Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

The Affordable Care Act Becomes “Normal” Policy

Clarke E. Cochran


By Clarke E. Cochran

June 30, 2014

Although taking far longer than typical, the Affordable Care Act (ACA) finally attained “normal” status. On May 16th, the Department of Health and Human Services (HHS) released a 436-page “rule” establishing parameters for 2015 ACA implementation. There was nary a peep from the commentariat. (Though CPJ did notice and ask me to comment!)

Major implementation of ACA was formerly instant fodder for political battle. The absence of uproar over this rule suggests that the ACA is now part of the permanent policy landscape, a “normal” part of the American system of health insurance. Although calls for “Repeal!” will still echo leading up to November’s balloting, the law is deeply embedded. There will certainly be significant changes, but not repeal.

The goal of the HHS rule is to wrap up loose ends from the messy 2014 rollout of the Individual and Small Group Insurance Marketplaces and to put procedures into place for smooth sign-up for 2015 health policies. Many of these matters are quite technical and beyond my ability to summarize (or even to understand.) Others are substantively important. This article reviews the major elements of the mid-May HHS rule, suggests how this process might trouble those committed to CPJ’s vision for crafting sound policy, and points to good sources for accurate ACA information.

The HHS technical rules spell out how insurers are to make health policy choices and quality measures transparent to consumers. They also explain access to specialized pharmaceuticals, premium and risk stabilization policies, the difference between ACA individual medical coverage and “fixed dollar indemnity coverage,” coverage affordability hardship exemptions, and rules governing coverage modifications, terminations, premium payment deadlines, medical loss ratios, and reinstatement of insurance. Each is important in its own way, but all are the standard stuff of insurance regulation that governments (mostly state) and insurance companies have dealt with for decades. The HHS rule spells out the insurance details that bring the ACA into line with standard insurance.

Three important rules, however, touch directly on public justice issues for citizens:

  1. Implementation of insurance options for small business was unsettled in the ACA rollout. Employer and employee options are especially important because there are so many small businesses. While the HHS rule establishes enrollment procedures for 2015, getting small business health insurance exchanges (SHOP) right means that additional delays may be necessary, so the HHS rule allows states to delay some SHOP options until 2016.
  2. Most people find health insurance difficult to understand. Workers in large companies receive assistance from human resource departments (a tradeoff for fewer policy choices). Persons in the individual market have no ready source of assistance. The HHS rule clarifies regulations for official assisters (“navigators”), Marketplace assister programs, and application counselors who help with Individual Marketplace enrollment. The rule also preempts state governments opposed to the ACA from establishing barriers to receiving assistance from these persons and agencies.
  3. Some large employers attempted to evade their responsibilities under the ACA by, in effect, paying employees to buy ACA Individual Marketplace policies. The HHS rule, in conjunction with an Internal Revenue Service rule, clarifies that this tactic is not ACA compliant and establishes significant fines for employing it.


While the intent of this HHS rule is to prepare for better enrollment in 2015, its presence illustrates an unfortunate reality in how we craft our domestic policy. In her June 9th Capital Commentary article “Moving Beyond the Blame Game,” Amy Black describes how political grandstanding reduces policy debates to “pithy attacks and zingy one-liners” in place of diligent work to craft good policy. This damages active citizen participation greatly, and the HHS rule demonstrates her point only too well. In the absence of effective public policy discussion, policy gets made in the labyrinths of bureaucracy where the only “citizens” who can find their way are bureaucrats and business and special interest group lobbyists.

In spite of the opaque nature of the HHS rule, we have the responsibility to seek accurate and reliable information on the ACA and to understand how its implementation may or may not uphold standards of public justice. For responsible ACA implementation descriptions, I recommend the Kaiser Family Foundation website ( and the periodic posts by Timothy Jost on the Health Affairs blog (


- Clarke E. Cochran, PhD is Professor Emeritus, Political Science at Texas Tech University and a Fellow of the Center for Public Justice.


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