The Obama Administration has made another adjustment to the Affordable Care Act and the critics are making another fuss.
The adjustment, first reported (I think) by Rachana Dixit for Inside Health Policy, is an extension of the open enrollment period for buying private insurance through the new Obamacare marketplaces. Officially, most people have until March 31 to sign up for a plan. (The exception are people who lose a job or have some other, similar life-altering experience. They can sign up throughout the year.) But on Wednesday, the administration announced that it will be offering some extra time to consumers who don't finish their applications in time. They’ll be able to use the websites, just like they can now, only they’ll have to check a box attesting to the fact that they started the application process before April 1.
Exactly how many extra days will these folks get? And what’s to prevent somebody from lying—effectively taking advantage of the grace period to get insurance after the official deadline? On a predictably painful and frustrating conference call Wednesday, officials from the Department of Health and Human Services wouldn't answer these questions directly. Obamacare critics, meanwhile, were quick to express their displeasure."What the hell is this? A joke?” House Speaker John Boehner said at a press conference. "Another deadline made meaningless. If he hasn't put enough loopholes in the law already, the administration is now resorting to an honor system to enforce it."
Boehner appears to be right about the lack of enforcement. Nothing can stop people from gaming this new system. And establishing some kind of fixed date might be a good idea, as Philip Klein points out at the Washington Examiner, although in practice the insurers will basically do that on their own. (If they don't get applications by the middle of the month, they won't start coverage on May 1.) But even insurers are shrugging at this and it's not clear why Boehner or anybody else should react differently.
There’s genuine reason to think that people who waited until the last minute to sign up really might have problems completing the process in time. Traffic to the online marketplaces has been increasing rapidly, with levels now rivaling the surge that took place in late December. On Tuesday, 1.2 million people visited healthcare.gov, according to officials. At some point, the congestion could trigger a built-in queuing system—making it difficult for last-minute applicants to finish enrollment by midnight on March 31. As administration officials pointed out, you don’t stop people from voting because they were standing in line when the polls closed. Or, to borrow a phrase I saw on twitter, you don’t kick somebody out of a restaurant because their dish wasn't ready before closing time.
As for people gaming the system to buy themselves extra time, sure, it’s going to happen. But it's unlikely to happen that frequently, certainly not enough to upset the actuarial balance of insurance plans. And it’s not like this is unprecedented. As Igor Volskly explained in an item for ThinkProgress, the Bush Administration did pretty much the same thing with Medicare Part D:
In May of 2006, just days before the end of open enrollment, President Bush took administrative action to waive “penalty fees for very low-income seniors and people with disabilities who sign up late” and allowed “the same impoverished beneficiaries to sign up for Medicare drug coverage until Dec. 31.” ...
Like Obamacare, the launch of President George W. Bush’s prescription benefit plan was hampered by technical glitches, setbacks, and mass confusion. As the May 15 deadline for enrollment loomed, a bipartisan group of lawmakers advocacy organizations, and a surprising number of newspaper editorials, urged the administration to extend the enrollment period and protect seniors from the penalties associated with late enrollment.
Of course, the real issue here for conservatives isn’t this one delay. It’s all of the delays, plus all of the exceptions and waivers. And it’s totally reasonable to ask hard questions about these, particularly when it comes to the limits of presidential authority and the precedent it sets for the future. (I'm still waiting to hear from more lawyers on the constitutional issues.) But, for what it's worth, the Affordable Care Act really did give HHS a huge amount of leeway over how to implement the law—and it did so for a very good reason. Given the inherent complexity of health care, there’s no way Congress could have figured out all of the details. It made sense to delegate that authority—to put in place new systems, but leave the nitty-gritty of regulations and transitions to the administration.
For each one of these extensions or delays, the ultimate question is whether they change the law’s ability to realize its basic goals—which, in this case, means encouraging people to buy new private health plans while maintaining a stable insurance market. Giving people a little extra time to enroll wouldn’t seem to impede this kind of progress. If anything, it would seem to enhance it. And maybe that's what really bothers some of the law's fiercer critics.
Note: This item has been updated (with additional links).