With the employer mandate of the Affordable Care Act delayed until 2015, many are expecting Congress and trade groups to try to use that extra year to chip away at the health care reform act, or at least alter it. But don’t count your chickens — with a Democrat-controlled Senate and White House, any changes to the Obama administration’s signature piece of domestic legislation face an uphill battle, and could need bipartisan support.
Alden Bianchi, practice group leader of Mintz Levin’s employee benefits and executive compensation practice, says “there’s a good deal of pressure being exerted on, in particular the Republicans in Congress by the business community” to raise the threshold for a worker’s mandated employer-sponsored health care from 30 hours a week to 40, which is what most businesses had previously considered “full-time” work. Bianchi says it’s a “question for the lobbyists and the professional politicians” as to whether such a push would succeed, and the House of Representatives is a difficult chamber in which to place bets.
“Someone described the math to me recently as, say, 20 to 30 real diehard ideologues who won’t go along with anything no matter what,” Bianchi says, “and then there’s another 70 or so who could have challenges from the right – these are Republicans – now that math together might just make it impossible to do. So if someone asked me for percentages, I’d probably make it 40/60 right now.”
A difficult unknown in the equation is how many millions – or tens of millions – of Americans would be affected by a bump up to 40 hours a week. Employers have struggled mightily with how to calculate how many and which of their variable-hour employees would be eligible for health insurance with a bar of 30 hours; many businesses still haven’t figured it out.
Those workers who don’t qualify “have the option at the exchanges” Bianchi says, and that means the exchanges themselves might prove a bellwether for the 40-to-30 shift.
“I think if the rollout of the exchanges goes relatively smoothly – it won’t go smoothly, but relatively – if it works, if people like it in October and they actually get something that looks like coverage in January, and the prices aren’t off the deep end – if all of that happens, I think that takes a little pressure off of employer-sponsored health care,” he says. “Therefore, Congress would be more willing to up the full-time definition from 30 to 40 because those people who are below 40 would then have a viable alternative.”
On the whole, however, Bianchi doesn’t predict massive changes to ACA just because a major provision of it has an extra year to get off the ground. Those who point to the employer mandate delay as evidence of the law not standing on solid ground could be engaging in wishful thinking.
“At the end of the day, the delay will be a speed bump,” Bianchi says. “I see compliance with the Affordable Care Act on the ground, dealing with it in our employer clients, and when you speak to folks who are in-house who handle HR, the general mood is that this is the law of the land, it’s not going anywhere and we’ve got a little bit of a delay to get our ducks in a row. When you hear uncertainty, there’s usually a political element to it. Somebody either really wants ACA to be repealed or vastly cut back.”
Pick up the Sept. 1 EBN to read more about the push for a 40-hour threshold to employer-sponsored health care.
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