On Oct. 3, President Donald Trump signed an executive order focused on making changes to the current Medicare program. The order, titled "Protecting and Improving Medicare for Our Nation's Seniors," aims to improve Medicare by giving seniors access to more innovative, affordable plan options. According to senior administration officials, the order will bolster Medicare Advantage—an option that's run by private insurers and serves one-third (22 million) of Medicare beneficiaries—and could expand Medicare Advantage choices.

This will be Trump's second executive order focused on health care delivery in 2019. In June, Trump issued a highly anticipated executive order on health care price and quality transparency. The goal of the first order is to help consumers know the prices and quality of a good or service and make informed decisions about their health care. It is consistent with recent rules to, for instance, require drug manufacturers to disclose list prices in their advertisements or require hospitals to publish list prices on their websites. Generally speaking, the executive order directs an array of federal agencies to adopt rules, issue guidance, or develop reports with the goal of increasing the transparency of health care price and quality information.

The second executive order, issued approximately six months after the Medicare for All Act of 2019 was introduced in the Senate (Medicare for All), directs the Department of Health & Human Services (HHS) to propose regulations and implement administrative actions that encourage Medicare Advantage plans and, in particular, to offer innovative plan designs and benefits including telehealth services and supplemental benefits not available in the traditional fee-for-service Medicare program. The order imposes separate 180-day and one-year deadlines for HHS to study, develop and propose policies that achieve its directives.

Other goals of the order include fighting fraud and waste abuse, shortening the time it takes for medical technologies and treatments to be covered by the program, and pushing for reforms that enable providers to spend more time with patients. The order also aims to encourage site-neutral payments and provide seniors with health care cost and quality data. The regulations that restrict the ability of nurse practitioners and physician assistants to treat patients will also be reviewed.

Trump signed the order after giving a speech at a retirement community in Florida. Trump told supporters the order would "totally obliterate" Medicare and promised to strengthen the Medicare program and give seniors more choice and control over their benefits. He said the executive order is "the latest step in the administration's mission to drive better health care for Americans."

"The executive order commissions us to examine all practices, regulations and guidance to just make sure that we are not steering people into fee-for-service as opposed to giving them a genuine choice of Medicare Advantage or fee-for-service," said HHS Secretary Alex Azar.

Among the directives Trump has given to HHS, the executive order charges the agency with creating a new payment model that adjusts Medicare Advantage supplemental benefits to allow seniors to more directly share in any cost savings that Advantage plans generate, including monetary rebates. The Trump administration ordered HHS to reduce barriers that limit adoption of Medicare medical savings accounts, which are a type of Advantage plan featuring a high-deductible attached to a tax-free savings account that few seniors have enrolled in today.

The executive order also tasks HHS with ensuring that the traditional Medicare program is not promoted or does not receive any advantages over privatized Medicare Advantage. To accomplish this, the administration has directed the agency to find ways to modify Medicare fee-for-service payments to more closely reflect the prices paid for services in Medicare Advantage and the commercial insurance market and encourage more competition. Further, the agency has been directed to adjust Medicare Advantage plan network adequacy requirements to factor in access to telehealth services as well as market competition, including whether the states maintain certificate-of-need laws or other restrictions. The order also aims to encourage innovation in medical devices and telehealth services by streamlining their approval, coverage and coding process so they are brought to market faster. To that end, it directs HHS to adopt regulations and guidance that cut the time and steps between approval by the Food and Drug Administration and coverage decisions by the CMS.

Perhaps the most significant and practical change to the Medicare program is the proposed reform intended to enable health care professionals to spend more time with patients by eliminating burdensome regulatory billing and supervision requirements, conditions of participation, benefit definitions and licensure requirements that prevent medical professionals from practicing at the top their profession. To effectuate this goal, the order tasks HHS with conducting a comprehensive review of regulatory policies that would, to the extent allowed by law, ensure that items and services provided by clinicians, including physicians, physicians assistants, and nurse practitioners, are "appropriately reimbursed in accordance with the work performed rather than the clinician's occupation."

According to Azar, Medicare policies now sometimes "prevent people like nurse practitioners, PAs, etc. from really maximizing the full value and training and licensure that they have through supervision requirements or other artificial limitations." Allowing nurse practitioners and medical assistants to practice at the top of their license would "really enhance access to care, enhance provider availability for all Medicare beneficiaries, including in fee-for-service, and really help, especially with the rural healthcare crisis," Azar said.

In the draft 2020 Medicare physician fee schedule, the Centers for Medicare & Medicaid Services (CMS) included a proposal that would largely defer to state law and state scope practice for PAs. According to CMS, states should have "the flexibility to develop requirements for PA services that are unique and appropriate for their respective statement." In a comment submitted to CMS in September, the American Medical Association (AMA) recommended Medicare instead maintain the current regulations on physician supervision for physician assistant services. If CMS does opt out to finalize the proposed changes, AMA asked the agency to further revise the regulation to ensure physicians maintain the ultimate responsibility for coordinating and managing the patient's care.

It should be noted that Trump's 2020 budget included cuts to Medicare to the tune of $575 billion. It is unclear when and if the items listed in Trump's executive order will ever take effect.

—Rachel E. Lusk, an associate at the firm who focuses on health law and health care litigation, assisted with preparing this article.

Vasilios J. Kalogredis is chairman of Lamb McErlane's health law department. He represents many medical and dental groups and thousands of individual physicians and dentists.