The Individual Mandate: Has the Obama Administration Silently Repealed the Rule that Virtually Everyone Must Have Health Insurance?

Obamacare’s critics continue to argue that the Affordable Care Act (ACA) will self-destruct.  Now, some claim that the mandate that uninsured Americans must purchase coverage– or pay a stiff fine— is so riddled with new “loopholes and exemptions,” that it no longer exists.

                                            14 New Waivers

When the ACA passed Congress in 2010, it offered a handful of basic exemptions to the mandate that everyone must be insured. For example, if the only comprehensive coverage available would cost more than 8% of a household’s income, the fine would be waived. Individuals who were in jail, or belonged to a recognized religious group that objects to all insurance, including Medicare and Social Security, also would be excused.  

But then, late in 2013, the administration quietly added some 14 new ways that uninsured Americans could dodge the fine. “This latest reconstruction” of the ACA received zero media coverage,” a Wall Street Journal editorial declared, “and the Health and Human Services Department (HHS) didn’t think the details were worth discussing in a conference call, press materials or fact sheet.”

Yet if the new waivers went largely unnoticed, reform’s opponents claim that the swelling list of escape clauses will have a huge impact. By 2016, they say, almost 90% of the nation’s 30 million uninsured will be able to ignore the mandate that they buy insurance—without paying the piper.  So much for universal coverage.

Just last week Bloomberg reported that some Republicans politicians now refer to the new list of loopholes as a “stealth repeal” of the individual mandate. To her credit, Bloomberg’s Caroline Chen points out the contradiction in the GOP’s arguments: the same critics who, in the past, argued that the mandate represented “unwarranted government coercion” now criticize it for being too “wimpy.” Can they really have it both ways?

                                       “Hardship Exemptions”

The new waivers were designed to help those who are facing hard times.  Some exemptions will suspend penalties for 3 months—others for a year.

Perhaps the most important waiver bails out low-income Americans who have the bad luck to live in a state that has refused to expand Medicaid.  Originally, the ACA stipulated that states must extend Medicaid to adults earning less that 138 percent of the federal poverty level ($27,310 for a family of three), with the Federal government paying the lion’s share of the extra cost. At the same time, the ACA set out to help low and middle-income families earning more than 138% of the FPL, by providing government subsidies designed to help them purchase insurance in their state exchanges.

But then, two years after the ACA passed Congress, the Supreme Court blind-sided reform’s architects by ruling that states could opt out of expanding the federal/state. program. No surprise, politicians in Red states saw this as an opportunity to undermine Obamacare.

Today, twenty-two states still are refusing to open the Medicaid umbrella to cover some of their poorest citizens. As a result, in many cases, only parents earning less than 50% of poverty ($9,893 for a family of three) qualify for Medicaid, while childless adults remain ineligible in almost all of these states.  (When Medicaid passed Congress in 1965 legislators decided that only “the worthy poor” should be covered. People who didn’t have children were not considered “worthy”.)

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