Obama’s Arbitrary Health Care Flexibility

In the Affordable Care Act’s never-ending revisions, the only pattern is chaos.

WASHINGTON, DC - JANUARY 31: U.S. President Barack Obama delivers remarks about his plans to help America's long-term unemployed during an event in the East Room of the White House January 31, 2014 in Washington, DC. During the event Obama signed a memorandum directing the federal government not to discriminate against long-term unemployed job seekers. 
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Major Garrett
Feb. 11, 2014, 5:12 p.m.

The Af­ford­able Care Act means what it says and says what it means.

Un­til it doesn’t.

The ar­bit­er is Pres­id­ent Obama and a phalanx of health care ad­visers and polit­ic­al strategists.

To­geth­er, they try to im­ple­ment what even Obama’s hearti­est loy­al­ists con­cede is an oner­ous and com­plic­ated law. They do this amid myri­ad Demo­crat­ic midterm anxi­et­ies. And frothy Re­pub­lic­an ob­jec­tions.

But it’s time to con­cede that no one has been more ad­ept or ag­gress­ive about delay­ing and de­fanging Obama­care than Obama him­self. Sys­tem­at­ic­ally and with an eye to­ward his party’s im­me­di­ate polit­ic­al troubles, Obama has re­shaped, photo-shopped, re­ima­gined, and reen­gin­eered Obama­care. It all sounds techy and cool and flex­ible — at least to the ad­min­is­tra­tion. To those who must live with and live un­der the law, the ar­bit­rary is the norm. The only pat­tern is chaos. Obama­care’s worst en­emy is Obama.

The New York Times has com­piled a help­ful list of re­cent changes to the Af­ford­able Care Act — 13 in just over a year. That comes out to more than one sub­stant­ive change to policy or le­gis­lated dead­lines per month. This, in a land­mark law near­ing its fourth birth­day.

The latest switch­eroo deals with the em­ploy­er man­date, which the ad­min­is­tra­tion has delayed for an­oth­er year for me­di­um-sized busi­nesses and softened for big em­ploy­ers. Com­pan­ies with 50 to 99 em­ploy­ees will not have to provide health in­sur­ance un­der fear of fines (between $2,000 and $3,000 per full-time em­ploy­ee) un­til Janu­ary 2016. Un­til Monday, the dead­line was Janu­ary 2015. Also, com­pan­ies with more than 100 em­ploy­ees can provide in­sur­ance cov­er­age to just 70 per­cent of their work­force in 2015 in­stead of the ori­gin­al 95 per­cent re­quire­ment.

The em­ploy­er man­date is a sig­ni­fic­ant com­pon­ent of the law that was sub­ject to strenu­ous the­or­et­ic­al de­bate in the 2008 pres­id­en­tial cam­paign and lengthy le­gis­lat­ive tuss­ling dur­ing the draft­ing of Obama­care. This is a not an Af­ford­able Care as­ter­isk, al­though health care eco­nom­ists ar­gue it has little im­pact on in­creas­ing in­sur­ance cov­er­age.

That may be true, but it drove me­di­um-sized busi­nesses to dis­trac­tion, and they lob­bied the White House for a re­prieve — and won the midterm polit­ic­al lot­tery.

Obama de­scribed the change sooth­ingly in his joint press con­fer­ence with French Pres­id­ent François Hol­lande. “This was an ex­ample of, ad­min­is­trat­ively, us mak­ing sure that we’re smooth­ing out this trans­ition, giv­ing people the op­por­tun­it­ies to get right with the law, but re­cog­niz­ing that there are go­ing to be cir­cum­stances in which people are try­ing to do the right thing and it may take a little bit of time,” Obama said.

It may take a little bit of time.

El­ev­en of the 13 al­ter­a­tions to the Af­ford­able Care Act in the past 12 months have giv­en in­di­vidu­als or busi­nesses more time. The bur­den of com­pli­ance is palp­able. And so the White House has had to again and again smooth out the trans­ition, in a law it craf­ted ex­clus­ively with Demo­crats.

“Our goal here is not to pun­ish folks,” Obama said, un­wit­tingly ad­mit­ting that com­pli­ance with his own law amounts to eco­nom­ic and ad­min­is­trat­ive sanc­tion. “Our goal is to make sure that we’ve got people who can count on the fin­an­cial se­cur­ity that health in­sur­ance provides.”

Of course, those em­ploy­ees who work for com­pan­ies that just hap­pen to have 50 to 99 em­ploy­ees and were hop­ing, pos­sibly ex­pect­ing, to re­ceive health cov­er­age next year — well, they can­not count on Obama­care. Or Obama, who help­fully ex­plained why:

“Where we’ve got com­pan­ies that want to do the right thing and are try­ing to work with us, we want to make sure that we’re work­ing with them as well.” Trans­la­tion: If you want to provide cov­er­age but not right now and in com­pli­ance with the law as writ­ten, and you com­plain loud enough and weak­en the polit­ic­al foot­ing of Sen­ate Demo­crats, you don’t have to eat your Obama­care spin­ach — or cov­er your em­ploy­ees.

In the same breath, Obama made clear that this pro­cess of photo-shop­ping, re­writ­ing, and re­ima­gin­ing will con­tin­ue apace, de­pend­ing on the hassle that is Obama­care com­pli­ance and the polit­ic­al ter­rain.

“That’s go­ing to be our at­ti­tude about the law gen­er­ally: How do we make it work for the Amer­ic­an people and for their em­ploy­ers in an op­tim­al sort of way?”

Op­tim­al.

How would you like to work for a com­pany (more than 115,000 of them in 2012) that you thought would have to provide health care cov­er­age for you next year but now won’t? And how would you like to be one of the em­ploy­ees who works for a big com­pany (more than 94,000 of them in 2012) but falls just on the oth­er side of the 70 per­cent cov­er­age threshold in 2015? Your health falls on the oth­er side of Obama’s ar­bit­rary cov­er­age line, and you don’t have cov­er­age.

I’m will­ing to bet “op­tim­al” is not the word that will come read­ily to mind.

For Obama, it’s all about flex­ib­il­ity. He was asked if the Af­ford­able Care Act would ush­er in the end of em­ploy­ee-based in­sur­ance in Amer­ica.

“I don’t think that an em­ploy­er-based sys­tem is go­ing to be, or should be, re­placed any­time soon,” Obama said.

Con­sid­er­ing the cre­at­ive clock-man­age­ment and time-ma­chine qual­ity of Obama­care im­ple­ment­a­tion to date, “any­time soon” sounds al­most wist­ful. For Obama, that is, not ne­ces­sar­ily for em­ploy­ees who have care they like and want to keep (yes, that phrase still mat­ters … and will mat­ter more as Obama­care’s reg­u­lat­ory reach be­comes fully mani­fest).

“What the Af­ford­able Care Act does do is, it gives people some flex­ib­il­ity.”

But which people? And why?

There is no op­tim­al an­swer.

The au­thor is Na­tion­al Journ­al Cor­res­pond­ent-at-Large and Chief White House Cor­res­pond­ent for CBS News. He is also a dis­tin­guished fel­low at the George Wash­ing­ton Uni­versity School of Me­dia and Pub­lic Af­fairs.

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