SFC health reform vote set for Tuesday?

Some news outlets are reporting that the Senate Finance Committee will vote Tuesday on its amended version of the America's Health Future Act of 2009. That may be optimistic (CBO must first score the amended version), but a vote this week is likely.

Here's the amended version of the Chairman's mark. Changes are redlined, so it's easy to spot the provisions that didn't survive the Committee's marathon mark-up sessions. Apparently there are a few mistakes in the redlined version (could Senate staffers have gotten much sleep in recent days?) so check out these technical corrections as well.

Interested in some pre-game analysis of the final Committee vote? Pundits have viewed Senator Snowe's vote as critical for some time, while others now view Senator Lincoln (D-AR) as a bellwether for the ultimate endorsement of the plan by centrist Democrats.

Could This Also Be The Benefit Administrator’s Full Employment Act?

As President Barack Obama noted early this morning in response to the Senate Finance Committee finishing its version of health care reform, America's Healthy Future Act, “We are now closer than ever before to finally passing reform that will offer security to those who have coverage and affordable insurance to those who don’t.”

Closer than ever before stretches at least back to the mid-20th Century efforts of President Harry S. Truman to pass some type of national health legislation.

If the Finance Committee work is any indication, employers will have their work cut out for them once a final piece of legislation is agreed to by the Congress and signed by the President (yes, that seems the most likely outcome now).

We already know that employers think the general effects will be cost increases (see here and here) .

For those benefit managers and administrators who deal with plan details every day, what also will be important is how health reform will affect existing plans and policies. Here are just a few likely possibilities, based on the Finance Committee’ work:

An increase to 30% in the Health Insurance Portability and Accountability Act (HIPAA) cap on the cost of the employer-sponsored coverage a reward for wellness programs that require satisfaction of a standard related to a health factor.

A cap on annual health flexible spending account (FSA) elections, possibly $2,500.

An affordability test for employees in small firms that would allow these employees to receive tax credits to help pay for coverage. If employer-sponsored coverage cost an individual more than eight to 10 percent of his or her income, that person would be eligible to receive a Health Care Affordability Tax Credit in an exchange.

Add in coverage mandates in state or national exchanges, requirements to pay fees for those who are not covered by the employer plan, a host of new reporting and disclosure requirements, and various other effects on employer health plan provisions in ERISA, the Internal Revenue Code, and the Public Health Service Act.

Enough to keep benefits managers and administrators busy for quite some time.

Legal eagles debate individual mandate

In the midst of all the chatter about health care reform, have you given any thought to the U.S. Constitution? I knew that’s how you’d answer! Well, me neither (ok, maybe just a little). But some folks out there have been giving it lots of thought and have been examining whether an individual mandate to purchase health insurance might violate the Constitution.

(In case you forgot, such a mandate has been included in the House proposal (H.R. 3200), the Senate HELP Committee’s bill, and the Senate Finance Committee’s proposal.)

Can Congress require us to buy health insurance? No, according to David B. Rivkin, Jr. and Lee A. Casey, partners in the D.C. office of Baker Hostetler LLP who served in the Justice Department under presidents Ronald Reagan and George H.W. Bush. In an article in the Washington Post, they write, “The Constitution assigns only limited, enumerated powers to Congress and none, including the power to regulate interstate commerce or to impose taxes, would support a federal mandate requiring anyone who is otherwise without health insurance to buy it.”

The authors argue that an individual mandate is a noneconomic activity that goes beyond Congress’ authority to regulate interstate commerce pursuant to the Constitution’s Commerce Clause.

Not everyone agrees with that assessment, however. Mark A. Hall, J.D., the Fred D. and Elizabeth L. Turnage Professor of Law and Public Health at Wake Forest University School of Law and School of Medicine, writes, “Congress can use its Commerce Clause powers or its taxing and spending powers to create such a mandate.” He argues that Congress has “ample power and precedent . . . to regulate just about any aspect of the national economy. Health insurance is quintessentially an economic good.”

Steven D. Schwinn, Associate Professor of Law, John Marshall Law School, agrees with Hall. He writes, “An individual mandate is almost surely commercial in nature -- in requiring folks to buy health insurance, it requires a commercial exchange. Rivkin and Casey argue that the mandate is not commercial in nature, because it's triggered simply by ‘being an American.’ This may be true, but it misses the point of the regulation: It requires Americans to engage in a commercial exchange. This is the definition of commerce.”

Who’s right? I’m no Constitutional scholar, so I’ll refrain from taking sides on this engaging debate. If an individual mandate makes it into final reform legislation, there’s a chance that opponents of the mandate will challenge it in court. Perhaps the Supremes – the ultimate Con Law scholars – will provide us with answers, adding yet another perplexing Commerce Clause case to its archives. Future law students, beware!