The funny thing about the Affordable Care Act (ACA) is that many people who support it will admit — if pressed — that it is a very poorly drafted piece of legislation.

The overall purpose of the ACA, of course, is to provide a general structure for universal health coverage, but Congress left most of the details to three federal agencies (the Internal Revenue Service, the Department of Labor, and the Department of Health and Human Services) to sort out on their own. The results have been mixed, to say the least, though in fairness, the agencies have done the best they could with what they were given.

As if that weren’t enough, last year’s King v. Burwell case demonstrated that the ACA is so badly written that the members of the United States Supreme Court — nine of the most intelligent, experienced, learned lawyers in the nation — couldn’t even come to an agreement as to what it actually says and does.

And yet, you may have clients who expect you to know everything about how the ACA could possibly affect them under any circumstance, whether real, hypothetical, or completely implausible. After all, you’re the expert, right?

Er, right. But how can you be expected to do what Congress, three federal agencies, and the Supreme Court evidently cannot?

The hard fact is: You can’t.

The good news is that, as we’ve seen, you are not alone. The bad news is that it’s your job to guide your clients. The even worse news is that — if you’re not careful — you could end up in some hot water yourself. Losing a client or two might not be the worst of it, either; you could lose your license.

During my session, “Wise Counsel: Say This, Not That When Advising Clients on PPACA Compliance,” I will walk brokers through the minefield that is the ACA. Unlike other ACA seminars, however, which usually focus on the ACA rules themselves (which employers must comply, what must those employers do, etc.), my seminar will educate advisors about how to explain and apply those rules to their clients.

By this point, benefits advisors have at least a broad understanding of the ACA and its requirements. That’s a job requirement at this stage of the game. But there is still a lot of confusion out there with regard to who is responsible for doing what things, especially with regard to ultimate determinations on complying with the ‘play-or-pay’ rules. There are things that advisors can help decide, but there are other things that are better left to an employer’s human resources departments, its lawyers, or others.

Just knowing the ACA rules is not enough.

For better or worse, the ACA places a great deal of responsibility on employers, which can put benefits advisors — especially those who are very actively engaged in their employer relationships — in an awkward position.

They want to help as much as they can, but the ACA has made this a two-way street. Employers must carry a larger share of the burden, by virtue of the fact that, often, they’re the only ones with access to the information needed to make determinations about employees.

“Wise Counsel” will help advisors sort out the ACA-related determinations they can make for employers from those better left to their clients or other advisors. My seminar will also provide useful talking points and other ideas for advisors to help ease the transition from the comparatively rules-free pre-ACA world, in which advisors could practically act as an employer’s proxy for most purposes, to the current world under the ACA where a more arm’s-length relationship is required.

Some people predicted that the ACA would kill the health benefits advisor industry. Obviously, and happily, that hasn’t happened. The industry is alive and well and in many ways it’s stronger than ever.

But it has changed the role of broker-advisors vis-à-vis their employer-clients. That’s not necessarily a problem; in fact, it’s a huge opportunity. But there are new boundaries in place, and benefits advisors need to be cognizant of them.

Instant Insights /

Say this, not that, when advising clients on PPACA compliance

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