by Grace-Marie Turner and Tyler Hartsfield
President Obama’s announcement Thursday of another illegal change to his health-care law continues a long pattern of trying to fix his fatally flawed signature legislation by administrative fiat.
By our count at the Galen Institute, more than 27 significant changes already have been made to Obamacare: at least 10 that President Obama has made unilaterally, 15 that Congress has passed and the president has signed, and 2 by the Supreme Court. But even this large number of changes hasn’t stopped the cascade of failures we are seeing today.
His administrative order Thursday will allow some people who had some plans in effect as of October 1 to keep them under some circumstances. But this was at least partly to get ahead of measures that are gaining bipartisan support in Congress to help the millions of people who are losing their health insurance.
The Keep Your Health Plan Act, sponsored by Representative Fred Upton (R., Mich.), chairman of the Energy and Commerce Committee, will be considered in the House today. A companion measure is being offered in the Senate by Senator Ron Johnson (R., Wis.). Senator Mary Landrieu (D., La.) is offering the Keeping the Affordable Care Act Promise Act, which takes a different approach but has a similar goal.
Here is the list of changes that have already been made to the law. It shows those made by the Obama administration before the president’s most recent announcement; those made by the 111th Congress (with Democratic control of the House) and signed by President Obama; changes made by the 112th and 113th Congresses (with Republican control of the House) and signed by the president; and those made by the U.S. Supreme Court.
CHANGES BY ADMINISTRATIVE ACTION
1. Congressional opt-out: The administration decided to offer employer contributions to members of Congress and their staffs when they purchase insurance on the exchanges created by the ACA, a subsidy the law doesn’t provide. (September 30, 2013)
2. Delaying the individual mandate: The administration changed the deadline for the individual mandate, by declaring that customers who have purchased insurance by March 31 will avoid the tax penalty. Previously, they would have had to purchase a plan by mid February. (October 23, 2013)
3. Employer-mandate delay: By an administrative action that’s contrary to statutory language in the ACA, the reporting requirements for employers were delayed by one year. (July 2, 2013)
4. Self-attestation: Because of the difficulty of verifying income after the employer-reporting requirement was delayed, the administration decided it would allow “self-attestation” of income by applicants for health insurance in the exchanges. This was later partially retracted after congressional and public outcry over the likelihood of fraud. (July 15, 2013)
5. Small businesses on hold: The administration has said that the federal exchanges for small businesses will not be ready by the 2014 statutory deadline, and has instead delayed the implementation of the SHOP (Small-Employer Health Option Program) exchanges until 2015. (March 11, 2013)
6. Closing the high-risk pool: The administration decided to halt enrollment in transitional federal high-risk pools created by the law, blocking coverage for an estimated 40,000 new applicants, citing a lack of funds. The administration had money from a fund under Secretary Sebelius’s control to extend the pools, but instead used the money to pay for advertising for Obamacare enrollment. (February 15, 2013)
7. Medicare Advantage patch: The administration ordered an advance draw on funds from a Medicare bonus program in order to provide extra payments to Medicare Advantage plans, in an effort to temporarily forestall cuts in benefits and therefore delay exodus of MA plans from the program. (April 19, 2011)
8. Employee reporting: The administration, contrary to the Obamacare legislation, instituted a one-year delay of the requirement that employers must report to their employees on their W-2 forms the full cost of their employer-provided health insurance. (January 1, 2012)
9. Doubling allowed deductibles: Because some group health plans use more than one benefits administrator, plans are allowed to apply separate patient cost-sharing limits to different services, such as doctor/hospital and prescription drugs, allowing maximum out-of-pocket costs to be twice as high as the law intended. (February 20, 2013)
10. Delaying a low-income plan: The administration delayed implementation of the Basic Health Program until 2015. It would have provided more-affordable health coverage for certain low-income individuals not eligible for Medicaid. (March 22, 2013)
CHANGES BY CONGRESS, SIGNED BY PRESIDENT OBAMA:
11. 1099 repealed: Congress repealed the paperwork (“1099”) mandate that would have required businesses to report to the IRS all of their transactions with vendors totaling $600 or more in a year. (April 14, 2011)
12. CLASS Act eliminated: Congress repealed the unsustainable CLASS (Community Living Assistance Services and Supports) program of government-subsidized long-term-care insurance, which even the Democratic chairman of the Senate Finance Committee dubbed a “Ponzi scheme of the first order.” (January 2, 2013)
13. Cutting CO-OPs: Congress cut $2.2 billion from the “Consumer Operated and Oriented Plan” (CO-OP), which some saw as a stealth public option, blocking creation of government-subsidized co-op insurance programs in about half the states. Early reports showed many co-ops, which had received federal loans, had run into serious financial trouble. (January 2, 2013)
14. No free-choice vouchers: Congress repealed a program, supported by Senator Ron Wyden (D., Ore.) that would have allowed “free-choice vouchers,” that theHill warned “could lead young, healthy workers to opt out” of their employer plans, “driving up costs for everybody else.” The same law barred additional funds for the IRS to hire new agents to enforce the health-care law. (April 15, 2011)
15. No Medicaid for well-to-do seniors: Congress saved taxpayers $13 billion by changing how the eligibility for certain programs is calculated under Obamacare. Without the change, a couple earning as much as much as $64,000 would still have been able to qualify for Medicaid. (November 21, 2011)
16. CO-OPs, IPAB, IRS defunded: Congress madefurther cuts to agencies implementing Obamacare. It trimmed another $400 million off the CO-OP program, cut another $305 million from the IRS to hamper its ability to enforce the law’s tax hikes and mandates, and rescinded $10 million in funding for the controversial Independent Payment Advisory Board. (December 23, 2011)
18. Less cash for Louisiana: One of the tricks used to get Obamacare through the Senate was the special “Louisiana Purchase” deal for the state’s Democratic senator, Mary Landrieu. Congress saved another $670 million by rescinding additional funds from this bargain. (July 6, 2012)
19. Trimming the Medicare trust-fund transfer: Congress rescinded $200 million of the $500 million scheduled to be taken from the Medicare Part A and Part B trust funds and sent to the Community-Based Care Transition Program established and funded by the ACA. (March 26, 2013)
20. Military benefits: Congress clarified that plans provided by TRICARE, the military’s health-insurance program, constitutes minimal essential health-care coverage as required by the ACA; its benefits and plans wouldn’t normally meet ACA requirements. (April 26, 2010)
21. VA benefits: Congress also clarified that health care provided by the Department of Veterans Affairs constitutes minimum essential health-care coverage as required by the ACA. (May 27, 2010)
22. Drug-price clarification: Congress modified the definition of average manufacturer price (AMP) to include inhalation, infusion, implanted, or injectable drugs that are not generally dispensed through a retail pharmacy. (August 10, 2010)
23. Doc-tax fix: Congress modified the amount of premium tax credits that individuals would have to repay if they are over-allotted, to help offset the costs of the postponement of cuts in Medicare physician payments called for in the ACA. (December 15, 2010)
24. Extending the adoption credit: Congress extended the nonrefundable adoption tax credit, which happened to be included in the ACA, through tax year 2012. (December 17, 2010)
25. TRICARE for adult children: Congress extended TRICARE coverage to dependent adult children up to age 26, when it had previously only covered those up to the age of 21 — though beneficiaries still have to pay premiums for them. (January 7, 2011)
CHANGES BY THE SUPREME COURT:
26. Medicaid expansion made voluntary: The court ruled it had to be voluntary, rather than mandatory, for states to expand Medicaid eligibility to people with incomes up to 138 percent of the federal poverty level, by ruling that the federal government couldn’t halt funds for existing state Medicaid programs if they chose not to expand the program.
27. The individual mandate made a tax: The court determined that violating the mandate that Americans must purchase government-approved health insurance would only result in individuals’ paying a “tax,” making it, legally speaking, optional for people to comply.
This law is being dismantled even before it takes full effect because it is so fatally flawed. Congressional Democrats continue to mock House Republicans for their efforts to repeal and dismantle the law when so much of the law has already been changed.
Obamacare must go, but in the meantime, the American people’s elected representatives need to protect them as much as possible from harm. The 27 “fixes” that already have been made to the law have not repaired the law, but some have indeed protected some Americans from even further damage.
— Grace-Marie Turner is president of the Galen Institute, where a version of this list was first published. Tyler Hartsfield is a policy analyst at the institute.
Posted on National Review Online November 15, 2013