When Laborers’ International Union President Terry O’Sullivan took the AFL-CIO convention podium in September, he voiced a majority view that, "If the Affordable Care Act is not fixed, and it destroys the health and welfare funds that we have all fought for and stand for, then I believe it needs to be repealed." White House meetings on the subject had not paid off, it seemed. According to Forbes magazine, the President had to intervene to forestall, barely, a convention resolution to repeal the ACA.

Generous, employer-paid health care coverage has been a chief attractant for low wage, non-union workers. Especially in the construction and transportation industries, much of that coverage has been provided through labor-management health and welfare trust funds, many of which are similar to self-insured, employer group health plans. Those funds are threatened by three ACA features: (1) beneficiary ineligibility for subsidies that would accompany their purchase of plans through the ACA Marketplace; (2) the coming “Cadillac plan” tax; and (3) other fees and taxes already imposed on insurance issuers and plan sponsors, most especially the annual reinsurance fee of $5.25 per month per covered life. So far, the Administration has not formally promised union funds any associated relief, despite heavy lobbying.

We have been warning that employers will need months of advance planning and an automated process to use the ACA’s “look-back measurement method” to identify the full-time employees who will be entitled to an offer of coverage. In a future article, we’ll report our impressions of several software options. Here, we’ll make it as simple as we can and yet you’ll be dizzy before we’re done. All references are to the IRS Employer Shared Responsibility Cost Final Rules, 26 CFR 54.4980H-3(d) (79 Federal Register pp. 8586 – 8594, Feb. 12, 2014). Among other short-cuts, we’ll ignore special rules that apply only to school employees; we’ll ignore the option to insert an “administrative period” between a measurement period and its associated stability period; and, we’ll discuss another day how to determine whether a returning employee is a “new hire,” and how to count hours of “special unpaid leave” if she is not.

ACA § 1557(a) (42 U.S.C. § 18116(a)) says:

Except as otherwise provided for in this title (or an amendment made by this title), an individual shall not, on the ground prohibited under title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.), title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.), the Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.), or section 794 of title 29, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving Federal financial assistance, including credits, subsidies, or contracts of insurance, or under any program or activity that is administered by an Executive Agency or any entity established under this title (or amendments). The enforcement mechanisms provided for and available under such title VI, title IX, section 794, or such Age Discrimination Act shall apply for purposes of violations of this subsection.

Sub-section (b) emphasizes that subsection (a) does not limit the previous application of the statutes referenced in subsection (a). Subsection (c) authorizes the HHS Secretary to “promulgate regulations to implement this section.” All of this has been in effect since March 2010. So, why did HHS need over five years to propose the set of rules published September 8? Here are a few highlights. For brevity’s sake, we omit foreign language service requirements, disability accommodation, compliance certification, grievance procedure and notice posting rules, among others.