EBN legal contributor: Romney can’t repeal PPACA on day one

On the eve of Election Day, it soon will be time to shift from rhetoric to results.

Whether they support President Obama or former governor Mitt Romney, a major issue for benefits professionals is the future of health care reform. While an Obama re-election means full-steam ahead for implementing the Patient Protection and Affordable Care Act, Romney vowed throughout the campaign to repeal PPACA on day one of his presidency.

However, each man faces obstacles for achieving his agenda, according to EBN legal contributor Frank Palmieri. Palmieri, an employee benefits attorney with Palmieri & Eisenberg in Princeton, N.J., offers his thoughts on what lies ahead for PPACA regardless of who wins at the ballot box tomorrow.

Should Romney win the White House, repealing PPACA at all — let alone on day one — will prove difficult, if not impossible, Palmieri says, citing a Washington Post article that points out that President-elect Romney most likely would not have the congressional majority needed to overturn the law legislatively.

“The president is only one of the three prongs in our government,” Palmieri says. “And he can say, ‘I promise to repeal it,’ but he can’t do it by himself.” Even if PPACA does get repealed, he adds, “I think there are some [PPACA provisions] that are not going to go away, [like] coverage for pre-existing conditions and coverage for children up to age 26,” citing the provisions’ public popularity and that the dependent eligibility extension already has become entrenched in employer plans.

What Romney could do, he says, is “slow things down behind the scenes, in terms of funding, staffing and the [rules] approval process. Then it’s very conceivable that the opening of the exchanges and automatic enrollment [scheduled to go into effect in 2014 for companies with 200 or more employees] would have to be delayed, and could get pushed out to the next election.”

In the case of an Obama re-election, the president will have to kickstart staffing the Health and Human services Department, which has primary rulemaking authority for PPACA. “HHS isn’t staffed up for implementation,” Palmieri says. “Hiring would have to be fast and furious.”

Obama also will have to cope with employers that have been sluggish on PPACA compliance and states that have been slow to create the infrastructure for health insurance exchanges. “A lot of people have been on the sidelines watching and waiting to see what happens with the election,” Palmieri notes, adding that there is an advantage for employers who began compliance from the outset. “It happens all the time in benefits — those who act early get to act twice, For [companies that] are proactive and get started on compliance, deadlines get extended and rules get changed.”

If the president wins a second term, Palmieri says, employers will have to start “doing the numbers. If you have 47, 48, 49 employees, are you not going to hire because you want to avoid” PPACA’s requirement to offer health coverage for employers with 50 or more workers.

Larger employers already subject to the coverage mandate, “will want to see if the exchanges are an effective alternative.” For employers who do opt to send employees to exchanges, he forecasts they’ll “have to hire someone in the payroll or HR department [to be] what I call the exchange manager, because if you have employees [in multiple states], you’ll have to manage exchanges in all of those states. It’s a whole new position I think we’ll have by 2014.”

Another assessment for employers to make in an Obama second term is reviewing part-time staff “to see who’s working an average of 30 hours a week, and whether to cut back on the hours they work,” he says. “Say Mary, John and Harry are 30 hours a week and you haven’t given them benefits in the past. Now, they have to come into your plan,” because PPACA mandates coverage for part-time employees working at least 30 hours per week.

Or, a final consideration for employers would be to “drop coverage altogether and pay the penalty. A lot of large employers have already indicated that they’re thinking about that seriously,” Palmieri says. “All you need is one or two large employers to do it, and others will consider it a viable option.”