July 31, 2017Client Alert

The ACA Repeal/Replace Failure, an Upcoming Election Year, and What's on the Table This Week (Potentially) Impacting the ACA

Mainstream media has rather prolifically covered the "goings on" of Washington as it relates to health care reform—and the fate of the Patient Protection and Affordable Care Act (ACA). While we are generally waiting to weigh in once the matter (or perhaps more accurately, “a matter”) is settled on the ACA, here's a quick, high-level status check-in for employers and employer-sponsored group health plans:

  • The ACA remains the law.
  • The executive order issued by President Trump during his first day in office, by its terms, directed federal agencies “to exercise authority and discretion permitted to them by law to reduce potential burden imposed by the ACA” pending repeal of the ACA. Since the executive order was issued on January 20, 2017:
    • All efforts to repeal and replace—or to exclusively repeal—the ACA have failed. No efforts remain actively before Congress.
    • The IRS, as one of the majorly implicated federal agencies, has been reviewing the executive order and indicated that it may issue further clarification on its implications. While some flexibility exists in terms of individual reporting their coverage status on their annual returns (Form 1040), no corollary changes have been made with respect to employer obligations. The IRS has reiterated that the executive order doesn't change the law; it merely directs agencies to exercise their permitted authority to reduce potential burdens. The ACA legislative provisions, including imposition of the employer shared responsibility for failure to comply, remain in force until changed by Congress.
      • Not only do the employer shared responsibility rules and penalties remain a reality for employers, but also the other provisions require continued attention. For example, the PCORI fee for 2016 is due July 31. Self-insured plans double check that that amount has been/will be paid!
  • With 2018 being an election year (not presidential, of course), the willingness of Congress to take up new efforts to meaningfully modify the ACA after this current session adjourns seems unlikely.
  • Reportedly, the bipartisan "Problem Solvers Caucus" will attempt to bring to the table an interim piece of legislation targeted at stabilization of the ACA markets and make other incremental changes which could gain bipartisan support.
    • Funding of cost-sharing subsidies is a cornerstone to help prevent complete collapse of the markets.
    • Perhaps most interestingly for employers, the legislation may, among other things, propose to increase the large employer employee-count from 50 to 500 for the employee shared responsibility mandate.
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