Now that the Supreme Court has finished its work on the latest challenge to the Affordable Care Act — and the patient has survived — let’s hope that the politicians can get to work on some much-needed rehabilitation for Obamacare.
The administration has not been very successful at educating the public on some of these admittedly complex and not real exciting issues. The result is a subtle but deeply ingrained “get your government hands off my Medicare” mentality. In a recent interview, David King, one of the named plaintiffs in the most recent U.S. Supreme Court challenge, described President Obama as a narcissist for naming the act after himself. In fact, the Obamacare label was originally coined by opponents of the act as a sign of ridicule comparing it to the ill-fated HillaryCare.
So there is a very good chance that we have not seen the end of Obama- care as a foundation for political stump speeches. It seems to work at polarizing voters, sometimes at the expense of the facts.
Yet Obamacare isn’t going away entirely. It just won’t happen. The Republicans would need total control of the Senate, the House and the White House after 2016. And then they would have to take apart some elements of Obamacare that are incredibly popular with the public. That includes rules allowing adult children to remain on parent plans to age 26 and no pre-existing condition exclusions for sick people. Regardless of political outcomes and agendas, large portions of Obama- care are simply here to stay.
But the legislation remains flawed in some fundamental aspects. And it needs work now, not after another election cycle. For that work to happen, Republicans need to acknowledge Obamacare’s existence. And Democrats need to understand they aren’t doing so well on the political front.
What needs fixing? Let’s start with a detail that doesn’t make great headlines — IRS reporting for employers. Obamacare as it exists today imposes a dizzying array of rules on employers and union health care plans to decipher, distribute and file various forms with the IRS in January 2016 and every year after that. This is expensive and complicated. A bipartisan bill to simplify the reporting system was introduced recently by respected Sens. Mark Warner, D-Virginia, and Rob Portman, R-Ohio. It should be passed as soon as possible.
Here’s another one. There are provisions in Obamacare that make it difficult or impossible for many employers to move to true defined-contribution-style health care plans, something like a 401(k) plan in which you would use your account balance to buy health insurance on an exchange. Many employers would jump at this opportunity if the law allowed it. And many employees would be pleased with the experience. But we need some minor surgery to Obamacare for this to be possible.
There are many more changes needed. They include how full-time employees are identified, how seasonal employees are treated, and a longer phase-in time for the employer mandate. One provision of Obama-care that cannot go away is the individual mandate. Yes, it limits individual rights. But so do laws like the one in North Carolina requiring that drivers have auto insurance before they even apply for a driver’s license. It might sound nice to say that states should decide issues like this, but that simply doesn’t work in a country where many employers operate in multiple states (and where close to 48 percent of Americans have health insurance through an employer plan).
Let’s face it: Providing health care to a nation of more 300 million people requires some trade-offs. Obamacare preserves a considerable amount of free-market economics in our health care system. The individual mandate is a necessary trade-off to preserve a private market system of insurance. And many would prefer this to universal government-provided health care. So let’s see if we can drop the headlines (news flash — death panels never existed in the first place) and get some tedious but important work done. Republicans, it’s time to put some lipstick on the pig. Democrats, make some suggestions on the color. We will all be grateful.
Bob Seng is a partner in the benefits and compensation group at Dorsey and Whitney. He was previously assistant general counsel for pay and benefits at Target. He is a former chair of the Minnesota State Bar Association section on employee benefits and currently serves on the policy board and legal affairs committee of the American Benefits Council in Washington, D.C. The opinions expressed here are his alone.