President Obama's re-election Nov. 6 ensures that the health care reform law
and pension proposals will continue to be implemented, sources told BNA, while
business groups and unions said they will remain focused on the economic
Obama's re-election means that the next crucial milestone for implementation
of the Affordable Care Act will be in 2014, the year the exchanges are scheduled
to be up and running and Medicaid coverage expanded, with much of the work to
meet that deadline occurring between now and then.
The ACA has now survived attempts by the Republican-controlled House to
dismantle it, a ruling from the U.S. Supreme Court on its constitutionality, and
a presidential election. Both supporters and opponents of the law told BNA they
expect implementation will now go forward unimpeded.
The House will remain in the hands of Republicans as a result of the
election, so observers predicted more oversight of the health law in that
chamber. But the Senate will remain controlled by Democrats, so any attempt to
make big changes in the law likely would be stopped there, they added.
“In terms of derailing the law, it's done; there's no pulling it apart,” said
Julius W. Hobson Jr., senior policy adviser at Polsinelli Shughart in
Even if an opponent of the law is elected president in 2016, its key features
will already have been implemented, and “you can't unwind it,” he added.
But Hobson said he expects the House will engage in “rigorous” oversight of
Paul Hackleman, health care and public employer analyst at the International
Foundation of Employee Benefit Plans, said there were “two hurdles” the ACA
needed to clear in order for employers to feel confident in implementing
upcoming provisions of the law. The first hurdle was cleared on June 28 when the
Supreme Court upheld the law (30 HRR 707, 7/2/12), and the second hurdle was
cleared by the election results, he said.
“The Republican Party had made it very clear that repealing the ACA was a
priority. So if the Republicans had won both the House and the Senate, I think
there would have been a strong likelihood that there would have been a repeal,
or a significant reduction in what the act provided,” Hackleman said.
“It's now very clear that the Affordable Care Act is in fact going to stay
law and [that's] going to remove any doubt on the part of employers about the
actions that they need to take,” he said.
Hackleman said that, with the election settled, “employers are now
unencumbered in terms of their ability to go ahead and proceed with complying
with the ACA.”
“Conservatives are well-aware of the fact that Obamacare is here to stay,”
said Avik Roy, a senior fellow at the Manhattan Institute, a right-leaning think
tank. “Obamacare is the law of the land,” he said.
Roy also predicted the House will continue to hold hearings about the law's
“It has been far from a hiccup-free implementation,” he said.
Observers said the ACA faces numerous challenges being implemented during the
next 14 months. Many states have not taken action linked to creation of health
insurance exchanges, and states also must work to expand Medicaid coverage
mandated under the law.
Some states were waiting for the presidential election to decide whether they
would have to create an exchange. Now they must quickly decide whether to create
an exchange or allow the federal government to do so for them.
The advocacy group Families USA said in a Nov. 7 statement that one of the
biggest challenges facing the law will be enrolling tens of millions of
uninsured people in new health coverage.
The Washington, D.C., consulting firm Avalere Health said in a Nov. 7
analysis that ACA implementation will go into high gear now that Obama has been
States by Nov. 16 must notify the federal government about their plans to
implement exchanges, and Avalere said it expects that 20 states will likely
operate state-run insurance exchanges in 2014; 13 will likely use a partnership
model with the government; and more than a third of states will likely default
to the federal exchange.
“To date, six states have indicated that they do not plan to implement
Medicaid expansions and several more have been leaning against expansion, but
some states may change their decisions now that the elections are over,” the
The U.S. Supreme Court gave states the option of participating in the ACA's
Medicaid expansion as part of its landmark health care decision in June.
“Avalere anticipates that [the Centers for Medicare & Medicaid Services]
will offer states flexibility to partially expand Medicaid to encourage program
participation and most states will only expand [coverage] to 100 percent of
poverty--shifting those above the poverty line into subsidized exchange
coverage,” the firm said.
Jennifer Butler, senior policy adviser at Alston & Bird, said during a
Nov. 7 webinar sponsored by the Premier healthcare alliance that, with the
election over, the Department of Health and Human Services likely will issue
numerous rules during the next several weeks regarding ACA implementation,
including one governing the essential benefits package.
Obama administration proposals designed to improve Americans' retirement
security also will move forward in the wake of his re-election, but some aspects
of the private retirement system could still face threats from tax reform
efforts, retirement groups and practitioners told BNA Nov. 7.
The Department of Labor's re-proposal of the definition of “fiduciary” under
the Employee Retirement Income Security Act will stay on track, as will the
administration's initiative to provide standards for estimating retirement
income from 401(k) plan benefits, they said. However, there was a sharp
difference of opinion as to whether 401(k) plans, the main form of retirement
saving for many Americans, could take a hit if tax reform comes to fruition.
But there is much uncertainty, as retirement policy took a back seat for much
of the presidential campaign.
“Retirement was surprisingly sort of a hidden issue in this election,” said
David Madland, director of the American Worker Project at the Center for
However, Madland said he sees “a potential bright spot” for retirement policy
getting the attention he thinks it deserves.
“A large part of this election was about the fate of the middle class and
which presidential candidate would do a better job for the middle class,”
Madland said. “If you look at middle-class worries, retirement is among the very
top issues, so there is some sense that retirement could be a big issue down the
road,” he said.
American Benefits Council President James A. Klein said he is optimistic that
the election results will bring both parties together to address big issues,
including retirement issues. “Things change in the second term of any president.
[The president] is freer to move toward the other party, and other party is
freer to move toward him … in addressing some of the bigger issues,” he
The “status quo” results of the election ensured that DOL's major regulatory
initiative to redefine the term “fiduciary” under ERISA Section 3(21)(A) is
still on track, said Brian H. Graff, executive director and chief executive
officer of the American Society of Pension Professionals and Actuaries.
“They are going to continue with their definition-of-fiduciary reg, which is
very controversial. Ultimately, it may be that Congress has to step in and
address the issue. So that's going to be very contentious, and I don't think
that's going to change,” Graff said.
The re-proposal could be ready for the public as early as January, according
to Oct. 23 remarks from Phyllis C. Borzi, assistant secretary of labor for DOL's
Employee Benefits Security Administration. Speaking at the American Council of
Life Insurers' 2012 Annual Conference, Borzi said the retirement community could
expect the re-proposal to be issued in early 2013 (30 HRR 1159, 10/29/12).
Edward Ferrigno, vice president of Washington affairs at the Plan Sponsor
Council of America, agreed that the fiduciary re-proposal is inevitable now,
saying, “you have to assume that the DOL's regulatory agenda will move forward,
obviously, the fiduciary rule being the number one issue.”
Several business groups, meanwhile, pledged Nov. 7 to work with the
administration and suggested strategies for stimulating the nation's economy.
They also urged lawmakers to put aside political differences and collaborate on
“The time for politics is over. The time is now for governing,” Greg Casey,
president of the Business Industry Political Action Committee, said in a
teleconference the day after the election.
“The mandate is to come together to solve” the nation's economic problems,
Jay Timmons, president of NAM, told the teleconference audience that 6
million jobs could be lost in the United States by 2014 unless timely action is
taken. He urged reform of entitlements and spending as well as of the tax
Thomas J. Donohue, president and chief executive officer of the U.S. Chamber
of Commerce, issued a statement Nov. 7. “It is the government's responsibility
to work on a bipartisan basis to pass policies that will unleash the private
sector and help put Americans back to work,” Donohue's statement said.
“Now that the election is behind us, the most urgent matter facing the
president and the outgoing Congress is to take action before January 1 to stop
massive tax increases and indiscriminate spending cuts, which could push our
economy back into a recession,” he said.
AFL-CIO President Richard Trumka said Nov. 7. that the margin by which union
members voted for President Obama was decisive in his re-election in a number of
battleground states, including Ohio, Wisconsin, and Nevada.
During a news conference at AFL-CIO headquarters, Trumka said that 65 percent
of union members nationwide voted for Obama.
And while the election is over, Trumka said, labor's work is not finished.
The labor movement now is focused on the lame-duck session and the fiscal
showdown with Congress, he said.
Joe Hansen, president of the United Food and Commercial Workers, said in a
Nov. 6 statement that there is much more to be done in the president's second
term. “It is time for immediate and bold action to create good-paying jobs,”
Hansen said. “It is time for a tax code that is fair and helps close the gap
between the rich and the poor. It is time to strengthen our labor laws so
workers can join a union freely and fairly. And it is time to reform our
immigration system so those who work hard and play by the rules can become
American citizens. Only then can we truly recognize the President's vision of
shared prosperity and shared sacrifices.”
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