There’s no HR or policy and procedure manual detailed enough to help employers understand exactly what to do tomorrow following the Supreme Court’s ruling on the constitutionality of the Patient Protection and Affordable Care Act, due Thursday, June 28 at 10 a.m. “I don’t know that there’s a clearly defined playbook for employers in this situation,” says Jeff Munn, vice president of benefit policy at Fidelity Investments. “It’s probably been 50 years since we’ve had an opinion from the Supreme Court on a statute that affected as many people as this one does.”
Still, despite the uncertainty, EBN has gathered exclusive advice from industry experts to help practitioners plan ahead, no matter how the Court decides on the fate of health care reform.
Employers should be thinking about what and how they’re going to tell employees about the decision. “A lot of employees are going to [ask], ‘Is this decision going to affect my benefits?’” says Munn. “And employers may not have all the answers right now, but I think they need to at least acknowledge the [ruling] is out there and tell people — at a high level — what the opinion says.”
Gary Kushner, president and CEO of Kushner & Company, an employee benefits consulting firm based in Michigan, told attendees during a session at this week’s SHRM conference in Atlanta that a communications plan is definitely something employers should have in place. Employees are hungry for information, he says, and they’re turning to their employers.
“This is a golden opportunity for us to communicate the strategic value of your health benefits to employees, why you have a health plan,” he said. “It’s an amazing opportunity. Take it, seize it and we will be well-placed for years to come.”
Developing an implementation plan is also important, the experts advise. Many employers likely have already done some type of contingency planning and, once the decision comes out, it’s time to build on it.
“As soon as [the decision] comes out, you’re going to see a flurry of activity across the street from the Supreme Court [in Congress] — and by that I mean rhetoric,” said Kushner. “‘We have to fix it’ is going to be a common theme ... don’t be surprised if you see executive orders from the White House reinstating parts of PPACA ... so you’re going to want to build your implementation plan.”
Employers also may want to conduct a strategic analysis of their employee benefits plan. “Regardless of what the Supreme Court does, our job on benefits strategy and health care strategy is going to be the same on Friday as it was before [the ruling],” says Kushner, adding, “That strategic question has nothing to do with the Supreme Court.”
As for what the Court might decide, Kushner believes it will invalidate the individual mandate but leave the bulk of the act standing. “If they do that, I believe it will be a 5-4 vote,” he says. “If I’m more of a gambler, I believe by a vote of 7-2 or 6-3 the court will uphold the entire act. The third scenario is that the individual mandate is unconstitutional and so the whole act falls. Of the three [scenarios], I think it’s the least likely.”
For all the difficulty in putting PPACA together, Kushner gives congressional Democrats credit for implementing the law’s consumer-friendly provisions — dependent coverage, lifetime limits, preventive care — early. If the entire law is struck down, he posits, “How are you going to unwind all these various provisions you’ve already implemented?”
Indeed, “there are a lot of really complicated unwinding provisions that will come into play if the law is struck down that will take a while to figure out,” Munn says. He advises HR/benefits practitioners to “tread carefully when you’re reading it and trying to understand it. And also understand there may be things even after the opinion is issued that we just don’t know and may not know for a while.”
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