As someone with an interest in healthcare antitrust, I have become somewhat inured to the "Obamacare made me do it" defense to healthcare industry merger challenges, particularly hospital and health insurer mergers. The Affordable Care Act does have both reimbursement mechanisms and quality enhancement mechanisms that may fairly be seen as promoting consolidation, though these goals may often be met through joint ventures and other business arrangements that are short of full merger. In addition, consolidation promotion may represent the acceleration of a trend toward consolidation already underway. This doesn't mean that the "Obamacare made me do it" defense doesn't get raised in merger review. Indeed, a 2016 Health Affairs Blog symposium on The New Health Care spilled considerable ink on the question of whether the drive to consolidation should be a viable defense to a merger challenge. Tim Greaney calls this "the government made me do it" defense, but you get the idea.
You may also recall AOL's CEO and Chairman Tim Armstrong's 2014 assertion that AOL's 401(k) program required re-organization in light of two expensive AOL-covered medically complex births in the preceding year. As AOL is self-insured, the claim that "Obamacare made me do it" was a little ambiguous. Obamacare made AOL offer family based coverage to its employees? I think not. Obamacare constrained AOL from not offering maternity coverage? I think not. You see, as AOL is self-insured, many of the ACA's rules, applicable to fully insured products sold through the exchanges, do not apply to AOL's self-insured health care coverage.
Tim Armstrong got a fair amount of blow back from those who know something about the self-insured employer world and from those concerned that such health care need naming might actually be an attempt at public shaming of those who, as one of the mothers with one of the medically complex births stated, may have had no advance warning of the sudden movement from low risk pregnancy to high risk birth. Still, the impression that the expensive families had done something that wronged other AOL employees and their employer by either somehow not preventing the high risk births or by not somehow removing themselves from the AOL risk pool as soon as the situation became high risk, lingered on. Apparently, two different visions of the goals of the plan are in tension there. There are risks to employers who self-insure, of course, which is why a robust market in stop loss insurance exists.
Even though "Obamacare made me do it" has become something of a meme, however, I did pause at a headline where Congressman Pat Meehan was reported to have asserted that his recently publicized settlement of a sexual harassment claim was not a concession of having engaged in sexual harassment but, if it was, his conduct was amenable to the "Obamacare made me do it" defense. Conceding extraordinary stress induced by a party-bucking health care reform vote, the implication is that political stress may induce sexual harassment. No doubt stress may induce many things.
The idea that stress excuses arguably unlawful behavior in the workplace is an interesting one. After all, was it Obamacare or its potential repeal and replacement that really induced the workplace stress referenced? And isn't the capacity to monitor and cope with significant stress one of the job requirements of being in the United States Congress? Was Congressman Meehan attempting to raise, if necessary, a mental health defense or a defense based on a personality defect, one or both of these exacerbated by workplace stress? It was he who volunteered that he is a volatile person and tends to direct his volatility toward his most valued employees.
Long an advocate for better mental health care for returning veterans, Congressman Meehan, may be staking a different position now. If so, what a powerful advocate for strengthened mental health benefits for all the Congressman has become.
X-posted at prawfsblawg