The Obamacare Piñata

Governors Mitt Romney and Rick Perry managed to find one thing they could agree upon during last night’s GOP presidential shoot out.

While no self-respecting Republican candidate can pass up an opportunity to beat on the Obama health care reform law, both Perry and Romney pledged to use their first day in the Oval Office to grant waivers to all 50 states freeing them from the obligations created by the Patient Protection & Affordable Care Act aka “Obamacare.”

For the adoring audience of GOP primary voters who attended the debate -and certainly in red leaning homes throughout the nation -such promises are music to the ears.

Yet, should one of these men actually become the resident of the White House, that music will quickly hit a flat note as their candidate is forced to face up to the reality that using an executive order in the effort to overturn the law of the land is not quite so easy as a quick stroke of the presidential pen.

Note that I say, ‘one of these men’ because Rep. Michele Bachmann was the only candidate in the debate to caution that overturning Obamacare with an executive order will not prove as easy as her opponents were making it out to be.

The fact that Bachmann would be the voice of reason and reality on any topic in a presidential debate should send a cold shiver down your spine as it serves to highlight just how far these candidates are willing to stray from the truth to earn some love from the party base.

Here’s the real deal on the waivers permitted under the health care reform law –

States can receive a waiver where any portion of the health care reform law would create an undue burden on the state’s health insurance system, that portion can be temporarily waived to give the state and the insurers time to resolve the burden. The other opportunity for waiver comes when the state innovates its own approach to the problem in a way that equals or exceeds the requirements and legislative intent of Obamacare.

The waivers are only good for the time period for which the waiver is granted by HHS, and, in no case, will a waiver extend beyond 2014 except for states who have created their own, qualifying health care insurance program.

While the Republicans have attempted to make political hay out the waivers granted -both to states and businesses – only a handful of states have made the case for a waiver. In each instance, the waiver has been based on the argument that requiring the medical ratio rules, requiring health insurers to spend 80 percent of premiums received on actual health care, would place too heavy a burden on their citizens. The concern is that by requiring insurers to modify their programs too quickly, they will either raise their premium rates to intolerable levels or leave the state altogether.

In these instances, the federal government has granted either a one-year or two year period wherein the insurers are expected to make the necessary adjustments to meet the requirement.

Only a state that creates and operates its own qualifying program can hope for a permanent waiver from the requirements of the law.

So, let’s pretend 2012 brings us a President Mitt Romney obliged to follow through on his ‘first day in office’ campaign promises.

When Romney takes his seat in the Oval in January 2013, he will find that, at best, he can grant state waivers for less than one year.

Theoretically, that could have some benefit to the anti-Obamacare forces, but only in the event a President Romney found himself with a GOP House and a filibuster proof GOP majority in the Senate. In such an instance, the new president could use the year to accomplish a complete repeal of Obamacare in Congress.

While there is certainly a possibility that the Republicans can hold onto the House and even gain a majority in the Senate, we can probably all agree that a filibuster proof Senate is unlikely to the point of not warranting much serious consideration.

Thus, friends, Obamacare is likely here to stay – no matter what a President Romney may pretend to be able to accomplish via executive order.

Deal with it.

Rick Ungar

Rick Ungar is an attorney in Southern California and a frequent writer, speaker and consultant on health care policy and politics. He is a contributing writer at Forbes. Readers can reach him at rickungar [at] gmail [dot] com.