Obamacare Is Getting Jury-Rigged Without Clear Law

From the Wonkblog (Washington Post): “Obamacare’s deadlines are changing. Again.

With deadlines fast approaching and some HealthCare.gov shoppers still stuck, the Obama administration is proposing new ways to guarantee coverage to those hoping to gain insurance in January.

So I guess that “surge” isn’t working out. And even if it is, there is enough confusion in other parts of the website system to mean uncertainty about real enrollments.

But the headline is not really accurate. The deadlines are not so much changing—because that would imply new deadlines. It is more like they are fading.

Much of Health and Human Services’ plan is less about new requirements, and more about pushing insurance plans to take certain steps to smooth the transition into new health-care law plans. The administration is “encouraging” insurers to allow people who sign up after the Dec. 23 deadline to start coverage on Jan. 1 – and urging them to accept payments for those January policies after the first of the month.

So no official written change in the law (which is putty in the hands of the executive, Constitution be damned). No, the government is “pushing” and “urging” and “encouraging”—this last seeming so odd that the Wonkblog actually maintained the quotation marks.

And then they are “asking.”

HHS has also asked insurance plans to keep refilling prescriptions that were covered under an enrollee’s previous policy — and charge patients’ visits for acute conditions to out-of-network doctors as if the physician were part of the health plan.

What are they “asking” for? Cooperation.

The plan relies heavily on the cooperation of private health insurance plans, who will need to decide whether they will enact the Obama administration’s proposed changes – or, at this late point in enrollment, whether they have the logistical capacity to do so.

So no real legislation. No real rules. Just encouraged cooperation. Calling this, “the plan,” borders on being misleading. It doesn’t refer to the “law” that is supposed to be the Affordable Care Act. It refers to the ad hoc suggestions.

As Megan McArdle writes:

the administration has reached the limits of its November strategy of using last-minute rule-making to implement on-the-fly changes to the law. Most in the latest round aren’t even rules, or even changes to rules; they’re requests. The insurers may well go along — they, too, have a big stake in Obamacare’s success. But by making the request in public, the administration has given itself room to blame insurers when people lose access to doctors, drugs or insurance. Now they can say, “Well, we asked them not to do that.”

An anonymous insurer tells us the changes are “feasible.” Why? How can the insurance companies, after crunching the numbers, make sudden revisions and still remain solvent? The first reason is probably that the numbers are disastrous and this is their only hope. But what about covering medicine they didn’t plan to cover or paying out-of-network doctors? How can they afford to do that.

We already know how. They plan to bill the government for whatever they think they need. That’s another ad hoc adjustment—sending buckets of money to the insurance companies and worrying about the correct amounts “later.”