- The Washington Times - Thursday, July 4, 2013

President Obama’s decision this week to delay the employer mandate to provide health insurance is the latest tweak to his health law, and it underscores just how much of the bill remains in flux more than three years after he signed it into law.

The courts have rewritten the way the Medicaid expansion works, while Mr. Obama and Congress together have repealed a budget-busting long-term care program and onerous reporting requirements for businesses.

Then on Tuesday Mr. Obama took unilateral action to postpone the employer mandate for a year, with his aides saying they are trying to show the kind of flexibility all sides have asked for as the massive bill lurches toward full implementation.

The fits and starts have left an ever-shifting platform that could be even more complicated by the time the law’s most controversial aspect — the individual mandate to have health insurance or pay a fine/tax — goes into effect Jan. 1.

“There will be certainly opportunities here for further confusing people,” Timothy Jost, a professor at the Washington and Lee University School of Law, said of recent attempts to attack the law.

All sides had predicted the law, officially known as the Affordable Care Act and widely nicknamed “Obamacare,” would change over time, and even Mr. Obama and congressional Democrats had said they’d be open to tweaks that might make it work better.

SEE ALSO: PRUDEN: Obamacare called ‘The fiasco for the ages’

Still, observers were caught off guard by the White House’s sudden decision to delay the employer mandate by one year, to 2015. The provision requires businesses with more than 50 workers to offer insurance to all full-time employees, or else pay a fine of $2,000 per worker.

Opponents of the law said the move exposed its fundamental flaws.

“Implementation of the ACA has not lowered costs or increased access as promised,” Sen. Jerry Moran, Kansas Republican, said this week. “Individuals, families and employers still face increasing health insurance costs, new taxes overseen by what we have recently learned is a politically-biased IRS, burdensome mandates, and massive uncertainty because of this flawed law.”

Republicans have repeatedly tried to repeal the law, or at least chip away at it, while Democrats say unfounded criticism and a lack of funding has undermined the administration’s efforts after years of work.

“The problem all along has been that while the program was passed with great fanfare a few years ago, most of the policies that will really impact people won’t take effect until 2014, ” said Jim Manley, a Democratic strategist and former spokesman for Senate Majority Leader Harry Reid. “Which is a tough way to sell something to the American people, especially when the Republicans are doing everything they can to undermine a bill that is the law of the land.”

Mr. Jost also said “widespread, vicious opposition to this law” has been the prime source of turbulence along the path to implementation.

“It’s like if you’re trying to get your work done, and somebody’s slapping you in the face all the time,” he said.

The choices Congress made in writing the law have contributed to the complexity of getting it up and running.

Congress did not employ a single-payer system that would have given the federal government complete control, and in an attempt to give states some flexibility it offered them the chance to set up their own health insurance marketplaces, or exchanges. But more than half of the states decided to let the federal government create one for them, creating a hodgepodge of state-run and federally facilitated marketplaces.

The Supreme Court added to the complexity last year when it upheld the core of the law but said states should be allowed to opt out of the Medicaid expansion. Some statehouses are still grappling with whether to accept the opt-out.

Meanwhile, on Capitol Hill, lawmakers have gone back and recaptured some of the money the law would have overpaid as tax credits for those using subsidies to buy insurance on the exchanges.

And all sides agreed in 2011 to repeal a business expense reporting requirement that had been designed so the IRS could make sure employers were paying their full tax burdens.

This week’s decision signaled that more tweaks and changes may be on the way.

“These things have never been that easy,” Mr. Jost said. “I just think it’s so unfortunate that it’s turned out this way.”

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