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Saturday, December 29, 2012

Thursday, December 20, 2012

Saturday, December 15, 2012

NYT: Most Governors Refuse to Set Up Health Exchanges

Thursday, December 6, 2012

WSJ: The Opening for a Fresh ObamaCare

This piece by attorneys David Rivkin and Lee Case of Baker & Hostetler argues that by defining the individual mandate as a tax, SCOTUS has opened up an alternative ground for challenging the ACA.  Specifically, they argue that if the mandate is an indirect tax, the Constitution's Uniformity Clause" (Article I, Section 8, Clause 1) requires the tax to "be uniform throughout the United States," which it would not be under the ACA.

Monday, November 26, 2012

Forbes: The U.S. Supreme Court Allows New Challenge To Obamacare To Go Forward

SCOTUS vacates decision of U.S. Court of Appeals for the Fourth Circuit and orders court to hear arguments on two provisions:  (1) the employer mandate, and (2) the contraceptive benefit without the need for a co-pay.  This is the case brought by Jerry Falwell's Liberty University.  There is some speculation that one or both of these issues could end up before SCOTUS in the next session.

Wednesday, November 21, 2012

NYT: Administration Defines Benefits That Must be Offered Under the Health Law

New proposed Affordable Care Act regulations came down Tuesday.  This article from the New York Times provides some highlights.  Among other things, the proposed rules set forth 10 categories of minimum essential benefits for health plans.  Among these would be dental care and vision services for children and treatment of mental health and drug abuse problems.  The president of America's Health Insurance Plans, a trade group, is quoted expressing concern that “many families and small businesses will be required to purchase coverage that is more costly than they have today.” 

More on the proposed regulations to come.

Sunday, November 18, 2012

The Hill: 5 Obamacare Battles to Watch

Thursday, November 8, 2012

NYT: Fate of Health Law Now Clear, States Rush to Meet Deadlines

Among other things, this discusses the flurry of new regulations implementing Obamacare expected in the coming weeks and months.  For employers, among the most important of these will be IRS regulations on how it is determined whether employers are providing affordable coverage to their employees.   The IRS has not yet determined whether employers will be required to provide coverage only to employees, or to workers and their dependents -- or else potentially pay the penalty.

Wednesday, November 7, 2012


Healthcare Reform Moves Forward; States Face Key Decisions | Manatt, Phelps & Phillips, LLP - JDSupra

WSJ: Election Removes Last Cloud from Health Law's Future

Election Removes Last Cloud from Health Law (subscription required)

Business Owners Readying for Obamacare

Why Small Businesses Should Plan Now for Obamacare Compliance

With the election behind us, it is clear that the Patient Protection and Affordable Care Act (“Obamacare”) is here to stay.  That means that businesses of all sizes should start planning now for Obamacare’s new employer mandates.  For many businesses, the most important new requirement is the so-called “play-or-pay” mandate that requires all employers with more than 50 full-time employees (or full-time-equivalent employees) to offer affordable, minimum health coverage to all full-time employees or else pay a potentially hefty penalty.  For employers who offer no coverage, the yearly penalty will be $2,000 times the total number of full-time employees less thirty (i.e., $2,000 x [Total Full-Time Employees – 30]).

Although this play-or-pay mandate does not take effect until January 1, 2014, most businesses at or near the 50 full-time-equivalents threshold should beginning planning now.  Here are two reasons why:

 The Makeup of Your Workforce in 2013 Matters.  It is always tempting to procrastinate when there is regulatory uncertainty.  And to be sure, many details about Obamacare remain uncertain as federal agencies slowly promulgate regulations and guidance to fill in the statutory gaps.  However, one thing that is quite clear from the Obamacare statute is that the structure of a business’s workforce in 2013 will determine whether or not it is subject to the play-or-pay mandate in 2014.  The statute provides that an employer is considered “large” and subject to play-or-pay if it employed an average of at least 50 full-time-equivalent employees during the preceding calendar year.  (The statute grants an exception for employers whose workforce exceeded 50 full-time equivalents for 120 days or fewer during the preceding calendar year or where the employees in excess of 50 full-time equivalents during such 120-day period were seasonal workers.)  Thus, employers that are near, or slightly in excess of, the play-or-pay threshold may want to take a close look at the makeup of their workforce and the structure of their business entities in 2013.

 The Structure of your Business in 2013 Matters.  Small business owners may also want to give close consideration to the legal and ownership structure of their organizations well in advance of 2014.  That is because before counting employees to determine whether the play-or-pay threshold has been reached, one must first determine whose employees must be counted.  Certain businesses that have a parent-subsidiary relationship or that reach a certain level of common ownership will be treated a single “employer” under Obamacare, meaning that all of their employees are aggregated for purposes of play-or-pay.  The applicable Treasury regulations here are complex and require individualized analysis tailored to the structure of your organization.  But this rule undoubtedly will bring into Obamacare’s fold many small and family-owned businesses that have overlapping ownership.

To sum up, while we will learn much more detail about Obamacare implementation in the coming months, there are good reasons for small business owners to begin taking steps now to plan for Obamacare's employer mandate.

This post is intended to provide information about current legal developments of general interest and consists of the opinions of the author.  It should not be construed as legal advice, and readers should not act upon the information contained herein without consulting professional counsel. 

Tuesday, November 6, 2012

Monday, November 5, 2012

WSJ: Health Law Spurs Shift in Hours

WSJ: Health Law Spurs Shift in Hours (Subscription Required)

An interesting story in the Wall Street Journal today (Page B1) reports that several large restaurant, hotel, and retail chains have initiated programs to limit hourly workers to less than 30 hours a week.  Above this threshold, an employee would be considered full-time and a large employer would have to either offer a minimal level of coverage or pay a penalty beginning in 2014.   Among the chains shifting to more part-time workers are CKE Restaurants, Inc. (parent of Carl's Jr. and Hardee's burger chains) and Darden Restaurants Inc. (parent of Red Lobster and Olive Garden).  The Journal reports that companies such as Costco that already offer full benefits have no plans to change employee hours in response to Obamacare.

Sunday, November 4, 2012

My San Antonio: Election won't stop new health care law

Monday, October 29, 2012

U.S. Set to Sponsor Health Insurance

New York Times reports that the federal government will sponsor at least two nationwide health insurance plans under the Affordable Care Act.

Thursday, October 11, 2012

Baker Hostetler Article on Common Control Provisions

BakerHostetler Article on Employer Mandate