On March 23, 2010, then-Vice President Joe Biden whispered to then-President Barack Obama, “This is a big ‘(obscenity)’ deal.” The occasion was the signing of the Affordable Care Act (ACA), also known as Obamacare. And, love it or hate it, this legislation was indeed a big deal. The intended purpose of the new law was to make healthcare more affordable and more accessible to more Americans. According to some accounts, over 20 million previously uninsured Americans have signed up for health insurance since the law went into effect. 

But as we all know, the story doesn’t end there. The ACA remains nearly as controversial today as it was a decade ago at its inception. And one reason it remains so is that the affordable health insurance coverage promised small businesses, including independent contractors and the self-employed, has not materialized. This begs the question: How have REALTORS^® fared amid the nation’s ongoing debate over the ACA? 

For more than a decade before the ACA became law, numerous NAR surveys indicated a significant number of REALTORS^® had no health insurance coverage. In 2013, prior to the full implementation of the ACA, over a third of REALTORS^® in the country, 36 percent, had no health insurance coverage. Because of this, NAR began advocating for affordable health care insurance for the self-employed and small businesses. One legislative approach to target relief for the self-employed is the creation of association health plans (AHPs). AHPs allow trade associations — including NAR, state and local REALTOR^® associations — to offer AHPs to their members. The concept is popular with our members. A nationwide membership survey last July asked REALTORS^® whether they would switch their insurance to a NAR-sponsored health insurance plan if the premium costs and coverage offered were the same as they received currently. Among the respondents, 76 percent said they’d likely switch — 59 percent were “very likely” to switch and 17 percent were “somewhat likely”; 8 percent were neutral; and 15 percent said they wouldn’t switch — 4 percent were “not very likely” to switch and 11 percent were not likely at all.

But enacting this commonsense alternative has proven elusive, caught in the political wars still raging over the original Obamacare legislation. Since its passage, the ACA has been the source of major legal, legislative and political dissonance. The legal battle came to a head in 2012 when the U.S. Supreme Court upheld the ACA. After the Republican-controlled Congress failed to repeal and replace the law in 2017 as promised, the Trump administration began to vigorously pursue changes to federal rules — as opposed to amending the law, which would require Congressional action — to create more affordable alternatives for small businesses. In January 2018, President Trump issued an executive order directing the Department of Labor (DOL) to introduce new rules that would expand health care coverage through AHPs. In the draft rules that followed, the DOL proposed expanding the definition of “employer” to cover “working owners,” which included sole proprietors and self-employed. Under these proposed rules, trade associations like NAR could offer more flexible, lower-cost health insurance coverage to their members because independent contractors would be treated both as employers and employees who are eligible to participate in an AHP. 

Problem solved, right? No such luck. After reviewing all the public comments, the DOL issued its final rule on AHPs, and while the new regulations were met with support from many in the business community, including NAR, the rules were not so popular with supporters of the original ACA. A group of 12 state attorneys general immediately filed suit against the DOL challenging the new rules, alleging the DOL exceeded its authority and violated the ACA. NAR joined a pro-association health plan group in filing an amicus brief in support of the DOL final rule. 

Problem solved, right? No such luck. The U.S. District Court for the District of Columbia ruled in favor of the attorneys general and against the DOL and NAR. 

The DOL has now filed an appeal, and NAR will file a “friend of the court” brief in support of the appeal. The WRA joined numerous state and local REALTOR® associations and signed on to the NAR’s brief. The appeal could take 12 to 24 months to decide. 

At this time, it’s unclear how the ongoing legal machinations will impact state and local REALTOR^® associations that have already implemented or are pursuing AHPs. Those associations recently went to the White House to discuss how their AHPs are helping REALTORS^® in Nevada, Tennessee and Alabama. To date, over 3,000 REALTORS^® and their families have found cost-effective health insurance through these AHP options. 

Our continuing quest to find health care solutions for our members is but one example of how NAR, along with state and local REALTOR® associations, is fighting to help our members — be it in the halls of Congress, state capitols, city halls, or in the corridors of our legal justice systems in federal, state or local courthouses across the country. These battles are not easy, cheap or fast, but they are important. These efforts would not occur, could not proceed, and will not succeed, without the support of every member. Thanks for helping us help you.