Unilateral Administration Changes to the ACA: 15 and Counting

Since the enactment of the Patient Protection and Affordable Care Act (PPACA) (P.L. 111-148) in 2010, there have been more than 30 changes to the law. Fifteen of these changes have been made by Congress and signed into law by the President. Two have occurred by virtue of the Supreme Court’s controversial decision in National Federation of Independent Business v Sebelius, i.e., the Medicaid expansion was held to be voluntary and the individual mandate held to be a tax, not a penalty. But at least 15 changes have been made unilaterally by the Administration. Let’s review the six most recent Administration actions.

  • On July 2, 2013, prior to the October 1, 2013, opening of enrollment in the health insurance exchanges for calendar year (CY) 2014, the Obama Administration announced that it would delay the insurer and reporting requirements of PPACA for employers with 50 or more employees until CY 2015.
  • On November 14, 2013, after the launch of the Exchanges, various factors, including (1) the nationwide difficulty in accessing the Exchange website; (2) the “premium shock” for some who were able to access the website; (4) the loss of access to hospitals and doctors by some; and (5) the cancellation of up to five million private individual plans, the administration to announced that it would allow individuals and small group markets to keep their existing policies for CY 2014 if their insurance providers and state insurance departments would allow them to renew these policies. To help implement this renewal option, on November 20, the President met with representatives of the National Association of Insurance Commissioners.
  • On November 22, 2013, the Administration pushed back the start of CY 2015 enrollment from October 15, 2014, to November 15, 2014, which, is after the November 4, 2014, date of the mid-term Congressional elections. As a result, the enrollment period for CY 2015 will now run from November 15, 2014, to January 15, 2015, instead of October 15, 2014, to December 7, 2014.
  • Almost unnoticed was the Administration’s decision late on November 22, to extend the CY 2014 enrollment period from December 15, 2013 to December 23, 2013.
  • The day before Thanksgiving, November 27, the Administration announced that it was delaying the launch of the online Small Business Health Options Program (SHOP) Marketplace, which is meant for businesses with under 50 employees, until November 2014. The Administration did not give an exact deadline.
  • On December 12, HHS announced a policy change requiring insurers to accept payment through December 31, 2013, for coverage that will begin January 1, 2014, and urging issuers to give consumers additional time to pay their first month’s premium and still have coverage beginning January 1.

In addition to the changes detailed above, the Administration has also made nine other unilateral changes since 2010.

  • April 19, 2011 — Ordered an advance draw on funds from a Medicare bonus program in order to provide extra payments to Medicare Advantage (MA) plans to forestall cuts in MA benefits and prevent the loss of MA plans.
  • January 1, 2012 — Delayed by one year the requirement that employers must report to their employees on their W-2 forms the full cost of their employer-provided health insurance.
  • February 15, 2013 — Ended enrollment in federal high-risk pools.
  • February 20, 2013 — Permitted group health plans to apply separate patient cost-sharing limits (i.e, double deductibles) to different services (e.g. doctor/hospital and prescription drugs) on group health plans.
  • March 11, 2013 — Delayed implementation of federal SHOP exchanges until 2015.
  • March 22, 2013 — Delayed implementing the Basic Health Program until 2015, which was designed to provide affordable health coverage for low-income individuals not eligible for Medicaid.
  • July 15, 2013 — Permitted “self-attestation” of income by health insurance exchange applicants.
  • September 30, 2013 — Permitted members of Congress and their staffs the option of exempting themselves from the ACA exchanges.
  • October 23, 2013 — Extended the period in which people can enroll for coverage and avoid the individual mandate tax penalty from February 14 to March 31, 2014.

Although these Administration changes do not have the effect of law, and some may be politically motivated, it is unlikely that they will be contested in court. Even the delay in the 2015 enrollment beyond the 2014 elections, arguably the change most likely to be politically motivated, is unlikely to be contested because participating insurance plans will need to disclose changes in their plans to state insurance departments by early summer of 2014, well in advance of the November 4 election date. And with the loss of access to doctors and hospitals and the premium shock felt by some Exchange enrollees during the 2014 rollout, it is almost certain that both the press and the public will be demanding access to this plan information well in advance of the 2014 elections.

While the Administration has discretion in how to enforce federal laws, this discretion does not extend to rewriting laws, which changing the various PPACA implementation dates clearly does. According to testimony before the House Committee on the Judiciary, by Georgetown University constitutional law professor and Cato Institute senior fellow, Nicholas Rosenkranz, “the President would actually prefer to flout the law as written, rather than support a statutory change that would achieve his desired result.” He expanded on this view in an “On the Record” interview on December 4 with Greta Van Susteren, saying that President Obama delayed the employer mandate not because “he found the statute unconstitutional but because he finds it to be politically convenient to extend it for another year.”

Could a member of Congress sue to stop these unilateral changes by the Administration? Probably not, according to Rosenkranz, due to a lack of standing. However, Rosenkranz believes that a proponent of PPACA who would have had coverage this year under the employer mandate, except for the unilateral Administration delay, would likely have standing to bring an action.

See related blog posts HHS Delays Until 2015 Income and Health Insurance Reporting Requirements Tied to Insurance Subsidies (July 10, 2013) and Obama Administration Delays Health Insurance Mandate for Large Employers Until 2015 (July 8, 2013).