Despite talk, no effort in Congress to change ObamaCare's employer mandate

Small businesses looking for a break from President Obama’s healthcare law aren’t getting any help from Congress.

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The law’s critics spend a lot of time talking about its potential effects on employers, and small businesses in particular. But there hasn’t been a real effort on the Hill to address the provisions that will have the most immediate impact on small businesses.

In part, the lack of action stems from Republican divisions over whether it’s OK to “fix” parts of the healthcare law. Some conservatives say the party should focus solely on repealing the law and shouldn’t help Democrats solve potential problems.

"There are members of leadership that told me, ‘Hey, we're willing just to let it collapse, and somebody else will get blamed, and it'll be a great political issue,’” Rep. Tim Huelskamp (R-Kan.) said.

Huelskamp is a hard-line conservative, and he opposed a recent bill that was described as fixing a part of the healthcare law. But he said Republicans should consider small, targeted changes to the law’s employer mandate.

"That’s a reasonable part of a Republican strategy … that seems to make sense. Folks here are really concerned about small business,” he said.

The employer mandate requires businesses with more than 50 full-time-equivalent workers to offer health insurance or pay a fine for each uninsured worker.

Businesses have to offer coverage to every employee who works more than 30 hours per week. Some businesses have cut their employees’ hours, capping them at 29 hours per week to avoid paying for health insurance.

Some Democrats say that’s an unintended consequence of the mandate, and they’re open to fixing it — perhaps by raising the threshold for health benefits to 40 hours per week.

"Yeah, I’d be open to it. I'd be open to looking at it,” Sen. Tom HarkinTom HarkinGrassley challenger no stranger to defying odds Clinton ally stands between Sanders and chairmanship dream Do candidates care about our health or just how much it costs? MORE (D-Iowa) said.

He said it’s “very problematic” to see employers cutting back their workers’ hours. Revising the employer mandate is an area where the law’s most ardent supporters — of which Harkin is one — would likely be willing to accept some changes, he said.

That’s the potential problem for Republicans: Small changes to the mandate could be easily (and accurately) described as fixing the law — something the conservative base doesn’t want to see.

"There is one Republican line of thought that it's so bad it's going to fall under its own weight, and some time in the future, whether two or three years from now, then we'll have to pick up all their pieces and start over again,” Huelskamp said, adding that he disagrees and believes Congress should tackle individual policies while also pushing for full repeal.

The National Federation of Independent Business (NFIB), the leading lobbying group for small businesses, is trying to find common ground between the “lovers and the haters.”

Amanda Austin, NFIB’s director of federal public policy, said it remains to be seen whether conservatives could get on board with narrow tweaks to the employer mandate.

The law’s supporters would also have to admit to an imperfect law and make concessions to a lobby they have fought aggressively, she said.

She said the big question, for both parties, is: "Do you want to continue to message on the healthcare law or actually work on it?"

House leaders had to pull a bill last month in part because some conservatives saw as “fixing” ObamaCare. Leaders are hoping it will be easier to move smaller bills now that the House has voted again on full repeal.

But even lawmakers who most vocally criticize the law’s effects on small businesses said they haven’t heard any discussion of addressing the employer mandate.

"I don’t think we've as a House conference (have) agreed on a strategy yet regarding individual fixes for the president’s law," Rep. Kevin BradyKevin BradyFroman: Too early to start trade talks with the UK Advisers: Trump's revised tax plan will resemble Ryan's Overnight Healthcare: Health mergers in trouble? | Norovirus in Cleveland | GOP chairman rejects Trump Medicare pricing plan MORE (R-Texas) said when asked about the employer mandate.

Sen. Ted CruzTed CruzGrassroots battling establishment on trade at conventions Fixing the disastrous nomination process Attacking Trump for the few sensible things he says is bad strategy MORE (R-Texas) offered qualified support for some changes to the law. His aides had sharply criticized the House bill that was ultimately pulled, saying it muddled the clear message of repealing ObamaCare. But Cruz said smaller changes are OK — if they make a real difference.

"Anything that is a material improvement, that lessens the harms of ObamaCare on the American people, I support,” Cruz said when asked about possible changes to the employer mandate.

Several congressional Republicans who frequently criticize the healthcare law’s effects on employers said they haven’t worked on bills to tweak the mandate because they don’t believe small steps would help.

"I really honestly don’t see that that's going to (work) … it has to be a complete overhaul,” said Rep. Renee Ellmers (R-N.C.), who chaired the Small Business Committee’s healthcare panel in the last Congress.

Sen. Orrin HatchOrrin HatchTim Kaine backs call to boost funding for Israeli missile defense Froman: Too early to start trade talks with the UK Bacteria found ahead of Olympics underscores need for congressional action for new antibiotics MORE (R-Utah) also said he hasn’t heard any discussion of trying to give small businesses a break from the mandate.

"Right now there’s no use trying to fix it because the Democrats won't let you,” Hatch said. “And I’m not sure its fixable. It is so broad based, it’s so bureaucratic, so out of line that I just don’t think it could be fixed.”

The NFIB disagrees.

"I don't believe that,” Austin said of the argument that small changes wouldn’t make a difference.

The NFIB staunchly opposed the healthcare law from the beginning, and was part of the Supreme Court case challenging the law’s constitutionality. But Austin said tweaks to the employer mandate would still make a big difference for businesses.

"At some point you have to take small changes where you can that are going to benefit the people you represent,” she said.

She said NFIB would support moving the mandate’s cutoff from 30 hours per week to 40, or changing the way businesses have to count their full-time workers.

"It would help a lot … we represent real people,” Austin said.

She hasn’t seen much urgency yet in Congress, but is hoping lawmakers will pay attention as more rates are filed and more businesses are actually forced to pay the penalty. Congress tends to be reactive, she said, so “it’s going to be a while” before the two parties feel enough pressure to tackle the employer mandate.

"When is the boiling point? I just don't think we're there yet,” Austin said.

To be sure, some liberal Democrats would resist any changes to the employer mandate. Although Harkin said he might be on board, Rep. Jan Schakowsky (D-Ill.) said Congress doesn’t need to bow to the demands of business owners.

Businesses will always resist laws that make them provide new benefits to their workers, she said. Many Democrats believe the employer mandate is the best way to extend healthcare access to service employees, and that businesses will adapt just as they did to the minimum wage and other labor laws.

“We should have a hall of shame for some of the employers who have decided 'We're not going to contribute to the health and well-being of our employees,’” Schakowsky said.