Obamacare's Employer Mandate is Delayed, and That Means It's Working

"It will take four years to implement fully many of these reforms, because we need to implement them responsibly. We need to get this right," President Obama said at the signing ceremony of the Affordable Care Act on March 23, 2010. He knew that the greatest challenges to the legislative accomplishment that defined his presidency did not end with his signature. All the time and political capital spent to get health care reform passed through Congress would pale in comparison to the trials that lay ahead. "Obamacare," as it was dubbed, would be used as a political torpedo in the 2010 midterms. The law would have its day in court, where the individual mandate — the unpopular provision that makes many of the popular provisions of the law possible — would be challenged on its constitutionality. And its survival would hinge on the results of the 2012 presidential election, where Obama knew if he were denied a second term, the law would likely be denied full implementation.

Ultimately, the Supreme Court narrowly upheld the Affordable Care Act, President Obama was comfortably reelected, and many of the governors who initially refused to compromise with Obama on insurance exchanges and Medicaid expansion caved. But when history judges this law decades from now, it will not be on the political and legal victories it's accomplished, or based on the overheated rhetoric of today, but rather on the merits of the policy in the long run. With a law of this magnitude and consequence, it is essential that implementation is done as cautiously and responsibly as possible. That means tweaking the law along the way, repealing provisions that don't make much sense, and amending the law to add provisions that do, based on the feedback of those who are most effected by this law. 

Recently there have been some delays in implementation, such as pushing back the employer mandate until 2015 and pushing back the limit on consumers' out-of-pocket expenses for a year, and there has been broad bipartisan consensus on repealing the medical device tax. I think ultimately the employer mandate will be significantly overhauled if it is not repealed, and the medical device tax will be replaced with a more sensible revenue generator. The glitch with the cap on out-of-pocket expenses was literally just that — a glitch. 

The limits on out-of-pocket expenses is one of the main consumer protections in the Affordable Care Act. It set annual limits at $6,350 for individuals and $12,700 for families on all out-of-pocket expenses, both medical and prescription drug costs, which goes a long way in helping those who suffer from costly treatments for illnesses such as cancer or multiple sclerosis.

The glitch came because some insurers use separate administrators to process their medical and prescription coverage, so they said they'd need more time to integrate their processing systems. In the mean time, the cap on out-of-pocket expenses has been pushed back until 2015 for some insurers. This means that some insurers will have to impose a $6,350 cap on medical expenses and a separate $6,350 cap on prescription drug expenses instead of an integrated $6,350 limit on all consumer costs, while others will have no cap on prescription drug costs until 2015. However, many insurance providers will be required to impose the integrated $6,350 limit, and every plan offered on the state-based exchanges will be subject to that limit.

Some politicians, including Senator Rand Paul (R-Ky.), have argued that the Obama Administration's flexibility in implementing the Affordable Care Act is unconstitutional, and that if the law states a certain provision must go into effect by 2014, the administration cannot bypass Congress and unilaterally choose to delay its implementation. In other words, Senator Paul believes it is unconstitutional to delay implementation of a law he believes is unconstitutional in the first place and wants to repeal. Irony aside, it does raise a good question: Could a hypothetical future Republican administration choose to not implement parts of the law or delay implementation of some provisions indefinitely?

President Obama was recently asked a question along those lines at a press conference, and responded by saying he would prefer to work with Congress to reform and improve the law as it's being implemented, but he's working with an uncompromising Republican House that is fixated on completely repealing the law instead of working to improve it. There are some prominent Republicans in Congress who want to completely defund Obamacare as a precondition for keeping the government running.

So implicitly the answer to that question is yes, hypothetically a future president probably could use some administrative discretion in implementing parts of the Affordable Care Act, which is why the 2016 presidential election is still very consequential to the success or failure of Obamacare, as are the 2014 gubernatorial elections.

When addressing the delay in implementation of some provisions, Obama acknowledged that there will be some glitches and opportunities to adjust the law as it is rolled out, which was true of Social Security, Medicare, the Children's Health Insurance Program, Medicare Part D, and even true of a car company rolling out a new car or Apple rolling out the new iPad. 

Delays in implementation do not mean the law is a failure. It means it's being implemented responsibly, and presents an opportunity to work to improve it.