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Anti-Romney SuperPAC Ad Actually Highlights Policy Ambiguity in Affordable Care Act

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Seeking a rebound, the Romney campaign has charged that a new ad from an Obama-supporting PAC, Priorities USA, contains misleading information and falsehoods. The ad features Joe Soptic, a steelworker at a company taken over by Bain Capital, who lost his job in the aftermath. Later, his wife succumbed to cancer, as the family did not have the health insurance that could have led to an earlier detection.

Romney’s campaign has alleged that there was a five-year lag from the firing at the Bain-owned plant and the discovery of cancer in Soptic’s wife. In addition, Soptic’s wife had health insurance when he lost his job at the plant; she only lost it later when she became unemployed. The Romney campaign also said that, in Massachusetts, Soptic would have had coverage through the health care plan Romney signed, which got them in a lot of hot water with their conservative base, which cannot abide the one clear policy accomplishment on Romney’s record.

But aside from all this, there’s a policy discussion to be had about the current health care law, applied to the Soptics’ situation. Jon Cohn explains:

In particular, let’s assume that Joe Soptic’s wife could have turned to the Affordable Care Act, the law that Obama signed and that Romney has pledged to repeal. Would she have gotten coverage, providing financial security and, just maybe, allowing early detection of the cancer that eventually took her life?

I would like to tell you that the answer is yes. The real answer, I think, is somewhere between maybe and probably. The law’s purpose is to help people who can’t get coverage on their own and, for the most part, it will do that well. But reaching people with this particular economic profile will likely depend on the wording of a regulation that the administration has yet to finalize.

To give a little more background on the Soptics, Joe got a new job as a custodian, and that job did actually carry health benefits. It was just unaffordable on his salary to put his wife on the plan, so she remained uninsured. Since the family plan through the employer would be considered unaffordable by the standards of the Affordable Care Act (costing more than 9.5% of total income), the Soptics would be eligible for the exchanges. And based on their salaries, they would be eligible for exchange subsidies that would give them the coverage at around $150 a month. This coverage could have been enough to get preventive care and cancer screenings for Mrs. Soptic.

But there’s a problem which Cohn illustrates:

There are going to be cases where a family policy costs more than 9.5 percent of income but a single-only policy costs less than 9.5 percent. Soptic’s case might have been one of those. (It’s impossible to know without other information.) What happens then? In particular, does the law then consider the plan “affordable,” meaning family members can’t get insurance through the exchanges? The statute itself isn’t entirely clear. The Treasury Department must ultimately issue a regulation setting out the exact standard, but it hasn’t done so yet. (Yes, this is one more reminder that a single-payer system would have been easier to implement, if only it could have passed Congress.)

The administration has a way to solve this problem. When the Treasury Department issues its final regulation on affordability, it could say that, in cases like the one Soptic described, employees must get coverage from their employers but family members can get coverage from the exchanges. A recent briefing paper from researchers at Berkeley outlined how such a regulation would work. Washington and Lee University Law Professor Tim Jost, who knows the law as well as anybody, thinks the Obamacare text gives administration plenty of flexibility to embrace it. Consumer advocates are lobbying hard for it, noting—among other things—that about half a million kids won’t get coverage if the administration doesn’t make this adjustment.

But whether the Treasury Department will go along remains to be seen.

If Treasury does not allow families to split coverage, putting one member on the exchanges while the other gets coverage through an employer, hundreds of thousands if not millions of people will fall through the cracks. This is just another example of the Rube Goldberg framework of the ACA cutting against what should be the goal of covering as many Americans as possible simply and clearly with no guesswork. Too much relies on Administrative capability, and simply put, not every Administration will carry the same goals as far as coverage goes.

It would be comforting if these discrepancies were clear and the choices obvious. Campaigns try to highlight the differences and minimize the difficult points. But the Priorities USA ad highlights the confounding nature of parts of the health care law, and why this will be a lasting problem based on a tricky design grafted onto a broken system.

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David Dayen

David Dayen