Legal Challenges to Obamacare

According to the New York Times, “a fresh wave of legal challenges to the law is playing out in courtrooms as conservative critics — joined by their Republican allies on Capitol Hill — make the case that Mr. Obama has overstepped his authority in applying it.”

At the heart of most of these challenges is the claim that the Affordable Care Act “does not grant the IRS authority to provide tax credits or subsidies to people who buy insurance through the federal exchange.”

“At the same time, the House Judiciary Committee will convene a hearing to examine … the legal theory behind the subsidy cases: that the I.R.S., and by extension, Mr. Obama, ignored the will of Congress, which explicitly allowed tax credits and subsidies only for those buying coverage through state exchanges.”

“The subsidy lawsuits grow out of three years of work by conservative and libertarian theorists … The cases are part of a continuing, multifaceted legal assault on the Affordable Care Act that began with the Supreme Court challenge to the law and shows no signs of abating.” November Sign-ups Approach 100,000

Bloomberg reports that “about 100,000 people signed up for health insurance through the online federal exchange last month, a roughly four-fold increase from October.”

“The person who provided the November enrollment figures, said the data points to a steady increase in sign-ups even before major website improvements were completed at the end of November.”

“While far from the original goal, the jump in enrollment may be an encouraging trend for the administration and could signal that consumers are keeping an open mind about the new $1.4 trillion health law amid criticism from both Republicans and Democrats over the site’s technical failures.”

Latest Fix May Be Illusory

Conor Friedersdorf cautions that the latest fix may be illusory:

“What the report elides by focusing on the consumer experience is the fact that back-end fixes are also needed before masses of Americans can actually buy insurance. It isn’t enough to improve the front end, where consumers create an account and choose a plan. To sign up, their inputs must reach the insurance companies.”

And not addressing “back-end” fixes could cause significant problems for actual enrollment:

“When the Obama Administration states that the site ‘will work smoothly for the vast majority of users,’ do they mean that it will successfully transmit their applications to insurers, resulting in their actually being covered?”

“Or do they just mean that consumers can successfully submit their application, regardless of what happens next? A progress report with more clarity on that point is needed. Does a broken back end render the front-end fix useless to some consumers? The progress report’s narrow focus on the front end leaves me pessimistic.”


Obama Adviser Urges Patience on Obamacare Rollout

The Hill reports that President Obama’s former campaign manager, David Plouffe, said on ABC’s This Week, “it may be years until ObamaCare is working ‘really well,’ [adding] that ObamaCare was designed to be implemented by the states.”

Plouffe: “And in most of the states [it] is going quite well. You talked about Medicaid expansion. I think it’s just a fact, and it may take until 2017 when this president leaves office, you’re going to see almost every state in this country running their own exchanges eventually and expanding Medicaid. And I think it’ll work really well, then.”

“You see the interest out there … people want healthcare … They’re going to be able to get healthcare.”

Stop Worrying About Low Obamacare Enrollee Numbers

Ezra Klein tells us not to worry that Obamacare enrollees might not reach a “bottom-line goal” of 7 million by the end of March.

Arguing that this CBO “estimate” should be “thrown out entirely”, Klein contends that a true definition of Obamacare success is “a function of the mix of people in the exchanges — the “ratio” — rather than the number of people in the exchanges.”

“The reason the ratio matters so much was that it is crucial to keeping premiums low. The White House always thought it possible that demand in the first year would be underwhelming, and until people actually saw the system was working, many would hang back from the system. But so long as the ratio was right, the premiums will remain low, and so when people eventually come to buy insurance, they can get a good deal, and they’ll want to sign up.”

“Or, to put it differently, success in Obamacare’s first year was all about setting up success in Obamacare’s second year.”

“No one will ever look back on Obamacare’s launch and call it a success. The question is whether they’ll look back and say that Obamacare subsequently became a success.”

Majority Not Impacted by Obamacare

A new Gallup poll reports that “69%, say the [healthcare] law, so far, has not had an effect on them … More Americans say the law has hurt (19%) rather than helped (9%) their family, a slightly larger gap than was found last year.”

“A much higher percentage [(41%)] expect that it will affect them in the long run … Roughly … 20%, say the law will improve their healthcare situation.” This gap is the largest to date.

Implications: “First, the law has not to this point directly touched most Americans or affected their health insurance status in any way. Second, despite that fact, they generally do not view the law positively.”

Latest Obamacare Challenge is not Valid

New York Times‘ editorial page weighs in on the Supreme Court’s decision to hear religious challenges to  Obamacare’s requirement that employer health plans cover birth control:

“The 1993 [Religious Freedom Act] was not intended to cover profit-making corporations, and any burden imposed on the employer’s religion is trivial — the law, after all, merely allows employees to make independent decisions about birth control.”

“In short, there is no substantial burden on religious exercise. Company owners remain free to protest against the different forms of birth control to which they object and call for repeal of the contraception coverage rule.”

“The Supreme Court’s challenge now is to recognize the real assault on religious freedom here — namely the assertion by private businesses and their owners of an unprecedented right to impose the owners’ religious views on workers who do not share them.”

Some Obamcare Bright Spots

All is not lost for Obamacare, according to David Nather.  Nather contends that “the Obamacare roll-out that we’ve all seen is not the story of a fatally flawed law. It’s a story of incompetence.”

“There are states that are running their own websites and enrolling a lot of people … Medicaid enrollment, another part of the law, is going significantly better than the signups for private insurance — nearly 400,000 people were determined to be eligible in October.”

“And nationally, 1.5 million people applied for health coverage in October — suggesting that there’s a lot more potential interest than the 106,000 who got all the way through the federal and state Obamacare websites to select a private health plan.”

Nather acknowledges there are major obstacles to success, including poor mismanagement,  “unpopular tradeoffs”, and certain aspects of the law that are “fatally flawed”. But he also highlights what has worked in states that have had higher enrollment:

  • Less bells and whistles
  • Using existing technologies
  • Using outside contractors
  • A supportive political environment
  • Picking the right vendors
  • Aggressive outreach

The bottom line: “It’s not impossible for the law to work … because if it really were impossible, it wouldn’t be working anywhere.”

White House Cautious as Relaunches

According to The New York Times , “White House officials, fearful that the federal health care website may again be overwhelmed this weekend, have urged their allies to hold back enrollment efforts so the insurance marketplace does not collapse under a crush of new users.”

“At the same time, administration officials said Tuesday that they had decided not to inaugurate a big health care marketing campaign planned for December out of concern that it might drive too many people to the still-fragile”

“With a self-imposed deadline for repairs to the website approaching on Saturday, the administration is trying to strike a delicate balance. It is encouraging people to go or return to the website but does not want to create too much demand. It boasts that the website is vastly improved, but does not want to raise expectations that it will work for everyone.”

“Officials said the website was now able to handle 50,000 users at a time, providing enough capacity on a daily basis to enroll millions of people in the next four months.”

“But those charged with fixing the site worry that 250,000 people might try to use the site simultaneously at times on Saturday and in the days ahead.”

Supreme Court Takes Up Obamacare Again

The Supreme Court agreed “to wade into another heated Obamacare case–and opened the door to a new round of “war on women” attacks ahead of the 2014 midterms,” National Journal reports.

“The justices agreed to hear a challenge to the health care law’s contraception mandate, which requires most employers to include contraception in their employees’ health-insurance policies without charging a co-pay or deductible. A ruling would likely come in June–just months ahead of midterms that could determine which party controls the Senate and thus the confirmation process for new Supreme Court nominees.”

Obama's Next Broken Promise?

President Obama’s pledge that “if you like your doctor, you can keep your doctor”, is the next statement to undergo intense scrutiny.

While it is illogical to assume that people can keep their doctor “no matter what”, Jonathan Chait asserts that this latest controversy is “flecked with shades of gray.”

“The main difference between Keep Your Plan and Keep Your Doctor is that Obamacare’s disruption of the individual insurance market was a conscious policy choice … [Keep Your Doctor] does not create regulations designed to force people out of existing doctor-patient relationships. Keep Your Plan has been a political disaster for Obama because it was a broken promise. Keep Your Doctor is not even close to a clear-cut broken promise.”

Furthermore, “the [new health-care] exchanges turn out to be imposing some real market discipline on the process. People may like the idea of being able to go to any doctor or hospital, but what they really want is to pay low insurance premiums. The market is giving them what they want. Some people are not keeping their doctors because, it turns out, they don’t want to pay for the privilege.”

Health Care's Biggest Test Still to Come

“While failures in launching the federal insurance Web site and online exchanges have thrust the Department of Health and Human Services to the center of public attention,” the Washington Post notes that “the IRS also has a huge role in carrying out the law, including helping to distribute trillions of dollars in insurance subsidies and penalizing people who do not comply.”

“None is more crucial than enforcing the requirement that all citizens secure health insurance or pay a penalty. But those efforts have been hampered by a one-year delay in applying new insurance regulations to large employers. Those employers had been expected to provide insurance coverage information that the IRS would use to help identify who has insurance and who does not.”

“The lawmakers who drafted the health-care law intentionally barred the IRS from using its customary tools for collecting penalties — liens, foreclosures and criminal prosecution. The only means of collecting the fine is to essentially garnish tax refunds for people who overpaid their taxes.”

The good news: “IRS officials say that they are on track to meet the law’s requirements and that their computer systems are performing as hoped.” is the Case for Single-Payer

Nancy Folbre: “The malfunctioning website has magnified problems inherent in coordinating enrollment across many different companies in many different exchanges in cooperation with many different government agencies. The harmonization challenges are orders of magnitude greater than those faced by a single company or a single state, making streamlining difficult.”

“A single-payer insurance system, whether based on an extension of Medicare or on the Canadian model, promises many profoundly important benefits. Right off the mark, it promises simplicity.”

Are We Splintering the U.S. Healthcare System?

The fear that a two-tier healthcare exchange system would morph out of the disorganization wrought by Obamacare’s rollout is taking shape.

As Dustin Volz puts it, “The federally run exchanges are at a near-standstill thanks to a website so buggy that Jon Stewart christened it a “dot-turd,” while a handful of state exchanges are beating their enrollment goals handily. And barring a rapid turnaround in the federal exchanges’ fortunes, the splintering of America’s health-care system is underway.”

“The two-tier exchange system currently taking shape is all the more problematic because it creates a law in which the distribution of carrots is uneven while the presence of sticks—a system of mandates and penalties essential to making the law work—is universal.”

The good news: “As the law moves forward, many experts see reason to believe that the gap will eventually shrink.”

The bad news: “But between now and then, the political calculus is disastrous for Democrats.”