However, it would be unfortunate if one were to conclude that the ACA should remain in its current form simply because (absent political change) it may be here to stay. To the contrary, attention should be paid to finding ways to provide some much-needed improvements to what most (including the majority in King) recognize is an imperfectly drafted statute. Congress and the administration should begin by considering improvements that could ease the burden on employers currently facing tremendous challenges as they work to implement the ACA's mandates.
For example, the employer shared responsibility (or "play-or-pay") mandate requires an employer with at least 50 full-time employees to offer a certain level of health benefits to at least 95 percent of its full-time workforce. Although employers are able to take advantage of various forms of transition relief, the rules under the employer mandate are cumbersome and fail to consider anything but a "plain vanilla" workforce. Improvements could include an increased full-time employee threshold (currently at 30 hours per week), alternatives to the complicated full-time measurement methods, and flexibility for employers with complex work forces (those involving union and non-union employees participating in multiple plans or those involving highly mobile employees).
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Starting in January 2016, the ACA requires employers to complete and file complex forms describing the type of health coverage offered to employees. This, too, is ripe for improvement. Similar to the employer shared-responsibility mandate, the current forms and instructions published by the Internal Revenue Service (IRS) are easily applied only to the most basic workforce populations. Industries with complex workforces, such as the transportation, entertainment and media industries, do not have adequate guidance. The IRS should consider reaching out to certain industry groups to learn more about their compliance challenges. The IRS should also offer more opportunities for simplified reporting, which is now only available to employers offering low-cost health care to nearly all employees.
Finally, the excise tax on high-cost health care (commonly called the "Cadillac Tax"), which is effective in 2018, is a major concern for employers as it becomes apparent that the tax will reach far beyond what was originally anticipated. Part of the problem is that the Cadillac Tax's cost limitations, which are adjusted for general inflation, will not keep pace with the medical inflation rate, meaning that absent plan-design changes, more health plans will be captured by the tax sooner than expected. Another issue is that the cost of ancillary benefits such as wellness programs, health-savings accounts or flexible spending arrangements must be considered. Improvements could include aligning the tax with the medical inflation rate, excluding ancillary benefits from consideration or outright repeal of the tax.
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Although the ACA remains intact, the law, like any, is imperfect. The hope is that in the near future, Congress and the administration will take a close look at the ACA in an effort to make implementation more manageable for employers, allowing them to direct their resources toward providing meaningful benefits to their employees.
Commentary by Robert M. Projansky, a partner in the Employee Benefits, Executive Compensation & ERISA Litigation Practice Center with Proskauer and head of the firm's Health-Care Reform Task Force. Follow the firm on Twitter @proskauer