Edward A. Morse (Creighton U. School of Law) has posted Lifting the Fog: Navigating the Penalties in the Affordable Care Act. The abstract follows.
This article provides an analysis and critique of tax penalties affecting employers and individuals in the Affordable Care Act. After an overview of the Act and its intended role in addressing problems in the health insurance system, the article turns to examine the employer and individual mandates, along with the requirement of minimum essential coverage. It argues that behavioral effects of these provisions are unlikely to achieve the desired policy outcomes. Moreover, the failure to accommodate conscience exemptions for employers and citizens with objections to contraceptive coverage likewise erects a barrier to achieving the desired policy goal of expanded coverage. Finally, the article briefly touches on the problems associated with state exchanges and their implications for employers and citizens seeking health insurance coverage. An appendix shows hypothetical computations affecting an employer decision to shift employees to exchanges rather than to continue employer-provided coverage.
And from the Introduction:
This Article examines the tax penalties affecting employers and individuals, which are a critical part of the scheme for regulating coverage under the Act. As discussed below, those penalties inflict potentially significant fiscal consequences for employers and individuals (including those of limited means). In some cases, the likely behavioral consequences for these penalties may undermine, rather than support, the purposes of the Act. Further, by combining these penalties with regulations requiring insurance coverage for contraception and sterilization services, the Obama Administration adds a new barrier to achieving expanded coverage. Not only does the contraception and sterilization mandate conflict with legal and social traditions of religious freedom and toleration, but it also singles out citizens with religious and/or conscience objections and effectively makes their health insurance coverage less affordable.