Compliance with the Affordable Care Act in the Wake of NFIB v. Sebelius: The Way Forward for Employers and Employer-Sponsored Group Health Plans

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[authors: Alden J. Bianchi and Martha Zackin]

While the political elites and the chattering classes posture for advantage in the wake of the Supreme Court's decision upholding the constitutionality of the Affordable Care Act's individual mandate and modifying the law's Medicaid expansion, employers among others in are left to contemplate what to do next.  There is, of course, no shortage of industry- and trade association-based conference calls, Webinars and programs offering to help employers move forward.   The content will vary from program-to-program in some respects, but there are three common high-level "take aways":

(1)  For employers that took a "wait-and-see" attitude, the wait is over: its time to pay attention. 

(2) For the regulators (principally the IRS and the Treasury Department, but also the Labor Department and the Department of Health and Human Services), its time to get moving on two or three critical rules, including employer shared responsibility, insurance non-discrimination, and waiting periods.

(3) For everyone, irrespective of preferences in the matter, the 2012 elections are not a reason for any further delay.  Outright repeal of the Affordable Care Act is increasing unlikely.  The broad constituencies that drove the law forward have not changed; with each passing month the their respective interests instead get more entrenched.  While a Republican sweep would likely result in changes to the law, these changes will at best be at the margins.  

So there you have it.