While the political future of the Patient Protection and Affordable Care Act remains unclear because of next month's presidential election, many employers are showing signs of fatigue at the continued uncertainty.
In a webcast poll conducted by Buck Consultants, almost half of respondents said they were moving forward with their current health care strategy without regard to the election, indicating a desire for consistency. An additional 29.4% reported they are not yet sure how the election will affect their benefits strategy, 17.5% plan to implement only the short-term requirements effective this year, and 3.2% say they aren't implementing anything until after the election is over.
No matter who wins the White House in November, the employee benefits realm will be affected, according to Chantel Sheaks, a principal in the government relations practice with Buck. And while the focus tends to be on the presidency, the makeup of Congress after the elections is just as important.
Sheaks outlines four of the most likely political scenarios and details the potential implications of each on health care reform.
1. Republican President Mitt Romney, Democratic majority in the Senate, Republican majority in the House. This scenario would mean complete legislative gridlock, says Sheaks.
"The House will continue to repeal it, to challenge provisions of health care reform, but it won't go past the Senate," she says.
And while this scenario may seem like status quo, it won't be. As president, Romney will have the upper hand because much of the substance of PPACA is in the hands of regulators.
"If you have an administration that is forced to carry out the provisions of a law they've opposed, they can effectively change a lot through regulations," says Sheaks.
First, the administration could repeal some regulations that have already been put out there and write new regulations, which would "just create havoc, absolute havoc," says Sheaks.
Second, she continues, the law calls for many regulations that have yet to be written. If Romney is president, he could effectively postpone implementation through delaying the release of regulations. "They could really slow the process down a lot just through inaction," says Sheaks.
2. President Romney, Republican majority in the Senate, Republican majority in the House. After the Supreme Court decision in June, which upheld PPACA, Romney said, if elected president, he would repeal Obamacare. But repealing and replacing the law won't be so easy, says Sheaks.
"They could do a repeal, but they really need to take a look at what the replacement will be," she says. "Whether Republicans want to admit it or not, there are certain provisions in PPACA that were received very favorably by the American public."
Raising the age under which children can remain on their parents' health plan to 26, for example, has been popular.
"Most parents are more than happy to keep their children on their coverage, if it's either that or their child has no coverage," says Sheaks, noting that these parents are also voters. "So [Republicans] will have to admit that ... if they do a repeal and replace, the replacement can't be a blank slate."
Regarding his Massachusetts health care law, Romney has said he believes each state should be allowed to decide its own health care laws, according to individual state need. "From an employer's viewpoint - and most of our clients are Fortune 100 clients, Fortune 200 clients, with self-funded plans - the thought of pushing health care reform to the state level frightens them," says Sheaks. "There is something called 'ERISA pre-emption' [Romney] needs to learn about and needs to preserve."
3. Democratic President Barack Obama, Democratic majority in the Senate, Republican majority in the House. This is the scenario that provides the most consistency for employers as it is "business as usual," which may be welcome news for companies, regardless of political leanings. While there are still likely to be challenges to health care law, and no one can predict what other benefit developments will come up over the next four years, this scenario would provide businesses with a clearer path forward.
4. President Obama, Republican majorities in the Senate and the House. "It's really difficult to enforce something if you don't have anyone to enforce it," says Sheaks. "The big push is going to come in 2014, 2015, when they're really going to have to beef up the IRS. They already don't have enough people to enforce what's already in the Internal Revenue Code, let alone add a whole new provision that will penalize virtually every American if they don't have health care coverage."
And while she doesn't think employers need to make decisions about 2018 right now, "I think it needs to be in the back of your mind that there's a real possibility that the status quo will prevail," she says. "And, to that end, where would you like to be in 2014?"
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