Attorney to employers: Plan to live with ObamaCare – for now

Despite the hullabaloo regarding repealing and replacing ObamaCare, a Chicago attorney last week cautioned a Salt Lake City audience that it remains the law of the land.

Speaking at an employment law seminar presented by Salt Lake SHRM in partnership with law firm Jackson Lewis, Natalie Nathanson stressed that employers should still following the requirements of 2010's Patient Protection and Affordable Care Act, known as ACA or ObamaCare, even if the ACA faces an uncertain future under the Trump administration.

"Stay the course," said Nathanson, a principal in the Jackson Lewis office in Chicago. "At this point, nothing has been repealed - not the individual mandate, not the employer-shared responsibility mandate, not the reporting requirements. Everything is status quo."

Trump's goal is to repeal and replace the ACA and ensure everyone has access to insurance coverage, and congressional Republicans support that, she said. Trump has four tools available: executive orders, courts, regulatory changes and legislation. So far, no repeal-and-replace bills have made it to a committee vote and an executive order - Trump's first, signed his first day in office - has been viewed by critics as vague and toothless.

That executive order calls for federal agencies to delay ACA provisions or requirements "that would impose a fiscal burden on any state or a cost, fee, tax, penalty, or regulatory burden on individuals, families, healthcare providers, health insurers, patients, recipients of healthcare services, purchasers of health insurance, or makers of medical devices, products, or medications."

Nathanson emphasized that the order affects only agency direction and did not repeal ACA.

"It's important to know that the order did not actually effect any change," she said. "I view it as a messaging tool. It was there to show the American public that President Trump is serious about repealing the Affordable Care Act. That was one of his campaign promises, so that was one of the things he did on his first day in office."

As a result of that order, the IRS said it would not reject 2016 personal income tax returns that are missing health coverage information. However, that does not mean it is a repeal of the ACA's individual mandate, and penalties remain in place and are being enforced, she said.

Another Trump option, to alter ACA through regulatory changes, is likely too slow for his taste, she said.

"All of these are slow and I think undesirable - at least in the first 100 days, they were undesirable - because President Trump campaigned so heavily on this promise to repeal the Affordable Care Act. He doesn't want to use a mechanism that's slow. He wants results," she said.

But the legislative option hit a snag when the American Health Care Act (AHCA) failed to make it to a House committee vote. Even if it were resurrected and passed, it would be a budget reconciliation measure. Such measures can only affect taxes and spending, which means the AHCA cannot repeal all elements of the ACA, she said. ACA components such as youngsters being able to remain on parents' coverage until age 26, coverage for essential health benefits and prohibitions on coverage exclusions would remain in effect.

Still, Nathanson said AHCA might not be dead despite it taking "sort of a nosedive." "We'll see what happens after the congressional recess," she said. "Maybe two weeks ago, I might have even said that it was completely done-for. I think new life has been breathed into it," she said.

The AHCA likely will have some of its provisions change, and there are other bills that have been drafted that could repeal, replace or otherwise alter the ACA.

The other legislative options share elements "that I think will ultimately get passed, one way or another," but probably not within the president's first 100 days in office, she said. Among them are individual and employer-shared responsibility penalties being reduced to nothing, individuals without coverage paying an increased premium to insurers rather than facing a federal government penalty, the retention of prohibitions to denying coverage for people with pre-existing conditions, the ability to retain children on parents' plans until age 26, and the enhancement and expansion of health savings accounts (HSAs).

If ACA is repealed or modified and the employer-shared responsibility mandate is repealed or its penalty cut to nothing, that would represent an opportunity for employers, she said. Companies offering ACA-compliant benefits now could continue to offer them as a way of attracting talent, especially if industry competitors stop offering those benefits. And companies that find ACA compliance too costly could stop offering those benefits and save money, she said.

But until something happens to change the ACA, she said, employers need to fill out all the paperwork and otherwise handle its requirements.

"We'll continue to watch it and see how it changes," Nathanson said. "I think changes are coming. I think they will just be slower than the first 100 days, which everybody was sort of expecting."