The Times explores how the powder keg that is the Affordable Care Act, which has many flaws that may be fixed, will not be fixed due to partisan gridlock.
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.”
This is what happens when the bill that cleared in the Senate during that fateful Christmas eve vote in 2009 was never meant to be final.
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.”
Perhaps one of the biggest bugs that will not be fixed is the fact that the penalty is too low to be effective. However, as I discuss in Unprecedented, efforts to raise the penalty to the point of effectiveness (assuming the political willpower is there–it’s not) would likely be unconstitutional as this coercive penalty is now coercive, and runs afoul of CJ Roberts’s NFIB opinion. Despite some early indications that costs in California are not as high as anticipated, the implementation of this law is not going to be pretty.
“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.”