By William Patrick | Florida Watchdog
TALLAHASSEE, Fla. — Under the Affordable Care Act, Larry Kawa is a victim of his own success.
After graduating from New York University in 1993, Kawa headed south to Boca Raton where he hung out a shingle and started a dental practice from scratch.
Fast forward 20 years and his venture specializing in children’s braces and wisdom teeth extractions has grown into a successful local business generating more than 50 jobs.
In an odd way, that’s the problem. Crossing the 50 employee mark puts Kawa Orthodontics on the receiving end of the federal health law’s more burdensome business regulations.
“We have a terrific staff with high morale,” Kawa told Watchdog.org. “But we employ over 50 full-time employees which means the (Obamacare) employer mandate does affect our business significantly.”
Under the law, businesses surpassing the 50 employee threshold are required to provide certain levels of insurance coverage as determined by the government. If an employer falls short, a penalty of $2,000 per employee is levied against the business.
But that’s not why Kawa decided to sue the federal government.
In October, he threw down the gauntlet for a different reason: to stop the arbitrary changes to the health law that are costing his business valuable time and money.
When the Obama administration decided to delay the employer mandate earlier this year, Kawa filed suit alleging the administration was acting outside of its constitutional authority. Only Congress can make or change laws.
“Whether you agree with the law or not,” he said, “it’s a law. It’s not a suggestion.”
The government responded last week saying the orthodontist has no standing to sue.
“The government did not require (Kawa Orthodontics) to hire lawyers or consultants or to take any other action in preparation of the law’s enforcement,” states the administration’s response motion that claims Kawa has suffered no harm whatsoever.
Kawa vigorously disagrees. He told Watchdog.org he spent $5,000 in attorneys’ fees in March to have his business vetted and ensure he was in compliance with the employer mandate, only to see it delayed until 2015.
“That might not sound like a lot to some, but it’s a lot to us,” he said. “Not only was that money wasted, but we’re going to have to spend money again and again each time the rules change.”
Kawa said he spent about 100 hours learning about the law himself, on top of meeting with his attorneys, insurance agents and accountant. “It’s all about the changing implications of the law and how it impacts my business,” he said. “It’s not just about the $5,000.”
With the help of Judicial Watch, a conservative legal organization, Kawa is seeking a declaratory judgment stating the administrative fix was unlawful. He also wants to stop the mandate’s delay, a counter-intuitive request from the perspective of ACA opponents.
It’s about restoring constitutional checks and balances, said Tom Fitton, president of Judicial Watch.
“Even if they don’t like their own law, it needs to be changed through legislation,” Fitton told Watchdog.org. “The president cannot rewrite the law on his own.”
The administration denies any wrongdoing.
“It is preposterous to suggest that a delay in the implementation of a provision within a law is anything unusual,” White House press secretary Jay Carney told reporters after the delay was announced. “I have several examples here I could provide to you, and numerous more could be provided to you, and they happened under previous administrations and this one.”
Kawa is unpersuaded. Other administrations, he said, haven’t placed this level of burden on his business.
“The first sentence of Section 1513 of the Affordable Care Act — the section that applies to the employer mandate — says 1513 will amend Section 43 of the Internal Revenue Service code of 1986,” he said. “That’s overwhelming.”
“I would have never been able to get my business as successful as it is today had the laws been this fluid,” he said.
On Friday, Kawa filed a response to the government’s attempt to have his case thrown out. The administration has until the end of the month to respond.
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