The ACA, Interpretive Jiggery-Pokery and Pure Applesauce
The verdict is in, and it’s pretty straightforward – the Affordable Care Act is here to stay. In a 6-3 ruling, the Supreme Court decided in favor of the government in King v. Burwell. The case was widely seen as the last chance to “derail” the ACA, if the Court decided for the plaintiffs. That didn’t happen, and subsidies continue to be available in all states, regardless of how the Exchange in that state came into being.
As I read through Chief Justice Robert’s opinion on the case, and Justice Scalia’s very pointed dissent, I was struck by some of the phrases used throughout: “Surplusage constructions?” I think that means excessive multiple logical arguments to make a point, but I’m not sure. “Interpretive jiggery-pokery?” Must be an insider thing at the Court, I guess. Scalia also accused Roberts at one point of being full of “pure applesauce.”
I’ve been focusing on the ACA professionally for five years now, and read and written a lot about it. I’ve heard endless hours of commentary. And if you’ve heard me talk about it or read some of the stuff I’ve written, I hope you’ve heard me say something to the effect of “focus on the regulations” and shut out the commentary. I’m going to take one more, hopefully last, opportunity to say it again.
Politically, the ACA is a done deal. The Court's ruling means it’s business as usual for the ACA. The next time anyone's going to have any ability to do something substantive with it will be when there's a new Congress and a new President, who are united in their desire to change it. And by that point, it will be like trying to change Social Security or Medicare. How often do substantial changes happen to either of those programs?
What now? If you have 50 or more employees focus on your reporting responsibilities. It’s time to start thinking about the non-discrimination rules that are going to be coming in the near future. Are you currently offering benefits in a way that favors one class of employees over another? Now is the time to evaluate your possible alternatives. The Cadillac Tax is a 2018 thing, but it's not too early to be thinking about looking at the trend in the cost of your plans and start figuring out how to bend that cost curve.
Words are important. Flowery, rhetorical words, put together in provocative ways, are seductive, especially when they're political in nature. There's going to be a lot of those as the upcoming presidential election cycle gets into full swing. My advice: don't spend that valuable time paying attention to the ACA "talk" - rather, focus on making sure you're good to go with the ACA's employer mandate. There’ll be time to talk, but there won't always be time to get into compliance!
Leave it to me to figure out what’s pure applesauce and what’s jiggery-pokery.
- Compliance Notice (6/25/2015) – King v. Burwell
- Self-Funding Solutions for healthcare and ACA Woes Webinar Recording
- ACA Reporting Update Part 1
- ACA Reporting Update Part 2
- Don’t Wait for the Cadillac Tax: Offer and HSA
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