Congressional Dysfunction Makes Corrections To Health Law A No-Go

Aside from technological problems that have plagued the roll out of the federal health exchange, some smaller technical problems with the Affordable Care Act have also emerged — things like unclear definitions and legislative language that have unintended consequences and remain unfixed. Once upon a time, after Congress passed a mega-bill, it followed with "technical corrections" to fix definitions, numbers, funds, minor policy fixes. But that's not so easy in these dysfunctional days, when Republicans want to repeal the health law and Democrats fear re-opening a can of worms.

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As the rocky rollout of the healthcare law continues, a number of smaller technical issues have emerged. We're talking about trouble with definitions, unclear legislative language and unintended consequences. While these aren't the big headline-grabbing problems we've been hearing so much about, they could still affect a lot of people. And as NPR congressional correspondent Tamara Keith reports, they aren't likely to get fixed any time soon.

TAMARA KEITH, BYLINE: There's a problem with the definition of Indian in the Affordable Care Act. The law actually contains several different definitions. As a result, Senator Brian Schatz, a Democrat from Hawaii, says thousands of people could lose out on benefits or be forced to pay fines.

SENATOR BRIAN SCHATZ: This is about being fair to Native Americans. We have a special obligation, a special trust relationship with Indian country, with Alaska Natives. There's not a lot of disagreement about that.

KEITH: Along with several of his Democratic colleagues, Schatz is offering a bill to create a single unified definition of Indian. This sort of thing is known in Congress-speak as a technical correction and these corrections are normally routine. But Schatz says they're not happening on the Affordable Care Act.

SCHATZ: The problem is, once you touch the Affordable Care Act, people run to their corners. The Republicans say it ought to be repealed and we say it ought to be left alone.

KEITH: He hopes sometime soon a bipartisan coalition will emerge that's willing to make small corrections to the law. Most observers say there's no way because that would require a political ceasefire that simply isn't possible in the current environment.

DAN MENDELSON: I think the environment is too toxic at this point to do anything collaborative.

KEITH: Dan Mendelson is CEO of Avalere Health, a firm that monitors the law and helps major healthcare companies navigate it. He has a long list of technical corrections he thinks would make the law work better, like making it easier for companies to market health plans and adding anti-fraud provisions.

He says the need for these changes is even more pressing because of the way the law was passed.

MENDELSON: The typical fine-tuning was just not done. And what that means is that they're left with a law that's kludgy at best and a very fractious political environment to boot.

KEITH: The Senate passed the bill in a flurry on Christmas Eve 2009.

(SOUNDBITE OF ARCHIVED AUDIO)

SENATOR HARRY REID: We're going to finish this bill before Christmas, are committed to doing that and we'll worry about the next steps at a later time.

SENATOR ROLAND BURRIS: 'Twas the night before Christmas and all through the Senate, the right held up our healthcare bill...

LINDA WERTHEIMER: The Senate bill must now be reconciled with the version passed by the House of Representatives last month...

KEITH: But the bill never went to a House/Senate conference committee because Democrats lost a seat in the Senate and wouldn't have been able to pass the result. So the Senate bill essentially became the Affordable Care Act by default. Neil Trautwein is a lobbyist for the National Retail Federation.

NEIL TRAUTWEIN: They didn't get to do it this time and they wound up with some cases where the edges don't quite meet, corners don't match.

KEITH: The Retail Federation strongly opposed the law, but Trautwein now just wants to make it more workable for his association's members.

TRAUTWEIN: We have to live with this law, so as long as we have to live with the law, we want to smooth the edges as much as we can.

KEITH: For retailers, a big issue is that the law defines a 30-hour work week as full time. This, he says, could lead to workers' hours being cut back significantly.

TRAUTWEIN: Simply, I know the effort was to try to bring more part-time employees into coverage, but it really has an adverse impact and that's the kind of thing we think needs to be addressed.

KEITH: For Ron Pollack, the executive director of Families USA, a top priority is fixing what's being called the family glitch. The glitch essentially means some families will be stuck with employer coverage they can't afford, even though they could get something more affordable on the exchanges.

RON POLLACK: You can get something that's very good, as I think the Affordable Care Act is, but you don't expect to get perfection. And it's for that reason that almost any important piece of legislation undergoes changes subsequently. That's clearly going to happen with the Affordable Care Act once it's clear that the Affordable Care Act is here to stay.

KEITH: But he doesn't think that will be anytime soon, not in this charged political environment. Indeed, several senior House GOP aides scoffed at the idea of a technical corrections bill, asking why they'd bail out Democrats now after they passed the healthcare law with not a single Republican vote. So all of these items are likely to stay on wish lists for a long time.

Tamara Keith, NPR News, the Capitol.

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