It’s obvious because the Administration keeps trying to “fix” it—to no avail. It has delayed parts of the law, ignored others, and carved out exemptions for its political allies.
1. WAIVERS: The Administration established a legally questionable program of temporary waivers when firms announced they were considering dropping coverage rather than comply with the law’s costly requirements. Even though more than half of the recipients of these waivers were members of union plans, many union leaders are still not satisfied—they want another waiver, to receive taxpayer-funded subsidies for their employer-provided coverage.
2. ILLEGAL TAXPAYER SUBSIDIES FOR CONGRESS: Last month, following heavy lobbying from leaders in both parties—and an intervention from President Obama himself—the Administration issued a rule regarding coverage for Members of Congress and their staffs, who will retain their taxpayer-funded insurance subsidies in the exchanges. Unfortunately, as previous research has documented, the Administration had no legal basis on which to make this ruling.
3. EMPLOYER MANDATE: In July, the Administration announced it would not enforce Obamacare’s employer mandate until 2015, effectively granting big business a one-year delay. This action came despite language in Section 1514(d) of the law requiring employers to act “beginning after December 31, 2013,” and despite the fact that hard-working Americans are not getting a delay from the other harmful effects of Obamacare.
4. PRE-EXISTING CONDITIONS: Immediately after Obamacare was signed, Democratic staffers admitted that under the law as written, insurers “still would be able to refuse new coverage to children because of a pre-existing medical problem.” The Department of Health and Human Services (HHS) took it upon itself to issue regulations prohibiting plans from turning down such applicants three years earlier than the law required. As a result, insurers stopped offering child-only plans in 17 states, fearing that only parents of sick children would apply for insurance coverage.
5. OUT-OF-POCKET CAPS: Section 1302(c)(1) of the law includes caps on out-of-pocket expenses and explicitly states they are to take effect “beginning in 2014.” But earlier this year, the Administration delayed these new caps from taking effect as scheduled. What’s more, as The New York Times reported, the Administration made this unilateral change not by issuing rules subject to public comment, but by posting a series of questions and answers on an obscure website.
6. BASIC HEALTH PLAN: This government-run health plan for people above the Medicaid income level was created in Section 1331 of Obamacare as a way to promote “state flexibility,” but the Administration unilaterally delayed it for one year. One Democratic Senator criticized the Administration for this move, saying it does not “live up” to the law as written.
7. TAX DISCLOSURES: Section 9002 of Obamacare requires employers to report the value of workers’ health insurance on W-2 filings, effective for all “taxable years after December 31, 2010.” But the Administration unilaterally delayed this requirement, and employers did not have to report these data until after the 2012 presidential election.
8. HONOR SYSTEM: In July, the Administration announced it was placing most Americans on the “honor system” when it came to verifying their income and access to employer-provided health coverage. As prior research has documented, this move, coupled with loopholes written into the law, gives many Americans a strong incentive to “game the system” and obtain more in taxpayer-funded insurance subsidies than they should actually receive.
9. PRIVACY: Former HHS General Counsel Michael Astrue, when serving as Commissioner of Social Security earlier this year, complained strongly within the Administration about the security risks posed by Obamacare’s new data hub. However, the Administration overrode his objections, using what Astrue called “an absurdly broad interpretation of the Privacy Act’s ‘routine use’ exemption.”
10. TOBACCO PENALTIES: Section 1201 of the law allows insurance companies to charge smokers up to 50 percent more in premiums. But due to a “computer glitch,” those penalties will be limited for “at least a year”—meaning non-smokers may have to pay more as a result.
In the end, Nancy Pelosi was wrong. Congress passed the bill, but we still don’t know what’s in it—because the Obama Administration keeps changing rules and ignoring the law. That’s why Congress should use its power of the purse and stop a single dime from being spent on this unworkable, unfair, and unpopular measure.
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