Health reform’s financial impact of health reform on employers less than expected, survey finds

Despite employer fears, the financial impact of the Patient Protection and Affordable Care Act (ACA) has not been as great as expected for most businesses, according to a survey from the Midwest Business Group on Health (MBGH). In contrast to prior surveys, many of this year’s respondents found complying with the ACA provisions cost them less than anticipated. Further, fewer employers indicated that they plan to drop coverage due to the law’s insurance mandate than was the case in the survey conducted two years ago, the MBGH found.

“While employers uniformly expressed concern with the administrative costs and reporting burdens in the law, there was surprising support for many of the coverage and system reform provisions,” said Larry Boress, MBGH president and CEO. “It’s clear that what some call ‘Obamacare’ is actually a compilation of insurance, health system and coverage reforms that are perceived by many employers as having some good, as well as having some costly, impacts. In addition, as employers have evaluated their options, the vast majority have determined there is value in continuing to offer health coverage in order to retain and recruit talent, as well as to ensure a productive workforce. Small employers fear the potential financial impact of future ACA changes, while larger organizations see the potential of improved cost and quality improvements as enabled through many of the requirements of the ACA.”

Employers’ views on ACA lawsuits. Not surprisingly, the survey also showed divergent views among employers on whether the Supreme Court will or should strike down the ACA’s individual mandate or the entire law. Employers, particularly larger ones, expect the Supreme Court to uphold the ACA but strike down the individual mandate. Of all employers, 42 percent hope the ACA is struck down in its entirety.

Cost impact of ACA. In contrast to what employers indicated in the 2010 survey, many of this year’s respondents found complying with the ACA provisions cost them less than anticipated. Although large employers found the cost impact of the ACA last year, including extending coverage to adult children up to age 26, was less than 2 percent, most small- and mid-sized employers responded that their increases were up to 5 percent. Many small employers anticipate increases in their health benefit costs over 10% in the future due to the ACA.

Portions of law employers do and don’t like. According to the MBGH, many surveyed employers indicated that they support ACA provisions that enable changes in provider payment, medical care coordination, and providing medical cost and quality information for consumers.

According to the MBGH survey, employers favor repeal of the following PPACA provisions:

• the excise tax on high cost plans;
• capping flexible spending account (FSA) contributions;
• prohibiting using FSA amounts for over the counter drugs with prescriptions; and
• reporting cash value of benefits on W-2 forms.

The MBGH survey finds that employers favor retaining the following ACA provisions:

• removal of co-pays for preventive care;
• mandating coverage of preventive services;
• creation of Health Insurance Exchanges;
• elimination of annual and lifetime limits on essential benefits; and
• extending coverage to adult children.

Finally, the survey found that employers are split on the value of some provisions. Provisions with mixed results include:
 

• requiring employers who drop coverage to offer vouchers to help people buy insurance;
• imposing penalties on employers who do not provide health benefits;
• mandating individuals obtain health insurance; and
• defining minimum essential benefits.

Views on maintaining insurance for employees. According to the MBGH survey, only 6 percent of all employers said they were likely to pay the penalty fee and drop health benefits coverage for employees in order to save money. This is down by more than half from the 2010 survey results. Also, less than 30 percent of employers that are likely to drop coverage will raise salaries to enable individuals to buy health coverage on their own.

 

Justices grapple with what parts of PPACA should be retained, if the insurance mandate is found unconstitutional

On March 28, in the third and final day of oral arguments on the Patient Protection and Affordable Care Act (PPACA) health reform law, the U.S. Supreme Court heard varying views on the issue of what parts of the law to retain, if they decide to rule the health insurance mandate is unconstitutional.

In some ways, this could be the most critical debate of the whole three days as the justices were left with three options, should they choose to invalidate the insurance mandate. Paul Clement, arguing on behalf of the 26 states challenging the law, urged the Court to invalidate the entire law. Deputy Solicitor General Edwin Kneedler, speaking on behalf of the government, urged the Court to remove only two other provisions—guaranteed issue and community rating—and keep the rest of the law, including the Health Insurance Exchanges, intact. H. Bartow Farr, assigned by the Court to advocate on behalf of the view that, if the mandate is unconstitutional, the rest of the law, including the guaranteed issue and community rating provisions, should remain intact.

The view of the challengers. Clement argued on behalf of the 26 states challenging the law that, if the individual mandate is unconstitutional, then the rest of the Act cannot stand. Without the individual mandate, the community rating and guaranteed issue provisions would cause health insurance premiums to skyrocket. These provisions are essential, he suggested, to the Health Insurance Exchanges and other parts of the law.

In response, Justice Elena Kagan pointed out that in Utah, for example, the exchanges operate perfectly well without an insurance mandate. She suggested that Congress would have preferred half a loaf to no loaf at all, in terms of the Exchanges. Justice Ruth Bader Ginsburg suggested that the conservative approach, if the mandate is tossed, would be to do a “salvage job” and keep parts of the law, rather than a “wrecking operation” that would throw out the entire law.

Justice Anthony Kennedy, often thought of as the swing vote, wondered what standard should be applied to decide which parts could stand. “Is it whether as a rational matter separate parts could still function, or does it focus on the intent of the Congress?” he asked. However, he noted it would be intrusive to go into legislative history but wondered whether the Court should use an objective, rational test.

Other justices, including Justice Stephen Breyer, wondered whether the Court would be required to go through all 2,700 pages of law text and choose what should stay and what should go. Later, in fact, Justice Antonin Scalia jokingly suggested that it would be a violation of the 8^th Amendment’s cruel and unusual punishment provision for the Court to have to go provision by provision through the 2,700 pages of law text.

According to attorney Clement, the individual mandate is tied, as the government suggests, to guaranteed-issue and community rating, but the individual mandate, guaranteed-issue, and community rating, together, are the heart of the PPACA. Further, they are what make the Exchanges work, which, in turn, are critical to the tax credits. The Exchanges are also key to the employer mandate because that mandate is imposed on an employer if one of the employees gets insurance on the Exchanges.

Government’s position. According to Deputy Solicitor General Kneedler, only a few provisions should be thought of as inseverable from the minimum coverage (insurance mandate) provision of the PPACA. However, in response, Justice Scalia, pointing out that, one way or another, Congress is going to have to reconsider this, suggested that it would be better to have them reconsider it in total. Justice Kennedy questioned whether, by keeping some provision but retaining others, the Court would be imposing a risk on insurance companies that Congress never intended, creating a new regime that Congress did not provide for or even consider.

Further, Kneedler suggested that the minimum coverage (mandate) provision along with the guaranteed-issue and community rating is the one package that Congress deemed essential. However, he argued that the PPACA is a huge law with many provisions that are completely unrelated to market reforms and operate in different ways, believing that it would be “extraordinary in this extraordinary Act to strike all of that down because there are many provisions and it would be too hard to do it.”

According to Kneedler, “the notion that Congress would have intended the whole Act to fall if there couldn't be a minimum coverage provision is refuted by the fact that there are many, many provisions of this Act already in effect without a minimum coverage provision.” He cited, as an example, the large number of young adults under age 26 who are already receiving insurance under the law. However, Justice Scalia noted that members of Congress would not have voted for the law without some of those other provisions.

Kneedler also suggested that it is the Court’s function to look at the text, structure, and legislative history of the law that Congress enacted, and not the financial balance sheet, which doesn't appear anywhere in the law.

A third alternative: Keep the rest of the law intact. As mentioned, attorney Farr was appointed by the Court to present the position that the law should remain intact, even if the mandate is struck down. Farr argued that, even if the Court rejects the mandate, contrary to the government’s view, the community rating and the guaranteed issue provisions should be kept intact. The minimum coverage mandate is a tool to make the nondiscrimination provisions, guaranteed issue and community rating work, Farr suggested. He further noted, for instance, that Congress included at least a half dozen other solutions to help with adverse selection, such as an annual enrollment period requirement and the subsidies to help pay for coverage.

Without guaranteed-issue and community rating, we’d be going back to the old, pre-PPACA system. Is that what Congress would’ve wanted, Farr wondered. When asked what remedy insurance companies would have if the Court were to throw out the mandate and nothing else, Farr said the insurers would not have a remedy in court but, instead, could go to Congress and seek adjustments. 

According to Justice Scalia: “if you take the heart out of the statute, the statute's gone.” The Court should not interject itself into the process of saying whether each provision is good or bad, he opined. According to Farr, taking out the mandate isn’t taking out the heart of the statute but taking out guaranteed issue and community rating, is getting closer to taking out the heart of the law.

Now what? Will the justices (or their law clerks) have to go line by line through 2,700 pages of law text to decide what stays and what goes? Will the law get tossed out, in its entirety, requiring Congress to start over? What's next?

Now, we wait and see, until June or so, to find out what the Court will do with this “extraordinary” law. Despite what many may say, what the Court ultimately rules is anyone’s guess.

Justices divided on insurance mandate during oral arguments

On March 27, the U.S. Supreme Court returned for a second day of oral arguments on the Patient Protection and Affordable Care Act (PPACA), this time focusing on the law’s controversial health insurance mandate. After reading the 131 pages of transcripts of today’s two hour oral arguments, all I can safely say is that the Supreme Court justices appear quite divided on the subject of the mandate. If the justices do reach a decision on the merits of the case, it could well be a 5 to 4 decision.

(Caution: Comments made during oral arguments are not always good indicators of how a justice ultimately votes. Commentators may be reading too much into the comments made at oral argument. Or not.)

During the first half of the oral arguments, when U.S. Solicitor General Donald Verrilli presented the government’s case in favor of the mandate, he was peppered with questions from the so-called conservative bloc of the Court. Just minutes into the oral argument, Justice Anthony Kennedy, who is often seen as the swing vote, framed the central challenge to the law as “Can you create commerce in order to regulate it?” Chief Justice John Roberts then wondered whether the government could force Americans to buy cell phones and, similarly, Justice Samuel Alito questioned whether the government could force individuals to buy burial insurance.

However, later on during the oral arguments, the liberal justices took their turns at peppering Paul Clement, who represented the 26 states who are challenging the PPACA, and Michael Carvin, who represented private challengers, with questions and comments. Justice Ruth Bader Ginsburg, for instance, after suggesting a correlation between 1930s Social Security and the health reform legislation, suggested that it would be very strange to think that the government can take over subsidizing those who need health care but, if the government wants to “preserve private insurers, it can't do that.”

Kennedy the likely swing vote. Not surprisingly, as is often the case, the decision may well rest in the hands of Justice Anthony Kennedy, the justice who is often considered the swing vote. Kennedy asked tough questions of both sides. As noted above, Kennedy initially framed the central challenge to the law as “Can you create commerce in order to regulate it?” Kennedy also observed that the requirement to buy health coverage is telling an individual it must act, suggesting that this “changes the relationship of the government to the individual in a fundamental way.” Observing that requiring “an affirmative duty to act to go into commerce” is a step “beyond what our cases allow” the Congress to wield in regulating interstate commerce, Kennedy suggested that a requirement to buy insurance is “unprecedented” and, therefore, the government has a “heavy burden of justification.

After initially appearing to side with the challengers, however, Kennedy later asked tough questions of the challengers. For Kennedy, perhaps his most telling comment, made to attorney Carvin, was: “It is true that if most questions in life are matters of degree, in the insurance and health care world, both markets--stipulate two markets--the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries.” That is, the health insurance industry is unique.

Stay tuned. Day 3 of oral arguments on the health reform case are scheduled for March 28, with oral arguments on whether the health insurance reform law could survive if the mandate is struck down set for the morning. Finally, oral arguments on the PPACA’s broad expansion of Medicaid, which the challenging states claim is “coercive,” are scheduled to be held in the afternoon.

Then, it’s all in the hands of the nine Supreme Court Justices. Or, as many observers agree, it’s all most likely that the decision is in the hands of Justice Anthony Kennedy. At any rate, we should have a decision in about three months, by late June, the end of the Court’s current term.

 

Oral arguments begin in landmark health reform case

If the 90-minute oral arguments at the Supreme Court on March 26 are any indication, it appears that the Court will not take the easy way out on health reform. By relying on the Anti-Injunction Act (AIA), the Court could avoid having to immediately decide on the constitutionality of the 2010 health reform law and wait until after 2014, after the first penalties for failing to obtain health insurance have been collected and paid, to decide the case on its merits.

Instead, many Court watchers believe that the justices seem eager to get beyond the narrow jurisdictional issues raised during the March 26^th oral arguments and address the larger constitutional matters relating to the health reform case’s merits. These larger issues would include, for instance, the controversial individual mandate, which would require most Americans to buy some type of health insurance or face a tax penalty, a topic to be addressed at the Court on March 27.

What happened on Day 1 of oral arguments? At issue during the first of three days of scheduled oral arguments about the Patient Protection and Affordable Care Act (PPACA) is the AIA, an 1867 law that bars claims seeking a refund for a tax until after the tax has been collected and paid.  Why would an 1867 law apply to the PPACA? The health reform law’s individual mandate is found in Internal Revenue Code Sec. 5000A, which requires individuals who fail to maintain minimum essential health insurance coverage to pay a penalty.

On March 26, attorney Robert Long, who was appointed by the Supreme Court to defend the AIA, argued that the AIA is a “pay first, litigate later” rule that could be waived only by Congress, which did not do so in the 2010 PPACA law. The penalties called for in the law, for failing to obtain health insurance, should be considered the same as taxes, according to Long, because of the way they are collected. If the Court relied on the AIA, the PPACA could not be challenged until someone paid the tax, early in 2015, and then challenged the law.

During oral arguments, however, the justices appeared to dispute this notion. According to Justice Stephen Breyer, for instance, the penalty “is not attached to a tax. It is attached to a health care requirement.” According to Justice Ruth Bader Ginsburg, the purpose of the fine for non-compliance is to get people to leave the ranks of the uninsured. “This is not a revenue raising measure because, if it’s successful, nobody will pay the penalty and there will be no revenue to raise,” she said.

At one point, Justice Sonia Sotomayor asked Long a question about what "parade of horribles" would follow if the Court allowed the health reform lawsuits to proceed. Justice Antonin Scalia commented that there would be no such “parade of horribles” and that this is a question that could not be answered.

What’s ahead? The March 26 skirmish at the Supreme Court is only the preliminary oral argument on health reform. On Tuesday, March 27, the justices will hear two hours’ worth of oral arguments as to whether Congress had the authority to enact the individual mandate. Then, on Wednesday, March 28, the Court will hear oral arguments on two different issues. First, it will hear arguments as to what would happen to the PPACA if the Court strikes down the insurance mandate. Is the mandate severable from the rest of the law or, by striking down the mandate, would the Court have to strike down the entire law? Finally, the Court will hear arguments on whether the PPACA’s expansion of Medicaid is an unconstitutional “coercion” of the states.

Then, by late June, the end of the Supreme Court’s current term, the Court likely will announce its ruling on the merits of the case. That is, of course, unless the court watchers are wrong and the Court uses the AIA to put off its decision to a later time. After all, the Court has been known to confound Court watchers, from time to time.

Though implementing health reform, states are fighting for its repeal

As we’ve passed the second anniversary of landmark health reform legislation, the Patient Protection and Affordable Care Act (PPACA), 26 states are challenging the constitutionality of the law, even though every state, except for Arizona, is actively implementing the law. Though the PPACA strengthened federal laws, the states remain the primary regulators of health insurance and thus are key players in the implementation of the PPACA.

According to a new report from the Commonwealth Fund, 49 states plus the District of Columbia have either (1) passed new legislation, (2) issued a new regulation, (3) issued new subregulatory guidance (such as a bulletin), or (4) are actively reviewing insurer policy forms for compliance with the early market reform protections of PPACA. These 10 early market reforms, collectively known as the Patient’s Bill of Rights, include such protections as the prohibition on lifetime limits for essential health benefits and the requirement that dependent coverage must be available until age 26, and took effect on September 23, 2010.

According to the report, nearly half of the states—23 states plus the District of Columbia—took either legislative or regulatory action on at least one early market reform while an additional 26 states took action through subregulatory guidance or review of policy forms. Of these states, the Commonwealth Fund reports, 12 states—Connecticut, Hawaii, Iowa, Maine, Maryland, Nebraska, New York, North Carolina, North Dakota, South Dakota, Vermont, and Virginia—passed new legislation or issued a new regulation that addressed all 10 early market reforms. Thus, the report suggests, states have many options, and great flexibility, to ensure that the protections promised by the PPACA are delivered. According to the Commonwealth Fund, state regulators report that subregula­tory guidance or review of policy forms appear to have been the most effective tool in promoting compliance with the reforms.

Only one state took no action. According to the Commonwealth Fund, only one state, Arizona, did not pass new legislation, issue a new regulation, issue new subregulatory guidance, or report that the state is actively reviewing insurer policy forms for compliance with these early market reforms. However, the Commonwealth Fund notes, Arizona has indicated that it is informally advising insurers where their policy forms are not in compliance with federal law.

Going forward. States may have taken a cautious “wait and see” approach to implementing health reform, pending the Supreme Court’s decision on the constitutionality of the law. Further, as the Commonwealth Fund points out, many of the broader market reforms, such as a ban on preexisting condition exclusions, which would take effect in 2014, do not exist in state law. Where these state standards do exist, the report notes, they may be inconsistent with these broader market reforms found in the federal law.

It’s showtime!! Starting today, the U.S. Supreme Court will spend a highly unusual six hours over three days listening to and questioning attorneys for the parties on several aspects of the health reform law. This should be interesting. Stay tuned.

 

Will Anti-Injunction Act bar suit against individual mandate?

As we discussed on Wednesday, the first issue the High Court will take up when it begins its marathon three-day session on the constitutionality of the Affordable Care Act will be whether a jurisdictional issue associated with a 19th century statute will prevent the Court from reaching the question of the constitutionality of the individual mandate. Here's a brief FAQ on the Anti-Injunction Act and its relationship to the ACA, based on the amicus brief filed by Robert Long of Covington & Burling.

What is the Anti-Injunction Act? The Anti-Injunction Act, enacted in 1867, bars pre-enforcement challenges to tax laws, unless an exception to the Act applies.

What's the purpose of the Act? According to prior rulings by the Supreme Court, the purpose of the Act is to protect the government's need to assess and collect taxes as expeditiously as possible with a minimum of pre-enforcement judicial interference. Legal rights to any disputed sums collected by the government are to be determined in a suit for a refund, after the tax has been collected.

Why might the Act apply to the ACA? The individual mandate is house in Internal Revenue Code Sec. 5000A, which requires individuals who fail to maintain minimum essential coverage for themselves to pay a penalty. The Congressional Budget Office has estimated the penalty provision would produce 5-6 billion dollars per year in revenue by the end of this decade.

High Court and the ACA: Three days, four issues

In an extraordinary three-day event beginning Monday March 26, the Supreme Court will work its way through arguments on four contentious issues arising from court challenges to the ACA.

Here's the schedule for the arguments (the appeals all stem from the Eleventh Circuit's ruling in August 2011).

Monday, March 26: The Court will hear 90 minutes of argument as to whether the suit brought by those challenging the individual mandate is barred by the Anti-Injunction Act. We'll talk more about this on Friday, but briefly: if the court were to hold the Anti-Injunction Act applies in this situation, that would essentially table challenges to the individual mandate until the provision becomes effective in 2014 (Department of Health and Human Services v. Florida, No. 11-398).

Tuesday, March 27: The High Court will hear two hours of argument as to whether Congress had the power under Article I of the Constitution to enact the individual mandate (Department of Health and Human Services v. Florida, No. 11-398).

Wednesday, March 28: The Court will hear arguments on two different issues today. First, the parties will debate what happens to the balance of the ACA if the High Court does strike down the individual mandate. Is the mandate severable from the rest of the law, or must the Court strike down the entire health reform law (National Federation of Independent Business v. Sebelius, No. 11-393; Florida v. Department of Health and Human Services, No. 11-400)?

In the final issued to be argued, the Court will hear one hour of argument on whether the expansion of Medicaid authorized by the ACA amounts to an unconstitutional "coercion" of the States (Florida v. Department of Health and Human Services, No. 11-400)?

High Court showdown on health reform just one week away

Next week, two years after passage of a sweeping overhaul of the nation's health care system, Supreme Court will hear arguments as to whether that overhaul should be allowed to proceed, should be struck down, or even whether it's premature to be discussing the issue.

Beginning Monday, March 26, the Court will spend a highly unusual six hours over three days listening to and questioning attorneys for the parties on several aspects of the health law.

Here at Health Reform Talk, we'll monitor all of next week's arguments closely and will offer our analysis of the highlights. We'll also spend this week giving you all the background you'll need to follow what's going on at next week's historic sessions.

So, how did we get here?

Estimated Costs Of Health Reform Insurance Provisions, Number Covered, Lower For Ten-Year Period: CBO

The insurance coverage provisions of the Patient Protection and Affordable Care Act (ACA) over the 2012–2021 period are expected to cost just under a net $1.1 trillion and reduce the number of nonelderly people without health insurance coverage by 30 million to 33 million in 2016 and subsequent years. These are the main findings of the updated estimates the Congressional Budget Office (CBO) and the staff of the Joint Committee on Taxation (JCT) prepared for the March 2012 baseline budget projections.

HHS Issues Rules For Affordable Insurance Exchanges

The Department of Health and Human Services (HHS) has issued a final rule on Affordable Health Insurance Exchanges, which combines policies from two Notices of Proposed Rulemaking (NPRM) published in 2011. One rule, published on July 15, 2011, outlined a proposed framework to enable states to build Affordable Insurance Exchanges (Exchanges), which are new state-based competitive marketplaces created under the Patient Protection and Affordable Care Act (ACA). A second NPRM, published on August 17, 2011, outlined proposed standards for eligibility for enrollment in qualified health plans through the Exchange and insurance affordability programs, including premium tax credits. The final rule is scheduled to be published in the March 27 Federal Register.

Starting in 2014, one-stop marketplaces called Exchanges will be operational, enabling consumers and small businesses to choose a quality, affordable private health insurance plan that fits their health needs. Exchanges will offer health insurance options that meet consumer-friendly standards; facilitate consumer assistance; shopping for and enrollment in a private health insurance plan; and coordinate eligibility for premium tax credits and other affordability programs that ensure health insurance is affordable for all Americans. Through Exchanges, the public will have the same kinds of insurance choices as members of Congress.

Early Retiree Reimbursement Program Benefited 13 Million Retiree Medical Plan Participants In 2010-11

As of Jan. 20, 2012, the Early Retiree Reinsurance Program (ERRP) has provided $4.73 billion in reinsurance payments to more than 2,800 employers and other sponsors of retiree plans, with an average cumulative reimbursement per plan sponsor of approximately $189,700, according to the Centers for Medicare and Medicaid Services (CMS).

At this time, CMS reported, the ERRP has received requests for reimbursement that exceed the $5 billion in funding appropriated. Therefore, reimbursement requests which exceed the program's $5 billion will now be held in the order of receipt, pending the availability of funds that may become available as a result of overpayment recoupment activities. CMS will continue to report the status of payments to plan sponsors periodically. In December 2011, the CMS had announced that because the ERRP allocated funds were nearly exhausted, it would deny health care claims incurred after Dec. 31, 2011.

HHS proposes AV calculator for qualified health plans

The Department of Health and Human Services (HHS) has issued a bulletin to provide information and solicit comments on the regulatory approach that it plans to propose to define actuarial value (AV) for qualified health plans (QHPs) and other non-grandfathered coverage in the individual and small group markets under section 1302(d)(2) of the Patient Protection and Affordable Care Act (ACA). AV is a measure of the percentage of expected health care costs a health plan will cover. AV is calculated based on the cost-sharing provisions for a set of benefits.

The bulletin addresses the:

• calculation of actuarial value,
• operational method for AV calculation using standard data,
• de minimis variation standards, and
• treatment of health savings accounts (HSA) and health reimbursement arrangements (HRA) in calculating AV.

IRS will defer guidance on ACA individual mandate until after Supreme Court’s decision, Chief Counsel says

Guidance on the individual mandate under the Patient Protection and Affordable Care Act (ACA) will wait until after the Supreme Court hands down a decision, IRS Chief Counsel William J. Wilkins said on March 2 in Washington, D.C., at the Federal Bar Association Section on Taxation’s 36th Annual Tax Law Conference.

The ACA generally requires individuals to make a shared responsibility payment if they do not have minimum essential health care coverage for themselves and their dependents. The shared responsibility payment is scheduled to apply beginning in 2014.

Since enactment of the ACA, several states have challenged the law’s requirement that individuals carry minimum essential coverage. The Supreme Court agreed to hear the challenges in Florida v. United States Department of Health and Human Services. The Supreme Court has scheduled oral arguments for March 26-28. The Court is expected to announce its decision in June.

Wilkins said that the IRS will hold off issuing issue guidance on the individual shared responsibility payment pending the Supreme Court’s decision. However, the Service is moving forward with ACA guidance for employers and also on the ACA health insurance premium assistance tax credit, Wilkins said.

Can Congress make us buy something? Most Americans don’t think so

Do you think the requirement in the Patient Protection and Affordable Care Act that every American must buy health insurance or pay a fine violates the Constitution? If so, you’re not alone. A recent USA Today/Gallup poll found that 72% of Americans think the requirement is unconstitutional.

In a just a few weeks (on March 26 to be exact), the Supreme Court will hear oral arguments on this issue in HHS v. Florida (No. 11-398). It’s clear the Justices have their work cut out for them. This could be one of the Court’s most significant rulings on the Constitution’s Commerce Clause in decades.

Government says constitutional. On the one hand, the government argues that Congress has broad power under the Commerce Clause to enact economic regulation. Many of the Supreme Court’s cases support this argument. One in particular illustrates the breadth of that power. In Wickard v. Filburn, the Court found the federal government could regulate the production of wheat on a private farm. Somehow poor Mr. Filburn affected interstate commerce by exceeding the government’s wheat production limits even though he was growing the wheat for his own consumption and didn’t sell it.

That decision and its effect on subsequent Commerce Clause cases dominated for decades until the Court put some limits on the government’s power in United States v. Lopez. In that case, the Court found the government did not have the power under the Commerce Clause to regulate the carrying of handguns in school zones.

States say not. On the other hand, the states (some of the respondents in the Florida case) agree with the 72% of Americans in the USA Today/Gallup poll that think the requirement to buy insurance is unconstitutional. The states argue that the power to regulate commerce does not include the power to make individuals enter into commerce.

The states acknowledge that the government can regulate existing commerce. But they find no support in case law or the Constitution for the proposition that the government can make individuals buy things. While the Constitution explicitly grants Congress the power to establish, constitute, raise, coin, or otherwise bring things into existence, it does not give Congress the power to establish interstate commerce, according to the states.

Decision in June. While polls are interesting and it’s fun to discuss and debate the intricacies of our beloved Constitution, we have to wait until at least June for the Supreme Court’s decision. The outcome, whichever way it goes, is sure to impact not only future jurisprudence, but also our wallets and our lives.

Blunt Amendment dies in Senate

Health and Human Services (HHS) Secretary Kathleen Sebelius issued a statement on Wednesday, February 29 criticizing a proposal that was, until recently, being considered in the Senate (S.1467, the Respect for Rights of Conscience Act of 2011). The Blunt Amendment, as the proposal was known, would have amended the Patient Protection and Affordable Care Act (ACA) to allow even employers that have no religious affiliation to exclude coverage of any health service in health plans offered to their workers. It’s important to note that language of the proposal wasn't limited to contraception or to any particular preventive service. The measure was defeated in the Senate on Thursday, March 1, by 51-48.