There is a little bit more of a thaw in the works in health care, of all places. The House Ways and Means Committee voted 23-14 today to approve H.R. 2575, the Save American Workers Act. I testified on NRF’s behalf in support of this legislation before the committee last week. It was a surprisingly positive and encouraging experience: they listened.

We congratulate Representative Todd Young, R-Ind., the sponsor of the bill. We’re happy to see it approved by the committee and hope to see it passed soon by the full House. At long last, the two sides are at least talking about helpful changes to the law. That defines improvement – and a Siberian-caliber thaw.

This bill would delete the Affordable Care Act’s 30-hour definition of full-time for benefit eligibility and substitute 40 hours in its place. The ACA’s 30-hour definition has thrown a monkey wrench into workforce planning for retailers and retail employees alike. Suddenly, a part-time employee can work no more than 29 hours and change per week. This is real money taken out of their paychecks. Many might have to seek a second or third job to make up for the loss of income.

This provision also complicates life for managers seeking to fill schedules. Retailers will average variable-hour employees to see if their average hours crest 30 hours. If so, then the employee gets health care coverage for as long as his or her hours were averaged. If not, the averaging clock starts all over again. Confused? You are far from alone – but not far from help.

NRF-member retailers and chain restaurants can tune in for our next health care policy webinar Thursday, February 6 from 2-3 pm EST. I will help explain the perils, pitfalls and provisions of the health care law this year and beyond. NRF’s health care resource center is the best place to stay updated and informed as the thawing continues.

The news comes less than a week after my testimony before a congressional committee asking lawmakers to delay implementation of the law, although the decision was certainly already well in the works at that point. But what does this announcement really mean for retailers? Here are some issues to consider moving forward:

• Retailers now have another year to figure out how to implement the employer mandate and determine the best business model for compliance. In announcing the delay, the Administration acknowledged that employers had concerns about the complexity of the regulations. This year gives elected officials more time to ensure the regulations are easy for retailers to follow and to address specific problems.
• Unfortunately, the delay could also mean that employment will continue to fluctuate. Retailers will have the need to hire more workers but fears over the cost of implementation are still out there and could hold retailers back from adding employees. The delay creates some breathing room, but also means another year when retailers will have to decide whether or not to hire and how.
• This postponement provides another year to urge Congress and the Administration to address existing concerns with the employer mandate, especially the 30-hour definition of “full-time” and the threshold of 50 full-time employees to be covered by the mandate.  It’s because retailers – from Main Street store owners to nationally known brands to members of NRF’s National Council of Chain Restaurants division – spoke up and made their concerns known that we achieved this delay. It’s critical these voices stay loud in order to avoid a cascade of last-minute regulations that could be ahead.

Ideally, more legislation will be approved by Congress over the next year to soften the impact of the ACA. The Small Business Job Protection Act, sponsored by Representative Luke Messer, R-Ind., would amend the measure to apply only to businesses with 100 or more full-time workers rather than 50. There’s also the Save American Workers Act, sponsored by Representative Todd Young, R-Ind., that would define full-time as 40 hours per week rather than 30. The more amendments to make the law as workable as possible, the better.

No doubt there will be questions about compliance and how to prepare for what could be next. I will host a webinar on July 10 that will provide retailers with the opportunity to ask questions about compliance requirements. I’ll be prepared to answer questions at the conclusion of my presentation.

Ratner and I kept our presentation simple, as the most basic issues retailers need to know about this year breed endlessly complex sub-issues: How big must you be to be subject to the law? What options will be available to you? What implications does this have for your workforce, especially at the entry level? A few of the more popular topics included averaging employee hours over time to deal with variable hour employees (a.k.a. the “look-back”), the size of penalties, and the curious exclusion of the first 30 employees. Bottom line: Health reform is coming, and the retail industry can – and should – face it affirmatively.

But as new rules roll out, NRF continues to analyze the nuances of the law for our members and retailers across the country. On February 1, I presented a more in-depth survey of retail concerns. NRF’s “Ready, set … Are You Ready for the Affordable Care Act?” webinar took another dive into some of the basics, exploring ways the ACA could shape future workforce decisions. For those who missed it or need a refresher, retailers can register for on-demand playback. NRF’s ongoing health care webinar series will continue on April 4, taking a closer look at the new regulations and challenges for retailers that take effect in June.

As always, www.retailmeansjobs.com/healthcare is full of free resources for retailers to learn more about the ACA. And NRF’s Health and Employee Benefits Committee meets on a monthly basis to evaluate the latest issues. Together, the retail industry will have a full head of steam to overcome the health care reform learning curve.

Ratner is the American Dream personified. From his humble, garage-based start, he has built his business into a six-store chain that competes with and thrives against larger stores. But Ratner didn’t have to cope with the Affordable Care Act when he was starting out. In the latter years he has dealt with comparable concerns under the Massachusetts reform law. The ACA will add new complexity to the mix in the years ahead, particularly in regard to future expansion. I can tell you first-hand that the details at times can be a bit mind-numbing.

New ACA rules for coverage and penalties will begin in January 2014. Generally, a business with 50 or more full-time employees (at 30 hours per week; whereas part-time employee hours are totaled to determine the equivalent to full-time employees) must provide qualifying and affordable coverage to full-time employees or pay substantial fines. Dependents of full-time employees must also be offered coverage but the employer will not be penalized for not contributing to that coverage. Different rules will determine when the ACA mandated coverage is “affordable” or not to eligible employees. These are a few of the topics I’ll discuss with business owners in a webinar on February 1.

Entrepreneurism is the very soul and essence of Main Street. Attaching consequence – a spiked ceiling, in effect – to growth at 50 employees could chill the drive that fuels Main Street entrepreneurs like Ratner. The cycle works so that growth builds jobs which helps fuel the proliferation of further growth and jobs, and so on. Anything that threatens to stunt that growth is cause for concern.

NRF continues to work closely and cooperatively with regulators in the Obama Administration to help make it easier for retailers of all sizes to cope with the ACA’s implementation. Hopefully our session will help inoculate Ratner and his Main Street peers against some of the more severe and unintended effects of health care reform. Now that sounds much healthier, doesn’t it?

My testimony centered on retailers’ desire to receive more definitive guidance – from the administration and its agencies – in advance of the crucial transition year of 2014. Unless temporary guidance hardened into notice-and-comment finality by the first quarter of 2013, I warned, employers and retailers would be hard pressed to make the transition to the new markets in 2014.

Serious attrition from the number of employer-sponsored plans is a real and distinct possibility, and one that should not be underestimated or overlooked. In this vacuum of regulatory uncertainty and unease, employers may have to restrict, reduce or even eliminate their health care plans (a no-win situation for employers and employees alike). Workforce size – in a job-hungry economy – may also suffer as jobs become more expensive as the costs of coverage increases.

NRF’s dialogue with the administration has been positive and productive throughout and that hard work has gone a long way toward creating the flexibility necessary to navigate the complexities of the retail workforce. Still, only regulations have the force of law – and the solidity to base future judgments on. Retailers and other employers do not want to have to revisit these issues on a year-by-year basis. Fair and final regulations – taking into account retailers’ serious concerns – will offer the best chance for the ACA to succeed against all odds.

Much hard work remains and other distractions, such as the elections, fiscal cliff and the ongoing swipe fee debate, loom. But so long as the ACA remains the law of the land (yes, NRF still opposes the law), we will continue to highlights our concerns with Congress and the administration, as well as prepare our members and the broader retail industry to comply with the ACA and all its enormous complexity.

NRF encourages every employer to visit our dedicated health care resources on RetailMeansJobs.com to find out what’s coming next and what NRF is doing about it.

NRF remains determined to repeal or substantially overhaul the ACA. To paraphrase Chief Justice John Roberts, elections do matter. But, just as the judicial process failed to deliver the result we wanted, we cannot afford to rely on the uncertain outcome of the November elections.  We must act now to help retailers provide affordable coverage for their employees and their families.

To help focus our grassroots and political campaign, we established a special website at www.retailmeansjobs.com/healthcare. NRF is also deeply embedded in the regulatory process on crucial retail industry issues—managing full and part-time workers (and the hardship of the 30-hour definition of full-time) with the retail industry’s uniquely variable workforce.  We started this process early—not because we like the law but rather because our members will have to live with the consequences of implementation.

The Supreme Court decision is underlined by the respect of the Judicial Branch for the Legislative and Executive Branches of government.  Still, the logic of the majority opinion stretches to reach that result.  Under the Roberts opinion for the majority, the individual mandate penalty survived under Congress’ taxation power.  Congress can encourage or discourage activities through the tax code. But, Roberts also said that the penalty was not a tax for purposes of the anti-injunction act. It is a tax that is not a tax until it really is a tax again. Quite taxing logic…..

Our biggest take away from the majority decision from Chief Justice Roberts and his colleagues is not the circular tax, but rather from some interesting dicta.  Roberts wrote:

“Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments.  Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them.  It is not our job to protect people from the consequences of their political choices.” (p. 6, emphasis added)

We must take the Chief Justice at his word.  NRF intends to work the political and regulatory process to overturn, overhaul or mitigate the damage imposed by the ACA. It is vital that regardless the outcome, we all remind policymakers that keeping the Affordable Care Act, in fact, affordable is the crucial goal.  We stand ready to assist and advise.

Today the Administration argued that if the individual mandate falls, then only the “guaranteed issue” (coverage available on demand at any time) provision falls.

Several Justices argued that it would be impossible for the Court to rummage through the law to decide what stays and what goes, therefore it all should fall. Other Justices argued that the choice should be left to Congress.

But, how exactly does the Court “remand” the case to Congress?  Wouldn’t the better choice be to invalidate the whole law (honoring the lack of a severability clause) and leave it to this or a future Congress?  NRF and other business allies have long argued that Congress should, indeed, Start Over!

The second debate concerned whether Congress exceeded its spending power by coercing state participation in vastly expanding eligibility for Medicaid to childless adults. The divide on the Court ran from the Chief Justice and his more conservative allies who find the ACA’s Medicaid expansion highly coercive to the more liberal wing of the Court who find the conditions on federal funds typical of Congress.

The nine Justices will now retreat to Chambers, cogitate with their respective collections of law clerks and then conference to determine where the majority of the Court is on particular questions. Through that process, the majority opinion will be assigned and additional opinions (concurring, dissenting, etc.) will be toted up. Chances are very good that the Justices will have a lot to say.

When they will make their decision is still highly uncertain. Traditionally cases heard in the spring often emerge in the summer, but not always. While the Court (at least in theory) is apolitical, even they are likely aware that a big election looms in the fall. The Court is not likely to delay their opinion to October, the start of their fall term.

It looks like a long, hot summer (with frequent tea-leaf reading and heedless prognostication) for health care ahead!

The Affordable Care Act’s (ACA) construct of guaranteed-issue coverage and strict rating bands require universal participation. To do otherwise would invite people to wait until they are sick to buy health care coverage. Think of someone buying fire insurance when their house is in flames.

NRF abandoned its support for the individual mandate when it became clear that it would catastrophically overburden many businesses and retailers, and hemorrhage jobs without reducing health care costs.

The beauty of our health care system – up until ACA’s passage – had been its voluntary nature.

Employers want to attract and retain top talent and often voluntarily offer health care coverage as part of the employee’s compensation. Employers who can’t offer coverage today are not “freeloaders” but are rather priced out of the market. The ACA’s mandates turned this system on its head in favor of interlocking obligations and tax penalties.

The question before the Court today was whether Congress could compel all individuals to purchase health coverage or to obtain subsidized coverage.

A majority – five Justices – appeared to signal “no.” (Follow this link to the audio for today’s arguments and this link for the transcript.)

While it is really hard to take a definitive view based on oral arguments alone, the questions the Justices’ posed to the lawyers are fairly suggestive of the direction the Court is leaning. If that is the case, today was not a very good day for Obamacare.

Nevertheless, NRF would not encourage anyone to write the ACA’s obituary – at least not yet. Nor should retailers, restaurants, states or others stop their efforts to smooth future compliance with the law. It is still not clear whether all, some or none of the law will fall but ACA implementation is still chugging down the track. No prudent business should ignore the possibility that ACA will go forward as planned.

Tomorrow’s oral arguments before the Court – the third in three days – will focus on the issue of severability (whether various components of the law can be severed away from the law’s whole) and whether Congress can compel states to expand Medicaid eligibility.

The question before the Justices today was whether the 19^th Century Anti-Injunction Act (AIA) barred consideration of the case by the lower courts (hence, also the Supreme Court) before the “tax” penalty for failure to comply with the individual mandate (individuals must purchase coverage or pay a penalty as of 2014) is levied.

The Court seemed to be quite skeptical of this argument. Click on this link to listen to the arguments or click here to read the transcript.

This threshold issue of standing was actually raised by the Court itself, using hired counsel (Robert Long, Covington & Burling) to make the argument. Both the federal government (supporting ACA) and opponents of the law opposed the AIA challenge.  U.S. Solicitor General Donald Verrilli argued that the penalty is not a tax, hence the AIA doesn’t apply.  Gregory G. Katsas of Jones Day argued that the penalty is different than the type of revenue-oriented tax envisioned under the AIA.

The Court will meet again tomorrow to hear the cornerstone arguments on the constitutionality of the individual mandate.

Wednesday the Court will hear two arguments re: the Medicaid expansion and severability.

Formal decisions on the ACA cases before the Court are not expected until June or later.

Nevertheless, the outcome of today’s argument appears pretty evident: the Court will not use the AIA to side-step this judicial – and, yes, political, hot potato.

Stay tuned for more…

There are things already in effect that should be recognized and celebrated.  Congress – under either party’s control — won’t let these fall by the wayside if PPACA somehow magically disappears.

“Helicopter kids” can stay on their parents’ plan until age 26. Lifetime limits were abolished out of the gate: people who had run out of coverage are now finding it flow again.

Regulators are trying hard to keep everyone happy as they shade in PPACA’s broad outlines.  Inevitably everyone is unhappy with some of the choices made, including the lawmakers who wrote the law in the first place.

Myriad details are developing on arcane but real-world issues.  For example, how do you measure eligibility when employee hours vary week to week, or more?  Will states choose the most affordable option for essential health benefits coverage?  How will they squeeze the 10 “buckets” of newly-required coverage into one of the state options – such as the most widely subscribed small business plan in the state?  Will the states be able to open their new health insurance exchanges on time in 2014, and will small employers be able to determine which exchange plan to offer their employees?  The details are mind-numbing in their numbers and complexity.

Retailers, restaurants and other businesses face a fire-hose flood of regulatory details and requirements as they struggle to provide coverage now and planning for coverage (also now) for 2014 and beyond.  The math appears simple after 2014 – the penalty cost will be cheaper than providing coverage – but will a future Congress increase the penalties?  Will employers who continue to offer coverage be better able to attract employees and keep them healthy than those who don’t?

Oral arguments start in the U.S. Supreme Court next week on PPACA’s fate.  The Court could invalidate some, all or none of PPACA…or delay consideration of the health law until someone actually pays a tax penalty under the law.

Questions still abound on PPACA’s anniversary – and, often, each question leads to ten more and different questions.  It is a big, opaque and frequently frustrating law.  Time will tell if these questions – and PPACA itself – will still be here next year.