WASHINGTON - When he talks to Republicans in Congress, Scott DeFife, a restaurant industry lobbyist, speaks their language: President Barack Obama’s health-care law is a train wreck well down the track. There will be collateral damage if changes are not made. Friends of the industry cannot sit back and let that happen.
Speaking to Democrats, he puts on his empathy hat: The Affordable Care Act is the law of the land. Its goal of universal insurance coverage is laudable, but its unintended consequences will hurt the cause.
Almost no law as sprawling and consequential as the Affordable Care Act has passed without changes - significant structural changes or routine tweaks known as “technical corrections” - in subsequent months and years. The Children’s Health Insurance Program, for example, was fixed in the first months after its passage in 1997.
But as they prowl Capitol Hill, business lobbyists like DeFife, health-care providers and others seeking changes are finding, to their dismay, that in a polarized Congress, accomplishing them has become all but impossible.
Republicans simply want to see the entire law go away and will not take part in adjusting it. Democrats are petrified of reopening a politically charged law that threatens to derail careers as the Republicans once again seize on it before an election year.
As a result, a law that almost everyone agrees has flaws is likely to take effect unchanged.
“I don’t think it can be fixed,” Sen. Mitch McConnell of Kentucky, the Republican leader, said in an interview. “Everything is interconnected, 2,700 pages of statute, 20,000 pages of regulations so far. The only solution is to repeal it, root and branch.”
Sen. Max Baucus, D-Mont., one of the law’s primary authors, said: “I’m not sure we’re going to get to the point where it’s time to open the bill and make some changes. Once you start, it’s Pandora’s box.”
As the clock ticks toward 2014, when the law will be fullyin effect, some businesses say that without changes, it may be their undoing.
“Are we really going to put the private sector in a situation where there’s a real potential mess for posturing points?” DeFife asked.
This is not the usual way ambitious laws are carried out,but given the politics of the Affordable Care Act, “we cannot use any of the normal tools to resolve ambiguities or fix problems,” said Sara Rosenbaum, a professor of health law and policy at George Washington University.
The enactment of Medicare in 1965 was followed by changes in 1967, and again in 1972. In November 1986, President Ronald Reagan signed an immigration bill that offered legal status to many unauthorized immigrants. Two years later, Congress made dozens of “technical corrections.”
Three years after the Affordable Care Act was enacted, an extensive list of possible fixes and clarifications has piled up.
Health insurers are focused on another goal: repealing a new tax on insurance companies that takes effect next year. The tax is expected to raise more than $100 billion over 10 years. Insurers say the cost will be passed on to consumers and businesses in the form of higher premiums.
Concerns over the law’s fine print are shared even among some of its architects. As the Affordable Care Act neared completion, the Obama administration and some Democrats in Congress drafted a proposed compromise to resolve differences between the House and Senate versions and smooth rough edges. Under that version, the marketplaces that people would be able to use next year to buy insurance, often at subsidized rates, were going to be national in scope, not state by state.
A provision that takes back subsidies if someone’s income rises in a year was going to be softened. According to a former White House official involved in the drafting, Democrats debated the 50-employee definition for large businesses and were open to additional flexibility for seasonal workers and teenage employees.
That all disappeared when Massachusetts elected Scott Brown to the Senate in January 2010. The Democrats lost their filibuster-proof majority. House Democratic leaders saw no alternative but to accept the Senate-passed bill as written, with some changes to follow in a hastily drafted bill that passed under rules that prohibited a filibuster.
As a result, a back-room conference never happened. Consequently, said E. Neil Trautwein, a health care lobbyist for the National Retail Federation, “the edges don’t quite line up.”
“We’re beyond caring who provides employer relief at this point,” he said. “We just want the relief.”
Front Section, Pages 3 on 05/28/2013