Let's Fix This Country
healthcare

Is Time Running Out for Obamacare? »

There's too much sand in its gears Oct 29 2016

The Affordable Care Act — ACA for short — is an intricate watchwork of mutually dependent parts, but a key part has proved to be in short supply. For the
mechanism to work, 35% of participants must come from the 18- to 34-year-old demographic. Currently, only 28% have signed on.

The absence of that group, profitable for insurers for its lack of health problems, has skewed policy buyers toward the older, who tend to have more costly ailments. Covering their care is what is forcing insurers to raise premium prices significantly in 2017. That could force out the healthier, who decide to chance it, leading insurers to boost their pricing further to cover the sick who remain. The cycle then repeats.

This is the "death spiral" that conservatives predicted and now gleefully believe is sending Obamacare crashing to earth, a scenario that we said was happening eight months ago in "Obamacare Is Heading for Collapse".

Insurers in 41 states reported losses as one after another major company dropped out. Across 2014 and 2015, Blue Cross Blue Shield of North Carolina lost $400 million and United Healthcare nearly $1 billion. Many states are down to a single provider, ending any hope of competitive pricing for 19% of all healthcare customers. When its rate hike was turned down by the state, Alaska's sole provider threatened to quit, forcing a $55 million bailout from the state taxpayers. The only providers reporting profits are those that offer bare-bones coverage, which bring deductibles of $5,000 or more and narrow lists of doctors and hospitals that patients must use.

Another intricate mechanism of the ACA — it expires after 2017 once insurers no longer need training wheels — calls for profitable companies to share with insurers posting losses. But it has proved useless, given that none have made anywhere near enough profit to counter the huge losses of others.

self-inflicted

From the outset, the Obama administration took steps that would undercut the success of its own plan by paying little heed to essential funding needs. Companies with over 50 employees were required under the Act to pay for insurance for their full-time workers or pay fines, but right off, the White House issued waivers to several hundred companies, seemingly any who asked, cutting off revenue needed by insurers to pay for the sick who rushed to buy insurance previously denied them. This mandate was then postponed a year, then another year for companies with 50 to 100 employees, then made applicable only to companies with over 100. And a tax that insurance companies were to pay for the added business Obamacare delivered was delayed.

But by far the most damaging have been the "special enrollment" periods the administration created to inflate the insured count. People suddenly finding themselves ill could sign up outside the November-January window, receive treatment, then stop paying their premiums — cheating that made for outsized losses for insurers. Blue Cross Blue Shield says “individuals enrolled through special enrollment periods are utilizing up to 55 percent more services than their open enrollment counterparts.”

no shows

The Obama administration forecast that 20 million would sign up this year. About 12.7 million did, and dropouts will probably reduce that to 10 million still paying by year end. Despite the diminished ranks of insurers and soaring premiums — which officials just acknowledged would rise 22% to 25% for midlevel benchmark plans in 2017 — the Health and Human Services Department puts on a brave face and projects a 9% enrollment increase for 2017. They say that 72% will still be able to find a plan for $75 a month after subsidies at HealthCare.gov.

The averages cited mask huge increases in certain states: 32.5% in Pennsylvania, 51% for Blue Cross Blue Shield in Arizona, 50% to 67% in Minnesota to stave off collapse of its exchange, and in Tennessee 62% for BlueCross BlueShield, 46% for Cigna and 44% for Humana.

For a 21 year old, the average cost in 2016 was supposedly $200 a month, or $2,400 a year (says this source), rising to $244 at age 35 — over $2,900. Failure to sign up means at tax time a minimum penalty of $695 — or 2.5% of adjusted gross income beyond $27,800. The high deductibles for the minimal plans tell them that they'll get nothing for their money. So they "do the math" and opt out. Some have attitude, judging from a millennial given Wall Street Journal op-ed space to complain about the IRS using "confidential taxpayer information" to send him a heads-up. He wants an explanation "how this doesn’t cross an ethical line" when the IRS uses data he has supplied to warn him of penalties should he not opt in for insurance. Others don't get the point. A 27-year-old free lance worker from Brooklyn interviewed on the PBS NewsHour said, "The chances of me really taking advantage of the plan are very low, I think. I don't have any chronic health issues". The older can be no wiser. A 45-year-old engineer from Sulphur Springs, Texas, who faced a penalty of $1,800 owing to his income, passed up a year of insurance that would have cost just $1,100 more than the penalty. All he has to do is stay healthy, he said to The New York Times. Their outlook was a bit like saying, "Why do I need life insurance? I didn't die this year".

Another problem for Obamacare has been the surprise that few businesses have ended coverage for their employees. The plan expected that employers would gladly shed the cost and responsibility now that there are exchanges for individuals to buy insurance. That this didn't happen made for another sizable body of missing customers that insurers were counting on to offset the sicker applicants the law forbids them from turning away.

And a major blow, of course, was the Supreme Court ruling that the federal government cannot force the states to accept Obamacare's Medicaid mandate. That opened the door for 19 states with Republican governors to refuse the deal the government offered. Washington stands ready to pay 100% for coverage of Medicaid enrollees in Obamacare for three years, and 90% of the cost thereafter. The governors say they are uncertain how they'll be able to pay that 10% when that day comes. So they turn down a bargain of 90% off. Exercising their ideological purity harms some 5 million citizens of their own states and has meant another huge block not showing up to fortify insurance company coffers to pay for the onslaught of the most ill.

on the left

A Hillary Clinton victory would have to be accompanied by Democratic takeovers in the House and a filibuster proof margin in the Senate for her to have the legislative power to fix the ACA. Without that more than unlikely scenario, she will be hamstrung. Republicans have since its inception wanted to destroy Obamacare. They have refused to administer any remedies, intent on watching Obama's "signature achievement" wither and die from its congenital defects.

Conservatives see a conspiracy afoot, with Obama again calling for the fix of a "public option" whereby the government enters the exchanges so that a state at least has that alternative if insurers defect. "It’s like a trojan horse for a single payer system that has windows so you can actually see the troops inside", says Seth Chandler, a law professor at the University of Houston, quoted in Forbes.

on the right

Donald Trump could fare better if control of both houses of Congress is retained by Republicans. The Affordable Care Act was passed in a process called reconciliation, reserved only for financial bills and not subject to filibuster. A repeal bill could be sent to President Trump's desk under that same reconciliation rule, requiring only simple majority votes in both houses.

But how would that be greeted? The majority of Americans have always been against the healthcare act. It makes them buy something they can ill afford or think they can do without. The free-riders whose insurance is largely or entirely paid by employers don't like the subsidies to others that they think are paid from their tax dollars. But now, some 14 million people in Obamacare’s expanded Medicaid coverage and 10 million people through the ACA exchanges have health insurance they may have never had before. There is bound to be backlash if a Trump government yanks that away. Republicans will need to tread more carefully than they now think.

Trump has adopted the Republican mantra of "repeal and replace", to which he'd probably never given a thought before deciding to run for the highest office, witness his plan to replace spelled out only as "something wonderful".

In the six and a half years since the ACA was signed, Republicans have fulfilled half of their "repeal and replace" mantra with 60-or-so pointless repeal votes (only one of which was sent to Obama for veto last January) but have developed close to nothing to fulfill the "replace" half. A sketchy outline by House Speaker Paul Ryan put forth in June comes closest. It would end the mandate requiring people to buy insurance, substituting it with a tax credit, an inducement that people can ignore at no cost compared to the current penalties, so it is unclear how that would be effective. The credit would replace the subsidies. The ban on insurers discriminating against people with preexisting conditions would continue — but only for those who maintain continuous coverage. Beyond that, the GOP proposal is fuzzy: expanded Medicaid is not mentioned. There are no financial projections, perhaps out of awareness that the cost outcome would be far worse than Obamacare.

Because something must be done, and rapidly, doesn't mean that anything will be done. As time passes Herb Stein's maxim — he was chairman of the Council of Economic Advisers under Nixon and Ford — comes to mind: "If something cannot go on forever, it will stop."

healthcare

Obamacare Is Heading for Collapse »

Feb 1 2016

Like a house of cards, where every pasteboard is dependent on others, the Affordable Care Act is destined to topple. Too many ill winds are merging into the perfect storm that will blow this house down.

The foundation on which all else would rest was to have been participation by the young and healthy. Their buying into the plan would support the care of the older with their costly illnesses. But the young are not showing up. Their enrollment showed a sudden spurt in late December, but the uninsured Estimated Enrollment Slashed: February 1: True to prediction, the Congressional Budget Office just cut its estimate of the number expected to be enrolled in the health exchanges by year end from… Read More »

healthcare

The Affordable Care Act, One Year Later »

Time for a report card Oct 9 2014

By October 1 the exchanges of the Affordable Care Act (ACA) have been operating for a year, following their disastrous debut, which prompts an assessment how the furiously controversial health insurance program is doing. The reckoning? There's seismic rumbling subsurface, but what was once expected to be the biggest issue in the coming election is instead hardly mentioned. A recent Kaiser Family Foundation poll found that only 3% of Republicans and 2% of Democrats thought Obamacare was the biggest problem facing the nation. Immigration, the economy and now the "network of death", as President Obama calls it, have surged to… Read More »

healthcare

Obamacare: Is It Here to Stay? »

For the answer, follow the money Mar 28 2014

Big money conservatives are slated to spend record millions to effect a complete Republican takeover, first the Senate this year (the House is a given), then the presidency in 2016. For now, their primary weapon is an endless tirade against Obamacare, and it works — as just seen in the Florida special election for a vacant House seat that went to a Republican.

Debunking hard luck stories of people who tell of their Obamacare horror stories in television commmercials funded by organizations such as the Koch-brothers' Americans for Prosperity have provided high sport for those journalists with the energy to track them down. Best known is Julie Boonstra of Michigan, a leukemia sufferer who says in a commercial that her treatment has become "unaffordable" and the Affordable Care Act has "jeopardized" her health. But The Washington Post followed up and found that Obamacare provided cheaper coverage for her continued treatment and with her same doctor. The Los Angeles Times recounts a number of such stories and says "virtually every yarn promoted by Republicans or conservatives about people hurt by the Affordable Care Act has deflated like a pricked balloon on the merest examination".

adhocable care act

President Obama has treated the Affordable Care Act as his personal license to do with as he pleases, issuing one after another decree to waive this or postpone that to make the healthcare law work, which has outraged Republicans. And we’ve yet to see a tally of what all this will cost.

Enrollment is falling well short of the target thanks largely to its disastrous launch in October at the hands of government techni-klutzes and less than hoped for enrollment by the millennial generation since. Five months after, 4.2 million had bought plans by the close of February compared to the goal of 7.1 million hoped for by the end-March sign-up deadline.

Conservatives’ biggest hope is that Obamacare will collapse of its own weight, that too few among the young will sign up causing dropout from soaring premiums for the rest, that Obama’s waivers will beggar the plan’s income stream. Marco Rubio wants to sabotage the law by blocking “risk corridor” payments whereby insurers are reimbursed by the government if their costs outrun revenue. That guarantee was a surprise item in a law that famously no one read.

But getting rid of Obamacare by other means is another matter. Its use in the election campaigns has no purpose other than to infuriate a public enough so that they check the boxes or pull the levers in the Republican column. To remind you of the obvious, even with total control of both houses of Congress, a vote to repeal would not surmount a Democratic filibuster in the Senate. And even if it could, it would — until January 2017, anyway — face Obama’s veto.

But even looking beyond, Obamacare is a done deal. Gradually, it could become well-liked. But even if not, even if it continues to score low in public opinion polls for years to come, a conservative move to scuttle the law would see a huge public uprising for the simple reason that they do not want to go through this upheaval all over again.

markets tell the story

What does the smart money have to say? An outfit called Motif Investing offers funds built around trends in the marketplace. It assembles baskets of up to 30 stocks per fund with each limited to a single concept: the future of caffeinated drinks is one fund, companies in 3D printing is another, Chinese solar a third, and so on.

Well, one of the funds is made up of stocks thought to do well if Obamacare succeeds. As reported by Bloomberg/BusinessWeek, it is made up of hospitals, generic drug makers, pharmacy-benefit managers, companies specializing in electronic medical records, etc. — all of which will see money flow from Obamacare.

Repeal Obamacare is another Motif fund. It is comprised of medical device makers who would see Obamacare’s 2.3% excise tax go away, assisted living businesses whose reduced payment schedule under Obamacare would rise again, and so forth.

How have the funds done so far? In the past 12 months Repeal Obamacare has posted a 13.8% return. The value of what we’ll call Success Obamacare has risen 46.9%.

But that’s less than half the story. What is startling is that 45 times more money has been placed in the Success fund than in the Repeal fund.

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healthcare

Day One: Kneecapping the Affordable Care Act »

Jan 27 2017

On his first full day in the White House, Donald Trump signed an executive order that effectively told all federal agencies to be lax on enforcing provisions of the Affordable Care Act, colloquially known as ObamaCare. That could lead to expanded waivers as tax time nears, reducing the number of people required to pay penalties for not buying insurance. It could mean the health department tipping off insurers that it won't object to lessening coverage provisions in their policies to reduce costs. By law, those waivers can be applied for only in certain periods during the year, and minimum coverage features are baked into the Act, but will agencies reading the order's vigorous instruction to act “to the maximum extent permitted by law” simply look the other way?

Perhaps it was only a gesture by Trump to prove to his following that he will deliver on his promise “to minimize the unwarranted economic and regulatory burdens”, as his order says, on the road to dismantling Obama's major achievement. But given language that is more than a suggestion, telling them to “waive, defer, grant ¬exemptions from or delay”, the agencies may think they had better take action or have to answer to Trump why they did not.

What if, while Republicans scramble to come up with a replacement to substitute for repeal (see related story), the Justice Department takes Trump's order to mean it should drop its defense against the House of Representatives suit against the government that says the subsidies are illegal? The health act provides subsidies to help people buy insurance, but the House never appropriated the money. The suit argues that funds meant for other purposes were misappropriated. The subsidies continue pending appeal, but if Justice drops its appeal, Obamacare's insurance market is sure to collapse.

This intemperate and unnecessary move by the President before any substitute has even been formulated could lead to serious erosion or even destruction of the healthcare act just when the new administration needs to assure the millions now benefiting from insurance that it is not going to be taken away. Instead, Mr. Trump seems to have a preference for chaos.

healthcare

Religious Exemption Cases Come Out of the Woodwork »

Suing for exemption from Obamacare contraceptive coverage Apr 10 2016

The Supreme Court at the end of March heard seven petitions clustered under Zubik v. Burwell arguing that employers should not be required against their religious principles to facilitate even indirectly contraception for their employees as required of insurance plans by the Affordable Care Act.

Their suits are a follow-on from the Court's decision in favor of the Hobby Lobby corporation, which gave a closely-held family-owned business a special exemption from paying for insurance that includes contraceptives. Doing so, went the plaintiffs argument, offended the religious sensitivities of the corporation. You read that correctly.

Justice Elena Kagan foretold the ruling would bring religious objectors “out of the woodwork”, and here they are — just a fraction, says one… Read More »

healthcare

What’s Paying the Bills for Obamacare? »

It's money that matters Jan 22 2016

The Affordable Care Act depends on taxes and penalties to pay for the subsidies that help low-income individuals and families buy insurance. But the administration has repeatedly been cavalier about money.

Companies with over 50 employees are required under the Act to pay for insurance for their full-time workers or pay a fine of at least $2,000 and as much as $3,000 per employee. Yet right off, and out of compliance with the ACA statute, the White House issued waivers to several hundred companies — seemingly anyone who asked. Then the employer mandate was postponed for a year to 2015, then postponed another year for companies with 50 to 99 employees, and just recently… Read More »

healthcare

Supreme Court About to Decide Fate of Obamacare »

Will seven words trump the rest of the text? Jun 21 2015

Should the government be barred from paying subsidies to persons buying health insurance because seven words in the 602-page Affordable Care Act fail to Court OKs Subsidies: June 25: In exactly the 6-3 split that the adjacent article forecast, the Supreme Court has validated the federal government's paying subsidies to those who sign up on the federal exchanges. The justices' logic matches what we set forth here.
    

mention federal exchanges? Or do other sections of the statute show that phrase to be only a lapse in wording?

So argue the briefs before the Supreme Court in King v. Burwell, the long-awaited case that could cripple Obamacare. The Supreme Court is expected to render its verdict as soon as this Friday.

THE FINE PRINT

For the 34 states unwilling to mount their own exchange, the Affordable Care Act (ACA) provides for the federal government to establish and manage an exchange in their behalf. The text then says that subsidies are to be granted to low-income people who sign up for insurance "through an Exchange established by the State". Missing is any explicit wording that says the federal government is also authorized to pay subsidies to persons who sign up on the exchanges it runs.

A drafting error, say those who insist the mission is the same no matter who administers the exchanges. The obvious intent is for all Americans to be treated equally.

A decision that prohibits the federal government from issuing subsidies to those who signed up on the exchanges it runs would sink Obamacare, which is precisely the objective of the group that searched the Act for an Achilles heel, found those seven words, and sued the government. If denied those subsidies, an estimated eight million could no longer afford the insurance, with only the sickest paying no matter the cost, meaning the insurers will need to spiral premium costs upward to pay for the care of these most expensive policy holders, and that will drive still more people into the uninsured column. This is the downward "death spiral" that the petitioners hope will kill Obamacare.

REACHING FOR IT

It was highly unusual and suspect that the Supreme Court reached for King v. Burwell, in which the 4th Circuit Court of Appeals in Virginia had approved the federal payment of subsidies. There had been no split rulings at the circuit level to cause the highest court to step in.

In a second challenge to the federal subsidies, Halbig v. Burwell, a three-judge panel of the Washington D.C. Circuit Court of Appeals had reached the opposite decision, ruling that the federal-run exchanges could not pay subsidies because of the seven words. But that court had vacated its own ruling, deciding that the case should be heard en banc, that is, by all the judges of that court.

That left King as the only ruling out there when the Supreme Court jumped the line, taking King for itself and thus aborting the D.C. court's review of Halbig.

What was that about? Were the conservative justices wary that seven of D.C.'s eleven judges were appointed by Democratic presidents and might be disposed to rule in favor of the subsidies? If both cases were decided for the administration, the Supreme Court would have no justification to intervene.

This has happened before. It is a reminder of a similar moment when the justices reached well beyond a complaint about a corporate-funded political movie brought by the conservative advocacy organization Citizens United in order to advance a political agenda of unlimited campaign spending by corporations and unions. It's hard not to suspect that the conservative justices again reached for a case because they wanted another crack at Obamacare.

THE CHALLENGE

The King brief relies on the seven words in isolation, in proving that they were deliberate, that the federal government was to be denied issuing subsidies. The intent was to force states to set up their own exchanges.

The brief uses as evidence newspaper articles such as The New York Times saying in 2012 that “lawmakers assumed that every state would set up its own exchange” because “political reality” would deter them from turning down “billions” of free federal dollars. The brief cites Jonathan Gruber, an MIT professor and heavily paid consultant involved in crafting the healthcare bill, who had popped up in videos calling Americans "stupid" for not figuring out that the young and healthy insurance buyers would be paying for the old and sick, but relative to this case had said,

“If you’re a state and you don’t set up an Exchange, that means your citizens don’t get their tax credits.… I hope that that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these Exchanges, and that they’ll do it.”

Plaintiffs argue that it is not exceptional for the government to bestow its largesse only in return for states complying with a federal requirement; one need look no further than Medicaid within the Affordable Care Act itself. The states get 100% funding to cover new applicants for three years, but only if they expand the number of recipients.

Gruber notwithstanding, King's contention that Congress deliberately attempted to coerce the states finds no corroboration from anyone in Congress. If denying subsidies to any state that failed to set up its own exchange had been the expressed intent, would we not have heard of furious arguments in Congress as the bill was formed and debated? Yet there was none. Jeffrey Toobin at the New Yorker says there were 53 meetings of the Senate Finance Committee, seven days of committee debate on amendments, and 25 consecutive days spent by the full Senate on the bill — "the second-longest session ever on a single piece of legislation" — with "similar marathons in the House". Yet in all those deliberations there was no uproar because no one proposed that the subsidies were to be available only on the state exchanges.

THE DEFENSE

The government argues that, given the Court's own prior pronouncements, the full text of a statute must be taken into consideration — so-called "textualism". “When we look at a provision of law, we look at the entire provision of the law," said Justice Antonin Scalia early this year. “We try to make sense of the law as a whole”. Briefs cite his quotes as well as his emphasis on textualism in books he authored. "The interpretation of a law should do least violence to the text”, Scalia has written. In a post on SCOTUSblog, Yale Law School Professor Abbe Gluck said the "textualists" on the Court like Scalia "have spent three decades convincing judges of all political stripes" to adopt holistic readings of the law, giving priority to the full text. Says one brief, "Textualism demands that judges take seriously the statutory design (as gathered from the text) and avoid interpretations that would render the statute unworkable".

The government points to several places in the law that contradict the seven words with wording that assumes the federal government will be paying subsidies. Examples:

The same section that purportedly limits subsidies to states that create their own exchanges calls for both state and government exchanges to provide the IRS with the information it needs to administer the subsidies (they take the form of tax credits). Why would the government exchanges be required to provide that information if none of its customers are eligible for such credits?

The government contends that an exchange it creates for a state is "established by the state", with the government acting in its behalf. Section 1321 prescribes that Health and Human Services “shall...establish and operate such Exchange within the State”. That wording treats the federal exchanges not as federal but as surrogate state exchanges.

Other sections concerning state exchanges make no separate mention of parallel federal exchanges, implying that the Act considers them to be one and the same and that subsidies are therefore intended for both.

Section 1312(f) stipulates that only a person who “resides in the State that established the Exchange” can purchase on an exchange. If a federal exchange established for a state is not considered a state exchange, then that state can have no customers, says this rule. The clear intention is that all such exchanges are considered by the Act as state exchanges and therefore eligible for subsidies.

Three times in the Act, "Exchange" is defined as being a state exchange, the point being that there is no federal exchange, only subsidy-eligible state exchanges run by the federal government.

It was the IRS that decided federal exchange clients would be eligible for subsidies. It is traditional that the interpretation by the agency of government charged with administering a law is given deference — the "Chevron" principle, named for an earlier precedent — one argument the government makes. The petitioners against the federal subsidies argue that the IRS does not have the authority to make so sweeping a revision of so major a statute.

TRICKING THE STATES

The seven words occur in a section of the Act that spells out — in the tangled language familiar to do-it-yourself 1040 filers (e.g., "the amount equal to the lesser of" and "the excess, if any, of") — the rules for who is entitled to a subsidy and how much. Briefs for the government raise a twofold question: first, why would a restriction of such enormity be buried in the formulas of an ancillary, nuts-and-bolts sub-section; and second, why would Congress knowingly build in a provision that has the power to sabotage its own law?

One of the briefs in support of the government was filed by 23 state attorneys from a mix of red and blue states that says the challengers' position would “violate basic principles of cooperative federalism by surprising the states with a dramatic hidden consequence of their exchange election”. The brief assumes that each of the 34 states that elected not to set up an exchange must have deliberated their options, so would they all have decided to let the government run their exchange had they realized that subsidies would be denied to their people? "Nothing in the ACA provided clear notice of that risk", which is a principle of cooperative federalism. "Retroactively imposing such a new condition now would upend the bargain the states thought they had struck”, says the brief.

SWING VOTE

In the March hearing, Justice Anthony Kennedy, the crucial swing vote on the otherwise ideologically polarized court, had something else on his mind. King may only be a case of statutory interpretation, but wouldn't there be constitutional issues if the Court ruled that subsidies were only available to residents of a state that had set up its own exchange? Doesn't that effectively and unconstitutionally coerce the states to fall in line, Kennedy asked, because accepting so severe a penalty on its citizens would not be a “rational choice for a state to make". And how to justify denying them insurance subsidies that other Americans would get? “There is a serious constitutional problem here if we adopt your position,” Kennedy said to Michael Carvin, representing the plaintiffs. That gave hope to those who want Obamacare to go forward undisturbed.

This factors into our prediction at the conclusion of the other article on the subject, for which see "If the Supreme Court Eviscerates Obamacare, Then What?". But one is left to wonder whether the justices actually read the briefs, some of their questions being seemingly superficial. And do they consider the real world consequences of their actions, given that they are personally utterly unaffected. Samuel Alito contended in the hearing that, if the subsidies were denied, "going forward there would be no harm”.

Do any of them realize that, were they to lock onto seven words rather than the rest of the text, the disruption of millions losing their insurance after the disruption of gaining it would place the legitimacy of the Court at risk?

Finally, Jeffery Toobin's fitting observation: "The great Supreme Court cases turn on the majestic ambiguities embedded in the Constitution…. Instead of grandeur, there is a smallness about this lawsuit in every way except in the stakes riding on its outcome".

law

If the Supreme Court Eviscerates Obamacare, Then What? »

A look at the havoc the Supreme Court could wreak Jun 9 2015

Conservatives are elated by the prospect that the Supreme Court may later this month deal a crippling blow to the Affordable Care Act, otherwise known as Obamacare. Michael Greve, once chairman of the Competitive Enterprise Institute, which has funded the legal assault on the Act, put it this way: “This bastard has to be killed as a matter of political hygiene. I don’t care how this

Map shows who runs each
state's exchange. (click image to expand)

is done, whether it’s dismembered, whether we drive a stake through its heart, whether we tar and feather it and drive it out of town, whether we strangle it.”

King v. Burwell is the healthcare law challenge that rests entirely on four words in the 902-page Act — words that, if followed regardless of the rest of the statute, say that the subsidies that make health insurance affordable to the great majority of new policy holders can only be paid to those who buy insurance through an exchange "established by the State".

But 36 states didn't bother to set up insurance exchanges, leaving the chore to the federal government. If a majority of justices say that the four words predominate, that persons who bought insurance on the federal HealthCare.gov site are ineligible for subsidies, then policies are expected to become too expensive for 8 million very angry people come July, with more to join them as premiums soar out of control.

then what?

The President is probably already carrying around in his breast pocket a single-sentence fix for Congress immediately to pass. But passage would require a suddenly forgiving and charitable outlook from a House of Representatives that has voted over 50 times to repeal the healthcare act in its entirety, and a Senate ruled by a majority leader who has said, "I want to pull this law out, root and branch".

At times it seems that the black robes worn by the justices are more like burkas, shielding them from the actual world. How else could Justice Scalia have such faith in that Congress as to ask Solicitor General Donald Verrilli, who argued for the government in the March hearings, "You really think Congress is just going to sit there while all of these disastrous consequences ensue?". And Justice Alito assumed, "It's not too late for a state to establish an exchange" — in all 36 states evidently and in time for the Court's adverse ruling — "so there would be no harm going forward".

sitting on their hands

The Obama administration's attitude is that, if conservatives want to eviscerate the law, then it's for them to deal with the fallout. Sylvia Burwell, who as Secretary of Health and Human Services is the defendant in King v. Burwell, has said, "We know of no administrative actions that could, and therefore we have no plans that would, undo the massive damage …that would be caused" by a decision against the administration. Besides, were the administration to scurry about, positing solutions, it might work against them because it would say to the Supreme Court that there are viable alternatives, so go do your worst.

Twenty-five days is the traditionally expected time after a court ruling that it is to take effect. It is then that the government would have to stop sending tax credits to the insurance companies, which would begin billing policy holders the full cost. They are for the most part lower- to middle-income families, working part time or full. More than 80% receiving

Death Spiral Defined

As the estimated 8 million drop out of the insurance pool, those who stay in will tend to be the less healthy who need coverage. Insurers will have to raise their rates to pay for the care of these more costly people — one estimate says an increase of 35% in 2016 to begin with — and the higher rates will cause still more to drop away. The so-called "death spiral" is set in motion as the ever rising rates drive out still more policyholders leaving behind all but the sickest and most expensive, causing rates to rise further and still more abandoning insurance. Insurance companies finally pull out of the markets and the exchanges collapse.

"

subsidies fit this profile and for them an outsized medical cost would be devastating. Subsidies pay for an average of 72% of their insurance costs, according to administration officials, meaning that policy costs would almost quadruple if the Court shuts off subsidies. That would set in motion the feared "death spiral" [sidebar] that will collapse the Affordable Care Act.

That is, unless the administration adopts one imaginative strategy put forth by William Baude, an assistant professor of law at the University of Chicago: he suggests the administration "announce that it is complying with the Supreme Court’s judgment — but only with respect to the four plaintiffs who brought the suit". They do not represent anyone other than themselves. Pay them their minuscule damages and be done with it. It took some doing to line up these four. Who else would sue because they had been paid subsidies?

squeeze play

Ironically, it will be Republican governors who will experience the most acute pressure. It is they, holding the governorship in 37 states, who account for most of the 36 states that, in defiance of Obamacare, did not set up exchanges in their states.

The Obama camp will pressure them to do so now, or might devise a dodgy workaround for them to adopt their state's federal exchange as their own, so that it would become eligible to issue subsidies. If they go along, those governors can expect to be pilloried within their party for further embedding the Affordable Care Act. If they don't, they will face the wrath of their irate citizens who, as the consequence of no state exchange, will lose insurance that has become too costly without the subsidies, and face as well the disaster this will be for the insurance markets in their states when all those policies evaporate.

Foreseeing this outcome perhaps explains why 31 of those governors did not file amicus briefs with the Supreme Court urging a decision against the administration. A number did the opposite, asking the High Court to preserve the subsidies their residents get through HealthCare.gov. The Affordable Care Act's Medicaid expansion offers an example of what might be on the horizon. Since 2012 some 28 states have joined new Medicaid. Eight more are considering, even holdout Florida. If the same pattern emerges with states setting up insurance exchanges, Republicans will witness a slow-motion defeat.

replace and repeal

But Congress has other plans. Republicans will spring to action the moment the gavel comes down on a decision that forbids subsidies for insurance bought on federal exchanges. No end of bills await the moment, whether the one by Senators Richard Burr of North Carolina, Utah's Orrin Hatch and Representative Fred Upton of Michigan, or from freshman Senator Ben Sasse of Nebraska or by Ron Johnson, senator from Wisconsin, to select only three.

All plans would extend subsidies into 2017 to avoid voter repercussions of cutting them off before an election year. They would variously offer a permanent program of tax credits (the form that subsidies take) to help pay for insurance, scaled downward as income rises (Burr-Hatch-Upton); block new applicants from receiving subsidies but keep them flowing to current enrollees at current levels until August 2017 and then end them cold turkey (Johnson); or cut them to 65% of current levels and phase them out by 5% a month until they are extinguished (Sasse).

What all have in common is abolishing both the individual mandate that requires individuals to buy insurance or pay penalties, the mandate that requires employers of over 50 people to buy insurance for them, and the federally mandated minimal insurance plans. States would be freed to develop their own reduced criteria to make insurance more affordable. Insurers could compete across state borders.

But all would keep the Obamacare provisions that coverage include family members up to age 26, that insurers must accept applicants with pre-existing conditions, that insurers cannot cancel policies when subscribers fall ill. That led Paul Waldman of the The American Prospect to observe "something remarkable" on Washington Post online, that "for all the claims we'll hear about how it undoes the tyrannical horror of Obamacare, the Republicans’ version of health care reform" is "little more than Obamacare Lite…This tells us that Barack Obama has for all intents and purposes won the health-care argument".

None of the reform plans seem to confront the question of what happens to premiums for the rest if the healthy are free not to buy in. Perhaps inducing the death spiral is the unmentioned intent: eliminate the rules to undermine the tenuous structure crafted to make all the parts of the Affordable Care Act come together to work financially so that eventually the last vestiges of the Obamacare design collapse. Then, once a Republican president is installed come January 2017, with Republican control retained in both houses of Congress, what's left of the Affordable Care Act can finally be repealed.

What will work for the Republicans when these bills come up for a vote is that blame will shift to the President when he vetoes them. They preserve federal subsidies at least for a time and it will now be Obama who will have made insurance unaffordable by refusing any encroachment on his grand healthcare design.

But legislation may never reach that stage. Arch conservatives in groups such as the House Freedom Caucus with over 30 members, fronted by Jim Jordan (R-Oh), simply want the subsidies to end with no soft landing and will work to block passage in the House.

won't happen

But we'll go out on a limb and say that none of the above will happen, that the Supreme Court will vote 6 to 3 that subsidies may be paid to those who buy insurance through the federally managed exchange.

Three — Scalia, Alito and Thomas — will assuredly vote against the administration. Despite Scalia's lecture on the philosophy of "textualism" (see "Will the Supreme Court Cripple Obamacare?"), he and they will fasten on the four little words.

Four — Ginsburg, Breyer, Kagan and Sotomayor — will assuredly vote for the administration's position.

That leaves Kennedy and Roberts. Kennedy surprised listeners in the March hearings with his concerns that there may be constitutional issues in effectively coercing states to set up exchanges else see their citizens lose benefits that will be granted to other states that fall in line. It is hard to see how he can go back on that and explain away those concerns, so our guess is that he will side with the government.

Thus deadlocked at 4 and 4, how will Chief Justice Roberts vote? He might yearn to make amends with the conservative base after letting the individual mandate go forward, classifying it as a "tax", when he could have delivered a death blow to Obamacare, killing it in its crib.

But would he really be so blinkered as to lock onto four words in the text, ignoring the rest of the Act, several sections of which make clear that availability of subsidies for all who qualify economically was the intent? Is that cramped interpretation what he wants as the legacy of the Roberts court?

With the disastrous Citizens United decision already in his record, does he now want to author the chaos that will ensue if four words are allowed to disembowel the healthcare law? Or will he take note of what Judge Andre Davis said to the King attorney in oral arguments before the federal appeals court in Virginia that led to the Supreme Court taking up the case: “You are asking us to kick millions of Americans off health insurance just to save four people a few dollars?”

healthcare

Will the Supreme Court Cripple Obamacare? »

In the hearing March 4, justices displayed their usual partisan split Mar 10 2015

Should the government be barred from paying subsidies to persons buying health insurance because
seven words in the 602-page Affordable Care Act fail to mention federal exchanges? Or do other sections of the statute show that phrase to be only a lapse in wording?

So argued the briefs before the Supreme Court in King v. Burwell, the long-awaited case that could cripple Obamacare that was heard March 4th.

But as something of a surprise, Justice Anthony Kennedy, the crucial swing vote on the otherwise ideologically polarized court, had something else on his mind. King may only be a case of statutory interpretation, but wouldn't there be constitutional issues if the Court ruled that subsidies were only available to residents of a state that had set up its own exchange, Kennedy asked? Doesn't that effectively and unconstitutionally coerce the states to fall in line, because accepting so severe a penalty on its citizens would not be a “rational choice for a state to make". And how to justify denying them insurance subsidies that other Americans would get? “There is a serious constitutional problem here if we adopt your position,” Kennedy said to Michael Carvin, representing the plaintiffs.

If that gave hope to those who want Obamacare to go forward undisturbed, it needs to be mentioned that Kennedy also challenged Solicitor General Donald Verrilli, arguing for the administration.

the fine print

For states unwilling to mount their own exchange — 34 of them, as it has turned out — the Affordable Care Act (ACA) provides for the federal government to establish and manage an exchange in their behalf. The text then says that subsidies are to be granted to low-income people who sign up for insurance "through an Exchange established by the State" — the notorious seven words. Missing is any explicit wording that says the federal government is also authorized to pay subsidies to persons who sign up on the federally run exchanges

A drafting error, say those who insist the mission is the same no matter who administers the exchanges. The obvious intent is for all Americans to be treated equally.

A decision that prohibits the federal government from issuing subsidies to those who signed up on the exchanges it runs would sink Obamacare, which is precisely the objective of the group that searched the Act for an Achilles heel, found those seven words, and sued the government. If denied those subsidies, an estimated seven million could no longer afford the insurance, with only the sickest paying no matter the cost, meaning the insurers will need to spiral premium costs upward to pay for the care of these most expensive policy holders, and that will drive still more people into the uninsured column. This is the downward "death spiral" that the petitioners hope will kill Obamacare.

reaching for it

It was highly unusual and suspect that the Supreme Court reached for King v. Burwell, in which the 4th Circuit Court of Appeals in Virginia had approved the federal payment of subsidies. There had been no split rulings at the circuit level to cause the highest court to step in.

There had been. In a second challenge to the federal subsidies, Halbig v. Burwell, a three-judge panel of the Washington D.C. Circuit Court of Appeals had reached the opposite decision, ruling that the federal-run exchanges could not pay subsidies because of the seven words. But that court had vacated its own ruling, deciding that the case should be heard en banc, that is, by all the judges of that court.

That left King as the only ruling out there when the Supreme Court jumped the line, taking King for itself and thus aborting the D.C. court's review of Halbig.

What was that about? Were the conservative justices wary that seven of D.C.'s eleven judges were appointed by Democratic presidents and might be disposed to rule in favor of the subsidies? If both cases were decided for the administration, the Supreme Court would have no justification to intervene.

This has happened before. It is a reminder of a similar moment when the justices reached well beyond a complaint about a corporate-funded political movie brought by the conservative advocacy organization Citizens United in order to advance a political agenda of unlimited campaign spending by corporations and unions. It's hard not to suspect that the conservative justices again reached for a case because they wanted another crack at Obamacare.

the challenge

The King brief relies on the seven words in isolation, in proving that they were deliberate, that the federal government was to be denied issuing subsidies, and that adhering to those words does not render other sections of the act "absurd". The intent was to force states to set up their own exchanges.

The brief uses as evidence newspaper articles such as The New York Times saying in 2012 that “lawmakers assumed that every state would set up its own exchange” because “political reality” would deter them from turning down “billions” of free federal dollars. The brief cites Jonathan Gruber, an MIT professor and heavily paid consultant involved in crafting the healthcare bill, who had popped up in videos calling Americans "stupid" for not figuring out that the young and healthy insurance buyers would be paying for the old and sick, but relative to this case had said,

“[I]f you’re a state and you don’t set up an Exchange, that means your citizens don’t get their tax credits.… I hope that that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these Exchanges, and that they’ll do it.”

Plaintiffs argue that it is not exceptional for the government to bestow its largesse only in return for states complying with a federal requirement; one need look no further than Medicaid within the Affordable Care Act itself. The states get 100% funding to cover new applicants for three years, but only if they expand the number of recipients.

Gruber notwithstanding, King's contention that Congress deliberately attempted to coerce the states finds no corroboration from anyone in Congress. If denying subsidies to any state that failed to set up its own exchange had been the expressed intent, would we not have heard of furious argument in Congress as the bill was formed and debated? Yet there was none. Jeffrey Toobin at the New Yorker says there were 53 meetings of the Senate Finance Committee, seven days of committee debate on amendments, and 25 consecutive days spent by the full Senate on the bill — "the second-longest session ever on a single piece of legislation" — with "similar marathons in the House". Yet in all those deliberations there was no uproar because no one proposed that the subsidies were to be available only on the state exchanges.

the defense

The government argues that, given the Court's own prior pronouncements, the full text of a statute must be taken into consideration — so-called "textualism". “When we look at a provision of law, we look at the entire provision of the law," said Justice Antonin Scalia just two months ago. “We try to make sense of the law as a whole”. Justice Kennedy in a 2006 opinion had said that a particular provision of a law being reviewed was persuasive only "without the illumination of the rest of the statute". Briefs cite these quotes as well as Scalia's emphasis on textualism in books he had authored. "The interpretation of a law should do “least violence to the text”, Scalia has written. In a post on SCOTUSblog, Yale Law School Professor Abbe Gluck said the "textualists" on the Court like Scalia "have spent three decades convincing judges of all political stripes" to adopt holistic readings of the law, giving priority to the full text. Says one brief, "Textualism demands that judges take seriously the statutory design (as gathered from the text) and avoid interpretations that would render the statute unworkable".

The government points to several places in the law that contradict the seven words with wording that assumes the federal government will be paying subsidies. Examples:

 The same section that purportedly limits subsidies to states that create their own exchanges calls for both state and government exchanges to provide the IRS with the information it needs to administer the subsidies (they take the form of tax credits). Why would the government exchanges be required to provide that information if none of its customers are eligible for such credits in the first place?

 The government contends that an exchange it creates for a state is "established by the state", with the government acting in its behalf. Section 1321 prescribes that Health and Human Services “shall...establish and operate such Exchange within the State”. That wording treats the federal exchanges not as federal but as surrogate state exchanges.

 Other sections concerning state exchanges make no separate mention of parallel federal exchanges, which means that the Act considers them to be one and the same — and that subsidies are therefore intended for both.

 Section 1312(f) stipulates that only a person who “resides in the State that established the Exchange” can purchase on an exchange. If a federal exchange established for a state is not considered a state exchange, then it can have no customers, says this rule. The clear intention is that all such exchanges are considered by the Act as state exchanges and therefore eligible for subsidies.

 Three times in the Act, "Exchange" is defined as being a state exchange, the point being that there is no federal exchange, only subsidy-eligible state exchanges run by the federal government.

It is the IRS that promulgated the "rule" that the federal exchange clients would be eligible for subsidies. It is traditional that the interpretation by the agency of government that is charged with administering a law is given deference — the "Chevron" principle, named for an earlier precedent. The petitioners argue that the IRS does not have the authority to make so sweeping a revision of so major a statute — a valid point, but seemingly lost in the cascade of other arguments by both sides.

tricking the states

The seven words occur in a section of the Act that spells out — in language familiar to do-it-yourself 1040 filers such as "the amount equal to the lesser of" and "the excess (if any) of" — the rules for who is entitled to a subsidy and how much. Briefs for the government raise a twofold question: first, why would a restriction of such enormity be buried in the formulas of an ancillary, nuts-and-bolts sub-section; and second, why would Congress knowingly build in a provision that has the power to sabotage its own law?

One of the briefs in support of the government was filed by 23 state attorneys from a mix of red and blue states that says the challengers' position would “violate basic principles of cooperative federalism by surprising the states with a dramatic hidden consequence of their exchange election”. The brief assumes that each of the 34 states that elected not to set up an exchange must have deliberated their options, so would they all have decided to let the government run their exchange had they realized that subsidies would be denied their people? "Nothing in the ACA provided clear notice of that risk", which is a principle of cooperative federalism. "Retroactively imposing such a new condition now would upend the bargain the states thought they had struck”, says the brief.

outcome

But one is left to wonder whether the justices actually read the briefs, some of their questions being seemingly superficial. And do they consider the real world consequences of their actions, given that they are personally utterly unaffected. Samuel Alito contended in the hearing that, if the subsidies were denied, "going forward there would be no harm”.

Do any of them realize that, were they to lock onto seven words rather than the rest of the text, the disruption of millions losing their insurance and being wrenched about yet again would place the legitimacy of the Court at risk? Chief Justice Roberts was almost completely silent in the hearing, perhaps wondering what would be history's verdict for his Court were it to decide against the government.

Finally, Jeffery Toobin's fitting observation: "The great Supreme Court cases turn on the majestic ambiguities embedded in the Constitution…. Instead of grandeur, there is a smallness about this lawsuit in every way except in the stakes riding on its outcome".

healthcare

Will Supreme Court Kill Obamacare? »

An existential threat lurks in the wording of the law Sep 27 2014

Supremes Take the Case: Nov. 10: As we assumed, the Supreme Court will hear the controversial question of whether the government can offer subsidies to those using the federal exchange. The following article from September explains.
    

Lawsuits, four in total, are wending their way through the appeals system and one, or their composite, is sure to arrive on the steps of the Supreme Court. They are based on a flaw in the… Read More »

healthcare

Obamacare Heads for the Supreme Court — Again »

Do corporations have religious rights? Jan 1 2014

A flock of companies — 84 says the Wall Street Journal — have sued the government arguing that for religious reasons they should not be required by the Affordable Care Act to provide insurance to their employees that includes Sotomayor Issues Decree: Jan 1: The stay issued by the Supreme Court justice on New Year's Eve that temporarily relieved Catholic groups from having to provide insurance that pays for contraceptive aids shows where this case is headed. The White House has asked the Supreme Court to override this peremptory exemption from health care the law in a case yet to be decided.

coverage for contraceptives. The Supreme Court has agreed to hear a pair of such cases combined into one.

If the Court — six of whom are Catholic — decides in favor of these complaints, they will be effectively expanding on their ruling in Citizens United… Read More »

health care

Obamacare: a “Train Wreck” in for Repairs »

Nov 5 2013

Republicans called the Affordable Care Act a “train wreck” well before it left the station but the sputtering web engine has made it clear that Obama's administration doesn’t know how to run a railroad.

The website's dysfunction persists but the topic has shifted to the president's shiftiness in telling the public they will be able to keep the insurance plan they have and therefore their same doctors. As many as 10 million of the 15.4 million policies bought by individuals directly… Read More »

health care

Obama’s “Signature” Achievement May Have Signed Its Death Warrant »

Trouble beyond the easy fixes Oct 24 2013

Republicans have for weeks been calling the Affordable Care Act a “train wreck” well before it had even left the station but the sputtering October 1 debut made it clear that Obama doesn’t know how to run the railroad.

You’ve got to wonder, how could the President have paid so little attention to the status of what is endlessly called his “signature” achievement that he would say on the same day the government’s Internet insurance exchange crashed that people will be able to shop "the same way you'd order a plane ticket on Kayak or a TV on Amazon".


Instead, the insurance "marketplace" was let loose for the entire country to beta test, but Obama has "brought in some of the best IT experts from across the country" to deal with the emergency, says a White House e-mail, experts who should have been involved from the beginning. Almost three weeks after launch, Obama said in a Rose Garden appearance, "Nobody's madder than me about the fact that the website isn't working as well as it should, which means, it's gonna get fixed", as if the commander in chief can simply order millions of lines of code to rearrange themselves. Most predictions expect that repairs will take weeks. Our forecast is months, and that could bring Obamacare down.

famously aloof

Did Obama simply take the word of equally non-technical Health & Human Services (HHS) chief Kathleen Sebelius (a former governor) that “we’re on target”, as she said in a July interview after months of “projecting optimism and confidence”?


Sebelius would soon exhibit cluelessness of her own. A week after the government’s exchange opened, when asked by Jon Stewart on the Daily Show, "How many have signed up thus far?”, she answered, “Fully enrolled, I can’t tell you. I don’t know”. We are now told that in the months before the system would debut, she reportedly misallocated her time traveling the country to promote it, instead of constantly monitoring the progress of the hugely complex system, which could have headed off the disastrous launch. There are calls for madam secretary to resign, as the one ultimately responsible for the botched system, but Obama cannot allow that. Republicans in the Senate would block any nominee he put forward, leaving the department headless.

overflow

Fourteen states either couldn’t be bothered to roll their own system or preferred to undermine Obamacare by not cooperating, leaving the federal government to handle the exchanges for the rest of the states. Visions of deluge should have panicked the Obama administration. Ms Sebelius said that the website’s inability to handle the load would not have occurred “unless millions of people flooded the marketplace”. Surprise! There are millions in the 36 states. So there were 9.5 million visitors in the first week and 4.1 million in the second.

States were better prepared. New York dealt with about 2 million visits in its first 90 minutes; California recorded 5 million on opening day. The HHS secretary belatedly concluded, “We didn’t have enough testing, specifically for high volumes, for a very complicated project.” Ya think?

Months before, they could have found a hacker to launch a distributed denial-of-service attack to bombard the prototype exchange website with increasing loads of millions of logon to reveal at what point the system breaks. They would have discovered well in advance that another warehouse of servers was needed.

Actually, Secretary Sebelius did say that the system had been stress tested. They had set the bar at five times the highest volume that the Medicare.gov website had ever experienced. But Medicare’s universe is only a slice of the population, and when would millions of seniors have had cause to rush that mature system to make for a comparable peak day?

Capacity was only the first problem to surface. USA Today quoted several experts who found evidence of what they said looked like 10-year old web technology, although some of their expertise seems a bit ancient itself, as with one expert’s suggestion that, "If I was them [sic], and I'm just conjecturing, I would probably come up with some manual way of saying, 'Only people with the last name starting with 'A' can sign up today".

remember ‘user friendly’?

Once inside the system, applicants were forced to set up an account before they even decided whether or not they were customers. There was no ability to browse the offerings. That says there was no move to draw on the wealth of technical and marketing savvy of online sellers like Amazon, or to learn from Massachusetts' “Romneycare”, which could have told the system architects that people in that state went online 18 times before they bought insurance. People shop before they buy. At least that design flaw was quickly fixed.

coding confusion

Further in, applicants found a loosely coded site that lacked error checking. One could enter multiple spouses, could list spouses as children, could sign up for more than one plan, could even change someone else's data, could enroll more than once — which happened often when users repeatedly hit the “Submit” button in the unresponsive system.

Much of this is attributable to reports that government officials made constant changes requiring re-writing of code which foreshortened the time remaining for testing in the months leading to the October 1 deadline.

One consequence is flawed data being handed to the insurance companies that are “straining their ability to handle even the trickle of enrollees who have gotten through so far”. Insurers are finding they have to correct a high percentage of submissions manually and even hire temporary workers to phone applicants. They fear an inability to handle the load once the current trickle turns into a flood.

Their bigger worry is that if system problems cannot be rapidly corrected, only the sickest will persevere to buy insurance, whereas the young and healthy — whose participation is key to offsetting the cost of those with illnesses — will give it a try but not come back.

original sin

HHS let the principal contract to the U.S. arm of a Canadian company to create the system. The original bid was $55.7 million, with a cap of $94 million. But those numbers expanded grotesquely, evidencing how badly both the agency and the company underestimated the task before them. Ultimately, $394 million was spent, according to the Associated Press.

The government unaccountably failed to tap the best developers of Internet technology, instead contracting with a company that calls itself an “information technology and business process services firm”, which sounds more like a back office mainframe shop. The hundreds of millions spent on a flawed system bring to mind the decade-long $450 million FBI attempt to modernize its system. Was the HHS the victim of lowest bidder rules and made to chose the wrong supplier?

tangled web

When Congress creates laws, its members seem utterly unmindful and unconcerned for how those laws will be implemented. That is certainly the case with the Affordable Care Act, routinely spoken of as 2,200 pages that no one in Congress ever read (actually, that would be the double-spaced original; the law, as passed, runs to 906 pages and can be found here). Like tax law, it is larded with requirements, many of which are inconsequential, simply adding to complexity. Government departments and agencies are then left to deal with the mess.

Example enough was in a Wall Street Journal column that said, “The Government Accountability Office last year calculated that for the IRS alone, implementing ObamaCare would be a ‘massive undertaking that involves 47 different statutory provisions and extensive coordination’". There is exaggeration in saying that though, because as soon as a few facts are obtained from an applicant’s entries — income above a certain amount, for example — none of the more extensive checks concerning eligibility for subsidies need be made. Only a percentage of applicants need the full bore analysis.

What undoubtedly makes the system frighteningly complex is not the logic paths that the code must follow to gather its information, but the connections it must make. When the code knows at a certain point to reach out to a particular federal database, it may find that its target runs on a different and incompatible platform — a stumbling block that the industry calls “interoperability”. As the clock ticked, system designers had to coordinate with that agency or department to find a way into that database, and if lacking, wait for it to be developed. That external data fiefdom will have its own validating ID, password protocols and data format to work through. Worst of all, the target system may itself not have been engineered to handle heavy loads; there may be bottlenecks all over the network and, if so, they will take a long time to rework.

The need for such coordination, multiplied times the number of external contact points that could be needed for the universe of applicants, makes for a very tangled web. It is our guess that here lies the deeper problems that could take a very long time to straighten out, which is why we said months, not weeks. Our diagnosis was hinted at by one repair technician quoted in The New York Times who said, “the account creation and registration problems are masking the problems that will happen later".

healthcare

Obamacare: Repeal and Replace, But Replace with What? »

Nov 15 2016

Fulfilling the long held wishes of Republicans of all stripes and the more than half of Americans who dislike the program, President-elect Donald Trump will introduce legislation that "Fully repeals Obamacare and replaces it with Health Savings Accounts, the ability to purchase health insurance across state lines, and let states manage Medicaid funds", according to his "100-day action plan".

The complexities of what was hoped to be a solution to America's abysmal healthcare system were so great as to require an Affordable Care Act that ran to 906 page. Yet six years after passage of that act, the Republican healthcare replacement plan amounts to little more in detail than the outtake you just read in the first paragraph.

House Speaker Paul Ryan, who doubles as the that body's economics guru, issued what is putatively the official Republican take on the subject in June. There would of course be… Read More »

healthcare

With Ebola Raging in Africa, Why Risk Bringing It Here? »

Oct 24 2014

Incredibly, even the Ebola scare became political no sooner than it arrived in Dallas. Republicans began arguing for travel bans, Democrats for open borders,
the President hesitant.

"I don't have a philosophical objection necessarily to a travel ban if that is the thing that will keep the American people safe", said Obama, but experts have told him that a travel ban is less effective than the measures "we are currently instituting": educating hospital personnel across the country and temperature checks at five airports through which all travelers from the three afflicted West African nations must now pass.

That didn't ensnare a doctor working with Médecins Sans Frontières (MSF) who had no symptoms when he returned from West Africa but who checked himself into New York's Bellevue Hospital days later when he ran a fever and was diagnosed with Ebola. When a second MSF healthcare worker named Kaci… Read More »

health care

Republicans Will Continue to Target Obamacare »

It ain't over 'til it's overthrown Oct 25 2013

A couple of months ago, in "Is Obamacare Working? Or Is It a 'Train Wreck?", we wrote that the Affordable Care Act had enough potential problems that it might implode of its own accord. And that was before the disastrous roll-out of the government's attempt at building a health insurance exchange.

Republicans watching the public's exasperation with the balky system from the sidelines are chortling over Obama's fiasco. "#TrainWreck: Skyrocketing Prices, Blank Screens, & Error Messages", was the tweety headline on a press release Friday from House Speaker John Boehner of Ohio. "To our Democratic friends: You own 'Obamacare' and it's going to be the political gift that keeps on giving", said South Carolina Senator Lindsey Graham. "Obamacare will now be the issue for the next few years", wrote the Heritage Foundation's Jim DeMint in The Wall Street Journal. "I will do anything to stop train wreck of Obamacare", says Texas Senator Ted Cruz.

obsession

Newly emboldened by seeing the "train wreck" come true, Republicans plan to continue a relentless assault on the beleaguered health care law. “It’s going to be fight every hedgerow, fight every ditch. It’s just like trench warfare in World War I”, was the prediction in Bloomberg/Business Week of Tim Jost, a health law professor at Washington and Lee School of Law.

Only 29% in a Gallup poll favor full repeal of the health care law, but that does not give pause to Conservatives and Libertarians who despise it as government overreach for forcing people to buy what they might prefer not to, and for helping them buy it with a massive program of subsidies that the Wall Street Journal estimated will run to $1.762 trillion over 10 years. The Journal editorial page said, “This is Mr. Obama’s dream of expanding government to create a permanent entitlement state”.

But that manic pronouncement falls apart when one stops to realize that 80% of Americans are already covered either by their companies, Medicare or Medicaid. For them nothing changes.

Republicans in and out of the government are deploying every weapon in their arsenal to defeat the Affordable Care Act (ACA), with tactics that go well beyond their symbolic but futile 40-plus attempts to repeal the Act in the House.

Republicans see an opportunity to gain control of the Senate when four Democratic senators who voted for Obamacare face re-election in 2014. A planned campaign against them will ask them why they voted for the problem plagued law.

Democrats across the states will be similarly targeted. But it doesn't stop there. The conservative faction that led the fight against Obamacare have those Republicans who voted to re-open government and raise the debt in their cross hairs with the intention of replacing them with allies of their cause.

exploiting weakness

The requirement that companies with over 50 employees must provide their health insurance was put off for a year by the White House, but Obamacare foes can already point to people losing income from widespread cutbacks in hours — 313 businesses and 30,377 workers so far, says National Review — to below the 30 hours a week threshold above which they must pay for their personnel.

Republicans asked why business should have a reprieve and not individuals? Why shouldn't the mandate that we all buy insurance be delayed for a year in parallel?

In Obama's waiver to business Republicans saw an opening to crush the economics of Obamacare. Key to its success is bringing everyone into the insurance pool, with premiums paid by the young and healthier counterbalancing the costs of the older with medical problems. The White House estimates that 2.7 million healthy 18 to 34 year olds are needed to provide that offset. An online system that makes it difficult to sign up for insurance will likely cause the younger and healthier will turn away, whereas the older and sicker will press on to get insurance. Without premium payments from the young, insurers' costs for accepting all with pre-existing medical problems — as mandated by the law — will cause costs to skyrocket.

But the mandate is weakened by penalties for not buying insurance well below the cost of insurance, and nothing in the rules prevents them from waiting to opt in only when and if they become ill at some future date. The Tea Party group FreedomWorks is encouraging Millennials to do just that — don’t buy in until they acquire that pre-existing condition that insurers cannot turn away. Failure is assured for a law that “depends on people acting against their self-interest” is Ramesh Ponnuru’s view at Bloomberg.com. “Since when was free-loading a conservative value?”, asks Andrew Sullivan at The Dish.

The House also tried to prohibit the Internal Revenue Service from involvement in the law. Its role is crucial. Subsidies take the form of tax credits, which the IRS would administer. And it is to act as the enforcer, imposing penalties on individuals and companies who fail to meet the law’s requirements. House Majority Leader Eric Cantor (R-Va) says “The IRS” — in his view all of it, apparently, not just the Cincinnati unit discovered targeting right-leaning non-profits applying for tax-free status — “has been abusing its power” and “the last thing we should do is to allow the IRS to play such a central role in our health care”. The IRS “will have access to the American people’s protected health care information”, said Cantor. That happens to be an absolute falsehood.

These efforts at sabotage, like the votes to repeal, could not hope to survive the President’s veto, but such negativism serves to set the public against the law. Those whose companies pay for their health insurance are happy with that tax-free handout and don’t want anything to change. But as a hypothetical, assume repeal. Some in that group will inevitably will lose their jobs and then discover what an individual’s insurance policy costs absent the new exchanges or that even a minor pre-existing condition gives insurers an excuse to deny them insurance altogether. Out in the cold, these same people would likely realize that their former negative opinion of the health care act was ill-considered.

Beyond the Beltway

The group co-founded by Karl Rove, Crossroads GPS, is running an over the top video clumsily called ObamaCareNado that has a tornado causing “a rising tide [sic] of health care costs” with “nobody safe from its wrath”.

Dick Armey’s creation, FreedomWorks, advises everyone to burn their Obamacare cards as an act of protest. But there are no Obamacare cards. FreedomWorks intends to design one that you can print from the Internet, and then burn. (We’re not kidding).

More serious are the scores of law suits around the country that take aim at Obamacare’s particulars. Catholic run organizations want the requirement that insurers must pay for contraceptives struck down. The Goldwater Institute has sued to eliminate the Independent Payment Advisory Board — the “death Panel” that would “ration” care if costs exceed targets. One suit even wants to invalidate the law altogether because spending bills should originate in the House, says the Constitution, but the Affordable Care Act was first passed by the Senate. Another suit says that there is no provision in the Act for subsidies to be issued by the federal exchange — a calamitous defect thanks to faulty wording in the law.

Almost no law as sprawling and consequential as the Affordable Care Act has passed without changes … known as ‘technical corrections’ ...in subsequent months and years”, The New York Times and others have pointed out, listing a number of examples. But there’s the rub. It is Congress’s job to make such repairs, but Republicans intend to block any fixes whatsoever as their way to bring Obamacare crashing down.

Obama, in an early-August press conference, clearly thinks it is lunacy:

“I think a really interesting question is why it is that my friends in the other party have made the idea of preventing these people from getting health care their holy grail, their #1 priority. The one unifying principle in the Republican Party at the moment is making sure that 30 million people don’t have health care. At least they used to say, well, we’re going to replace it with something better. There’s not even a pretense now that they’re going to replace it with something better. It’s become an ideological fixation”.