A years-long effort by Senate Republicans to pass Affordable Care Act (ACA) "repeal and replace" or "repeal only" legislation ended early this morning. Senator John McCain (R-AZ) joined Senators Susan Collins (R-ME) and Lisa Murkowski (R-AK) and all Senate Democrats to defeat a new, pared down bill to repeal parts of the ACA in a 51-49 vote. The new bill, released around 10 p.m. last night, is called the "Health Care Freedom Act." The bill was largely a placeholder designed to get the Senate to conference with House Republicans on a compromise bill to send to the President to sign into law.
"We must now return to the correct way of legislating and send the bill back to committee, hold hearings, receive input from both sides of the aisle, heed the recommendations of the nation's governors, and produce a bill that finally delivers affordable health care for the American people," Senator John McCain said in a statement after casting the deciding 'nay' vote. "We must do the hard work our citizens expect of us and deserve."
What Does It Mean?
Unless or until there is further action, all provisions of the ACA remain intact, including the employer and individual mandates and their associated reporting. It is unclear whether the Senate can reach a bipartisan compromise and even less clear whether the House would go along with such a bill. However, it is likely that a separate effort to repeal the Excise Tax on high cost health plans is still possible. Bipartisan groups in the House and Senate have been meeting, and will continue to meet, in order to determine a path forward on reforming the ACA and stabilizing the insurance marketplaces. But for now, as it relates to the employer and individual mandates, it remains business as usual. In terms of timing, Congress soon will be in recess until the first week of September so no legislative action is expected before the Fall. We may, however, see some action from the administrative agencies and perhaps even the White House.
What also remains are key employer challenges identified through the 2017 ADP ACA Confidence Study: collecting data for reporting (top challenge) followed by concerns with data cleansing, managing deadlines, accuracy of forms and annual reporting itself.
Guidance for Employers:
The rapid fire pace of recent activity has created a great deal of uncertainty around an already complex legislative and regulatory landscape. Although the past several months have been unusual, we've continued to offer the same, consistent and, we believe prudent, guidance: until a new bill is officially signed into law by the President, the ACA remains the law and compliance with all of its provisions is the best course of action. So, it's business as usual.
Yet, with business as usual there may remain understandable questions and concerns among employers. For example, many organizations are skeptical about the enforcement of ACA penalties for 2015/16, in light of the lack of further guidance from the administration and the belief that Congress would change the law. Nevertheless, there has been no specific information released by the IRS that points to the non-enforcement of penalties.
As the ACA will continue to be fluid, it is important to continue to stay on top of developments – as we have been together over the past months. This blog marks the 13th publication in the 'ACA Road to Repeal' series. We've been with you in lock step through this journey and will continue to do so.
Please join us for our 4th Special Edition ACA Webcast on Tuesday, August 1st where we'll continue the conversation about what happened, what it means, and what's next for employers on your ongoing journey through ACA compliance. Register here.
Other articles in this series:
ACA Road to Repeal: Senate Actions This Week: Is a Resolution In Sight?
ACA Road to Repeal: The Senate Revises the Better Care Reconciliation Act (BRCA)
ACA Road to Repeal: Better Care Reconciliation Act of 2017
ACA Road to Repeal: The AHCA Passes the House — What It Means for Employers Now
ACA Road to Repeal: Zombies vs. Vampires
ACA Road to Repeal: American Health Care Act
ACA Road to Repeal: What Does Repeal and Replace Really Mean?
ACA Road to Repeal: Compliance in a Shifting Regulatory Landscape
ACA Road to Repeal: Executive Order
ACA Road to Repeal: If the ACA Is on Its Way Out, What Comes Next?
ACA Road to Repeal: Will High-Risk Pools Return?
ACA Road to Repeal: A State-Based Approach to ACA Replacement