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At two-year mark, health law’s legacy is confusion

States and employers wait for guidance

- The Washington Times - Monday, March 19, 2012

Two years after congressional Democrats squeezed out enough votes to pass President Obama's health care overhaul, confusion still reigns among the states, insurers and average Americans struggling to comply with the hundreds of pages in the law.

Some states say they can't move forward until the government issues more rules to clarify exactly what kinds of services need to be covered, while other states dispute that, saying enough information is available to plow ahead.

Insurance companies are biting their nails over how the requirements will affect their bottom lines.

Business owners say they can't begin to comply with the law because it is too baffling. "Most of 'em don't have a clue what's fixin' to happen," said Grady Payne, owner of a business based in Fort Worth, Texas.

Analysts, however, say many questions have been answered and that businesses should invest the time to find the answers.

Add to that the legal uncertainty. The Supreme Court is slated to hear oral arguments over the law next week, Republican presidential candidates are vowing to repeal or waive the law, and some policymakers are asking for a pause.

"I think it would make an awful lot of sense to say, 'Let's wait a minute, let's take a breath,'" said Bill Hazel, the secretary of health and human resources in Virginia. "Let's get through this Supreme Court decision, let's get through the elections and then reconsider this."

(Corrected paragraph:) The legislation passed by a 219-212 vote in the House and a 60-39 vote in the Senate, without a single Republican yes vote. The bill cleared Congress on March 21, 2010, and Mr. Obama signed it into law two days later in a ceremony at the White House.

"I'm confident that you will like what you see: a common-sense approach that maintains the private insurance system but makes it work for everybody, makes it work not just for the insurance companies, but makes it work for you," Mr. Obama said at the time.

Ever since — and especially this week — the Obama administration and congressional Democrats have touted the immediate benefits: mandated coverage for employees' children up to age 26, a ban on limiting lifetime benefits and drug discounts for seniors.

But two years after the president signed the Affordable Care Act, the law remains contentious. An ABC/Washington Post poll released Monday found that Americans oppose the law by 52 percent to 41 percent.

Waiting on the administration

"There are still a lot of outstanding questions because we're still waiting for a lot of the regulations," said Robert Zirkelbach, a spokesman for America's Health Insurance Plans, the insurance industry's trade association.

The association hasn't seen the final rules on whether the administration will consider costs when deciding what kinds of services insurers will be required to cover as essential benefits.

The bewilderment is readily apparent among business owners, who recite long lists of worries.

It's all the more confusing when large and small businesses are governed by different sets of rules.

Take Mr. Payne, the Fort Worth-based business owner who runs a chain of plants that produce wooden packaging and crating parts.

Since the 1990s, Mr. Grady has offered full-coverage policies to about 140 administrative staffers, but not to 300 or so factory workers, mainly young and male, who he said aren't willing to help foot the bill. Now that he will be required under the law to either provide coverage to all of his employees or pay a $2,000 fine for each, he said, he worries that he won't be able to afford the plans or persuade workers to pay their share.

Able to recite cost estimates off the top of his head, Mr. Grady has spent a lot of time poring over the figures. To cover factory workers, he said, he would have to double what he spends on insurance to $1.5 million a year, which would eat up all his profits.

"It's really discouraging to go to work every day and think all I'm doing is working to pay medical insurance," he said.

His chief fear is how he will cover the benefits Texas may end up deeming "essential."

Analysts said Mr. Grady's fear may be unfounded. The essential benefits mandate applies directly to small companies, while Mr. Grady's business, with more than 50 employees, is considered large.

Dragging their feet

Such confusion is widespread, said Stacey Pogue, senior policy analyst for the Texas-based Center for Public Policy Priorities, which supports the law. She said the problem is especially evident in Texas and other states where officials are challenging the law before the Supreme Court and dragging their feet on implementing it.

"I think public education is one of the biggest challenges we're facing with implementing the Affordable Care Act — without a doubt," Ms. Pogue said. "A lot of people are misinformed about what's in the law, and I think certainly that needs to be the focus of the federal government."

Others blame the uncertainty on the Obama administration, saying it has been slow in providing guidance.

Last week, the administration released more than 600 pages of long-awaited rules on state-run insurance exchanges through which millions of Americans are expected to obtain base-line coverage.

But health care players are still waiting for rules about the minimum coverage that plans in the exchanges must offer.

The administration has told states only the first steps toward setting up exchanges. It has told them to identify an insurance plan that will serve as their minimum level of coverage.

The federal government is expected at some point to give more specific guidance, and some states wonder why they should write their own rules only to find out later that they don't meet federal standards.

"It would have helped to have the essential benefits package worked out some time ago," said Mr. Hazel, the Virginia official. "That's the basic thing — how can you price it and figure out what your rules will be?"

The Obama administration says its approach gives states flexibility, and some officials said they appreciate that.

Kansas Insurance Commissioner Sandy Praeger, a Republican, said she is frustrated with states that blame their own inaction on the administration. A dozen states have passed bills to set up exchanges, but 17 have yet to take any legislative steps forward.

"This is the hallmark of the president's first term in office, and I think it's being fought by conservative Republican states, and I think a lot of it is political," Ms. Praeger said.

She plans to issue recommendations for how her state should proceed, but fears her state's Republican-led Legislature and Gov. Sam Brownback, also a Republican, won't take action.

More questions than answers

No matter how they felt about the administration's approach, states, employers and insurers are left with a laundry list of questions, including how they should go about approving a benchmark plan, how close a plan must come to meet the law's requirements to be considered acceptable and how to define categories less commonly covered, such as habilitative services.

Acknowledging that there is no widely accepted definition of what qualifies as "habilitative," the administration has offered an example of a service it could include: speech therapy for a child who is not talking at the expected age. Businesses say the example isn't enough and that they need to see final rules.

At the core of the arguments are concerns about the ultimate costs of the plans. If states select a benefit-rich plan as their benchmark, insurers will charge more in premiums for all of their plans, and that could raise costs for businesses.

"If you were to require all auto manufacturers to make cars with sunroofs and leather seats, cars are going to be more expensive," said Katie Maloney, a health care policy specialist at the U.S. Chamber of Commerce. "What if someone wants to buy a beater?"

While large businesses are allowed to purchase plans outside the exchanges that may not offer the same minimum coverage, they can't impose any lifetime limits on any essential benefits they do offer. Uncertain of the costs, some large businesses are reconsidering whether to cover any essential benefits at all, Ms. Maloney said.

As they try to figure it out, the clock keeps ticking toward January 2014, when many of the law's key provisions take effect.

"I think there are more questions than there are answers," Ms. Maloney said. "We're urging agencies to issue rules that are clear and simple. We're looking at a very shortened crunch time."

Insurers are also preoccupied with the question of whether thousands of new provisions will combine to lower costs or make plans more expensive.

Uncertainty over health care reform began unnerving some business owners even before Congress enacted the legislation.

Rose Corona, owner of a farm and feed store in Temecula, Calif., decided to hold off offering coverage to her 34 employees when Mr. Obama started talking about reforming health care because she feared his plan could end up making plans more expensive.

"You have to have some certainty about the costs of your business, and I think that's what this comes down to," Ms. Corona said. "I have to keep this business running, and we have to control our overhead costs."

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