In the three and a half years since the Affordable Care Act became law, the Obama Administration has announced numerous delays and exemptions to the requirements under the law. These have ranged from exemptions for specific big ticket health care plans, such as those run as “self-insurance” plans such as those maintained by large corporations and labor unions to delays in the requirements for employers to comply with the employer mandate. More recently, in the face of criticism regarding President Obama’s promise that ‘if you like your plan, you can keep your plan’ during the time he was trying to rally support for the law as well as when he was running for reelection, the Administration granted an extension that permitted Americans to hold onto insurance plans that don’t necessarily comply with the PPACA’s requirements. Yesterday, we saw the newest delay in an announcement by the Administration late yesterday that the requirement for small business employers to either provide health insurance to employees or pay a fine would be delayed until 2016:
WASHINGTON — The Obama administration announced on Monday that it would postpone enforcement of a federal requirement for medium-size employers to provide health insurance to employees and allow larger employers more flexibility in how they provide coverage.
The delay is the latest in a series of policy changes, extensions and clarifications by the administration, and it drew a new round of criticism from congressional Republicans, whose scorching attacks on the law have become a central theme in many of this year’s midterm election campaigns.
The “employer mandate,” which was originally supposed to take effect last month, had already been delayed to Jan. 1, 2015, and now the administration says that employers with 50 to 99 employees will not have to comply until 2016 — allowing Democrats to placate business concerns and pushing the issue well beyond this year’s midterm elections.
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In addition, the administration said the requirement would be put into effect gradually for employers with 100 or more employees. Employers in this category will need to offer coverage to 70 percent of full-time employees in 2015 and 95 percent in 2016 and later years, or they will be subject to tax penalties.
oday’s final regulations phase in the standards to ensure that larger employers either offer quality affordable coverage or make an employer responsibility payment starting in 2015,” said Mark J. Mazur, the assistant Treasury secretary for tax policy. The purpose of the penalty, he said, is to help offset the cost to taxpayers of providing coverage or subsidies to people who cannot get affordable health insurance at work.
Under the law, employers with fewer than 50 full-time employees are generally exempt from the requirement to offer coverage.
The administration described the new policy as a form of “transition relief” to help employers adjust to requirements of the 2010 health care law.
But congressional Republicans jumped on the delay as only the latest maneuver by the Obama administration to sidestep the health care law’s legal requirements for political gain. Republicans denounced the unilateral move as a violation of the law and called on the White House to throw out all of the Affordable Care Act’s coverage mandates.
“The White House seems to have a new exemption from its failed law for a different group each month,” said Senator Mitch McConnell of Kentucky, the Republican leader, who is in a competitive race himself. “It’s time to extend that exemption to families and individuals — not just businesses.”
But the House Democratic leader, Representative Nancy Pelosi of California, praised the White House, saying the final rules showed “the administration’s commitment to smoothly implement the Affordable re Act.”
Not surprisingly, the reaction from the right is all about the President’s supposed “lawless” expansion of his authority. Douglas Holtz-Eaken, the former head of the Congressional Budget Office, put it this way:
[B]eyond the specifics of the new rule or the policy impact of these latest deferrals, it is yet another example of the administration losing credibility with the public, the insurance industry, and the business community over the implementation of the ACA.
Small-business owners have been trying to understand and plan for the impact the ACA will ultimately have on their bottom line and benefit packages since the law passed in March of 2010, and it hasn’t been easy. With the administrative agencies putting out rules on delayed timelines only to reverse them, releasing new guidelines every year, making important policy changes via obscure FAQ documents, and blatantly ignoring the legislative text when making these decisions, what is left of the law is highly confusing and disruptive to companies trying to plan for the future.
This law has never been popular, making concessions here and there for certain vocal stakeholders may buoy support or limit economic disruption in the short term, but it is unlikely to fix or create long-term support for this damaging health-care overhaul.
The Wall Street Journal, for example, put it this way:
By now ObamaCare’s proliferating delays, exemptions and administrative retrofits are too numerous to count, most of them of dubious legality. The text of the Affordable Care Act specifically says when the mandate must take effect—“after December 31, 2013”—and does not give the White House the authority to change the terms.
Changing an unambiguous statutory mandate requires the approval of Congress, but then this President has often decided the law is whatever he says it is. His Administration’s cavalier notions about law enforcement are especially notable here for their bias for corporations over people. The White House has refused to suspend the individual insurance mandate, despite the harm caused to millions who are losing their previous coverage.
Liberals say the law isn’t harming jobs or economic growth, but everything this White House does screams the opposite.
Since I have not read the entirety of the PPACA or done significant research on the issue, I am not going to speak directly to the issue of whether or not all these delays and extensions that the Administration has implemented are permissible under the law. However, if the PPACA is similar to any other piece of major legislation that Congress has passed over the years, then I suspect that they probably are. As I noted last week, to a large extent the expansion of Executive Branch authority that conservatives are now complaining about, mostly just because the President is a Democrat, happened because Congress has given the Executive Branch broad discretion when it comes to implementation of the laws it passes and, most importantly, in the area of making the rules contained within the Federal Register designed to implement the law. For example, the much debated contraceptive coverage mandate is rooted in a regulation implemented by the Department of Health and Human Services under the authority granted to it under the PPACA to craft the specifics of what exactly must be contained in the coverage provided by employers under a PPACA-approved plan. If Congress objected to what the HHS mandated, they could easily change it by passing a law. As far as I can tell, not even the Republican-controlled House has attempted to pass such a bill. Legally then, I doubt that there’s any serious objection that can be made to what the Obama Administration has done here or in any of the other cases where it has granted an exemption or delay.
Leaving the law aside, though, one does have to wonder about the political implications of actions like this. It’s already exceedingly clear that the Republican Party believes that it has a golden issue to run on in this year’s midterm elections. The roll out of the PPACA started the process went horribly, and things have only gotten worse with things such as the stories of people who have lost their individual policies because of the law, employers who have either dropped coverage or scaled back hiring because of the law, and numerous reports of people who have gone onto the Federal or State marketplaces only to find that the only policies available are ones with higher premiums or, even worse, much higher deductibles than they have been used to in the past. All of this is potentially ammunition that Republican candidates can use against their opponents in the General Election, especially in the crucial red state Senate elections where control of the Senate is likely to be decided. Add into all of this the fact that the Administration keeps delaying aspects of the law that it knows are going to cause chaos in certain segments of the economy, and the arguments that will unfold in the political world are blindingly obvious. After all, the PPACA were such a great law then why the need to delay implementation of any single part of the law?
