By: Nick Bonds, Esq.
Amy Coney Barrett, President Trump’s nominee to fill the Supreme Court vacancy left by the late, great, Notorious RBG, is essentially now on a glide path to confirmation. By the time you’re reading this the Senate will have voted on her appointment. Like the committee vote, the full Senate vote is expected to fall along party lines, but with some Republicans announcing their intent to vote with Senate Democrats, and Vice President Pence potentially sidelined by coronavirus among his staff, the vote may come down to the wire.
Even so, the balance of probabilities says that Judge Barrett will soon become Justice Barrett, and her appointment will go down as one of the fastest in recent memory – merely 30 days from announcement to confirmation. Judge Barrett made it through her hearings before the Senate Judiciary Committee, implacable and polite, declining to answer quite a few of the questions lobbed her way by committee members(citing the Ginsburg rule), and letting few details slip as to how she may rule in the future. Even so, her prior history on a number of the issues leave us some clues, a vague outline, of how she may approach the marquee cases soon to come before the highest court in the land.
The case casting the biggest shadow over the confirmation hearings was almost certainly California v. Texas, the most recent challenge to the constitutionality of the Affordable Care Act (ACA). That case comes down to a question of severability, essentially arguing that by zeroing out the penalty associated with the individual mandate the ACA is no longer a viable exercise of Congress’ taxing power and is therefore unconstitutional. The challengers go on to argue that the individual mandate is inseverable from the rest of the ACA, and the entirely of the law must be struck down as a result.
When asked by Senator Lindsey Graham to weigh in on the principle of severability, Judge Barrett indicated that “the presumption is always in favor of severability.” Though keeping her cards held close, Judge Barrett seems to be at least nodding in the direction of excising the individual mandate and preserving the remainder of the ACA.
The full downfall of the ACA would have sweeping implications for the American economy and healthcare system, and this subtle indicator from the future Justice is cold comfort to the ACA’s defenders. While still a professor at Notre Dame Law School, Judge Barrett was critical of Chief Justice Robert’s rationale in previous ACA cases, writing that the Chief Justice stretched the ACA beyond its plausible meaning to save the statute. Even so, Judge Barrett participated in a recent moot court hearing of the California v. Texas case, where Judge Barret and a panel of seven other judges found the individual mandate unconstitutional but refrained from striking down the ACA in its entirety.
Confirmation testimony aside, another set of tea leaves to divine how Justice Barrett might rule is her history on the 7th Circuit. Judge Barrett’s tenure there lasted three years, and she was arguably the most conservative judge on her circuit. While Judge Barrett did lean towards the middle on cases involving labor, employment discrimination, and criminal law, her views swung hard back toward conservatism on gun, voting, abortion, and civil rights cases. Indeed, Judge Barrett’s positions on a number of those issues skew even more conservative than those of her mentor, the late Justice Antonin Scalia. Though the two also share a pronounced independent streak, it is entirely possible her positions on the Supreme Court will find room to his right.
The Supreme Court is set to hear arguments in California v. Texas on November 10, in time for Justice Barrett to take her seat. Though there appears to be a fair chance that the ACA will live to fight another day, Justice Barrett’s conservative bearing will have profound implications for future decisions over abortion, birth control, sex and gender identity discrimination, and Medicare, among others. We’ll keep our eyes on the Court, and keep you posted on how its decisions will impact employee benefit plans.
Oyez! Oyez! Oyez!
In this episode, Ron Peck and Brady Bizarro guide you through a chaotic week for healthcare news. What did we learn (if anything) from the first presidential debate? With COVID-19 infecting the President and much of the West Wing, what can we learn from the President’s experimental treatment? Would self-funded plans cover this treatment? What impact could all of this have on the Affordable Care Act lawsuit? Join us to find out!
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By: Ron E. Peck, Esq.
COVID-19 and the current pandemic has caused even more attention to be paid to health care and health insurance. Yet, despite health care being a topic of discussion “in general,” during this Presidential election, I am surprised by how “little” airtime the specific issue of “Medicare-for-All” is receiving, compared to (for instance) the Democratic primaries. Yet, I wonder if that is due (in part) to a false belief that, by nominating Joe Biden (as compared to, for instance, Elizabeth Warren) the people of this nation have rejected the idea of Medicare-for-All, and can move on to the issue of saving or eliminating the ACA.
Yet, some eagle-eyed viewers will note Vice President Biden’s oft referenced “Medicare-for-All-Who-Want-It” and “Public Option” rhetoric. Make no mistake; if such a plan proceeds, it will amount to – eventually – a Medicare-for-All scenario.
Looking at individual States that have already proposed public options for its citizens, the backbone of such programs is a payment methodology, with that methodology centering on payment of a “percent of Medicare.” In other words, these public options will pay using a Reference Based Pricing (“RBP”) approach. Unlike private plans that dare such an approach, however, these public option plans will protect their participants from balance billing, using law and regulation. In other words, a private plan using an RBP methodology will see its members balance billed, and no legal protections exist to combat it. The public option plan, however, will pay the same (or lesser) percent of Medicare, and protect its members with the power of the law.
This will, obviously, result in the public option costing less than private options; (absent other cost drivers). If things do indeed go this way, more people will migrate from their private plans to the public option. Only the sickest members (fearful that coverage under the public option will be inadequate) will remain on the private plans, making those private plans too costly to sustain. This is called adverse selection, and it would – presumably – be the last straw that breaks the private industry’s back.
Yet, this long, drawn out road to an eventual “singer payer” scenario is not guaranteed. Only if our industry strives to beat the public option at its own game – specifically, “price” – will it lose. Yet, in so many other markets, private industry competes – and beats – government programs despite being more costly. In many scenarios, sending a parcel via the USPS is less costly than, for instance, via DHL, UPS or FedEx… yet… many choose to pay more for the private carrier’s service. Why? Likewise, taking public transit is often less expensive than driving (and parking) your own vehicle, catching a ride share, or other private means of transportation. Yet, we don’t all take the train. Public schools are readily available for most, at little to no cost, but some choose to pay tuition and send their children to private schools.
Note that I am not here to opine on these decisions or suggest why people make the choices they make. What I will say, however, is that – presumably – the people who pay more for the private option do so because, right or wrong, they perceive they are receiving more for their money. They believe they are receiving added quality, features, or benefits that make the added cost worthwhile. Further, the service provider has advertised the difference in quality – true or simply perceived – so much so that the consumer readily chooses the more costly, private option.
Members of the current health benefits industry are so accustomed to competing with each other over price. Yes, each entity offers things that differentiate their services from those offered by the competition, but the consensus is that these services are similar enough that price is the big difference maker. If they maintain this attitude, they will not be able to compete with a public option.
Enter “premium” services; enter “luxury.” In so many other industries, service providers exist – and thrive – despite prices that exceed those offered by the competition. Ask these entities whether their prices are higher than the competition, however, and they only consider vendors offering similar levels of luxury (for similar prices) as the “competition.”
It may be the case that, if and when private health benefits cannot compete with a public option on price, they will need to re-invent the industry, and instead view themselves as purveyors of “luxury” benefits. Offer services people want to buy. Value is not synonymous with inexpensive. Value means getting more for your money. This industry’s future may, therefore, depend upon providing value – something or some things the public option does not offer – resulting in an admittedly higher price still representing value.
By: Philip Qualo, J.D.
The Trump Administration has been very transparent in their efforts to undermine and dismantle the Affordable Care Act (ACA). There have been several milestones in these efforts, such as essentially gutting the ACA Individual Mandate by reducing the penalty to $0 for individuals who forego health plan coverage for the tax year. The Trump Administration has also passed on the torch to the federal courts, as the 5th Circuit Court of Appeals has recently ruled that the Individual Mandate is unconstitutional, and has kicked the case back to the lower courts to determine whether other parts of the ACA should be overturned as well.
However, there appears to be at least one aspect of the ACA that the Trump Administration appears to support – the revenue generated by PCORI fees. The Patient-Centered Outcomes Research Institute (PCORI) fee was established as a part of the ACA to fund medical research. Insurers and employers with self-insured plans are subject to the fee. The last PCORI fee payment was expected to occur on July 31, 2019 (or July 31, 2020 for non-calendar year plans). The ACA mandated payment of an annual PCORI fee was intended to be a temporary measure as it only applied to plan years ending after September 30, 2012, and before October 1, 2019, to provide initial funding for the Washington, D.C. based institute.
This past year, we have consistently advised our clients that PCORI fees would be a thing of the past – based on the law at that time. However, each time I wrote or spoke those words I had this gnawing feeling in my gut. Although the PCORI fee was intended to be a temporary assessment, it was difficult for me to imagine that we would let a revenue-generating assessment just slowly fade away into oblivion.
Well… it looks like I was right (I should have placed a wager on this!). On December 20, 2020, President Trump signed 2020 spending legislation (the 2020 “Further Consolidated Appropriations Act”), repealing three ACA related taxes: the 40% “Cadillac” Tax on high-cost employer-provided health coverage, a 2.3% excise tax on medical devices, and the Health Insurance Tax (HIT) on fully-insured plans. Although these cuts would appear to be in line with the Administration’s efforts to obliterate the ACA’s existence, for some reason, the Trump Administration make a last-minute decision to preserve and extend the PCORI fee for another 10 years through the Act. This means employers with self-funded plans must continue paying the administratively burdensome PCORI fee.
Although the future of the ACA is still a question mark at this time, based on this recent extension of a small portion of the ACA, I think it is fair to conclude that PCORI fees are here to stay. In about 9 years from now, whether the ACA is still here or not, I predict PCORI fees are either extended … again, or written into another legislation to make it a permanent excise tax on health plans.
Please note, that the next PCORI fee is due by July 31, 2020. The IRS has yet to announce the rates for this year, so say tuned!