Comments on the PPACA Supreme Court Decision

June 28, 2012

Article by: Independent Printers Worldwide Inc. (IPW)

Comments by W. Thomas Haynes of the CCBA (PAGE Health Care Partner)

I know that many of you have been following the media reports in advance of the Supreme Court decision on the Constitutional challenge to parts of the Patient Protection and Affordable Care Act (commonly referred to as Obamacare) believing that it might change the path of federal reform of the health care and health care insurance system. AIBD DIBSS and RPOS and our partners have also been monitoring the legal challenges for several years and concluded some time ago that they were unlikely to have any meaningful impact on the changes in the regulatory environment surrounding your health care benefits program. The Court’s decision today confirms that expectation and makes it clear that the future shaping of health care and health care insurance policy in the United States will be determined through the political process and not in the courts at least in the context of this initial round of PPACA litigation.

The single issue that was the primary focus of the litigation the individual mandate was and is a relatively small part of the sweeping changes reflected in the PPACA and is of relatively small consequence to most employers including most of our members. The benefit and coverage reforms that went into effect in 2010 2011 and 2012 (extension of benefits to older dependents full coverage of preventative care elimination of lifetime limits etc.) were never seriously contested in the litigation and are most likely permanent parts of the landscape whether as part of the fully insured market or alternative self-funded solutions like our program. Irrespective of the Supreme Court’s decision it was always inevitable that sweeping reforms in the fully insured market which do not apply to the APSO/4A’s program would change the landscape for employers utilizing traditional insurance markets. We designed our program with our partners with the expectation that the PPACA would be fully implemented and have remained compliant with all aspects of the PPACA often before such compliance was legally necessary.

Whether and how the PPACA will be fully implemented including enormous changes associated with the employer mandate the exchanges (which many states do not intend to implement) non-discrimination rules community rating and several other changes that will affect your fully insured alternatives will be determined by the upcoming elections. Absent a sweeping Republican victory in the U. S. Senate races it is highly unlikely that the PPACA will be repealed. If there is a change in the White House occupancy a major course change by the administrative agencies that administer the PPACA is highly likely but even that may not constitute the full reversal that opponents of the PPACA are seeking.

We determined some time ago that we would not change the essential benefit features of your benefit programs irrespective of the course of federal law. A key part of the strategy underlying the development of their program was to be prepared to deal with a new federal insurance regulatory scheme and their program should present an attractive alternative for employers that may not find the changes in the cost and features of programs available through their brokers and traditional insurance carriers to be to their liking. Moreover having been part of the health care reform debate in Washington for a decade or more we are well positioned to act as your expert advisor in navigating the new world of health care regulatory complexity that seems to be unfolding.

While I am close friends with the lawyers and plaintiffs that unsuccessfully challenged the PPACA I would not be critical of the Court’s decision today either from a constitutional law perspective or a health care policy perspective. I think many aspects of the PPACA are poorly considered and need to be rethought and I do believe there are unresolved constitutional problems with the structure of the PPACA. But I believe that the wisest course is to accept the probability that it will be implemented in accordance with most of its terms and to prepare for that implementation. We are committed to being the very best partners available to assist you in that planning.

We plan to host a webinar to further discuss the future of federal health care reform in the relatively near future. We hope that you tune in and continue to consider our program as a possible solution to you needs