The U.S. Supreme Court is expected to publish its decision on the legality of the Patient Protection and Affordable Care Act, or PPACA (also called health care reform, HCR and ACA), by the end of June. What they will decide is anyone’s guess. Here are the possibilities (in no particular order), and a brief overview of what the decision would mean to employers that sponsor group health plans.
Entire Law is Constitutional
If the Court decides that all parts of the law are constitutional, employers will need to move forward with implementing the changes that the law requires. For 2012 and 2013, these include:
- Providing summaries of benefits coverage with the first open enrollment on or after Sept. 23, 2012
- Reporting the value of medical coverage on the 2012 W-2
- Reducing the maximum health flexible spending account (FSA) contribution to $2,500 (beginning with the 2013 plan year)
- Paying the Patient Centered Outcomes fee (due July 31, 2013)
Note: Details on these requirements are included in recent Employer Compliance Alerts.
Part of the Law is Constitutional and Part is Not
The Court could decide that the requirement that individuals obtain health coverage or pay a penalty (the “individual mandate”) exceeds Congress’ authority but that other parts of the law are permissible. They could then either specify which parts should stay and which should go, or they could send the case back to a lower court to determine the details. Either way, employer obligations to comply with the law would continue, and the actions needed for 2012 and 2013 would continue to apply.
Entire Law is Unconstitutional
The Court could decide that the entire law is flawed, in which case employers will not need to implement the changes that were to take effect for 2012 and later. There would be some uncertainty (and choices) with respect to the parts of the law that have already been implemented. Keep in mind that if the plan or policy has been amended or written to include the 2010 and 2011 changes, the plan document or policy will need to be revised to remove the changes — the mere fact that the law is unconstitutional will not void the changes in the plan or policy.
Several carriers — Aetna, Humana and UnitedHealthcare — have stated that they will continue to administer their policies to include many of the changes that have already been implemented, even if that is not legally required. Employers that have self-funded plans will need to decide — and those who have fully insured plans may need to decide — if they want to roll back changes such as:
- Covering dependent children to age 26 (there will be tax issues with this unless the IRS provides a waiver)
- Elimination of lifetime and annual maximums for most benefits
- Elimination of pre-existing condition limitations for dependents under age 19
- First-dollar coverage for preventive care
- Excluding over-the-counter prescription drugs for health FSA and health savings account (HSA) coverage
The Supreme Court decision is unlikely to end the debate over PPACA, particularly with the fall congressional and presidential elections looming. If the Supreme Court upholds the law, House Republicans have pledged to introduce legislation to repeal it, but they likely do not have the votes in the current Congress to prevail.