Post-Election Insights for Employers

Replacing ACA mandates a bowl of spaghetti for

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History matters: Lessons from the only ACA precedent we have

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December 8, 2016
By HELEN KARAKOUDAS, CHRS | Director, ACA Insights
Helen Karakoudas

Helen Karakoudas, CHRS

We understand the current uncertainty for employers. We’ve gone from repeal-and-replace headlines to repeal-and-delay headlines.

“What gives?” you ask.

How can a company effectively manage processes for the Affordable Care Act mandate they have to comply with – and, at the same time, factor in decisions about the Affordable Care Act mandate their employees have to comply with – amid talk that the ACA employer mandate and the ACA individual mandate are going to be, at some unpinpointed time, nixed?



Tracking:  Mining intel from a look back at where we’ve been, so we can assess where we’re at.

Making sense of the Affordable Care Act’s present, and bracing for the Affordable Care Act’s future, starts with grasping the most compelling fact about the Affordable Care Act’s past:

It got on the books.

No matter how any of us feel about the health care law, the fact that any overhaul of the U.S. health care system was enacted after decades of starts and stops toward an overhaul is, as Vice President Joe Biden told his boss the morning of March 23, 2010, “a big ****ing deal.”

Mention of this isn’t political advocacy. Nor disrespect.

It’s an observation of history.

An overhaul of the U.S. health care system didn’t happen under Presidents Truman, Eisenhower, Kennedy, Johnson, Nixon, Ford, Carter, Reagan, Bush, Clinton or Bush. Every one of these presidents had pushed for a fix to the U.S. health care system.


2008 and 2016: Must-have fix vs. nice-to-have fix

A fix for the U.S. health care system was the most pressing domestic issue in the 2008 race for the White House. In overall concerns among voters in 2008, health care was second to the war in Iraq.

By contrast in the 2016 race for the White House, health care was the second most pressing domestic issue, and fourth overall after the economy, terrorism and foreign policy.

So let’s think critically.

For all the campaign rhetoric and misinformation about the health care law in the 2016 race for the White House, it can be argued that a fix for the U.S. health care system would be a nice-to-have accomplishment for a new administration but not a must-have.

Eight years ago, it was a must-have.

In a course we call The Perfect Storm: How We Got to the Law That Overhauled Health Care in the U.S., we identify the economic realities that forced a restructuring of access to health care in the United States on Day One of Barack Obama’s presidency. We look both at conditions that were playing out over decades and at those which surfaced in the decade before the 2008 election and ignited just after it.


Congress's bowl of spaghetti

Post election tweets by ACA analyst Larry Levitt_ACAinsights.orgTo soak in the intricacy of challenges the Trump administration faces in replacing unpopular parts of the law, such as the individual and employer mandates, it’s vital to see how the period in U.S. history from 2007 to 2009 fired up a 14-month marathon of lawmaking that now leaves the 115th Congress with a bowl of spaghetti.

“The Republicans will face the same issues as the architects of the Affordable Care Act,” Donald Crane, head of a national trade group for physician organizations, told Kaiser Health News in November:

  • “How do we fund it?
  • "Whose scalp do you take?
  • "And how do you get the most people covered for the lowest cost at the highest quality?”

Threading out one spaghetti strand can quickly destabilize others. The shared responsibility interplay between provisions for individuals and provisions for employers was central to the funding mechanism chosen when the law was pieced together. At the time, the economic calculation in Congress was that this dynamic would do the least harm.

In a course we call Shared Responsibility: How the ACA’s ‘All-In’ Dynamic Works, we cover the under-discussed public policy concept that’s wiring the Affordable Care Act. This course, like The Perfect Storm course previously mentioned, was created months before the election (not about the election's result). We believe nothing complex can be clear without the history behind it.


Price of a nice-to-have fix?

Details covered in each of these courses have new resonance post-election.

That’s because, as Larry Levitt of the Kaiser Family Foundation has pointed out, we have no precedent for unringing a bell that’s sounded as widely as the ACA has with public benefits and protections.

Yet, we would add – and this is huge – we do have one ACA precedent: what it actually took to get an overhaul of the U.S. health care system into law. In 2017, as Barack Obama's successor enters the White House, we can have a national watch party over how to tackle "Obamacare" because we, in fact, have Obamacare – some starting point for the fix to the health care system that was so urgent in 2009, and so elusive for decades prior.

There’s a lot to be learned from the struggle to get anything on the books. One lesson is political wreckage. As lawmakers in the new party of power roll up their sleeves and stare down the strands holding together our existing health care overhaul, a key question driving their focus will be:



Minding business as usual

Companies subject to the employer provisions of the Affordable Care Act are in for a long ride.

Critical thinking about the processes for legislative and regulatory change has to override wishful thinking that a compliance burden be lifted swiftly.

The cautionary points we covered in a post immediately after the election still hold true. You can find that post here, or by clicking on the "It's complicated" image.