What Now, for Health Reform?

KANSAS CITY, Mo., Nov. 4, 2010 /PRNewswire/ -- The following is released by Lockton:

Human resource and benefits managers--and perhaps a lot of CEOs and CFOs--who in recent weeks had begun thinking seriously about the impact of federal health reform on their profitability, workforce structure and health plan viability, may have awoken Nov. 3 asking, "What now?"

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What now, indeed.  As Republican candidates in federal, state and local races swept into office in historic numbers, promising a change in the course of government, attention has centered on the impact of the election results and on the future of the federal health reform law.

The answer is:  Don't expect much in the way of change.  At least not yet.

Repeal is Not an Option...For Now

There was a never a chance that Republican mid-term victories, under the most optimistic of projections, would or could unravel the health reform law. Even had Republicans managed to capture control of the Senate in addition to their reclamation of the House, the health reform law was in no danger of repeal.  Any attempt by Congress to do that would be vetoed by President Obama, and the Republicans lack the 67 Senate votes necessary to override a Presidential veto. Any serious attempt at repeal must await the results of the 2012 elections. Repeal will require the complete reversal of 2008: Republican control of the White House and both chambers of Congress.

If the GOP cannot now outright behead the law, can they strangle it by denying it funding? To be sure, the funding issue is the law's weak underbelly. The law requires federal funding of more than 100 key components of the bill, most notably grants to states to establish insurance exchanges by 2014, and of course the $500 billion necessary to provide subsidies toward individuals' purchases of insurance in the exchanges. Federal taxpayers are also picking up, for the first several years, all or nearly all of the additional Medicaid expenses associated with the expansion of Medicaid eligibility.

Risky Business

But holding up the federal budget - threatening the shutdown of the government - is risky business. Many voters are weary of partisanship and are looking for Congress to make something good happen.  Republicans must remember that according to a number of exit polls, voters identified the economy as their main concern, by a wide margin (about 62% of voters picked the economy as their primary issue; only 18% cited the health reform law). The American electorate wants results.

The new makeup of the Congress doesn't bode well in that regard.  Among the many Democrats swept out of the House are a significant number of self-styled moderates, known as "Blue Dogs." This purging of Democratic moderates means we'll now have in the Congress, particularly on the Democratic side of the aisle, a caucus whose center of gravity is a fair bit farther left than before. Throw in a Republican majority infused with new blood drawn from the mid- to far-right, and you have all the makings of political gridlock.

What's in Store?

So what will happen, then? Our best guess, for the short term, is that Republicans in the House will pass a symbolic bill repealing the health reform law, a bill that will go nowhere in the Senate. Again, here the Republicans must be prudent. Voters, particularly those in the all-important political center, are likely to have little tolerance for symbolic gestures while the nation's economy festers. For the same reason, if Republicans allow themselves to become bogged down over fringe issues, they will have misread the lessons of the election results.

Some nibbling around the soft edges of the health reform bill is likely. The business community is rightly aghast at the new Form 1099 reporting requirement appended to the law.  The requirement compels businesses to issue a Form 1099 to every vendor - from copy repairmen to bartenders - to whom the company pays $600 or more during a year. House Republicans will move swiftly to repeal that provision, and will likely attract enough Senate Democrats - spooked by the election bloodletting - to get it done.

There is talk of attempting to do even more, perhaps repealing the "Individual Mandate" (the provision that compels nearly all Americans to have minimum health coverage by 2014 or face a modest penalty) or the "Free Rider Surcharge"(the penalty employers will pay beginning in 2014 if they fail to offer affordable coverage to full-time employees who instead obtain subsidized coverage in the insurance exchanges).

Such actions, like the health reform bill itself, may have unintended consequences. The health reform law requires insurers to issue policies to all applicants, without pre-existing condition restrictions. That works only if the nation gets everyone in the risk pool.  Otherwise, people will simply wait to buy insurance until they get sick. Removing the individual mandate without relieving carriers of the obligation to issue a policy to all applicants, without restrictions, makes it even more difficult for private insurance companies to survive.

Business has many reasons to oppose the Free Rider Surcharge. But if the insurance exchange concept survives until 2014, and employers find then that their employees have another, taxpayer-subsidized option for health coverage available, and no surcharge binding the employers to their existing group health plans, a great many more employers may simply terminate their group coverage. That will improve employers' bottom lines (although many employees will fare worse in the exchanges), but not the nation's.

The Congressional Budget Office, when estimating the first decade's cost of the bill at $1 trillion, assumed only about 4-5 million Americans (net) who have group insurance today will lose it by 2019, as a result of the health reform law. A recent study suggests that the cost of federal subsidies in the insurance exchanges rises about $300 billion for every additional six million Americans who seek exchange-based coverage. If the 4-5 million estimate balloons to 40-50 million, the first decade's cost of the program leaps to $2.5 - $3 trillion, a number that is simply not sustainable.

Stay the Course

So we shall see. Experienced political pundits say that prognostications based on mid-term election results are almost always wrong. In other words, we should not read too much into the results, although there is still much to make of them. Our advice to employers who are beginning to assess the impact of health reform and chart a course to address the issues it poses, is to "stay the course." There is still much to do, and health reform isn't going anywhere, at least not for a while.   

About the author: 

Edward Fensholt, JD, is director of compliance services for Lockton, the world's largest privately held insurance broker and a leading employee benefits consultant.  Fensholt is based in Kansas City, Mo. 

About Lockton:

More than 3,800 professionals at Lockton provide more than 15,000 clients around the world with insurance, benefits, and risk management services, offering an uncommon level of client service. From its founding in 1966 in Kansas City, Missouri, USA, Lockton has grown to become the largest privately held insurance broker in the world and 9th largest overall. Business Insurance recognized Lockton as a "Best Place to Work in Insurance."  You can learn more at www.lockton.com

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