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A Project of The Annenberg Public Policy Center

Pelosi Parsing Words on ‘Employer Mandate’

Nancy Pelosi was playing a semantic word game when she claimed there “was not a delay of the mandate for the businesses” in the new health care law. That was in fact the effect of a decision announced recently by the Treasury.

The Treasury announced on July 2 that it was delaying for a year, until 2015, the Affordable Care Act requirement that large employers provide health coverage or face penalties.

In her weekly press conference on July 11, House Democratic Leader Pelosi was asked about Republican calls to also delay the so-called individual mandate that will require people to buy insurance or face a tax penalty next year.

Pelosi, July 11: In fact, the point is, is that the mandate was not delayed. Certain reporting by businesses that could be perceived as onerous, that reporting requirement was delayed, and partially to review how it would work and how it could be better. It was not a delay of the mandate for the businesses, and there shouldn’t be a delay of the mandate for individuals. (Starts at the 9:06 mark.)

In response to complaints from the business community about the complexity of reporting requirements under the Affordable Care Act, and the need for more time to implement them, the Treasury released a blog post on July 2 announcing the one-year reprieve.

Mark J. Mazur, Assistant Secretary for Tax Policy at the U.S. Department of the Treasury, July 2: The Administration is announcing that it will provide an additional year before the ACA mandatory employer and insurer reporting requirements begin.

As a result of the one-year delay in reporting requirements, the Treasury announced that it would also suspend the tax penalties for large businesses that fail to provide insurance to their employees — essentially the hammer behind the “mandate.” The law requires businesses with more than 50 employees to provide health coverage to all of their full-time workers (those working at least 30 hours per week) or face a tax penalty of $2,000 per employee.

Mazur: We recognize that this transition relief will make it impractical to determine which employers owe shared responsibility payments (under section 4980H) for 2014. Accordingly, we are extending this transition relief to the employer shared responsibility payments. These payments will not apply for 2014. Any employer shared responsibility payments will not apply until 2015.

During this 2014 transition period, we strongly encourage employers to maintain or expand health coverage. Also, our actions today do not affect employees’ access to the premium tax credits available under the ACA (nor any other provision of the ACA).

Pelosi spokesman Drew Hammill noted that although “the employer responsibility requirement” has been pushed back to 2015, “employers will be encouraged to maintain or expand coverage during the 2014 transition period.” That’s true, but “strongly encourage” is not the same thing as “mandating” under the threat of a tax penalty.

Hammill also noted that the change “does not affect employees’ access to the premium tax credits available under the ACA or any other provision of the law.” And last, he noted that the vast majority of companies with more than 50 employees already offer appropriate health insurance, and would not be affected.

Former White House adviser Ezekiel J. Emanuel, who helped to design the law, wrote an opinion piece for the New York Times making the same point: that the change would affect only a small percentage of large employers, and therefore it would not make a big overall difference in “the progress of reform.”

Although the reporting requirements affect only businesses with more than 50 employees, Emanuel said it “turned out to be a nightmare” for some businesses to determine who should be counted as a full-time employee.

“Hours of service include paid vacation and sick time, as well as things like jury duty,” Emanuel said. “And how do seasonal workers fit in, or people who work just one semester at an academic institution?”

As a result of the delay in reporting requirements, Emanuel, an oncologist and vice provost at the University of Pennsylvania, noted: “Larger employers will now have until 2015 before they will have to provide insurance or face penalties.”

In press conferences, White House spokesman Jay Carney has repeatedly referred to a delay in the “employer responsibility provision.”

But Pelosi and the administration are simply parsing their words, said Paul Fronstin, director of the health research program at the Employee Benefit Research Institute. Pelosi is correct that the change involved postponing reporting requirements, but if employers aren’t required to provide that information, there can be no enforcement through penalties. Tax penalties are the “mandate.”

So Pelosi may say it is not a delay of the employer mandate, only a delay in the reporting requirement, but “in practice, it boils down to the same thing,” Fronstin said. “The bottom line is the same.”

— Robert Farley