One of the enduring questions asked by and of opponents of President Barack Obama’s health care law is how they plan to go about repealing the matter. The good news, as I see it, is that this is an easier political matter than you might think from the media’s coverage of it.
A key answer on the part of Republican presidential candidates has been the use of executive orders to strip as much of Obama’s law from the books as possible. Texas Gov. Rick Perry (at left) and others have endorsed an approach that would start with an executive order hitting the pause on implementation as a delaying tactic, then move to legislative repeal. Former Massachusetts Gov. Mitt Romney promises a “waiver” based approach – not a traditional use of the term “waiver,” but one he’d presumably have to create – that would give states temporary relief prior to a legislative effort. This might turn out to be more difficult than Romney maintains, at least according to some observers, given that these waivers would not take effect for a number of years.
So Sen. Tom Coburn (R-OK) asked the Congressional Research Service to resolve the question of how much you could actually block via executive order, which they duly did in a memo released two weeks ago. It reads, in part:
“[A] president would not appear to be able to issue an executive order halting statutorily required programs or mandatory appropriations for a new grant or other program in PPACA, and there are a variety of different types of these programs. Such an executive order would likely conflict with an explicit congressional mandate and be viewed “incompatible with the express … will of Congress” … However, there may be instances where PPACA leaves discretion to the Secretary to take actions to implement a mandatory program, and … an executive order directing the Secretary to take particular actions may be analyzed as within or beyond the President’s powers to provide for the direction of the executive branch.”
But as Michael Cannon points out here, there’s a much easier way to gut Obamacare without running afoul of any strict views on Constitutional authority or running into the legislature: just say that the law as written means what it says in the one specific area of how subsidies are provided via the exchanges.
“In that case, the next president could issue an executive order directing the IRS either not to offer premium assistance in federal Exchanges or to rescind this rule and draft a new one that does not. The U.S. Constitution demands that the president “take Care that the Laws be faithfully executed.” Such an executive order therefore lies clearly within the president’s constitutional powers: it would ensure the faithful execution of the laws by preventing the executive from usurping Congress’ legislative powers. While such an executive order would not repeal ObamaCare, as Jonathan Adler and I explain in this Wall Street Journal oped, it would “block much of ObamaCare’s spending and practically force Congress to reopen the law.”
As a delaying tactic that forces Congress to act, this option is second to none. What’s more, paired with the diminishing actuarial value of Obamacare in the wake of the CLASS Act failure, it’s quite easy to reach the necessary cuts to reach the necessary budget-neutral reconciliation removal of the vast majority of Obama’s law – in fact, you could attain that threshold simply through the block-granting of specific aspects of Medicaid, as already assessed by the Congressional Budget Office.
The path to repeal is a relatively straightforward one. The hard part is finding someone with the will to do it. Once that’s done, everything else falls into place.
— Benjamin Domenech
IN THIS ISSUE:
SURPRISE: MLR UNKIND TO INSURANCE AGENTS
Well, you should’ve seen it coming.
The Obama administration issued a rule today that is sure to disappoint insurance agents: Fees paid to brokers and agents won’t count as medical care, under limits imposed on insurers in the 2010 federal health law.
That’s key because under the health law, insurers must spend at least 80 percent of their premium revenue on medical care and quality improvement – or issue rebates to consumers. The target is 85 percent for large-group issuers.
Brokers had lobbied hard to have their fees exempted from the calculation of administrative costs, which also includes such expenses as marketing and executive salaries, saying that without such a move, commissions will be cut and agents could lose their jobs, leaving consumers without as much access to brokers who help them choose health insurance.
But consumer advocates fought the move, saying commissions are clearly administrative costs and removing them would make it easier for insurers to avoid paying the required rebates to consumers. Those rebates will go out next year to individuals and small-business policyholders whose insurers fail to hit spending targets this year. The rebates could come in the form of reduced premiums.
Under an earlier rule, rebates to employers would have been taxable, so the final rule says any rebates given for group policies should be in the form of lower premiums or “in other ways that are not taxable.” It will then be up to the employer or group policyholder to “ensure that the rebate is used for the benefit of subscribers.” In addition, the rule requires insurers to provide notices of rebates not only to the employer, but also to the enrollees.
The full rule can be read here.
SOURCE: Kaiser Health News
NO HEALTH CARE WAIVERS FOR INDIANA, LOUISIANA
Speaking of MLR, HHS denied two waiver applications last week:
Indiana’s application had been somewhat of a long shot, as it requested several adjustments – including seeking a longer phase-in period, hitting 80 percent by 2015 – beyond what the MLR regulation allows. The HHS denial letter notes that only one insurer in Indiana’s individual market would no longer be profitable after issuing a MLR rebate if the standard were in effect today – and that insurer is already changing its business practices to adapt to the new environment …
Louisiana had sought an adjustment that would have lowered the threshold to 70 percent in 2011 and 75 percent in 2012, giving the state until 2013 to meet the new standards. But HHS took issue with Louisiana’s claims that the health overhaul was already forcing insurers out of the individual market. The department’s denial letter noted that two insurers that withdrew from the state for business reasons were not active in the individual market. Another insurer that blamed its withdrawal on the new rules had only 12 people covered in the individual market.
The governors of these states being prominent opponents of the administration, I’m sure, had nothing to do with the decisions.
SOURCE: Politico
REP. ROE INTRODUCES RESOLUTION ON WHETHER OBAMACARE IS UNCONSTITUTIONAL
Roe’s simple, straightforward resolution would demonstrate the sense of the House:
“The U.S. Supreme Court’s decision to hear the legal challenges against the PPACA is further evidence the health care legislation was rushed through Congress and is very flawed. I am introducing this resolution because this Congress has the responsibility to make its views known regarding the constitutionality of this law. This resolution clearly articulates that PPACA is unconstitutional and that the individual mandate is not severable from the remainder of the law.
“While legal fights continue against this health care law in states around the country, and in the Supreme Court, I am committed to working with Congress to repeal the law and address critical health care challenges that face our nation. I urge the Obama Administration and the Democrats in Congress to work with Republicans in passing common-sense health care reforms that are constitutionally permissible.
“It is time for us to take a stand on the side of the American people by sending a message to the court that PPACA should be struck down.”
SOURCE: U.S. Congressman Roe
Running out of time, between a rock and a hard place:
Set to open in January 2014, exchanges will offer a marketplace where individuals and small businesses in each state can shop for health coverage. The exchanges, which offer subsidized coverage to lower- and middle-income individuals, will absorb more than half of the law’s projected expansion of health coverage to 32 million people.
Like many of the law’s provisions, the onus falls on states to take on much of the work of setting up the exchanges, with the Department of Health and Human Services running an exchange in states that fail or choose not to create one.
For some conservative states trying to block the law in the Supreme Court, the idea of federal intervention is enough motivation for them to plan ahead for an exchange in case their lawsuit fails. In others, the Supreme Court’s consideration of health reform is a cause for paralysis.
Two Midwestern governors have already declared their states won’t set up an exchange until the Supreme Court decides on the health law. And that idea is growing popular among powerful state legislators vigorously opposed to health reform.
Even without the uncertainty surrounding the Supreme Court, states are already on a tight timeline to get exchanges in working condition. Though the exchanges open in January 2014, HHS must determine by Jan. 1, 2013, whether a state will be ready to run one. The last opportunity for states to receive federal financial assistance for building an exchange is the end of June 2012 – right around the time of the Supreme Court ruling.
SOURCE: Politico
The latest from the land of Berwick:
Tens of thousands of patients with terminal illnesses are being placed on a “death pathway,” almost double the number just two years ago, a study published today shows.
Health service guidance states that doctors should discuss with relations whether or not their loved one is placed on the scheme which allows medical staff to withdraw fluid and drugs in a patient’s final days. In many cases this is not happening, an audit has found. As many as 2,500 families were not told that their loved ones had been put on the so-called Liverpool Care Pathway, the study disclosed.
In one hospital trust, doctors had conversations with fewer than half of families about the care of their loved one. In a quarter of hospital trusts, discussions were not held with one in three families.
Overall, doctors discussed plans with relations in 94 per cent of cases, which is an improvement since the last audit but still means thousands of families were not informed. Under the guidance, patients who are close to death can be placed on the Liverpool Care Pathway, so called because it was developed at the Royal Liverpool Hospital in the 1990s. It aims to ensure they die without being subjected to unnecessary interference by staff.
In addition to the withdrawal of fluid and medication, patients can be placed on sedation until they pass away. This can mean they are not fed and provided with water and has led to accusations that it hastens death.
SOURCE: The Telegraph
Benjamin Domenech is the founder and publisher of The Federalist and a senior fellow at The Heartland Institute.
