I've changed this post's label to more directly describe what it's about.
On November 18, 2014 James Surowiecki published his view in, “On Obamacare, the G.O.P. Lays a Trap for Itself,” in “The New Yorker,” http://www.newyorker.com/news/daily-comment/obamacare-g-o-p-lays-trap predicting disaster for “Republican politicians,” if the Supreme Court in King v. Burwell, finds that IRS regulations and interpretation providing that premium tax credits are available to all enrollees in Obamacare is unlawful under the PPACA.
As a registered Democrat who is against Obamacare as a poorly written law that only captured the support of Democrats who relied on the incomplete and inaccurate information provided by Democratic leadership, especially the President, leading up to and after its passage and who believes that the carefully timed effective dates, most notably the effective dates for the Act’s more draconian measures were carefully calculated to occur after the second national election of our fibbing Executive, I’d like to discourage Democrats from the continued defense of Obamacare that defies the law’s provisions unless they want to continue to increase support for Republicans.
It is of little value to citizens to continue to promote Obamacare as some benign law that helps citizens rather than address the real problems with the law. In order to either consider fixing or repealing the PPACA, there needs to be a reality based consideration of the law rather than the continued and outdated commitment to its provisions as all good. For writers like James Surowiecki, the time has long passed to continue to worship Obamacare as the enactment of “noble” ideas.
IRS 36B appears in the PPACA under Section 1401 and provides for individuals to get a REFUNDABLE CREDIT FOR COVERAGE UNDER A QUALIFIED HEALTH PLAN…(b) which were enrolled in through an Exchange established by the State under 1311 of the Patient Protection and Affordable Care Act.
I’m sure that Mr. Surowiecki knows that there is NO provision in PPACA Section 1311 and its establishment provisions for a “federal exchange.” Similarly, I’m pretty sure he must also know that Healthcare.gov is a PORTAL, not an Exchange.
Likely Mr. Surowiecki also knows that as a default provision in the case of a non-electing State and in the case of an electing State that does not yet have an operational Exchange that PPACA 1321 provides that the Secretary shall establish and operate an Exchange within a State in those two cases.
I bring up these points because if as provided in the PPACA there is no ESTABLISHMENT of a FEDERAL EXCHANGE under the Act then premium tax credits cannot be available for enrollees through such an imaginary exchange and therefore Mr. Surowiecki’s arguments hinged on enrollment through the federal exchange, Healthcare.gov force the conclusion that premium tax credits are not available under IRS 36B.
At most under 1321 there is as its heading indicates, the default provision that in the instances where there is a FAILURE TO ESTABLISH EXCHANGE OR IMPLEMENT REQUIREMENTS that “…the Secretary shall (directly or through agreement with a not-for-profit entity) establish and operate such Exchange within the State and the Secretary shall take such actions as are necessary to implement such other requirements.”
Under 1311(b)(1) and 1311(d)(1) Exchange is defined twice as an exchange ESTABLISHED BY A STATE.
Let’s move on to my next challenge to Mr. Surowiecki’s attachment to the idea of Obamacare but significant misunderstanding of the REAL OBAMACARE. Mr. Surowiecki asserts: “… if the plaintiffs win those subsidies will disappear. While victory for the plaintiffs once seemed utterly improbable—it was generally accepted that Congress intended for the subsidies to be available…”
So, according to Mr. Surowiecki, victory for the plaintiffs was improbable because IT WAS GENERALLY ACCEPTED THAT CONGRESS INTENDED FOR THE SUBSIDIES TO BE AVAILABLE. We hit a real bump in the road with this assertion since twice before we’ve had situations where what Congress allegedly intended was not how the law worked and the government did not change the law to accommodate the alleged Congressional intent.
The first is the if-you-like-your-plan-you-can-keep-it debacle. In response to the fact that this did not end up being the case, the hardship exemption from the individual mandate tax was extended to families who had their plans canceled. They were also permitted to enroll in catastrophic plans through the HHS portal. There was no provision creating eligibility for premium tax credits. The estimated number of people affected is between 2.6 and 4.7 million according to FactCheck.org, “’Millions’ Lost Insurance,” 4/11/2014.
The second example is the infamous FAMILY GLITCH that limits only what insurers can charge for self-only plans (9.5%) BUT leaves the coverage of FAMILIES as susceptible to gigantic costs also allegedly contrary to government intent.
This “GLITCH” created the problem discussed in April of 2013 where, “Some families are priced out of health insurance,” Huffington Post Obamacare 'Glitch' Allows Some Families To Be Priced Out Of Health Insurance,” RICARDO ALONSO-ZALDIVAR.
In that Huffington Post article, the government response was, “The Obama administration says its hands were tied by the way Congress wrote the law.” On September 18, 2014 it was reported by Brittany La Couture and Conor Ryan that up to 1.93 million individuals could be left uninsured, “The Family Glitch,” Americanactionforum.org. To date the only rescue for these families is that they too are eligible for the hardship exemption under the Affordable Care Act.
Congressional intent would not justify changing the provisions of the Affordable Care Act to expand the availability of premium tax credits based on some alleged Congressional intent any more than it did in the instance of the FAMILY GLITCH, where the hardship exemption was expanded and in the case of the if-you-like-your-plan-you-can-keep-it problem where the hardship exemption was also expanded.
Similarly, in the case of federally established exchanges if determined that some or all individuals enrolled in Obamacare under the provisions of 1321 were omitted from premium tax credits then only the hardship exemption should provide rescue. This would be easier than in the other two examples because ineligibility for premium tax credits would make many enrollees eligible for the hardship exemption without expanding that exemption to cover them.
GLITCH OR TYPO the government’s response should be consistent regarding how its hands are tied by the way Congress wrote the law.
Mr. Surowiecki promises the survival of Obamacare even if the premium tax credit provision interpreted as applying to anyone enrolled through a government exchange is NOT found to be in the PPACA. I agree. This actually supports the refusal to expand the availability of these tax credits to individuals who enroll through federally established exchanges because it will not be a death blow to Obamacare.
Mr. Surowiecki next argues Utopia vs. Dystopia by saying if there is a victory for plaintiffs in King v. Burwell that it “…will create two classes of citizens when it comes to Obamacare.”
This is really an out-dated idea for us since we’ve already seen how Obamacare worsens disparities among citizens in many instances because all it really does with premium tax credits is ADD another “class of citizen” eligible for government entitlements with premium tax credits. Two classes? My gosh, how out of touch must a person be not to recognize the different “classes” of citizens when it comes to health insurance. Consider health insurance disparities below:
There’s the disparity between the two classes of Americans who are employer-insured, the majority of Americans, vs Obamacare insured, where most employees have seen their premium expenses rise in addition to increased costs of co-payments, deductibles and co-insurance while Obamacare customers are protected from premium increase jumps through entitlement payments.
There’s the two classes of citizens between the government insured who not only receive great benefits but were allowed to continue them without having to select an Obamacare plan and the rest of us, see post, “Harry Reid: Hypocrite Headliner,” at http://conoutofconsumer.blogspot.com/p/blog-page_4.html).
There are the two classes of poorer citizens who are in Medicaid expansion states and those who are not.
There are the two classes of citizens created by the Obamacare entitlements for the employed earning a certain amount and omitting coverage for the employed earning less than or more than specific amounts.
There’s the Obamacare creation of a non-asset-based eligibility requirement so that some Obamacare entitlement recipients could be multi-millionaires with land holdings and stock holdings as long as their incomes met Obamacare guidelines where other Obamacare eligibles could actually be middle class.
There’s the uneven test of who’s eligible for the Obamacare entitlement based on income only versus the Medicaid entitlement which looks at all assets an individual has before parting with government money.
There are the disparities between those who smoke who can be charged more in premiums and those who do ANYTHING else as long as it’s not tobacco from prescription drug addiction, alcoholism, obesity, other substances.
Mr. Surowiecki continues his fanciful flight into the fabulous world of Obamacare in defiance of the facts when he says, “And, because the subsidies make insurance so affordable, lots of healthy people (meaning mainly young people) in these states will continue to buy insurance, with the result that the risk pools in these states will be more balanced and not overloaded with people who are older or who are sick.”
Let’s look at the “lots of young people” who would be negatively impacted by being true to the law and not providing premium tax credits to those enrolled in a federally established exchange.
According to HHS.gov from 10/13 through 3/14, a total of 4.2 million enrolled through the Federally Facilitated Marketplace and only 25.5 percent of those individuals are “young people,” that’s about ONE MILLION, ASPE Issue Brief, “HEALTH INSURANCE MARKETPLACE: MARCH ENROLLMENT REPORT For the period: October 1, 2013 – March 1, 2014.”
That same report says that of that one million, four percent of young people chose catastrophic plans for which premium tax credits are not available. In fact 91 percent of all catastrophic plans through the Federally Facilitated Marketplace were chosen by young adults, (Same HHS report as above). That means the number of young people who purchased health insurance through the Federally Facilitated Marketplace was about 920,000. That number would probably have been lower if the PPACA which defines young person as an individual from 18 to 34 allowed individuals over the age of 30 but less than 34 to purchase catastrophic plans, which it doesn’t.
So we’re talking about arguing in defense of interpreting the law contrary to its provisions to provide an additional 920,000 young people with premium tax credits to benefit the risk pool (young people balancing older, sicker people) which is after all the risk-pool argument of getting young people insured.
But it’s difficult to claim the significance of 920,000 young people in the face of the government’s willingness to ignore the 1.93 million excluded by the GLITCH and another between 2.6 million and 4.7 million people through the if-you-like-your-plan-you-can-keep-it debacle. Again, nonsense.
Mr. Surowiecki concludes: “Republican politicians have been able to reap the political rewards of inveighing against Obamacare without actually having to strip benefits from anyone. Now they’re going to have to put up or shut up.”
I don’t even know what this means when it comes to “having to strip benefits.” Can you strip benefits that were not supposed to be provided in the first place?
This last statement is illogical. The issue is whether IRS 36B as interpreted authorizes payments of premium tax credits to individuals who enroll in Obamacare through federally established rather than State-established Exchanges. If that is deemed lawful then individuals enrolled through federally established exchanges and state-established exchanges would get premium tax credits. If it’s deemed UNLAWFUL then those individuals shouldn’t have been receiving benefits to begin with.
Mr. Surowiecki sadly falls into the Democratic idea that if you receive premium tax credits for any wrongful reason then you should continue to do so or else you’re being “STRIPPED of your BENEFITS.” This too has been tried before in connection with the rampant number of FRAUDULENT PAYMENTS THE GOVERNMENT HAS MADE BECAUSE OF ITS FAILURE TO ENFORCE VERIFICATION REQUIREMENTS UNDER THE PPACA.”
Consider two recent instances, one in July of 2014, reported by NBC NEWS, “GAO Sting Finds It Easy to Fake It, Get Obamacare Premiums,” by Maggie Fox and Joel Seidman, where it was reported, “Eleven out of 12 fake applications for government-subsidized health insurance got through a verification process and the bogus beneficiaries are still covered, the Government Accountability Office said Tuesday.”
OK, so in July we’re told that 11 out of 12 phony applications for government subsidized health insurance got the OK from the government and the “bogus beneficiaries are still covered.” Would the government be STRIPPING benefits from these folks if they stopped covering them? Of course not.
On September 15, 2014, in an article in the Huffington Post, by Jeffrey Young, under the headline, “360,000 Obamacare Enrollees At Risk of Losing Subsidies,” Mr. Young outlined the failure of the government to comply with verification requirements under the PPACA before advance payments were made and so individuals who weren’t verified and hadn’t supplied sufficient verification of eligibility including 115,000 who hadn’t verified “their immigration status,” might “LOSE” their subsidies. Would complying with the Act and verifying eligibility and NOT providing premium payments to those who should not have received them mean they were LOSING their benefits? Of course not, they were entitled to no benefits to lose.
You can’t LOSE what you shouldn’t have gotten to begin with and that same reasoning should apply to the premium tax credits for individuals enrolled in Obamacare through federally established exchanges.
