Obama’s arbitrary health care flexibility

This article originally appeared on National Journal.

The Affordable Care Act means what it says and says what it means.

Until it doesn’t.

The arbiter is President Obama and a phalanx of health care advisers and political strategists.

Together, they try to implement what even Obama’s heartiest loyalists concede is an onerous and complicated law. They do this amid myriad Democratic midterm anxieties. And frothy Republican objections.

But it’s time to concede that no one has been more adept or aggressive about delaying and defanging Obamacare than Obama himself. Systematically and with an eye toward his party’s immediate political troubles, Obama has reshaped, photo-shopped, reimagined, and reengineered Obamacare. It all sounds techy and cool and flexible—at least to the administration. To those who must live with and live under the law, the arbitrary is the norm. The only pattern is chaos. Obamacare’s worst enemy is Obama.

The New York Times has compiled a helpful list of recent changes to the Affordable Care Act—13 in just over a year. That comes out to more than one substantive change to policy or legislated deadlines per month. This, in a landmark law nearing its fourth birthday.

The latest switcheroo deals with the employer mandate, which the administration has delayed for another year for medium-sized businesses and softened for big employers. Companies with 50 to 99 employees will not have to provide health insurance under fear of fines (between $2,000 and $3,000 per full-time employee) until January 2016. Until Monday, the deadline was January 2015. Also, companies with more than 100 employees can provide insurance coverage to just 70 percent of their workforce in 2015 instead of the original 95 percent requirement.

The employer mandate is a significant component of the law that was subject to strenuous theoretical debate in the 2008 presidential campaign and lengthy legislative tussling during the drafting of Obamacare. This is a not an Affordable Care asterisk, although health care economists argue it has little impact on increasing insurance coverage.

That may be true, but it drove medium-sized businesses to distraction, and they lobbied the White House for a reprieve—and won the midterm political lottery.

Obama described the change soothingly in his joint press conference with French President François Hollande. “This was an example of, administratively, us making sure that we’re smoothing out this transition, giving people the opportunities to get right with the law, but recognizing that there are going to be circumstances in which people are trying to do the right thing and it may take a little bit of time,” Obama said.

It may take a little bit of time.

Eleven of the 13 alterations to the Affordable Care Act in the past 12 months have given individuals or businesses more time. The burden of compliance is palpable. And so the White House has had to again and again smooth out the transition, in a law it crafted exclusively with Democrats.

“Our goal here is not to punish folks,” Obama said, unwittingly admitting that compliance with his own law amounts to economic and administrative sanction. “Our goal is to make sure that we’ve got people who can count on the financial security that health insurance provides.”

Of course, those employees who work for companies that just happen to have 50 to 99 employees and were hoping, possibly expecting, to receive health coverage next year— well, they cannot count on Obamacare. Or Obama, who helpfully explained why:

“Where we’ve got companies that want to do the right thing and are trying to work with us, we want to make sure that we’re working with them as well.” Translation: If you want to provide coverage but not right now and in compliance with the law as written, and you complain loud enough and weaken the political footing of Senate Democrats, you don’t have to eat your Obamacare spinach— or cover your employees.

In the same breath, Obama made clear that this process of photo-shopping, rewriting, and reimagining will continue apace, depending on the hassle that is Obamacare compliance and the political terrain.

“That’s going to be our attitude about the law generally: How do we make it work for the American people and for their employers in an optimal sort of way?”

Optimal.

How would you like to work for a company (more than 115,000 of them in 2012) that you thought would have to provide health care coverage for you next year but now won’t? And how would you like to be one of the employees who works for a big company (more than 94,000 of them in 2012) but falls just on the other side of the 70 percent coverage threshold in 2015? Your health falls on the other side of Obama’s arbitrary coverage line, and you don’t have coverage.

I’m willing to bet “optimal” is not the word that will come readily to mind.

For Obama, it’s all about flexibility. He was asked if the Affordable Care Act would usher in the end of employee-based insurance in America.

“I don’t think that an employer-based system is going to be, or should be, replaced anytime soon,” Obama said.

Considering the creative clock-management and time-machine quality of Obamacare implementation to date, “anytime soon” sounds almost wistful. For Obama, that is, not necessarily for employees who have care they like and want to keep (yes, that phrase still matters ... and will matter more as Obamacare’s regulatory reach becomes fully manifest).

“What the Affordable Care Act does do is, it gives people some flexibility.”

But which people? And why?

There is no optimal answer.