1. Limits on the Commerce Clause
As an attorney, I was fascinated by the discussion on the limits of the Commerce Clause. In two years, we’ve moved from Nancy Pelosi asking “Are you kidding me?” when a reporter questioned whether the ACA was constitutional to a very serious debate in the Supreme Court over whether the federal government can require its citizens to purchase a product from private insurers.
As a conservative, I want to limit the intrusion of government – particularly the federal government – in the lives of Americans. The Constitution enumerates certain powers for the federal government, and reserves all other powers for the states or for individuals. Where are the limits of the Commerce Clause? We should find out something in June.
2. The Desirability of Uniform Benefit Plans
However, much as I would prefer to see limits on what the government requires of its citizens, as a former administrator of health and pension plans for a corporation with employees in all fifty states, I recognize that uniformity makes plan administration much simpler.
Using the states as a testing lab for different healthcare reform options – as Republicans have been arguing – complicates plan administration significantly. The Employee Retirement and Income Security Act (ERISA) has a strong preemption clause, which permits companies that self-insure to develop national benefit programs. As a plan administrator, I appreciated ERISA’s preemption clause.
By contrast, companies that have a fully insured product must meet a variety of state mandates and other insurance regulations. Most businesses that have fully insured health plans have very little ability to opt out of state requirements they don’t like or think are too expensive, such as infertility treatments or organ transplants.
One thing to watch as the Department of Health & Human Services issues regulations under ACA is how onerous the requirements will be on all health insurance plans. We’ve seen one situation recently – the inclusion of birth control and abortificants as mandated preventative health care for women. The more treatments that are mandated under ACA, the more expensive health care insurance will be for all of us.
Uniformity is nice, but so is the ability to choose a plan that makes the most sense for the individual.
3. De-Linking Health Care from Employment
As a conservative and a benefit plan administrator, I would prefer that health insurance not be associated with employment. Obviously, that would have eliminated the Benefits Department where I worked for a portion of my career, but it would have permitted my company to focus its attention more on the needs of the business and less on the rising cost of employee benefits. When the CFOs of companies spend as much time on tweaking their employee health care plans as on financing product and equipment improvements, something is wrong.
On the other hand, I recognize that a major reason that the health care system works today is that employers subsidize their workers’ health insurance. Employers get away with offering the same price to everyone – one of the requirements the ACA attempts to impose – because they subsidize the cost.
Younger employees are willing to buy into employee health insurance plans because of the subsidy which makes it worth their while (and, of course, older employees get an even better deal). In smaller businesses and non-profit employers, which cannot subsidize their employees’ costs to the same extent that large businesses can, employees are less likely to buy into insurance at work. They get coverage through a spouse’s employer or they do without health insurance.
4. It’s Not Over till It’s Over
So what will the Supreme Court do? What will Congress do after the Supreme Court decision, whichever way it lands?
No matter what, there have been too many questions raised about the Affordable Care Act in the last two years. The 2,700 pages enacted in March 2010 will not remain intact.
What are your predictions?