What Every Lawyer Should Know About the Affordable Care Act

R. Pepper Crutcher, Jr.

Article by R. Pepper Crutcher, Jr. Featured Author

Posted August 2012

It’s November 2013 and you have several domestic relations clients. Back in 2011, a court ordered your client’s former husband to elect family coverage under his employer’s insurance plan and to pay the required premiums. Due to cost increases attributed to the Affordable Care Act, his employer has terminated its plan, electing instead to pay the cheaper, “shared responsibility cost” when its full-time employees seek federally-subsidized coverage through the state’s exchange. However, the state has abandoned its efforts to create that exchange. And, despite having had a bad year, the former spouse can’t enroll in Medicaid because the state has not elected to expand Medicaid coverage to those who earn less than 133% of the federal poverty level. Your client expects you to fix this.

Do you still consider the Affordable Care Act to be a ball of confusion that’s (thankfully) not your problem? The ACA is a metastatic law. It will insinuate itself into many practice areas and cause substantial difficulties for those who are unprepared. Absent a historic political upheaval in November, it’s not going away any time soon. Each of us must study the ACA and anticipate the issues for our clients or we must expect some day to be embarrassed by our failure to do so.

Here is a list of suggested study topics for Mississippi lawyers who do not primarily represent the ACA’s primary targets – health care providers, health insurers, drug and medical device manufacturers and employer health insurance sponsors.

  • What should a domestic relations lawyer do to require, to the extent possible, a client’s former spouse to obtain federally-subsidized family coverage through a state-run exchange?
  • How will the ACA affect personal injury settlements and the taxation of settlement payments? The web sites of the Academy of Special Needs Planners (http://www.specialneedsplanners.com) (membership required) and the National Academy of Elder Law Attorneys (www.naela.org) (membership required to access resources) have been covering this issue.
  • What role will the ACA’s Elder Justice Act (§ 6703) play in tort suits brought against nursing homes?
  • Is the ACA’s increased child adoption tax credit (§ 10909) a material incentive for your client?
  • How will the ACA affect wealth management, estate plans and estate planning?
  • How will the ACA affect business sales, corporate merger and acquisition agreements and related due diligence investigations?
  • What will be the bankruptcy priority of the individual mandate enforcement “penalty” and the employer “shared responsibility cost”?
  • Will the new financial burdens imposed on borrowers, coupled with the bankruptcy priority of those debts, affect lending decisions?
  • Can separately owned and incorporated small businesses – for example, fast food restaurants – continue to share common back office support functions without being treated as a single “large employer” obligated to offer affordable, qualifying coverage? See ACA § 1513.

When Colonel Sanders was asked – so goes the joke – why the chicken crossed the road, he answered, “I missed one?” You’ll think of that joke as you search the U.S. Code for scattered parts of the ACA’s complete, labyrinthine text, found in Public Laws 111-148 and 111-152. Have your cross-reference table close at hand, because the Public Law sections are spread across Titles 16, 17, 18, 19, 20, 21, 25, 26, 28, 29, 31, 35, 36, 42 (especially), and 47. The substance of most eventual regulations will be announced first on the web site of the IRS (www.irs.gov/newsroom) (“Affordable Care Act Tax Provisions”) or the HHS (www.hhs.gov/regulations), before being published in the Federal Register (www.federalregister.gov) in official form (www.gpoaccess.gov/fr).