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In a move that is likely to cause even more disruption and uncertainty in the insurance market, the Obama administration has decided once again to alter unilaterally the sweeping Obamacare law, and, as is his habit, threatened to veto Congressional action that would make Americans more free.
Before the Obama announcements, FreedomWorks endorsed HR 3350, the Keep Your Health Plan Act, sponsored by Fred Upton (R-MI). That bill would chip away at Obamacare, allowing people to keep their health insurance plans, as those who sold Obamacare said they could do.
FreedomWorks supports full repeal of Obamacare, and will continue to work toward a "full repeal plus" bill.
On November 14, The Centers for Medicare and Medicaid Services (CMS) wrote to state insurance commissioners detailing how Obama's new scheme was adjusting the law on the fly, even hinting at an insurer bailout.
President Obama described the changes at his press conference on Thursday,
The other problem that has received a lot of attention concerns Americans who've received letters from their insurers that they may be losing the plans they bought in the old individual market, often because they no longer meet the law's requirements to cover basic benefits like prescription drugs or doctor's visits.
That dishonest construction is typical Obama. Note the use of the word "often," implying always. But the reason the plans "no longer meet the law's requirements" is not that the plans are any different, but that Obamacare happened. The bulk of the plans do cover the things he mentions, but don't cover unusual, expensive treatments.
Now, as I indicated earlier, I completely get how upsetting this can be for a lot of Americans, particularly after assurances they heard from me that if they had a plan that they liked they could keep it. And to those Americans, I hear you loud and clear. I said that I would do everything we can to fix this problem. And today I'm offering an idea that will help do it.
Always the dispassionate outside observer, Obama blithely glosses over the fact that he was giving the press conference to make up for his own deceptions. Implicitly denying responsibility, he is on hand with the solution to the problem he himself created, like an abusive spouse offering to apply some makeup to the bruise.
Already people who have plans that pre-date the Affordable Care Act can keep those plans if they haven't changed. That was already in the law. That's what's called a grandfather clause that was included in the law. Today we're going to extend that principle both to people whose plans have changed since the law took effect and to people who bought plans since the law took effect.
So here we have one of two possibilities. Either the action Obama is taking is illegal, and Mr. Obama has no authority to carry it out, or it's merely an "enforcement discretion," and he knew all along that he had the authority to make this change and didn't do it.
Either he's breaking the law, or he is admitting it was a lie -- not a failed promise -- when he said you could keep your plan.
So state insurance commissioners still have the power to decide what plans can and can't be sold in their states, but the bottom line is insurers can extend current plans that would otherwise be cancelled into 2014. And Americans whose plans have been cancelled can choose to re-enroll in the same kind of plan.
Americans will not be able to choose to re-enroll in plans that have been cancelled and are no longer offered in response to Obamacare's onerous regulations.
We're also requiring insurers to extend current plans to inform their customers about two things: One, that protections -- what protections these renewed plans don't include. Number two, that the marketplace offers new options with better coverage and tax credits that might help you bring down the cost.
So they're actually adding paperwork burdens for insurers who want to let their customers keep their existing plans.
The head of the National Association of Insurance Commissioners wrote in a statement that the administration was using "enforcement discretion" (probably based on this case, according to Greg Sargent) to implement the changes to Obamacare, adding:
In addition, it is unclear how, as a practical matter, the changes proposed today by the President can be put into effect. In many states, cancellation notices have already gone out to policyholders and rates and plans have already been approved for 2014. Changing the rules through administrative action at this late date creates uncertainty and may not address the underlying issues. We look forward to learning more details of this policy change and about how the administration proposes that regulators and insurers make this work for all consumers.
The Heritage Foundation's Chris Jacobs says the plan illegally alters the law:
There’s one problem—the President’s promise that his new “plan” can allow people to keep their plans is just as flawed and false as his original “like your plan/keep it” pledge. The law itself is clear: Obamacare’s new benefit mandates—the requirement to cover all individuals with pre-existing conditions, the new “essential benefits,” and mandates increasing the percentage of health costs insurance plans must cover—all take effect on January 1, 2014.
Another bill, from Senator Mary Landrieu (D-LA) is more heavy-handed that the President's arbitrary rulemaking. The bill would mandate that insurers offer plans that have been cancelled in response to the ACA. On its face, the bill is unconstitutional, forcing companies to sell something they have decided not to sell. On the other hand, I still believe the individual mandate is unconstitutional.
Additionally, the plain wording of the ACA makes many of these plans non-compliant, so insurers would be caught between complying with the law and complying with regulation.
There are reports that White House staffers say that her bill, S 1642, is no longer needed.
Whether Republicans will attract part of the blame for Obamacare's failures if they vote for Upton plan or not, Americans are groaning for relief from the abuse that this president and administration are heaping upon them daily. It would be fine, otherwise, to stand aside.
The Upton bill is not a fix for Obamacare. It's the first step in dismantling it, while protecting the American people from its worst effects.