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More legal trouble for Affordable Care Act

WASHINGTON – If computer glitches are not enough of a problem, President Obama’s health care law also has a legal glitch that critics say could cause it to unravel in more than half the nation.

The Affordable Care Act proposes to make health insurance affordable to millions of low-income Americans by offering them tax credits to help cover the cost. To receive the credit, the law twice says they must buy insurance “through an exchange established by the state.”

But 36 states have decided against opening exchanges for now. Although the law permits the federal government to open exchanges instead, it does not say tax credits may be given to those who buy insurance through a federally run exchange.

Apparently no one noticed this when the long and complicated bill worked its way through the House and Senate. Last year, however, the Internal Revenue Service tried to remedy it by putting out a regulation that redefined “exchange” to include a “federally facilitated exchange.” This is “consistent with the language, purpose and structure … of the act as a whole,” the Treasury Department said.

But critics of the law have seized on the apparent glitch. They have filed four lawsuits that urge judges to rule the Obama administration must abide by the strict wording of the law, even if doing so dismantles it in nearly two-thirds of the states. And the Obama administration has no hope of repairing the glitch by legislation as long as the Republicans control the House.

This week, U.S. District Judge Paul Friedman in Washington, a Clinton administration appointee, refused the administration’s request to dismiss the suit. Instead, he said the challengers had put forward a substantial claim, and he promised to issue a written ruling.

“This is a problem,” said Timothy Jost, a law professor at Washington and Lee University. “This case could have legs,” although “it was never the intent of Congress to establish federal exchanges that can’t do anything. They were supposed to have exactly the same powers.”

Michael Carvin, the Washington lawyer leading the challenge, says the wording of the law is what counts. “This is a question of whether you believe in the rule of law. And the language here is as clear as it could possibly be,” he said.

Last year, Carvin went before the Supreme Court to argue that the law’s mandate to buy insurance was unconstitutional. The high court handed down a split decision. By a 5-4 vote, the justices ruled the government may impose a tax penalty on those who can afford to buy insurance but decline to do so. But in a 7-2 decision, they said states had the option to expand their Medicaid coverage under the law, or to turn down extra federal money.

The states have now split evenly, as 25 of them have opted to take the extra money from Washington and expand their Medicaid coverage, and 25 have refused. As a result, the law’s aim to provide free health care for those who are poor will go forward in only half of the nation.

The new suits take aim at the parts of the law that offer subsidies to those who are above the poverty level but still may struggle to pay for insurance. A single person with an income up to $45,960 can qualify for subsidies now, as can a family of four with an income up to $94,200. If the federal government cannot offer these subsidies in the 36 states without exchanges, it cannot enforce the mandate to have insurance, lawyers say.

“My jaw dropped when I first saw this,” said Michael F. Cannon, a health policy expert at the Cato Institute and a fierce critic of the law. He and others credit Jonathan Adler, a Case Western Reserve University law professor, with first highlighting the glitch.

“This has the potential to sink Obamacare. It could make the current website problems seem minor by comparison,” Cannon said.

Defenders of the law say the courts are being used as part of the political campaign against the law.

“This is definitely heating up. It is now the major focus of the Republican strategy for undoing the Affordable Care Act,” said Simon Lazarus, a lawyer for the Constitutional Accountability Center. “The lawsuits should be seen as preposterous,” he said, because they ask judges to give the law a “nonsensical” interpretation.

Also Friday, the Obama administration said that it will take another month to work the kinks out of its balky health care website, now promising that most consumers will be able to easily navigate the site by the end of November.

A management expert pulled in to help the White House fix the website said a review has identified the problems but that it’s going to take several weeks to address them.

“It will take a lot of work and there are a lot of problems that need to be addressed, but let me be clear: is fixable,” said Jeff Zients, a management expert who earlier this week was asked to review the troubled program run by the Department of Health and Human Services.

Zients said the site is “getting better as we speak” and that tech experts are confident that by the end of November, the site “will operate smoothly for the vast majority of users.”

Health and Human Services officials said users should expect “fewer timeouts and less errors” in the coming weeks.

The date is the first deadline administration officials have offered for the fix and it comes as the glitches, roadblocks and rising frustration among potential consumers are increasingly making Democrats nervous.

Ten Democratic senators wrote Friday to Health and Human Services Secretary Kathleen Sebelius, asking her to extend the open enrollment deadline for purchasing insurance for two months beyond the stated cutoff, March 31, 2014, citing the website’s persistent hiccups.

McClatchy Newspapers contributed to this report.

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