The Employer Mandate: Essential or Dispensable?

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The Commonwealth Fund’s Sara Collins has blogged that, “Employers are at the heart of the U.S. health insurance system and their ongoing commitment to it will be critical to its success and viability over time.” The point is undeniable. More than 150 million Americans under the age of 65 get their coverage through the workplace, and employer-sponsored insurance remains critical to the success of the Affordable Care Act’s (ACA) coverage plans. 

Some may therefore be surprised by the growing talk of repealing the ACA’s requirement that employers cover their employees. To unpack this issue, let’s take a look at the ACA provision itself, why it was enacted, and the potential upside and downside of repeal.

The Employer Mandate

The ACA section under discussion is often called an employer mandate, but that’s an oversimplification. The law says that employers with 50 or more employees have a choice. They can offer health insurance that meets minimum standards for affordability and coverage to employees working 30 or more hours a week. Or they can pay the federal government a penalty if at least one of their employees receives a federal subsidy for a private insurance plan sold through one of the new ACA insurance marketplaces.

You can call this a mandate. Or you can call it a requirement that businesses share responsibility for the costs of covering all Americans, either by helping to buy insurance directly for their own employees, or helping the federal government do so.

The language here matters. The concept of shared responsibility reflects a political calculation and a statement of values. It asserts that for the ACA to be fair and politically viable, all Americans have to do their part. All U.S. citizens are required to have health insurance, and many will have to pay a penalty if they go without it (the individual mandate). Employers must cover workers or help the government financially to do so. Taxpayers have to support the expansion in Medicaid eligibility and marketplace subsidies. Hospitals have to take cuts in Medicare payments, medical device makers need to accept additional taxes, and so on. The most successful American social programs—such as Social Security and Medicare—rely on this concept of shared responsibility.

The Rationale

Whatever you label it, the employer coverage requirement has several rationales beyond the concept of shared sacrifice. Policymakers want to deter employers who now provide coverage to  their employees from dumping workers into the marketplaces, either by dropping coverage completely or limiting benefits to the point where workers will chose to buy insurance elsewhere. The requirement also attempts to nudge employers who don’t cover employees into offering health insurance. And on the assumption that some businesses will chose to pay rather than offer coverage, the employer provision provides an important source of revenue to cover the ACA’s expenses: an estimated $139 billion over 10 years.

The Rationale for Repeal

Several arguments are fueling the repeal push. First, implementation will be administratively complex and burdensome. For example, employers will have to report many new details about their workers, including what coverage they have been offered and whether they have received coverage elsewhere.

Second, some economists are concerned that the employer requirements will distort hiring decisions, leading companies to bring on fewer low-income employees who might be eligible for subsidized coverage in the marketplaces. Firms with payrolls near 50 workers might hire fewer workers altogether. Economists also believe that if employers incur penalties for not offering coverage, workers might contribute to the costs of insurance through reduced wages. Other economists, however, believe these effects will be modest.

Third, modeling from RAND and the Urban Institute suggests that when fully implemented in 2016, the employer provisions will increase the number of insured Americans by only a few hundred thousand. The overwhelming proportion of U.S. employers already provides insurance to their employees, and would continue to do so without the penalties in the ACA, the analysts contend.

Concerns About Repeal

Supporters of the employer requirement posit that projections that employers would stay in the health insurance business without the ACA requirements are just that—projections. Balanced against employers’ past record of providing coverage is an increasing tendency for businesses to reduce the generosity of coverage. In fact, the law’s requirements that workplace coverage be affordable and meaningful may be as important as the requirement that employers offer coverage at all.

Eliminating the employer provisions would also leave a big hole in funding for the ACA. The likelihood that supporters and opponents could reach agreement on how to raise the missing cash seems low, especially given the recent history of the congressional effort to replace the Medicare physician payment formula known as the SGR. This year, a bipartisan consensus on policy crashed and burned when Republicans and Democrats could not agree on new sources of revenue to pay for the legislation.

Finally, and perhaps most importantly, repealing the employer mandate would undermine the concept of shared responsibility and potentially add momentum—which could grow in a new Congress or under a new president—to the idea of eliminating the individual mandate as well. After all, why should individuals have to buy insurance when businesses don’t? Virtually all disinterested analysts agree that the individual mandate is critical to the stability of the new insurance marketplaces created under the ACA, and to reducing the number of uninsured Americans.

 Proceed with Caution

The full effects of repealing the employer provisions of the ACA remain speculative. A repeal seems unlikely in the short term, in part, because a repeal effort would open the floodgates to partisan warfare over undoing the ACA in its entirety, or to changing other elements of the law that could have more far-ranging consequences.

However, if serious bipartisan discussion of ACA improvement becomes possible, expect to see a repeal of employer coverage provisions front and center on the legislative agenda.  Under these circumstances, lawmakers should still proceed with caution. It may be wise to experiment with implementing the employer provisions and to reassess their comparative benefits and costs  at a later date. The philosophy of shared responsibility is foundational to the law’s political viability, and should not be discarded without compelling evidence that the employer requirements are not essential to the ACA’s success.

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