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Facing the delay question

On the one hand, after initial glitches, California, Washington, D.C. Kentucky and Minnesota are seeing residents enroll in their online healthcare marketplaces. On the other hand, too many Americans, especially on the federally-run Healthcare.gov, are unable to, Obamacare's Oct. 1 deadline has become a soft launch of the healthcare system. The de facto delay raises questions of a real one, Kaiser Helath News reports. 

Under the Affordable Care Act mandate, "millions of Americans who were expected to use the exchanges to obtain health insurance will face fines if they haven't purchased coverage by Feb. 15, raising the question of whether the mandate or other Obamacare provisions should be postponed."

If they're unable to because of technical problems with the enrollment process, can parts of the ACA legally be delayed?

When considering a delay to Obamacare, it's important to understand the difference between statutory and discretionary deadlines, says KHN. 

"For example, the ACA's language directly calls for many mandatory deadlines -- like rolling out the individual mandate or implementing a slew of insurance market reforms on Jan. 1, 2014."

But government agencies have considerable latitude in how they apply a law; for example, choosing Oct. 1 to launch the exchanges was a discretionary choice -- an overly ambitious one. 

Missing discretionary milestone dates is common and often rational, without legal consequences. Postponing a statutory deadline can be a bit more tricky.

"Could individuals sue, citing their difficulty in attempting to enroll or obtain premium tax credits?

"Or, could insurers -- who have made investments and undertaken reforms to prepare for ACA implementation -- sue over lost revenue?

"Experts acknowledged that both situations are possibilities, but they also cautioned that we're still weeks away from either being a reality.

"'The law states that a person will not be penalized for failure to carry insurance if she has been uninsured for less than three months," Nicole Huberfeld, a law professor at the University of Kentucky, told California Healthline. And because the individual mandate has yet to take effect, "I don't think an individual or an insurer would have standing at this time to challenge the difficult opening of the federal exchange,'" she added.

"'No one is injured yet, and no statutory deadlines pertaining to the exchanges have passed.'

If signup problems continue, experts say the administration has options. For example: 

The open enrollment period could be extended, allowing individuals to sign up for the exchanges past March 31, 2014. 

The compliance deadline for the individual mandate could also be moved to match the end of the open enrollment period.   

There are also other options for obtaining health insurance coverage to comply with the law, notes KHN, one of which people are already turning to: Paper applications.   Read more.


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