported, § 2001 of the 2017 budget bill required all ACA repeal/replace bills to be filed and reported from assigned committees by Friday, January 27, 2017.  That didn’t happen.  Since our last posting, the bills listed below have been filed and assigned to committees, but no ACA bill has emerged from committee in either chamber.

H.R. 661 and H.R. 633 would grandfather as “minimum essential coverage” small group market health insurance plans that filed to meet the MEC criteria established by HHS under the ACA.

H.R. 640 would require states with failed ACA Exchanges to return unused federal funds.

H.R. 628 would preserve from ACA repeal the prohibition of pre-existing condition exclusions.

S.222 is Senator Rand Paul’s repeal and replace bill.

S. 194 (Sen. Whitehouse, D-RI) and H.R. 635 (Rep. Schankowsky, D-IL) revive debate over the “public option” that Congressional Democrats rejected when they passed the ACA in 2010.

S. 191 would permit states to opt-out of certain ACA health insurance market reforms and to substitute their own plans and programs.

On January 26, the House Budget Committee held a hearing titled, “The Failures of Obamacare: Harmful Effects and Broken Promises.”  The House Committee on Education and the Workforce scheduled a February 1 hearing titled, “”Rescuing Americans from the Failed Health Care Law and Advancing Patient-Centered Solutions.”

The Senate Budget Committee also set a February 1 hearing on CBO’s Budget and Economic Outlook, to be held at the same time as the Senate H.E.L.P Committee hearing titled, “Obamacare Emergency: Stabilizing the Individual Health Insurance Market.”

A Congressional Budget Office report (p.35) forecasts that repeal of the ACA medical device tax, health insurance provider fee and Cadillac plan tax would boost the deficit by $311 billion over ten years.  A separate CBO report, requested by Senate Democrats, estimates the insurance market consequences of repealing certain ACA taxes, fees and subsidies without repealing other ACA insurance market reforms.

Meanwhile, back at the IRS, a few new details were added January 18 to the FAQ guidance page for Applicable Large Employers.  Here’s what caught our eyes, reading from Q55 to Q 58.

From Q55:

The IRS will contact ALEs that filed Forms 1094-C and 1095-C by letter to inform them of their potential liability, if any. These letters will provide ALEs an opportunity to respond to the IRS before any liability is assessed or notice and demand for payment is made.  (These letters are separate from the letters that the IRS may send to employers that appear to be ALEs but have not satisfied the requirement to file Forms 1094-C and 1095-C.).

From Q56 (emphasis ours):

The IRS expects that the letters informing ALEs that filed Forms 1094-C and 1095-C of their potential liability for an employer shared responsibility payment for the 2015 calendar year (with reporting in 2016) will be issued beginning in early 2017.

For future years, the IRS expects it will begin issuing letters informing ALEs that filed Forms 1094-C and 1095-C of their potential liability for an employer shared responsibility payment, if any, in the latter part of each calendar year in which reporting was due (for example, in late 2018 for reporting in 2018 for coverage in 2017).

From Q 57 (emphasis ours):

The IRS expects to publish guidance of general applicability describing the employer shared responsibility payment procedures in the Internal Revenue Bulletin before sending any letters to ALEs for the 2015 calendar year.  In addition, the IRS expects to supplement that guidance in several different ways, widely distributing the information to ensure that ALEs are properly informed of when and how the IRS will be contacting them.

So, we’re watching the IRB daily.  However, that guidance was posted before the President issued Executive Order 13765 (January 20, 2017), directing each ACA enforcement agency to –

exercise all authority and discretion available to them to waive, defer, grant exemptions from, or delay the implementation of any provision or requirement of the Act 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.

We have found no IRS or Treasury Department statement of how the Order may change the January 18 FAQ guidance, but the guidance has not been removed from the IRS web page.

Shortly after his January 20 inauguration, President Trump signed an Executive Order (promptly published by Politico) titled, “Minimizing the Economic Burden of the Patient Protection and Affordable Care Act Pending Appeal.”  It’s most notable for what it doesn’t do – i.e., compel any agency to take, or to refrain from taking, any particular ACA enforcement action.  It tells enforcement agencies to exercise their lawful discretion –

to waive, defer, grant exemptions from, or delay the implementation of any provision or requirement of the Act 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 the extent that carrying out the directives in this order would require revision of regulations issued through notice-and-comment rulemaking, the heads of agencies shall comply with the Administrative Procedure Act ….”  For ACA opponents, the problem is that the conditions counteract the commands.

So, for example, changing the employer mandate tax assessment and collection rules would require a new rulemaking process.  But the Obama Administration waived, delayed, relaxed and emphasized, or not, various parts of the employer mandate and employer reporting rules through what it called “sub-regulatory guidance,” consisting of, among other things, IRS Notices and periodically updated Frequently Asked Questions (FAQ) web page postings.

Perhaps President Trump hopes by this Order to induce current DOL, IRS and HHS staff to delay and relax already overdue ACA enforcement efforts.  But this Order does not command any waiver, delay, relaxation or other, particular, sub-regulatory guidance, which means, practically speaking, that the new President is asking the former President’s appointees to cooperate to undo years of their work.  We expect few volunteers.

If that’s a good guess, then the new Administration will need legislation, or personnel change, or both, to effect significant policy change.

Update:  The official version of Executive Order 13765 is here.