Saturday, March 1, 2014

Obamacare Updates March 1 , 2014 - Apparently the " Law " is whatever the " King " says it is on any given day ----- Are ObamaCare’s “Retroactive Advance Payments” for Buying Private Policies in States with Failed Exchanges Even Legal ? Pressure rises as ObamaCare nears enrollment deadline ........ Memo to Reid: Cancellation pain in ObamaCare increasing ........

Are ObamaCare’s “Retroactive Advance Payments” for Buying Private Policies in States with Failed Exchanges Even Legal?

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By Lambert Strether of Corrente.
Here’s a summary of the administration “fix” in question, otherwise known as a “rule change.” From CNBC:
Major tech problems at several state Obamacare enrollment websites are so bad that the federal government Thursday said it would give some people who in frustration bought health insurance outside those websites the tax subsidies that otherwise would be unavailable to them.
While the latest Obamacare fix, laid out in a complex, densely worded “guidance,” will affect a relatively small number of people, it is the first time that those subsidies are being allowed to be used for Affordable Care Act-compliant insurance plans bought outside the government-run health exchanges.
As part of the fix, the government also will allow people not yet enrolled in health insurance since Jan. 1 because of ongoing problems with some states’ Obamacare marketplaces to be covered retroactively once they obtain a plan from their state’s marketplace. Cost reduction subsidies also will be applied retroactively, according to the rule change by the Centers for Medicare and Medicaid Services.
The fix is available to states that adopt a formal process laid out by CMS. No state is obligated to implement the loosened rules.
And when CNBC says “complex” and “densely worded,” reader, they’re not kidding. From “CMS Bulletin to Marketplaces on Availability of Retroactive Advance Payments of the PTC and CSRs in 2014 Due to Exceptional Circumstances” [PDF]:
This guidance is being provided to Marketplaces that, due to technical issues in establishing automated eligibility and enrollment functionality, have had difficulty in providing timely eligibility determinations to applicants and enrolling qualified individuals in Qualified Health Plans (QHPs) through the Marketplace during the initial open enrollment period for the 2014 coverage year. Such a circumstance may be considered an exceptional circumstance for individuals who were unable to enroll in a QHP through the Marketplace due to these issues.
“[If] an individual in the exceptional circumstance described above is enrolled in QHP coverage offered outside of the Marketplace, when he or she receives a determination of eligibility for coverage through the Marketplace, the Marketplace may deem the individual to have been enrolled in the QHP through the Marketplace retroactive to the date on which the individual first enrolled in the QHP outside of the Marketplace
An individual in the exceptional circumstance described above has not been enrolled in any health coverage continuously since January 1, 2014 , including QHP coverage offered outside of the Marketplace or otherwise, before a successful eligibility determination is obtained , when he or she receives a determination of eligibility for coverage through the Marketplace and enrolls in a QHP through the Marketplace , the Marketplace may allow for coverage retroactive to the date, established by the Marketplace, on which coverage would have been effective absent the exceptional circumstance described above, as provided under 45 CFR 155.310(f)(1) and 45 CFR 155.420(b)(2)(iii).
(We don’t have to dig into 45 CFR 155.310(f)(1) or 45 CFR 155.420(b)(2); everything there has to with enrollment after a given date; CMS just decided to make those dates retroactive.) But man oh man, I dunno. What’s an “exceptional circumstance,” anyhow? Figuring that out could really be a hassle, because exceptional circumstances, they’re exceptional!
Fortunately, we can watch people way smarter than we are grappling with these questions. Here’s an exchange between HHS and American College of Physicians staffers, in ACP’s handy annotated review of HHS’s “Exchange Standards for Employers” ruleHHS writes, in response to an ACP comment not relevant to our purpose here:
We note, however, that the special enrollment period for exceptional circumstances in §155.420(d)(9) of this final rule provides an additional opportunity for enrollment when unforeseen circumstances arise.
The ACP staffer annotates the HHS response:
The rule discusses the potential for special enrollment due to “exceptional circumstances”but according to the proposed rule, this would include natural disasters or other events that would prevent an individual from enrolling on a timely basis.
So let’s look at §155.420(d)(9):
§155.420  Special enrollment periods.
(d) Special enrollment periods. The Exchange must allow qualified individuals and enrollees to enroll in or change from one QHP to another as a result of the following triggering events: …
(9) A qualified individual or enrollee demonstrates to the Exchange, in accordance with guidelines issued by HHS*, that the individual meets other exceptional circumstances as the Exchange may provide.
Could the “guidelines issued by HHS” for “exceptional circumstances” include natural disasters? Apparently so. Could they include technical disasters? Apparently so — even though technical disasters during the Obama rollout were hardly exceptional, but rather the norm, whether for individuals or Exchanges, as Steven Brill shows. I mean, is an earthquake that happens every day for months really “exceptional”? Could the “guidelines issued by HHS” include technical disasters in states controlled by Democrats — Massachusetts, Oregon, Maryland, Nevada, and Hawaii — in an election year? Again, apparently so.
Now, it is true that the administration previously used the “exceptional circumstances” wheeze (as reviewed above by ACP) to extend deadlines for botched launch of ObamaCare’s Federal site:
And administration officials also warned they may again extend the Dec. 23 deadline for enrolling in Obamacare insurance plans for the start of the new year should “exceptional circumstances pose barriers to customers enrolling by that date” via and other government-run health exchanges. Those exchanges have seen drastically fewer numbers of people sign up for health plans than originally projected.
Of course, that doesn’t mean that “exceptional circumstances” were actually defined anywhere. Pro Publica:
HHS hinted last week that the enrollment deadline was still not set in stone. “We will consider moving this deadline to a later date should exceptional circumstances pose barriers to consumers enrolling on or before December 23.” The department’s fact sheet did not define “exceptional circumstances.”
However, as CNBC pointed out above, what’s really exceptionally remarkable about the “retroactive advance payments” is that they are subsidizing the purchase of private insuranceoutside the Exchanges. (One might well ask, then, why the Exchanges exist in the first place, if that’s jake with the angels?) The Times writes:
New Health Fix Offers Subsidies for Insurance Policies Bought Outside Exchanges
The Obama administration’s decision came as a surprise because the Affordable Care Act is clear: Federal subsidies are available only to people who enroll in a “qualified health plan” [QHP] through an exchange.
Sara Rosenbaum, a professor of health law and policy at George Washington University, said that by offering subsidies for insurance purchased outside an exchange, the Obama administration was avoiding a huge potential legal liability.
“People could have gone to court to obtain benefits denied without due process of law, because of a breakdown in government eligibility systems, and a judge would probably have ordered retroactive relief,” Ms. Rosenbaum said. “The federal government is voluntarily providing equitable relief that a court would have given.”
So, because a judge would probably have ordered retroactive relief, that’s the “exceptional circumstance”? Could be. But so far as I can tell from the HHS memo, they’re not making that argument. Anyhow, it’s not often I quote a conservative Republican, but there’s a first time for everything:
“The administration is blatantly ignoring the law, paying subsidies to plans outside of exchanges,” said Rep. Joe Pitts (R., Pa.), who chairs the House Energy and Commerce Committee health panel.
To which, if I were still a Democrat, I might respond: “We’re not ignoring the law. We’re just defining it. Operationally. Under exceptional circumstances….”
Yes, I like “exceptional circumstances” rather a lot. That phrase — at the risk of a Godwin’s Law violation — reminds me of Carl Schmitt‘s Political Theology:
Sovereign is he who decides on the exception. … It is precisely the exception that makes relevant the whole question of sovereignty. The precise details of an emergency cannot be anticipated, nor can one spell out what may take place in such a case, especially when it is a matter of extreme emergency, and of how it is to be eliminated. … The most guidance a constitution can provide is to indicate who can act in such a case. If such action is not subject to controls, if it is not hampered in some way by checks and balances, as is the case in a liberal constitution, then it is clear who the sovereign is. He decides whether there is an extreme emergency, as well as what must be done to eliminate it.
It’s like the crapification of the rule of law, isn’t it?
NOTE * I interpret this to mean that “guidelines issued” are the determination of exceptions themselves, case by case, rather than “guidelines issued” to define what exceptions actually are. Readers and/or HHS regulation geeks, please correct me!

Pressure rises as ObamaCare nears enrollment deadline

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Pressure is rising on the White House as ObamaCare reaches its final month of enrollment roughly 3 million sign-ups behind its target goal. 
The administration hoped to enroll 7 million people in private plans during the reform's first year, but that became all but impossible after the botched launch of 
Now, with 4 million people signed up as of this week, officials are counting on a final pre-deadline rush to bolster the exchanges and raise morale among vulnerable Democrats already exhausted by ObamaCare attacks. 
It's a heavy lift between clamoring Republicans and a public that's in the dark. 
Under normal circumstances, the administration could expect most uninsured patients to register for health plans right before the deadline on March 31. 
This was true before the last ObamaCare cutoff in December, and it happens regularly during insurance open enrollment periods. 
But a poll released this week threw cold water on that expectation by revealing the public's ignorance about when they need to gain health coverage or pay a fine. 
Three in four uninsured patients are not aware of the March 31 deadline, the Kaiser Family Foundation found in its monthly tracking survey. Only 24 percent could name the date correctly. 
The finding underscores how the administration must not just convince people to sign up for ObamaCare, but highlight the cutoff date.
“Deadlines are something that Americans react to, whether it's filing or taxes or other responsibilities in society,” said Tad Devine, a Democratic strategist and adviser to John Kerry's 2004 run for president. 
“Highlighting that date can be a really positive tool. Just making people aware of the deadline is likely to motivate them to join the system.” 
Ironically, the March 31 date will get its own publicity from House Republicans next week when they vote to eliminate the individual mandate penalty for this year. 
Most people without health insurance will be fined $95 or 1 percent of their income unless they're covered by the end of this month. 
The penalty is unprecedented and was the subject of a Supreme Court challenge to the law. The GOP is anxious to heighten its unpopularity as a way to hammer Democrats around the country. 
Democrats, meanwhile, are convinced they can turn the tables by pointing to the GOP's insistence on repealing instead of fixing the healthcare law. 
“Voters want to see the Affordable Care Act fixed and improved, not repealed,” stated a memo from the Democratic Congressional Campaign Committee (DCCC) this week. 
Indeed, this week’s Kaiser poll found that a majority believe ObamaCare should remain the law, either in its current form or with improvements (56 precent). 
And while opinions of ObamaCare are still negative overall, Democrats point out that GOP attacks have not made those opinions much worse over time. 
The DCCC pointed a finger at Republicans this week when Speaker John Boehner (R-Ohio) cast doubt on a promised vote for an ObamaCare replacement plan. 
“They've been making the same false claim for years,” the committee stated in an email, referring to GOP vows to “replace” ObamaCare. 
“Without fail, their 'alternative' has boiled down to repeal every time.”
The administration is getting help from health insurance companies and groups like Enroll America, which are pulling out all the stops to reach ethnic minorities and other demographics least likely to carry coverage. 
Federal health officials also widened access to ObamaCare subsidies for states where the exchanges were — or are — experiencing serious problems. 
The quiet move was in line with other decisions to ease the rollout by pushing deadlines, a trend experts say will continue through 2014. 
For this month, however, strategists said the administration should focus on one basic message. 
“Millions of people are signing up,” said Devine. “That number in itself offers a fundamental reassurance to people that the system is working.”

Memo to Reid: Cancellation pain in ObamaCare increasing


Getting into ObamaCare may be the easy task. Getting out of an ObamaCare plan — well, as we’ve noted before, that can be painful indeed, and the pain is getting worse. WFLV-TV in Florida finds that ObamaCare resembles Hotel California … you can check out any time you want, but you can never leave (via Daniel Halper):
In early January he signed up for a plan that cost nearly $300 a month. About a half hour later he and his wife realized they could barely afford that. They quickly found a less expensive plan through Humana for $116 a month.
“I immediately called back Florida Blue and asked them to cancel the policy,” Robinson said.
But he quickly learned canceling that coverage is no easy task. He said Florida Blue officials told him if he signed up for the other policy, his Florida Blue policy would cancel automatically, but the exact opposite happened instead.
“[Florida Blue] took the premium two days later and almost wiped out our account,” Robinson said.
More than six weeks later, after spending 50-60 hours on the phone, his policy is still not canceled. Robinson is still waiting for the payment Florida Blue withdrew from his account to be refunded.
So much for all of the ObamaCare “horror stories” being lies, eh, Senator Reid? That claim earned Reid two Pinocchios yesterday from Glenn Kessler, who advised Reid to “drop[] the harsh rhetoric” and just say many of the ads run by AFP have “serious problems.”
One serious problem for Reid and the White House, though, is that most of these stories don’t come from ads — they come from local news stations, which keep up a lot better with the pain than the national media does. Fox News reports one one mother who’s irate over being called a liar by Harry Reid:

“Does this look like a lie to you?” Democrats should be lining up to smack Reid across the chops for giving that kind of platform to every horror story, as well as making them all look heartless and cruel. Maybe they should think about returning him to the backbenches.