The Health-Related Tax Provisions of PPACA and HCERA: Contingent, Complex, Incremental and Lacking Cost Controls

New York University Review of Employee Benefits and Executive Compensation, Forthcoming

Cardozo Legal Studies Research Paper No. 301

53 Pages Posted: 2 Jul 2010  

Edward A. Zelinsky

Yeshiva University - Benjamin N. Cardozo School of Law

Date Written: June 30, 2010

Abstract

Americans must, into the indefinite future, confront difficult issues pertaining to health care and health care costs. The Patient Protection and Affordable Care Act (PPACA) and the Health Care and Education Reconciliation Act of 2010 (HCERA) do not alter the status quo as much as their advocates and their detractors contend nor do PPACA and HCERA resolve the fundamental challenges confronting the U.S. health care system, including the problem of escalating health care outlays. In important respects, PPACA and HCERA will exacerbate that problem.

Four factors underpin this sobering assessment. First, PPACA and HCERA, while significant, are more incremental in nature than either their proponents or their opponents acknowledge. These laws build upon – indeed, extend - the existing systems of private health insurance and employer-provided health care. Second, many provisions of PPACA and HCERA have delayed effective dates. It is an open question whether future Presidents and Congresses will allow these deferred provisions to go into effect as scheduled. Third, key provisions of PPACA and HCERA are enormously complex. By virtue of such complexity, these laws will impose prodigious enforcement burdens upon the Internal Revenue Service (IRS) and equally immense compliance obligations on taxpayers, in particular, small businesses and many individuals of modest means. The prospects for a complexity-induced political backlash to PPACA and HCERA are considerable. Fourth, these acts merely postpone the tough decisions that must be made about health care and about health care costs in particular. These laws’ efforts to control health care outlays are tepid and deferred. Moreover, PPACA and HCERA, by expanding access to medical services, will increase demand for such services and thereby stimulate health care expenditures.

While Republicans and Democrats alike portray the adoption of PPACA and HCERA as a pivotal moment in American life, we Americans are fated to conduct a prolonged – indeed, an indefinite – debate about health care and its costs. PPACA and HCERA write an important, but hardly final, chapter in that debate.

This is not surprising. Democracies rarely make radical breaks from the status quo nor should they. Cost control entails sacrifice which the American political system is today incapable of demanding from the American people.

Keywords: Patient Protection and Affordability Care Act, Health Care and Education Reconciliation Act, Health Care, Cost Control, Premium Assistance Tax Credit, Small Employer Health Insurance Tax Credit, Health Care Mandate, "Cadillac" Health Care Plans, Medicare Tax on Investment Income

Suggested Citation

Zelinsky, Edward A., The Health-Related Tax Provisions of PPACA and HCERA: Contingent, Complex, Incremental and Lacking Cost Controls (June 30, 2010). New York University Review of Employee Benefits and Executive Compensation, Forthcoming; Cardozo Legal Studies Research Paper No. 301. Available at SSRN: https://ssrn.com/abstract=1633556

Edward A. Zelinsky (Contact Author)

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

55 Fifth Ave.
New York, NY 10003
United States
212-790-0277 (Phone)

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