According to Nicholas Bagley and Austin Frakt:
As things stand, the rules the [HHS] secretary has put in place provide for an individualized application process. But nothing in the law prevents her from tweaking that approach. If necessary, she could draft a new rule instructing nonfunctional exchanges — including the federally operated ones — to issue blanket certifications on behalf of all of the uninsured in their states. With those blanket certifications, the penalty would be waived — and all without congressional action. With luck, it won’t come to that and the exchanges will all be operational long before mid-February. But if they aren’t, the Obama administration could spare the uninsured from being punished just because government officials couldn’t build a few websites on time.
Chait welcomes this news:
The real upside here is that, because it doesn’t require Congress, the administration could use a mandate delay to actually improve the functioning of the law, as opposed to using it to destroy the law, as Republicans in Congress have suggested.
The Republican’s mandate-delay plan was to pass a fixed-length mandate delay — they proposed this before any website failures became public — as a condition for reopening the federal government, and then just continue to trade mandate delays for bills reopening government, so that the mandate would be delayed indefinitely. That’s rank sabotage.
Delaying the individual mandate only for states that can’t get the exchanges working, and reinstituting it when the exchanges come online, would be a way of making the program work. Again, that option is a long way off. But it’s there if the need arises. The fact that Obama has the power to do it, and doesn’t need to rely on a Congress bent on repealing the law, probably kills off Congress’s enthusiasm for delaying the mandate.
Sarah Kliff is wary of delaying the individual mandate:
Delaying the individual mandate only in states with glitchy Web sites could, in a weird way, make the federal health-care coverage there a whole lot worse. Without the requirement to purchase coverage, fewer healthy people would likely sign up, and more sick people would flood the system. That, in turn, would likely lead to higher premiums next year in those states that are already having problems with HealthCare.gov. They would, after all, have to figure out a way to cover the costs of their very sick enrollees pool.
A slightly different option would be to extend the open enrollment period, as many investors already expect. The current period, which stretches from Oct. 1 through March 31, was set in Health and Human Services regulations. It doesn’t show up anywhere in the Affordable Care Act. Extending the open enrollment period would give people more time to enroll in coverage, but could still leave them vulnerable to at least part of the individual mandate penalty.
But extending the open enrollment period would, apparently, require action from Congress.