Separating Fact from Fiction on Trump’s Health Care Proclamation for Immigrants

On Friday, President Trump issued a proclamation requiring certain immigrants entering the country either to purchase health insurance, or demonstrate they can pay their medical bills. The order prompted no small amount of hysteria from the left over the weekend.

If you’re puzzled by this development, you might not be the only one. After all, don’t liberals want everyone to have health insurance? They have spent significant time and effort attacking President Trump for a (slight) increase in the number of uninsured people while he’s been president.

What the Proclamation Says

The proclamation itself, which will take effect on November 3 (30 days from Friday), limits “the entry into the United States as immigrants of aliens who will financially burden” the American health care system. It requires aliens applying for immigrant visas to become “covered by approved health insurance…within 30 days” of entry, or “possess…the financial resources to pay for reasonably foreseeable medical costs.”

The proclamation includes numerous different acceptable forms of health insurance: employer plans (including association health plans and COBRA coverage), catastrophic plans, short-term limited duration insurance, coverage through Tricare or Medicare, or visitor health coverage lasting a minimum of 364 days. The list of acceptable forms of insurance does not, however, include subsidized Obamacare exchange plans, or Medicaid coverage for individuals over age 18—likely because these options involve federal taxpayer subsidies.

What the Proclamation Doesn’t Say

It shouldn’t need stating outright, but contrary to claims that the proclamation constitutes a “racist attack on a community who deserves health care,” the order says not a word about a specific race, or national or ethnic group. It also exempts “any alien holding a valid immigrant visa issued before the effective date of this proclamation,” meaning the requirement will apply prospectively and not retrospectively.

Liberal reporters claimed that “the move effectively creates a health insurance mandate for immigrants,” after Republicans eliminated Obamacare’s individual mandate penalty. But this charge too ignores the fact that the proclamation—unlike Obamacare—includes an exception for those who “possess…the financial resources to pay for reasonably foreseeable medical costs.” (The proclamation does not define this term, meaning that the administration will presumably go through a rulemaking process to do so.)

The Real Story

Liberals’ hysteria over the issue demonstrates a massive shift leftward in recent years. Consider that in 1993, Hillary Clinton testified before Congress that she opposed extending benefits to “illegal aliens,” because it would encourage additional migration to the United States:

We do not think the comprehensive health care benefits should be extended to those who are undocumented workers and illegal aliens. We do not want to do anything to encourage more illegal immigration into this country. We know now that too many people come in for medical care, as it is. We certainly don’t want them having the same benefits that American citizens are entitled to have.

Even in 2009, Barack Obama felt the need to claim that his health plan wouldn’t cover those in the country illegally (even if the claim didn’t stand up to scrutiny). The fact that Democrats have now gone far beyond Obama’s position, and have attacked President Trump for ensuring foreign citizens will not burden our health care system—a position liberals claim to support for Americans—speaks to the party’s full-on embrace of both socialism and open borders.

This post was originally published at The Federalist.

President’s Executive Order Shows Two Contrasting Visions of Health Care

As Washington remains consumed by impeachment fever, President Trump returned to the issue of health care. In an executive order released Thursday, and a speech at The Villages in Florida where he spoke on the topic, the president attempted to provide a vision that contrasts with the left’s push for single-payer socialized medicine.

This executive order focused largely on the current Medicare program, as opposed to the existing private insurance marketplace. By promoting new options and focusing on reducing costs, however, the president’s actions stand in opposition to the one-size-fits-all model of the proposed health care takeover.

The Administration Wants To Explore These Proposals

One fact worth repeating about Thursday’s action: As with prior executive orders, it will in and of itself not change policy. The more substantive changes will come in regulatory proposals issued by government agencies (most notably the Department of Health and Human Services) in response to the executive order. While only the regulations can flesh out all of the policy details, the language of the order provides some sense of the proposals the administration wants to explore.

Modernized Benefits: The executive order promotes “innovative … benefit structures” for Medicare Advantage, the program in which an estimated 24 million beneficiaries receive Medicare subsidies via a network of private insurers. It discusses “reduc[ing] barriers to obtaining Medicare Medical Savings Accounts,” a health savings account-like mechanism that gives beneficiaries incentives to serve as smart consumers of health care. To accomplish that last objective, the order references broader access to cost and quality data, “improving [seniors’] ability to make decisions about their health care that work best for them.”

Expanded Access: The order seeks to increase access to telehealth as one way to improve seniors’ ability to obtain care, particularly in rural areas. It also looks to combat state-imposed restrictions that can limit care options, and can lead to narrow physician and provider networks for Medicare Advantage plans.

More Providers: The order discusses eliminating regulatory burdens on doctors and other medical providers, a continuation of prior initiatives by the administration. It also references allowing non-physician providers, such as nurse practitioners and physician assistants, to practice to the full scope of their medical licenses and receive comparable pay for their work.

Entitlement Reform: Last, but certainly not least, the order proposes allowing seniors to opt out of the Medicare program. This proposal would not allow individuals to opt out of Medicare taxes, but it would undo current regulations that require seniors to opt into the Medicare program when they apply for Social Security.

As I had previously explained, this proposal stands as a common-sense solution to our entitlement shortfalls: After all, why should we force someone like Bill Gates or Warren Buffett to accept Medicare benefits if they are perfectly content to use other forms of health coverage?

Democrats’ Health Care Vision Is Medicare for None

Of course, many on the socialist left have made their vision plain for quite some time: They want the government to run the entire health-care system. Ironically enough, however, Sen. Bernie Sanders’ single-payer legislation would abolish the current Medicare program in the process:

(1) IN GENERAL.—Notwithstanding any other provision of law, subject to paragraphs (2) and (3)—

(A) no benefits shall be available under title XVIII of the Social Security Act for any item or service furnished beginning on or after the effective date of benefits under section 106(a)

As I first noted nearly two years ago, this language makes Sanders’ proposal not “Medicare for All,” but “Medicare for None.” It speaks to the radical nature of the socialist agenda that they cannot come clean with the American people about the implications of their legislation, such that even analysts at liberal think-tanks have accused them of using dishonest means to sell single-payer.

Just as important, “Medicare for None” would take away choices for seniors and hundreds of millions of other Americans. As of next year, an estimated 24 million seniors will enroll in Medicare Advantage plans to obtain their Medicare benefits. As I outline in my book, Medicare Advantage often provides better benefits to seniors, and at a lower cost to both beneficiaries and the federal government. Yet Sanders and his socialist allies want to abolish this popular coverage, to consolidate power and control in a government-run health system.

The actions the administration announced on Thursday represent the latest in a series of steps designed to offer an alternative to the command-and-control vision promoted by the left. The American people don’t deserve socialized medicine, but they don’t deserve the broken status quo either. Only true patient-centered reforms can create a health-care environment that works for seniors and the American people as a whole.

This post was originally published at The Federalist.

Four Better Ways to Address Pre-Existing Conditions Than Obamacare

n a recent article, I linked to a tweet promoting alternatives to Obamacare’s pre-existing condition regulations, which have raised health insurance premiums for millions of Americans.

I offered those solutions when asked about a Republican alternative to Obamacare, and specifically the pre-existing condition provisions. While I no longer work in Congress, and therefore cannot readily get legislative provisions drafted and scored, I did want to elaborate on the concepts briefly mentioned, to show that other solutions to the pre-existing condition problem do exist.

1. Health Status Insurance

I mentioned both “renewal guarantees” and “health status insurance,” two relatively interchangeable terms, in my tweet. Both refer to the option of buying coverage at some point in the future—insurance against developing a health condition that makes one uninsurable.

Other forms of insurance use these types of riders frequently. For instance, I purchased a long-term disability policy when I bought my condo, to protect myself if I could no longer work and pay my mortgage. The policy came with two components—the coverage I have now, and pay for each year, along with a rider allowing me to double my coverage amount (i.e. the monthly payment I would receive if I became disabled) without going through the application or underwriting process again.

Since I bought that policy in 2008, my doctors diagnosed me with hypertension in 2012, and I went through two reconstructive surgeries on my left ankle. I don’t know if these ailments would prevent me from buying a disability policy now if I went out and applied for one. But because I purchased that rider with my original policy in 2008, I don’t need to worry about it. If I want more disability coverage, I can obtain it by paying the additional premium, no questions asked.

Health status insurance would complement employer-sponsored coverage. Most people get their coverage through their employers. Because employers heavily subsidize the coverage, and the federal government provides tax breaks for employer-sponsored plans, more than three in four people who are offered employer-sponsored insurance sign up for it.

But employer-based insurance by definition isn’t portable. When you switch your job, or (worse yet) lose your job because you’re too sick to work, you lose your coverage. Health status insurance would get around that portability problem. Individuals could sign up for their employer plan but pay for health status insurance “on the side.”

This coverage, which they and not their employer own, would protect them in case they develop a pre-existing condition or move to a job that doesn’t provide health insurance. It would also cost a lot less than buying a complete insurance plan—remember, they’re paying for the option to purchase insurance at a later date, not the insurance itself.

2. Insurance Portability

A proposed regulation issued by the Trump administration last month would permit just that. Under the proposal, employers could provide fixed sums to their employees to buy individually owned insurance—that is, a policy the employee buys and holds—through Health Reimbursement Arrangements (HRAs). Employees could pay any “leftover” premiums not covered by the employer subsidy on a pre-tax basis, as they do with their current, employer-owned coverage, through paycheck withholding.

I recently wrote about the regulation; feel free to read that article for greater detail. But as with health status insurance, better portability of individual coverage would allow people to buy—and hold, and keep—coverage before they develop a pre-existing condition, reducing the number of people who have to worry about losing their coverage when battling a difficult illness.

3. High-Risk Pools

Of course, health status insurance only helps those who purchase it prior to becoming sick. For people who already have a pre-existing condition, perhaps because of an ailment acquired at birth or in one’s youth, high-risk pools provide another possible solution.

Critics of risk pools generally cite two reasons to argue against this model as a workable policy solution. First, risk pools prior to Obamacare were not well-funded—in many cases, a true enough criticism. While some state pools worked well and offered generous subsidies (even income-based subsidies in some states), others did not.

It would take a fair bit of federal funding to set up a solid network of state high-risk pools. One article, published in National Affairs a few months after Obamacare’s enactment, estimated that such pools would require $15-20 billion per year in funding—probably more like $20-30 billion now, given the constant rise in health care costs. This figure represents a sizable sum, but less than the overall cost of Obamacare, or even its insurance subsidies ($57 billion this fiscal year alone).

Second, risk pool critics dislike the surcharges that many risk pools applied. Most pools capped monthly premiums for enrollees at 150 or 200 percent of standard insurance rates. Of course, individuals with chronic heart failure or some other costly condition generally incur much higher actual costs—costs that the pool worked to subsidize—but some believe that making individuals with pre-existing conditions pay a 50 to 100 percent premium over healthy individuals discriminates against the sick.

Personally, when designing a high-risk pool, I would distinguish between individuals who maintained continuous coverage prior to joining the pool and those who did not. Charging higher premiums to individuals who maintained continuous coverage seems unfair. On the other hand, it seems very reasonable to impose a surcharge for individuals who joined a high-risk pool because they didn’t purchase insurance until after they became sick.

As a small government conservative, I generally oppose intrusive attempts like an individual mandate to require individuals to behave in a certain manner. While I view going without health insurance an unwise move, I believe in the right of people to make bad decisions. However, I also believe in people paying the consequences of those bad decisions—and a surcharge on individuals who sign up for a high-risk pool while lacking continuous coverage would do just that.

4. Direct Primary Care

Direct primary care, which encompasses a personal relationship with a physician or group of physicians, can help manage individuals with chronic (and potentially costly) diseases. In most cases, patients pay a monthly or annual subscription fee to the practice, which covers unlimited doctor visits, as well as phone or electronic consultations and some limited diagnostic tests. Patients can get referrals to specialist care, or purchase a catastrophic insurance policy to cover expenses not included in the subscription fee.

Of course, primary care would not work well for a patient with advanced cancer, who needs costly pharmaceutical therapies or other very specialized care. But for patients with chronic conditions like diabetes, COPD, or chronic heart failure, direct primary care may offer a way better to manage the disease, potentially reducing health care costs while improving patient access to care and quality of life—the most important objective.

As noted above, these types of solutions are not one size fits all. Health status insurance would not work for patients born with genetically based diseases, and direct primary care might not help patients with advanced tumors.

But in some respects, that’s the point. Obamacare took a comparatively small universe of truly uninsurable patients—a few million, by some estimates—and uprooted the individual market of about 20 million people (to say nothing of other Americans’ health coverage) for it. Unfortunately, millions of Americans have ended up dropping insurance as a result, because the changes have priced them out of coverage.

A better way to reform the system would use a more specialized approach—a scalpel instead of a chainsaw. Health status insurance, improved portability, high-risk pools, and direct primary care represent four potential prongs of that better alternative.

This post was originally published at The Federalist.

How an Obscure Regulatory Change Could Transform American Health Insurance

Between the election campaign and incidents of terrorism ranging from attempted bombings to a synagogue shooting, an obscure regulatory proposal by the Trump administration has yet to captivate the public’s attention. However, it has the potential to change the way millions of Americans obtain health insurance.

In the United States, unique among industrialized countries, most Americans under age 65 receive health coverage from their employers. This occurs largely due to an Internal Revenue Service (IRS) ruling issued during World War II, which excluded health insurance coverage from income and payroll taxes. (Businesses viewed providing health insurance as one way around wartime wage and price controls.)

The Trump administration’s proposed rule would, if finalized, allow businesses to make a pretax contribution towards individual health insurance—that is, coverage that individuals own and select, rather than employers. This change may take time to have an impact, but it could lead to a much more portable system of health insurance—which would help to solve the pre-existing condition problem.

How Would It Work?

Under the proposed rule, employers could provide funds through a Health Reimbursement Arrangement (HRA) to subsidize the purchase of individual health insurance. Employers could provide the funds on a pretax basis, and—provided that the workers purchase their coverage outside of the Obamacare exchanges—employees could pay their share of the premiums on a tax-free basis as well.

In practical terms, some employers may choose to provide a subsidy for health coverage—say, $300 per month, or $5,000 per year—in lieu of offering a firm-sponsored health plan. Individuals could go out and buy the plan they want, which covers the doctors whom they use, rather than remaining stuck with the plan their employer offers. And employers would get better predictability for their health expenses by knowing their exposure would remain fixed to the sums they contribute every year.

Could Employers Game the System?

The proposed rule acknowledged the possibility that employers might try to “offload” their costliest patients into individual health coverage, lowering expenses (and therefore premiums) for the people who remain. The rule contains several provisions designed to protect against this possibility.

Employers must choose to offer either an HRA contribution towards individual coverage or a group health plan. They cannot offer both options, and whatever option they select, they must make the same decision for an entire class of workers.

A “class” of workers would mean all full-time employees, or all part-time employees, or all employees under one collective bargaining agreement. Hourly and salaried workers would not count as separate “classes,” because firms could easily convert workers from one form of compensation to another. These provisions seek to ensure that firms will offer some employees health insurance, while “dumping” other employees on to individual coverage.

Can Workers Buy Short-Term Coverage with Employer Funds?

Yes—and no. The proposed rule would allow HRA funds to purchase only individual (i.e., Obamacare-compliant) health insurance coverage, not short-term insurance.

However, the rule creates a separate type of account to which employers could contribute that would fund workers’ “excepted benefits.” This term could include things like long-term care insurance, vision and dental insurance, and the new short-term plans the Trump administration has permitted. But employers could only fund these accounts up to a maximum of $1,800 per year, and they could create these special “excepted benefits” accounts only if they do not offer an HRA that reimburses workers for individual insurance, as outlined above.

Will Firms Drop Health Coverage?

Some firms may explore the HRA option over time. However, the extent to which businesses embrace defined-contribution coverage may depend upon the viability of the individual health insurance market, and the status of the labor market.

However, if and when more insurers return to the marketplace, firms may view the defined-contribution method of health coverage as a win-win: employees get more choices and employers get predictability over health costs. Particularly if unemployment ticks upward, or one firm in an industry makes the move towards the HRA model, other businesses may follow suit in short order.

Will the Proposal Cost Money?

It could. The proposed rule should cost the federal government $29.7 billion over the first ten years. That estimate assumes that 800,000 firms, offering coverage to 10.7 million people, will use the HRA option by 2028. (It also assumes an 800,000 reduction in the number of uninsured Americans by that same year.)

The cost, or savings, to the federal government could vary widely, depending on factors like:

  • Whether firms using the HRA option previously offered coverage. If firms that did not offer coverage take the HRA option, pretax health insurance payments would increase, reducing tax revenues. (The rule assumes a reduction in income and payroll tax revenue of $13 billion in 2028.)
  • Whether individuals enrolling in individual market coverage via the HRA option are more or less healthy than current enrollees. If the new enrollees are less healthy than current enrollees, individual market premiums will rise, as will spending on Obamacare subsidies for those individuals. (The rule assumes a 1 percent increase in individual market premiums, and thus exchange subsidies.)
  • The extent to which HRAs affect eligibility for Obamacare subsidies. If some low-income individuals whose employers previously did not offer coverage now qualify for HRA subsidies, they may lose eligibility for Obamacare subsidies on the exchanges. (The rule assumes a reduction in Obamacare subsidies of $6.9 billion in 2028.)

Given the many variables in play, the rule has a highly uncertain fiscal impact. It could cost the federal government billions (or more) per year, save the federal government similar sums, or have largely offsetting effects.

An Overdue (and Welcome) Change

The proposed rule would codify the last element of last October’s executive order on health care. It follows the release of rules regarding both short-term health insurance and association health plans earlier this year.

Ironically, the Trump administration represents but the most recent Republican presidency to examine the possibility of defined-contribution health insurance. While working on Capitol Hill in 2008, I tried to encourage the Bush administration to adopt guidance similar to that in the proposed rule. However, policy disagreements—including objections raised by, of all places, scholars at the Heritage Foundation—precluded the Bush administration from finalizing the changes.

Since I’ve fought for this concept for more than a decade, and included it in a series of regulatory changes the administration needed to make in a paper released shortly before Trump took office, I can attest that this change is as welcome—and needed—since it is overdue. Although overshadowed at the time of its release, this rule could have a substantial effect on Americans’ health insurance choices over time.

This post was originally published at The Federalist.

Preserving Health Care Freedom in the Nation’s Capital

Two weeks ago, I described how provisions in a budget bill that the District of Columbia Council quietly passed would extend the reach of government-controlled health care in the nation’s capital. The provisions buried in that budget bill would not only reimpose the health insurance mandate penalty within the District of Columbia that Congress set to zero beginning in January, but would go further, by allowing DC authorities to place liens on, seize, and sell the property of individuals who cannot afford to pay the mandate tax.

Thankfully, my post had its intended effect in raising awareness of the issue among federal policy-makers. The office of Rep. Gary Palmer (R-AL) responded, introducing an amendment to appropriations legislation that the House of Representatives will consider this week.

Prevents Affordable Options from Qualifying 

The Palmer amendment would also allow individuals to purchase the type of health coverage they desire without getting hit with a “stealth” tax bill after-the-fact. If the District’s law goes into effect in January, individuals buying the new, more affordable coverage options proposed by the Trump administration could face exactly that.

The mandate the DC Council approved (see pages 168-82 here) effectively re-imposes on the District Obamacare’s individual mandate as it existed last December 15—the date the congressional conferees on the tax bill filed their conference report (i.e., before legislation setting the federal mandate penalty to zero was signed into law). By linking the District’s mandate to the policies and regulations in place as of last December 15, the DC mandate also prevents the new options the Trump administration is introducing from qualifying as “minimum essential coverage” for purposes of complying with the mandate.

For instance, the DC law defines “minimum essential coverage” as “minimum essential coverage as defined by section 5000A of the [federal] Internal Revenue Code of 1986 and its implementing regulations, as that section and its implementing regulations were in effect on December 15, 2017.” It further specifies that “minimum essential coverage” shall include:

Health coverage provided under a multiple employer welfare arrangement; provided that the multiple employer welfare arrangement provided coverage in the District on December 15, 2017, or complies with federal law and regulations applicable to multiple employer welfare arrangements that were in place as of December 15, 2017.

Locks Out Short-Term Coverage, Too

The District’s statute also would exclude short-term health plans from qualifying as “minimum essential coverage” for purposes of its health insurance mandate. Obamacare itself defined “minimum essential coverage” to include “coverage under a health plan offered in the individual market within a state.” But because another portion of federal law says “‘individual health insurance coverage’ means health insurance coverage offered to individuals in the individual market, but does not include short-term limited duration insurance,” short-term plans would not qualify.

Obamacare did give the secretary of Health and Human Services, along with the secretary of the Treasury, discretion in determining other forms of “minimum essential coverage” for purposes of the federal mandate. However, because the District linked its mandate to those federal definitions in effect as of December 15, 2017—well before the Trump administration first proposed its changes to the regulation of short-term plans on February 20, 2018—short-term plans would not qualify as acceptable coverage under the District’s mandate.

District residents who purchase short-term plans, like those who access the expanded association health plans, would not comply with the new coverage requirements. Particularly given the very quiet way the DC Council enacted the legislation, many individuals may not know that the District re-imposed a health insurance mandate or that certain types of coverage do not comply with it, and face an unpleasant tax “surprise” in the spring of 2020 (as they file their DC tax returns for 2019). Unless, of course, Congress enacts the Palmer amendment into law.

Congress’s Constitutional Duty

Moreover, it also belies the fact that DC officials made little attempt—one could argue purposefully made little attempt—to publicize the council’s deliberations over this change. I e-mailed three people in Mayor Muriel Bowser’s press office about the council’s actions two weeks ago, and still have yet to receive so much as an acknowledgement.

Bowser can argue all she wants about “Taxation without Representation,” but given that her office made zero attempt to represent me, she has little right to complain. The House should pass the Palmer amendment this week, and prevent the strong-arm tactics associated with government-controlled health care from taking root in the nation’s capital.

This post was originally published at The Federalist.

The Binary Choice Paul Ryan Doesn’t Want to Face

This time last year, House Speaker Paul Ryan (R-WI) spoke to all who would listen about the health care legislation that Republican leadership crafted: “This is the closest we will ever get to repealing and replacing Obamacare. It really comes down to a binary choice.” Now, however, Ryan faces a binary choice himself — one that he and his leadership colleagues seem intent on deflecting.

Ryan can support an Obamacare bailout, or he can support the pro-life movement. He cannot support both.

The deafening silence emanating from Republican leaders on the life issue speaks volumes to both their knowledge of the problem, and their intent of how to handle it. Ryan desperately wants to bail out Obamacare, going so far as to promote a ridiculous budgetary gimmick that should make Ryan, in his former role as Budget Committee Chairman, laugh out loud in its absurdity.

If Republican leaders considered the life issue a red line they cannot, and will not, cross, to pass an Obamacare bailout, they would have said so months ago. By and large, they have not done so, instead issuing only mealy-mouthed statements that “we have been working on it.”

Such statements constitute, in plain English, a cop-out. When the issue presents a binary choice, as here, Congress has little to “work on”—the Hyde amendment either appears in the bill, or it doesn’t. A cynic might argue that the “we have been working on it” statement means that Republican leaders consider the life issue a political problem to game their way around, rather than a moral principle that they must uphold first, last, and always.

But executive action cannot trump the statute itself. Senate Majority Leader Mitch McConnell (R-KY) said the week Obamacare passed that the law “forces taxpayers to pay for abortions,” and only another law will change that dynamic.

As Congressman Jim Sensenbrenner observed in March 2010:

This bill expands abortion funding to the greatest extent in history. I have heard that the president is contemplating an executive order to try to limit this. Members should not be fooled. Executive orders cannot override the clear intent of a statute. … If an executive order moves the abortion funding in this bill away from where it is now, it will be struck down as unconstitutional because executive orders cannot constitutionally do that.

Republican leaders may also embrace the political tactic of a “headpat vote.” This gambit would bring to the floor two separate bills — one containing the Obamacare “stability” funding, and a separate, stand-alone bill codifying pro-life protections for that funding. While that concept might sound reasonable at first blush, the pro-life community would find the outcome unacceptable — the Obamacare funding would remain on a “must-pass” bill headed straight to the president’s desk, while the pro-life restrictions would die in the Senate by failing to get the 60 votes needed to break a filibuster.

This procedural gimmick would represent the worst of the Washington “swamp,” allowing Republican politicians to echo John Kerry in 2004 by taking both sides of an issue: “I actually voted for the $87 billion before I voted against it.” Moreover, it would demonstrate that, when the chips are down, Republican leaders view the life issue and community as something to be bargained away, or appeased through meaningless political tokenism, rather than as a moral imperative and matter of first principles.

In the end, the pro-life community has witnessed enough political double-talk, most notably by Democrats attempting to claim Obamacare does not fund abortion coverage, to see through any procedural gimmicks Republican leaders might propose. The question of whether Republicans support taxpayer funding of abortion coverage in Obamacare really does come down to a binary choice. Here’s hoping that Republicans choose the side of life.

This post was originally published at The Federalist.

What You Need to Know about the Proposed Short-Term Plans Rule

On Tuesday morning, the Trump administration issued a proposed rule regarding short-term health insurance plans. The action represents the second prong of the Trump administration’s strategy, outlined in last October’s executive order, to offer regulatory relief to insurance markets. The Department of Labor acted on the first prong, issuing a proposed rule expanding access to association health plans, in January.

As I noted in October, the Obama administration issued a rule in October 2016 designed to limit short-term plans. The Public Health Service Act specifically exempts “short-term, limited-duration insurance” from the definition of “individual health insurance coverage,” exempting such plans from all of Obamacare’s new, federally imposed regulatory regime (though they are regulated by states).

The Trump Administration’s Proposal

The Trump administration’s proposed rule would revise the disclosure slightly (in part to reflect the repeal of Obamacare’s individual mandate, set to take effect in January 2019), and restore the prior definition of short-term coverage to “less than 12 months.”

The proposed rule also requests comment on the ways to facilitate streamlined renewal of short-term plans. As I noted in an article last year, limiting individuals’ ability to renew policies harmed people who develop illnesses while on short-term plans:

Jimmy Kimmel forgot to mention it, but prohibiting coverage renewals harms individuals with pre-existing conditions, because it forbids customers who develop a pre-existing condition while on short-term plans from continuing their coverage. In discouraging these short-term plans, the Obama administration preferred individuals going without coverage entirely over seeing anyone purchase a policy lacking the full panoply of ‘government-approved’ benefits.

The Trump administration can and should rescind this coercive rule and its perverse consequences immediately.

Effective Dates and Impact

The administration estimates that the proposed rule would lead only about 100,000-200,000 individuals to switch from individual coverage to short-term plans, only about 10 percent of whom would have qualified for Obamacare insurance subsidies on exchanges. The administration also estimates the rule would raise spending on premium subsidies by $96-168 million annually. Because the individuals shifting to short-term coverage would be younger and healthier than average, they would slightly increase premiums, and thus premium subsidies, on the insurance exchanges.

However, these comparatively modest estimates on both the coverage and cost fronts suggest that short-term plans may have less of an impact than conservatives had hoped—or liberals have feared. Time will tell if the predictions prove an over-estimate or under-estimate; perhaps more definitive actions to allow for the guaranteed renewal of short-term coverage will increase their popularity.

What Should Be the Next Steps?

Now that it has proposed this rule, the administration should take regulatory action on another front, by stopping a movement in Idaho to offer non-compliant health plans. Last month, the state’s insurance department offered guidance to insurers about new coverage offerings. The new plans could:

  • Impose limits on pre-existing conditions for individuals without continuous coverage;
  • Limit benefits provided to $1 million annually;
  • Not offer maternity care in all cases (although each carrier must sell one plan with maternity coverage); and
  • Charge older individuals up to five times as much as younger individuals when calculating premium rates.

But the Idaho guidance hints at one big problem. It instructs insurers selling the plans in question to disclose to consumers that “This policy is not fully compliant with federal health insurance requirements.”

Therefore, as a matter of law, I cannot support the Idaho effort, not because I support or want to sustain Obamacare—I don’t—but because I support and want to sustain the rule of law, which is more important than any single piece of legislation. Unfortunately in this instance, federal law supersedes state law, which means the federal law must prevail.

I wrote in January 2017 that the Trump administration had an obligation to enforce the individual mandate. Likewise here, the administration has an obligation to enforce the Obamacare statute, and either redirect Idaho’s efforts to bring them into compliance with the law—perhaps through a Section 1332 innovation waiver, although that waiver may not bring the state sufficient flexibility—or quash them. The administration has a constitutional obligation to “take care that the laws be faithfully executed,” and it should not follow the Obama administration’s example of picking and choosing which laws it wishes to enforce.

Better yet, Congress can and should repeal the regulations that represent the beating heart of Obamacare. They have a roadmap to do so, even with a slim Senate majority. Such action would allow Idaho, and 49 other states, to innovate to their heart’s content to provide more affordable coverage to their residents—an outcome consistent with the rule of law, and federalism, that conservatives could embrace whole-heartedly.

This post was originally published at The Federalist.

Who Really Proposed the Obamacare Bailout in the Trump Budget?

Maybe it was Colonel Mustard in the conservatory with the revolver. Or Professor Plum in the library with the candlestick.

The story behind the Obamacare bailout proposed in last week’s budget has taken on a mysterious tone, akin to a game of Clue. My Thursday story focusing on the role played by White House Domestic Policy Council Chair Andrew Bremberg prompted pushback from some quarters about the actual perpetrator of the proposal. As a result, I spent a good chunk of Friday afternoon trying to gather more facts—and found definitive ones hard to come by.

As to the accuracy of my initial theory, people I trust and respect arrived at strikingly different views. However, I found surprising unanimity on one count: No one—but no one—wants to take credit for inserting the proposal to pay $11.5 billion in risk corridor claims. As someone told me: “You raise a valid question. If Andrew Bremberg didn’t insert the proposal into the budget”—and this person didn’t think he did—“then how did it get in there?”

Therein lies a huge problem. To call the inclusion of a $11.5 billion proposal in the president’s budget that no one in the administration seemed to know about, or wants to take credit for, a prime example of managerial incompetence would put it mildly. Either career staff inserted it in the budget, and the political staff did not have the antennae or bandwidth to understand its consequences and take it out, or a few political appointees and career staff hijacked the budget process, with most other individuals unaware of the situation until the budget’s public release.

To borrow a politically loaded phrase, someone—or a group of someones—colluded to get this language included in the budget. Its inclusion could cost federal taxpayers literally billions of dollars.

Why It Matters

By submitting a budget proposal to “request mandatory appropriations for the risk corridors program,” the White House completely undermined and undercut the arguments its own Justice Department had made in court a few short weeks ago, that the federal government owes insurers nothing.

In other words, whomever inserted this policy U-turn into the budget, just as the judges ponder a ruling in the insurer lawsuits, may have effectively “tanked” the government’s case. Either by leading to an adverse ruling, or by prompting the Justice Department to settle the case at a much higher cost, this move could cost taxpayers billions.

A Pro-Life Administration, Or Not?

Unfortunately, it gets worse. While the budget did include new funds for insurers, including the controversial risk corridors bailout described above, it did not include a single word proposing that such funds prevent taxpayer dollars from going to plans that cover abortion.

There’s a reason for the deafening silence: Republicans know that any legislation that funds insurers and provides robust pro-life protections will not pass. Democrats will object to its inclusion. Given the choice between passing up on an Obamacare bailout or abandoning their pro-life principles, Republicans have given every expectation that they will choose the latter course. (They shouldn’t bail out Obamacare regardless, but that’s a separate story.)

Regardless of who proposed these, it doesn’t take a detective to understand how a policy reversal that could cost taxpayers billions and a pending U-turn by Republicans to fund abortion coverage represent a major one-two punch against conservatives. But the mysterious origins and mangled management of the risk corridor proposal adds a further layer of insult to injury, a triple whammy of a tough week for the administration.

This post was originally published at The Federalist.

AHP Proposed Rule: Expanding Affordability, Washington Control, or Both?

Why would Sen. Rand Paul praise as “conservative care health reform” a proposed regulation that increases Washington’s power?

A proposed rule released Thursday regarding association health plans (AHPs) will likely provide more affordable health coverage options to the self-employed, or individuals working for small businesses. However, it would do so by increasing the number of individuals purchasing health coverage regulated by Washington, making it a mixed bag for conservatives.

A Look at Current Law

  1. Essential health benefits (including actuarial value requirements, limits on out-of-pocket expenses, and deductibles in the small group market);
  2. Risk adjustment payments;
  3. Single risk pool requirements (i.e., requiring insurers to consider all individual coverage, and all small group coverage, offered in a state as one block of business); and
  4. Premium variation requirements imposing strict limits on age-rating, and prohibiting variation by anything other than age, family size, geography, and tobacco use.

The absence of all these requirements gives large group coverage a decided regulatory advantage compared to individual and small group coverage. Self-insured health plans—that is, employer plans that retain the insurance risk themselves—are likewise exempt from the Obamacare requirements listed above, regardless of the business’ size (i.e., whether they have more or fewer than 50 employees).

However, for AHPs that currently buy coverage from insurance carriers (i.e., “fully insured” plans), the Obama administration in 2011 issued guidance that stated regulators would “look through” the association to its members to determine whether their coverage qualified as small group or large group. To give an example, consider an association of restaurant franchises with two members: one with 30 employees, and one with 75 employees. While the restaurant with 75 employees would meet the standard of a large group plan, the one with 30 would classify as a small group plan.

As a result of the 2011 guidance, coverage for the latter would have to meet all the Obamacare coverage requirements for small group plans listed above, making coverage for the larger employer either administratively cumbersome (because two employers would have two different regulatory benefit packages), costlier (because the larger restaurant would have to comply with the small group requirements as part of an association, even though that restaurant would not have to comply if it bought coverage on its own), or both.

What the Proposed Rule Does

In general, the proposed rule would:

  1. “Relax the existing requirement that associations sponsoring AHPs must exist for a reason other than offering health insurance.” Associations must still be run by their members—for instance, Blue Cross or other insurers couldn’t try to form, and run, an “association” just to offer group health coverage—but need not exist for other purposes.
  2. “Relax the requirement that association members share a common interest, as long as they operate in a common geographic area”—either a state, or a metropolitan area encompassing multiple states (e.g., greater Washington DC).
  3. “Make clear that associations whose members operate in the same industry can sponsor AHPs, regardless of geographic distribution.”
  4. “Clarify that working owners and their dependents,” including the self-employed, “are eligible to participate in AHPs.” These individuals must meet certain proposed requirements—working for the business at least 30 hours per week, or 120 hours per month, or generating income from the business equal to the cost of coverage for the owner and his/her family—designed to ensure individuals do not form “businesses” solely for the purposes of purchasing association health coverage.

The Effects on Insurance Offerings

Even prior to the rule’s release, liberal Obamacare supporters claimed the policy represents another attempt to “sabotage” the law, because healthier people will purchase AHP coverage lacking Obamacare’s “consumer protections.” Attempting to respond to that criticism, the proposed rule includes several non-discrimination provisions, prohibiting associations from discriminating in offering membership based on the health status of members’ employees, or varying premiums or eligibility for benefits based on health status. Liberals respond that employers could discriminate through benefit offerings—for instance, not covering chemotherapy to discourage businesses with cancer patients from applying.

However, large employers already exempted from the Obamacare benefits don’t have to offer any such coverage currently, and I have yet to hear any major reports about IBM or General Motors “discriminating” against patients with pre-existing conditions. If these employers haven’t used an exemption from Obamacare coverage requirements to offer shoddy health coverage, then why do liberals believe that other employers will?

How This Affects Federal Power

In general, the rule would expand cross-state purchasing of health insurance. However, it would not do so by allowing people to purchase coverage across state lines—for instance, allowing a Maryland resident to buy a policy regulated in Virginia. Instead, it would allow more individuals to buy federally regulated coverage, regardless of the state in which they live.

Because the rule would eliminate the need for AHPs to comply with Obamacare requirements, it would lower premiums in the short term. However, in the longer term, the nature of the proposal raises two risks. On the one hand, a future administration could revoke the rule, minimizing AHPs’ scope and impact. On the other, a new administration—or a Democratic Congress—could easily glom more federal regulatory requirements on to AHPs and other forms of group coverage.

As I have written previously, the regulatory regime represents the heart of Obamacare. The proposed rule attempts a “kludgy” work-around of that regime, but one that, by increasing federal control over health insurance, may end up causing more trouble over the long term. Congress can—and should—do far better, by repealing the regulatory regime outright, and returning control of health insurance markets where it belongs: To the states.

This post was originally published at The Federalist.

Are Senate Republicans Planning an Abortion Flip-Flop in Obamacare “Stability” Bill?

As Yogi Berra would say, “It’s déjà vu all over again.” Once again, Senate Republicans are preparing to flip-flop on taxpayer funding of plans that cover abortion. In June, I discussed how unnamed Senate Republican sources claimed that their “repeal-and-replace” legislation would preserve Obamacare’s “restrictions on abortion funding,” even though Republicans have spent the past seven years arguing that the law provides taxpayer funding of plans that cover abortion.

Those same unnamed sources are now trying to claim that the Obamacare “stability” bill does not need additional restrictions on abortion funding. As Politico reports:

[Senate Republicans are] stressing that Obamacare already has prohibitions on using federal funds for abortions that are not because of rape or incest or to save the mother’s life. Anti-abortion groups didn’t trust the Obama Administration to enforce those prohibitions. That prohibition could carry more weight now. ‘We have a pro-life Administration that has agreed to more stringently enforce the life protections,’ a Senate Republican source said.

Let’s Go Down Memory Lane

In June, I cited several floor speeches during the Obamacare debate where congressional leaders argued that Obamacare includes taxpayer funding of abortions. For instance, here’s Senate Majority Leader Mitch McConnell (R-KY), as the House prepared to vote on Obamacare: “Democrats over in the House want to approve the Senate bill without actually voting on it. These Democrats want to approve a bill that rewrites one-sixth of the economy, forces taxpayers to pay for abortions, raises taxes in the middle of a recession, and slashes Medicare for seniors, without leaving their fingerprints on it” (emphasis mine).

Astute observers might notice the wording of McConnell’s remarks. The Senate majority leader did not say that “Obamacare might force taxpayers to fund abortion coverage, depending upon how the administration implements the law.” He did not say that “We need to elect a pro-life administration to prevent Obamacare from providing taxpayer funding of abortion coverage.” He flatly stated that Obamacare “forces taxpayers to pay for abortions”—period, end of story.

Mr. Speaker, the bill before us tonight doesn’t fix anything. It doesn’t fix the fact that this is a government takeover of health care that’s going to mandate that every American buy health insurance whether they want it or need it or not. It doesn’t fix the fact that it includes about $600 billion in job-killing tax increases in the worst economy in 30 years. It doesn’t fix the fact this bill provides public funding for elective abortion for the first time in American history (emphasis added).

Law Trumps Executive Action

McConnell, Pence, and many others had good reason for their statements. As Sen. Orrin Hatch (R-UT) noted in December 2009, Obamacare’s abortion funding restrictions are “significantly weaker” than the Hyde Amendment—a provision designed to prevent taxpayer funding of abortion since 1976—making them “completely unacceptable” in Hatch’s view, and in the view of most pro-lifers.

As to Republican staffers’ claims that the Trump administration can “fix” the flawed statutory language through executive orders or more robust enforcement, here’s what pro-life Rep. Jim Sensenbrenner (R-WI) had to say about that in March 2010:

This bill expands abortion funding to the greatest extent in history. I have heard that the President is contemplating an executive order to try to limit this. Members should not be fooled. Executive orders cannot override the clear intent of a statute….If an executive order moves the abortion funding in this bill away from where it is now, it will be struck down as unconstitutional because executive orders cannot constitutionally do that.

Other House members made the same argument in March 2010, including Dan Lungren (R-CA) and Joe Pitts (R-PA). Their argument applies just as equally to Republican presidents and administrations as it does to Democratic ones.

Moreover, conservatives who believe in limited government should not ask President Trump to exceed his executive authority, and a blanket funding on Obamacare’s abortion coverage would do just that. As I wrote in January, “a Republican Administration should not be tempted to ‘use unilateral actions to achieve conservative ends.’ Such behavior represents a contradiction in terms.” Not only can the Trump administration not stop funding of abortion coverage unilaterally, it should not attempt to try, if doing so would exceed its legal authority.

Don’t Insult Voters’ Intelligence

Just as the Trump administration should not try to exceed its authority in shutting down federal funding of abortion coverage, Senate Republicans should not attempt to insult voters by pretending that those efforts will succeed legally, or that the “completely unacceptable” abortion “protections” Hatch described in 2009 are now sufficient.

Senate Republicans have already attempted to claim that the insurer “stability” bill will bring benefits to taxpayers, even though the non-partisan Congressional Budget Office believes the bill will give a windfall directly to insurance companies. They should not worsen the spectacle of rationalizing bad policy by attempting to render seven years of arguments they made to the pro-life community meaningless—for they only beclown themselves in the process.

This post was originally published at The Federalist.