The Affordable Care Act's individual mandate requires most Americans to have healthcare by March 31, 2014 or pay a fine. Millions of Americans have and will continue to attempt to purchase that insurance through state- and federally-run exchange sites that don't really work yet.
As recently as Monday, White House press secretary Jay Carney hadn't confirmed or denied whether Obamacare's individual mandate would be delayed. "The law is clear that if you do not have access to affordable health insurance, then you will not be asked to pay a penalty because you haven't purchased affordable health insurance," he said during a press conference. However, Carney also said that the White House is focused on fixing the site, not figuring out the individual mandate. But how can you fine someone for not buying something from a site that doesn't work? Luckily for America, and the White House, there might be a way to keep the mandate without punishing people for the government's ineptitude. Here are a few scenarios.
Scenario #1: The "tech surge" is dazzlingly efficient, and the website is up and running soon.
This is the best case scenario. Individuals have to purchase insurance by mid-February next year in order for the insurance to kick in by the March 31 deadline. Of course, experts argue that the site really needs to work by Thanksgiving.
Scenario #2: The "tech surge" is a tech flop, so individuals decide to apply for exemptions.
As Bloomberg noted on Monday, there's a "hardship exemption" in the Affordable Care Act that exempts people that Health and Human Services Secretary Kathleen Sebelius deems have "suffered a hardship with respect to the capability to obtain coverage under a qualified health plan." The first person to enroll in Obamacare in Delaware spent seven hours trying to sign-up. That sounds like a hardship to us.
To receive this exemption, all you have to do is get the exchange site to grant you a certification acknowledging that "there is no affordable qualified health plan available through the Exchange," in this case because the exchange doesn't work.
Scenario #2.5: You try to apply for the exemptions because Healthcare.gov doesn't work, only to discover you have to do so through the site that doesn't work.
Yep. And as Kip Piper, a former state Medicaid official, told Kaiser Health News, the exemption system hasn't really been developed yet.
Scenario #3: Secretary Sebelius drafts a rule instructing the exchanges to issue a blanket exemption to anyone in a state without a working exchange.
Obamacare gives Sebelius a lot of power with granting exemptions, including creating a program that determines what counts as a hardship. She's already exempted people who live in a state that didn't expand Medicaid but would have qualified under the program if it had. It's possible she'll instruct states to issue blanket exemptions on behalf of the uninsured in states where Healthcare.gov isn't up to snuff. In this case the administration gets to keep the individual mandate in states where the site works and avoid unfairly taxing people. And, more importantly, the administration wouldn't have to rely on a Congress that wants to destroy the law.
Scenario #4: Congress passes Sen. Marco Rubio's plan, or a similar one, to delay the mandate.
Today Rubio said he plans to introduce a bill that would delay the mandate until the "U.S. General Accounting Office certifies the Web site is working and has been functioning for six consecutive months." If that sounds a lot like the Republican's request to delay the mandate for a year, well. That would also kill the Affordable Care Act. The Congressional Budget Office estimates that 11 million people overall would sign up for health care without the mandate and, as The Washington Post noted last month, only sick people would be motivated to sign up for health insurance without the mandate, which would hurt the insurance industry. This wouldn't just be a worst case scenario, it would near apocalyptic for the law. (Update: And now Democratic Sen. Jeanne Shaheen has become the first member of her party to call for the open enrollment period to be extended. That won't push back the deadline for the individual mandate, however. Shaheen also called for the White House to clarify whether individuals would be fined for not being able to registering through the struggling website.)