whims that have marred the roll-out of Obamacare’s subsidized
insurance exchanges, what happened on Thursday, December 12 will stand
as one of the most lawless acts yet committed by this administration.
The White House — having canceled Americans’ old health plans, and
having botched the system for enrolling people in new ones—knows that
millions of Americans will enter the New Year without health coverage.
So instead of actually fixing the problem, the administration is
retroactively attempting to force insurers to hand out free health
care — at a loss — to those whom the White House has rendered
uninsured. If Obamacare wasn’t a government takeover of the health
insurance industry, then what is it now?
On Wednesday afternoon, health policy reporters found in their inboxes
a friendly e-mail from the U.S. Department of Health and Human
Services, announcing, “Steps to ensure Americans signing up through
the Marketplace have coverage and access to the care they need on
January 1. Basically, the “steps” involve muscling insurers to provide
free or discounted care to those who have become uninsured because of
the problems with healthcare.gov. HHS threatens to throw non-complying
plans off the exchanges HHS assured reporters that it would be “urging
issuers to give consumers additional time to pay their first month’s
premium and still have coverage beginning January 1, 2014.” In other
words, urging them to offer free care to those who haven’t paid. This
is a problem because the government has yet to build the system that
allows people who’ve signed up for plans to actually pay for them.
“One client reports only 15 percent [of applicants] have paid so far,”
Bob Laszewski told Charles Ornstein. “So far I’m hearing from health
plans that around 5 percent and 10 percent of consumers who have made
it through the data transfer gauntlet have paid first month’s premium
and therefore truly enrolled,” said Kip Piper.
“What’s wrong with ‘urging’ insurers to offer free care?” you might
ask. “That’s not the same as forcing them to offer free care.” Except
that the government is using the full force of its regulatory powers,
under Obamacare, to threaten insurers if they don’t comply. All you
have to do is read the menacing language in the new regulations that
HHS published this week, in which HHS says it may throw otherwise
qualified health plans off of the exchanges next year if they don’t
comply with the government’s “requests.”
“We are considering factoring into the [qualified health plan] renewal
process, as part of the determination regarding whether making a
health plan available… how [insurers] ensure continuity of care
during transitions,” they write. Which is kind of like the Mafia
saying that it will “consider” the amount of protection money you’ve
paid in its decision as to whether or not it vandalizes your
There are other services HHS is asking insurers to offer for free. The
administration is “strongly encouraging insurers to treat
out-of-network providers” — i.e., costly ones—“as in-network to ensure
continuity of care” and to “refill prescriptions covered under
previous plans during January.” But the issue of unpaid premiums looms
It’s unconstitutional to force insurers to cover people for free. The
administration could pay insurers to cover up for its mistakes. But
that would lead to criticism—as it has in other instances—that the
White House is lawlessly throwing taxpayer money at insurers to, well,
cover up for its mistakes. So, instead, they’re asking insurers to pay
for the mistakes. But, of course, the cost of paying for those
mistakes won’t end up being paid by insurers, but by consumers, in the
form of higher premiums.
In theory, the Obama administration’s actions aren’t merely illegal —
they’re unconstitutional. The Fifth Amendment of the Bill of Rights
says that no one can “be deprived of life, liberty or property,
without due process of law; nor shall private property be taken for
public use, without just compensation.” But it will be up to insurers
to sue to protect their rights. Like battered wives, they are unlikely
to do so. Companies like Aetna and Humana are so terrified that the
administration will run them out of business that they are more likely
to do what they’re told, and quietly pass the costs on to consumers.
The chaos and recriminations have made insurers like UnitedHealth, who
have largely stayed out of the exchanges, look smart.
In 2010, PolitiFact said that the claim that Obamacare was a
“government takeover of health care” was its “lie of the year.” The
Federal Register disagrees.