In her letter to Congress Secretary Burwell writes: “Open enrollment for the federal exchange concluded on February 15,” http://www.scribd.com/doc/256825640/HHS-Secretary-Burwell-Letter-to-Congress#scribd. THE FEDERAL EXCHANGE? Is it another typo? Another omission? Or is it just part of the pattern of stretching the governmental effort to make Obamacare “work” at the expense of any respect for the law as written?
I think the Supreme Court and the American public SHOULD pay attention to Secretary Burwell’s February response letter to Congress’ January letter to her.
READ HER LETTER and ask yourself why she referred to the conclusion of open enrollment “FOR THE FEDERAL EXCHANGE”? Look at the law we’re implementing, it less and less resembles the PPACA, Obamacare.
We saw the invention of the term Federally Facilitated Exchange, the double-talk designed to get around the Act: Because there is no terminology in the ACA regarding a federally facilitated exchange. That inventive term was formulated to describe the federal government’s increased role in the situations described in PPACA 1321 in the event a state failed to establish or implement its exchange, the back-up plan if States failed under section 1311.
Later the federal government expanded its role as an independent exchange, which is NOT authorized under the Affordable Care Act through a complex flurry of FEDERAL MARKETPLACE rules, again extending the originally anticipated oversight and assistance role of the federal government provided by the ACA to an EXCHANGE role.
In her reference to THE FEDERAL EXCHANGE, therefore, Secretary Burwell makes no mistake, no typo, she indicates her understanding of the implementation of the Affordable Care Act, contrary to the PPACA both with respect to states’ rights and the outline of a federal oversight and assistance role to the reality of a single all-powerful entity writing and implementing and interpreting its own rules as THE FEDERAL EXCHANGE.
The Federal Exchange, singular, of which Secretary Burwell writes is very different from the double-talk of a federally facilitated exchange which implies each state would have it own federally facilitated exchange in the event a condition of 1321 occurred that prevented a state from having its own exchange, indicating there would be federally facilitated exchanges, plural, one in each state that failed to establish or implement its own. That’s why the usual terminology is A FEDERALLY FACILITATED EXCHANGE, carefully designed to show respect for the Act’s provisions, rather than the Secretary’s use of the term THE FEDERAL EXCHANGE.
This is the stretch we bought into hoping that the government’s accommodation of low buy-in by the states would still respect the law’s intent to respect the Exchange role as a State role helped by and overseen by the federal government to a greater or lesser extent depending on a state’s ability to establish or implement. But it’s not true, and we do or should have known that THE FEDERAL EXCHANGE is the direction the ACA has gone in contrary to the provisions of the ACA and the government’s abilities to disguise or interpret its way out of such an entity that would NOT conform with the provisions of the ACA.
In fact, much of what we’ve seen in the government’s implementation evidences that the Secretary’s reference to THE FEDERAL EXCHANGE is accurate though outside of the Affordable Care Act just like the payment of premium assistance money to all enrollees rather than those who complied with the ACA’s requirement that such amounts be available to individuals who enrolled “…through an Exchange established by the State under 1311 of the Patient Protection and Affordable Care Act,” (36B).
At this point we are living with a law that was never passed when we consider how far the implementation of Obamacare has strayed from the PPACA’s provisions. That is why we should all hope that the Supreme Court puts the brakes on how Obamacare is being implemented.
The government is implementing a law that was never passed. A law that never authorized the creation of what the Secretary of HHS refers to as THE FEDERAL EXCHANGE any more than it authorized premium assistance to individuals enrolled through that exchange.
