As our entire industry awaits the expected June Supreme Court decision on the Patient Protection and Affordable Care Act, it feels as if we have collectively boarded a plane with a destination yet to be announced. There's plenty of speculation about the endpoint. Prognosticators have closely scrutinized the interactions between justices and litigants. Analysts have examined each word spoken at the three-day March hearings, and every question uttered by a judge has held prophetic significance.

There is general consensus that our journey will conclude in one of three places: the law will be upheld, the legislation will be struck down or components of it will be found unconstitutional. Regardless of the outcome, my counsel is to remain on the aircraft once it lands. The future of our profession is not tied to the outcome of PPACA—even if it disappears.   

This position is not outlandish because another overarching theme takes precedence. In our quest to read the legal tea leaves, we seem to have forgotten that affordability drives the challenges we face as advisors and brokers. Eliminating PPACA may actually exacerbate the problem. It creates complacency and possibly delays the launch of cost-saving initiatives that innovative firms are in the process of developing.    

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What if PPACA is declared unconstitutional?

Our current trajectory is unsustainable. If PPACA goes away, there is no rabbit in the hat. The wheels of change are in motion, and they do not operate in reverse. Regardless of what happens to medical loss ratios, carriers will not revert to old commission structures. The private sector simply buys time to figure out new approaches to bend the cost curve before new state or federal government mandates emerge.

Here's the crux of the matter: Because of rising costs, employers have permanently changed their approach to benefits, and individuals cannot continue to indefinitely afford the cost trajectory of coverage they need to protect themselves and their families. Our job—if we want one in tomorrow's world—is to evolve our business to address these dynamics.

Part of the solution lies in determining how to drive value rather than how to feed on the complexity of the system to earn commissions. If we truthfully examine our historical compensation structure, it has not served the system well for quite some time. Until recently our biggest clients—particularly the ones that grew and added employees in the decade before the recession—paid larger commissions simply because premiums rose.

Yes, we had to work harder to service those employers, but on some level we knew that we could not maintain these profit margins over the long-term. Yet how many of us offered to reduce our compensation? Our feelings ranged from entitlement, to "gee, aren't we lucky," to, perhaps, pangs of guilt.

Before PPACA was proposed, we spent a decade resisting change. Why alter a system when we benefit so grandly? Because it isn't working for the people we serve. And that's exactly the same position we will find ourselves in should PPACA be abolished.

We need a new approach to employee benefits. It involves re-harnessing information and analytics to interact with clients and consumers in fundamentally different ways than we ever have before. This data needs to be integrated into call centers that deliver astonishing customer experiences with the ability to foster one-to-one relationships with employees and their families. We must become educators and teach the insured and uninsured how to become informed and empowered consumers. Our focus should include stimulating them to take more responsibility for the health care dollars they spend. Unless we operate on that level, not much is going to change.

Dissecting the monster: Portions of PPACA disappear

While eliminating PPACA is a possibility, conventional wisdom indicates that, at minimum, the individual mandate (requiring that pretty much everybody must buy health insurance) will be tossed out.

 In my opinion, this is a step backward. For the record, I support the individual mandate. Otherwise, those who pay taxes and insurance end up supporting those who don't. Furthermore, if you believe in the concept of risk and risk pools — and it's difficult to imagine anyone in our industry who doesn't—spreading the cost out addresses the affordability issue. Interestingly, a new study by the Urban Institute indicates that this obligatory requirement will affect only 3 percent of the non-elderly U.S. population.  

If the law largely remains intact, but portions of it are jettisoned, it will be interesting to see how this impacts participation in exchanges, which are of great interest to advisors serving the small- to mid-sized market. There is a lot of guesswork in this arena, but the concept of all employers dumping their workers into exchanges just doesn't hold water. Data points I have collected from five major carriers and recent third-party studies have pegged this number between 6 and 8 percent. Our company believes many employers will self-select out of participation. Bottom line: If the math doesn't provide an advantage to a business, they won't direct their employees into an exchange.

In any case, depending on how the Supreme Court rules, the composition of exchange participants likely will differ. There are so many variables and mitigating factors that it's difficult to predict exactly the impact of such an action. Among the possibilities:

  • If justices toss out the individual mandate along with guaranteed issue and directives related to pre-existing conditions, exchanges will probably be populated by healthier, non-affluent participants who will benefit from a subsidy. States may bear additional financial burdens managing high-risk pools.
  • If the individual mandate vanishes, but guaranteed issue and rules related to pre-existing conditions remain, then exchanges may be flooded with a less healthy risk pool.

Back to square one: PPACA remains intact

If the Court declares PPACA is constitutional, then we've wasted a lot of time gambling on other outcomes. That doesn't necessarily mean that plans will proceed unimpeded. It wouldn't be surprising if deadlines were extended, particularly since some states have halted progress on development of exchanges pending the outcome of litigation. And, there's an elephant in the room.

The November elections hold the potential to change everything once again. Depending on who occupies the White House and which party controls the Senate and the House, PPACA could face immense upheaval irrespective of any decisions made by the Supreme Court.

Which returns me to my original premise. If we want to create advances in our industry that truly matter to our clients, the Supreme Court ruling doesn't matter. PPACA and any permutation of it merely distract us from what should be our ultimate focus: reducing system costs and delivering value in such an environment. Affordability is the issue. Whatever route the Court takes, all roads still meet at this juncture. 

Come June, our journey to the future may arrive at a new location. But, I assure you, this destination is a layover. If warranted, we can hop off the plane and celebrate with a few cocktails, but we must then re-board. Let's not get stuck in the terminal when a brand new world is waiting to be explored.

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