It’s boring but do you think it might be time to read the PPACA?
Here’s the challenge: Find the terms State Exchange, Federally Facilitated Exchange, Federal Facilitated Marketplace, and THE Federal Exchange in the law. THEY AREN’T THERE.
What there is under 1311 are two definitions of EXCHANGE, 1311 (b)(1) where we’re told that each State shall…establish an American Health Benefit Exchange (referred to in this title as an ‘‘Exchange’’) and in 1311(d)(1) where we’re informed, “An Exchange shall be a governmental agency or nonprofit entity that is established by a State.”
What’s the difference? The difference is that by MUTATING THE DEFINITION OF EXCHANGE we arrived at the issue in King v. Burwell. It never should have been an issue EXCEPT that in the face of more non-electing states than anticipated, the government worried that Obamacare would “fail” and so the government began CHANGING THE LAW to boost enrollment in Obamacare plans that even as of 1/15/15 according to the CBO is lower than projected.
The redundancy of the term STATE EXCHANGE. State Exchange isn’t in the Affordable Care Act because under the definition of EXCHANGE under 1311 the term should have been redundant since Exchange was defined TWICE as ESTABLISHED BY A STATE.
1321 ENDLESS GOVERNMENT AUTHORITY? In recognition of the TEXT of the Act, and the obviously helping, oversight and FACILITATING role that was anticipated for the Federal government, in the face of lower State election than anticipated the Federal government suddenly found itself required to flesh out the provisions of a single provision in Section 1321 under the subheading “FAILURE TO ESTABLISH EXCHANGE OR IMPLEMENT REQUIREMENTS… the Secretary shall (directly or through agreement with a notforprofit entity) establish and operate such Exchange within the State and the Secretary shall take such actions as are necessary to implement such other requirements.” In the thousand pages of the Affordable Care Act, that is the reference.
THIS WAS THE BEGINNING OF THE ENDLESS EXPANSION OF THE FEDERAL ROLE THAT HAS CREATED AN ACT THAT IN FACT IS A FEDERAL PROGRAM THAT RUNS, IMPLEMENTS, AND OVERSEES ITSELF…BEGINNING WITH THE CREATION OF A NEW TERM: FEDERALLY FACILITATED EXCHANGES.
Federally facilitated exchanges suddenly became the practical solution to low state election to establish an exchange and a flurry of new rules came about enabling the Federal government to expand its authority in not only overseeing but in actually running exchanges. Notice the con in language used to disguise the increased power and authority of the Federal government that referenced back to both the “helper role” anticipated in the Act for the Federal government with the word “FACILITATED” and the deference to states rights emphasized in the Act through the PLURAL use of EXCHANGES. But it was clear that States that didn’t elect were being punished as the Federal government took over.
But the Federal government didn’t stop there, and so we were introduced to the Federally Facilitated Marketplace, a term no longer deferential to states but one that recognized the centralized role of the federal government in its expanded powers to run the show in those uncooperative states. The word facilitated is included in the language as a relic of the old-time notion of helper for the States. But the reality renders the term silly and so we see that even Secretary Burwell has dispensed with reference to the “facilitated” word and the plural use of the word Exchanges reflecting State differences and we arrive at the next phrase.
Finally, we have THE FEDERAL EXCHANGE, never anticipated, never mentioned in the Act but the newly dominant operator of, runner of, and overseer of the program envisioned by the Affordable Care Act. Gone is the Act that anticipated an Exchange that was established by a State EXCEPT where there was a FAILURE TO ESTABLISH OR IMPLEMENT. Suddenly that single sentence of 1321(c) became the purpose of the Affordable Care Act, the establishment of a Federal Exchange. All the other provisions and intent characterizing the Act that never even included the term State Exchange because under 1311 such a definition would have been redundant, now boiled down to the mutation we have today, THE FEDERAL EXCHANGE.
It isn’t just a change in terminology, it is a change that reflects the mutation of the ACA as enacted, as sold, and as represented to the American public. Obamacare has become synonymous with a new federal entitlement program with small input from the States that lacks meaningful limitations on the powers of the Federal government’s authority because that authority was never anticipated to be the authority of A NATIONAL GOVERNMENT RUN FEDERAL EXCHANGE. Gone is the pretense of an oversight and helper role.
It’s not a doomsday scenario for citizens if the government prevails in King v. Burwell and it’s not a WIN for consumers if the Supreme Court puts a stop to the Federal creep of the Affordable Care Act. If nothing else, Obamacare will eventually clarify the issues that contributed to and continue to contribute to our healthcare CRISIS not the least of which has been the focus on CUTTING payer expenses by further gouging consumers without the protection of strong and genuine GROUP health insurance that was the most significant leverage consumers had in negotiating a better insurance plan for a better price (in exchange for promises of enrollment of the group).
Obamacare is not reform because it codified the worst in our healthcare system, the prices charged to consumers, the trend of increased out-of-pocket spending for health services, the reduced availability of providers accepting health insurance and the focus on “insurance” coverage (designed to cover contingencies) now covering finite expenses such as checkups at the expense of providing sufficient coverage for illness in order to save PAYERS rather than consumers money. Premium assistance was designed to soften that reality for enrollees in Obamacare plans established by the state under 1311 of the Affordable Care Act.
But of course, 1311 matters little now. The grants it provided have expired (except in the case of renewals given to certain states). The definitions it outlined have been eradicated. The very INTENT to accommodate States and the provisions of the Act doing so are no longer relevant because the Act is about Section 1321 (c) and the government's decisions and provisions to maximize federal authority, control and power.
King v. Burwell raises a significant issue in terms of how little connection governmental action must have to a statute in order to do what it wants and have it deemed lawful.
