Partisan Gridlock? Try some people trying to do the right thing.
Published: Sunday, 26 May 2013 | 9:20 PM ET
When he talks to Republicans in Congress, Scott DeFife, a restaurant industry lobbyist, speaks their language: President Obama’s health care law is a train wreck well down the track. There will be collateral damage if changes are not made. Friends of the industry cannot sit back and let that happen.
Speaking to Democrats, he puts on his empathy hat: The Affordable Care Act is the law of the land. Its goal of universal insurance coverage is laudable, but its unintended consequences will hurt the cause.
Almost no law as sprawling and consequential as the Affordable Care Act has passed without changes — significant structural changes or routine tweaks known as “technical corrections” — in subsequent months and years. The Children’s Health Insurance Program, for example, was fixed in the first months after its passage in 1997.
But as they prowl Capitol Hill, business lobbyists like Mr. DeFife, health care providers and others seeking changes are finding, to their dismay, that in a polarized Congress, accomplishing them has become all but impossible.
Republicans simply want to see the entire law go away and will not take part in adjusting it. Democrats are petrified of reopening a politically charged law that threatens to derail careers as the Republicans once again seize on it before an election year.
As a result, a landmark law that almost everyone agrees has flaws is likely to take effect unchanged.
“I don’t think it can be fixed,” Senator Mitch McConnell of Kentucky, the Republican leader, said in an interview. “Everything is interconnected, 2,700 pages of statute, 20,000 pages of regulations so far. The only solution is to repeal it, root and branch.”
Senator Max Baucus, Democrat of Montana and one of the law’s primary authors, said: “I’m not sure we’re going to get to the point where it’s time to open the bill and make some changes. Once you start, it’s Pandora’s box.”
As the clock ticks toward 2014, when the law will be fully in effect, some businesses say that without changes, it may be their undoing.
“Are we really going to put the private sector in a situation where there’s a real potential mess for posturing points?” Mr. DeFife asked.
This is not the usual way ambitious laws are carried out, but given the politics of the Affordable Care Act, “we cannot use any of the normal tools to resolve ambiguities or fix problems,” said Sara Rosenbaum, a professor of health law and policy at George Washington University.
The enactment of Medicare in 1965 was followed by changes in 1967, and again in 1972. In November 1986, President Ronald Reagan signed a landmark immigration bill that offered legal status to many unauthorized immigrants. Two years later, Congress made dozens of “technical corrections.”
The Social Security Act of 1935 was followed by the family protection program of 1939, which clarified that benefits could be claimed not just by retirees but also by dependents and survivors of covered workers.
Three years after the Affordable Care Act was enacted, an extensive list of possible fixes and clarifications has piled up. For example, Families USA, a liberal advocacy group and strong supporter of the law, would like to see more money to pay for “navigators” to help enroll the uninsured in the new health care marketplaces.
One provision of the statute allows low-income workers to opt out of employer-sponsored care — and into federally subsidized exchanges — if their share of the premium for workplace insurance tops 9.5 percent of household income. But that is calculated based on the individual worker’s costs, not the total family’s costs, said Ronald F. Pollack, the executive director of Families USA. It is a “glitch,” he said, that should easily be fixed.
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But it will not be, lawmakers and lobbyists say. “I don’t believe in this Congress, anything of real substance is likely to be passed,” Mr. Pollack said.
Senators Richard M. Burr of North Carolina and Susan Collins of Maine, both Republicans, are trying to modify the law, to make it easier for small and midsize businesses to comply.
“Listen, this is statute,” Mr. Burr said with a tone of exasperation. “The president’s not going to sign a repeal bill. I think it’s prudent to try” to make changes.
But they are facing the same hands-over-the-ears reluctance that business lobbyists and others are finding. The last consideration of the health care law came on May 16, when the House voted to repeal it, the 37th time the House has voted to do so. Those bills have died in the Senate, which is controlled by Democrats.
A coalition of large retailers, restaurant chains and temporary staffing companies, along with their powerful Washington trade associations, says it accepts the pillars of the law. But the group, calling itself Employers for Flexibility in Health Care, or E-Flex, is pressing for significant changes.
The law’s definition of a full-time worker has to be raised from someone working 30 hours a week, E-Flex says, noting that restaurants, retailers and other businesses are already looking at cutting many employees’ hours to 29 to avoid having to offer the health care coverage mandated by the law. The group wants the definition raised to 40 hours. They also say that the definition of a large employer — with all that entails for the requirements for health insurance — needs to rise from 50 full-time employees or “full-time equivalents,” which could be a combination of several part-time workers.
They would also like a grace period into 2014 to comply with the law before penalties are assessed for not offering insurance that comports with the law’s mandates. And they want Congress to drop a provision requiring the automatic enrollment of new employees into a health care plan for any company with more than 200 full-time workers.
“Key definitions in the law must be changed,” Marshall L. Conrad, chairman of Libby Hill Seafood Restaurants in Greensboro, N.C., pleaded at a recent Congressional hearing.
Health insurers are focused on another goal: repealing a new tax on insurance companies that takes effect next year. The tax is expected to raise more than $100 billion over 10 years. Insurers say the cost will be passed on to consumers and businesses in the form of higher premiums.
Concerns over the law’s fine print are shared even among some of its architects. As the Affordable Care Act neared completion, the Obama administration and some Democrats in Congress drafted a proposed compromise to resolve differences between the House and Senate versions and smooth rough edges. Under that version, the marketplaces that people would be able to use next year to buy insurance, often at subsidized rates, were going to be national in scope, not state by state.
A provision that takes back subsidies if someone’s income rises in a year was going to be softened. According to a former White House official involved in the drafting, Democrats debated the 50-employee definition for large businesses and were open to additional flexibility for seasonal workers and teenage employees.
That all disappeared when Massachusetts elected Scott Brown to the Senate in January 2010. The Democrats lost their filibuster-proof majority. House Democratic leaders saw no alternative but to accept the Senate-passed bill as written, with some changes to follow in a hastily drafted bill that passed under rules that prohibited a filibuster.
As a result, a back-room conference, where changes could be considered in private, never happened. Consequently, said E. Neil Trautwein, a health care lobbyist for the National Retail Federation, “the edges don’t quite line up.”
“We’re beyond caring who provides employer relief at this point,” he said. “We just want the relief.”
The obstacles are huge, beginning, Republicans say, with President Obama, who has publicly said employers face no significant problems carrying out the legislation.
“For the 85 to 90 percent of Americans who already have health insurance, this thing has already happened, and their only impact is that their insurance is stronger, better, more secure than it was before. Full stop. That’s it. They don’t have to worry about anything else,” the president told reporters last month.
Many pro-business Republicans appear no more receptive. Senator Johnny Isakson, Republican of Georgia, acknowledged the push to change the 30-hour rule for full-time workers and the 50-employee threshold for large businesses. But he said raising the hour cutoff to 35 would anger some other groups of employers.
“The reality of the ACA being on the doorstep of becoming law is it’s going to begin collapsing under its own weight,” Mr. Isakson said. “I’m not so sure there’s enough individual fixes to make the law more manageable.”