D.C.’s Latest Health “Reform:” Seizing People’s Property

Just when you think the move for government control of health care couldn’t get any worse, somehow it manages to. Last Wednesday, the District of Columbia City Council approved a requirement for all DC residents to purchase health insurance. The mandate would take effect in January, right when the federal mandate penalty drops to $0, as per last year’s tax law.

The D.C. mandate contains three elements that make it just as bad as, if not worse than, the federal mandate it is intended to replace.

A (Deliberately?) Opaque Process

A cynic might believe that the D.C. Council acted in such a low-key manner by design. The council did not approve the mandate as a stand-alone bill, but wrapped it into a 297-page Budget Support Act. That bill contains such unrelated provisions as an amendment regarding the Fort Dupont Ice Arena, technical corrections to a supermarket tax incentive program, and amendments regarding civic associations using public schools.

Likewise, a press release by the D.C. Council summarizing Wednesday’s meeting contained not a word about imposing the individual mandate, nor did the council website show any stand-alone votes on the mandate itself. This lack of disclosure pushed me to contact my council member, Charles Allen, to find out what had happened at the council meeting Wednesday.

Upon hearing that the mandate as passed of a much larger package, I asked one of Allen’s staffers whether this provision had been “snuck in at the last minute.” The staffer said DC Mayor Muriel Bowser had proposed the mandate as part of her budget submission to the council back in March. He then rather sheepishly added that, while people had testified on behalf of other portions of the Budget Support Act, no one had spoken about the mandate specifically.

For a district that decries “Taxation Without Representation,” this Nancy Pelosi-esque behavior—where we literally had to pass the bill to find out what was in it—seems to embody the very congressional tactics that DC leaders love to hate.

Harsher Penalties for Violators

During the 2009-10 debate on Obamacare, the threat of penalties for violating the individual mandate became a source of intense controversy. During the Senate Finance Committee’s markup, Sen. John Ensign (R-NV) received a handwritten note from Thomas Barthold, head of the Joint Committee on Taxation, stating that, under federal law, non-payment of the mandate tax could result in imprisonment. Democrats buckled under this political pressure, removing from the Internal Revenue Service the power to imprison violators, or impose liens on personal property, for non-payment of the mandate tax.

By contrast, the district’s mandate—which comprises pages 168-182 of the Budget Support Act—includes this language at the bottom of page 180: “A taxpayer who fails to pay the District of Columbia shared responsibility payment imposed…shall be subject to all collection, enforcement, and administrative provisions applicable to unpaid taxes or fees, as provided in Chapter 18, Chapter 41, Chapter 42, Chapter 43, and Chapter 44 of this title [emphasis mine].”

Unlike the federal Internal Revenue Code, it does not appear at first glance that the district’s tax law allows for imprisoning individuals for non-payment of taxes (as opposed to deliberate tax evasion or fraud). However, Chapter 44 includes the following language:

If a person determined to be liable to the District of Columbia for a tax neglects or refuses to pay the tax within 10 days after notice and demand, the Mayor may collect the tax, with interest and penalties thereon (and an amount sufficient to cover the expenses of the levy), by levy upon all property (including rights to property) of the person or on which there is a lien provided in this chapter for the payment of the tax.

No wonder the D.C. Council didn’t want to hold an up-or-down vote on just this provision.

Hypocrisy Much?

Another relevant fact to the district’s mandate: The head of the District’s health insurance exchange—which recommended creating a DC mandate following the removal of the federal tax penalty—doesn’t buy exchange coverage herself. As I previously noted, many exchange heads (and Obamacare supporters) refuse to buy the coverage they promote, including the head of the district’s exchange, Mila Kofman.

When I discovered in late 2016 that I could not retain that plan in 2017, due in part to regulations imposed by the district’s exchange, I attended a meeting of the exchange authority. I asked Kofman whether she, and other exchange employees, purchased exchange coverage. She claimed that she and her colleagues could not purchase exchange policies, because they would lose their employer subsidy in the process.

I don’t know whether Bowser and the DC Council behave similarly to Kofman, but I can guess. On Thursday afternoon, I e-mailed Bowser’s office asking about the DC insurance mandate, and whether Bowser received a taxpayer subsidy for her insurance coverage. (The district’s mayor receives a salary of $200,000 annually.) I also asked what Bowser would “say to District residents like me—who make far less in salary than she does, yet do not receive [taxpayer-]subsidized benefits—being forced to buy coverage under penalty not just of taxation, but of property seizures through DC’s tax enforcement mechanisms?”

Wouldn’t you know it: I have yet to receive a response.

Here Are Some Policy Solutions

Thankfully, several of the policy and process problems outlined above contain within them readily achievable solutions:

  • The D.C. Council should pass legislation requiring the mayor, council, exchange CEO, and exchange board members to buy coverage through the exchange—without using separate taxpayer-funded benefits available to other district employees.
  • If the council will not act, the Trump administration could promulgate regulations requiring the CEOs and board members of all state-run exchanges (including the district’s) to buy the coverage they promote and oversee.
  • Congress could also exercise its constitutional prerogatives and strike down the district’s individual mandate, ensuring that no individuals will have their property seized by an overzealous government if they cannot afford to buy “bureaucrat-approved” health insurance.

Better yet: The District of Columbia Council could decide to stop micromanaging its residents’ health care by surreptitiously passing onerous mandates in legislation that few district residents know about.

This post was originally published at The Federalist.

Sebelius Admits: Costs Keep Going UP

In an exchange with Sen. Ensign, Secretary Sebelius admitted that health costs continue to rise despite (or perhaps because of) the enactment of the health care law.  But that’s not what candidate Obama promised – he said repeatedly his bill would CUT costs by $2500 for the average American family, and that those reductions would occur within Obama’s first term.  (A sample of candidate Obama’s promises are listed here.)  Unfortunately, however, the Medicare actuary agrees with Secretary Sebelius, noting that the health care law will RAISE costs by $310,800,000,000, and further admitting the promise that the health care law would lower costs was “false, more so than true.”

Whatever people may have thought about the law prior to its enactment, they are seeing its ramifications in their pocketbooks and paychecks every week.  The American people continue to advocate for true health reform – but seeing the results of Democrats’ law in their wallets, they can recognize that what was enacted last year isn’t it.

This Morning’s Berwick Hearing By the Numbers

This morning’s Finance Committee hearing featuring testimony by CMS Administrator Donald Berwick adjourned almost as quickly as it began due to a series of votes on the Senate floor.  It’s worth noting that this morning’s vote series was already scheduled at the time the hearing was announced last week – meaning the scheduling conflict was easily preventable, had the majority chosen another time for the hearing.  Here’s a quick look at how the hearing shaped up:

10:03 – Time hearing began

10:27 – Time questioning began

11:23 – Time hearing adjourned

56 – Total minutes for questioning

4 – Number of Republican Senators able to question Dr. Berwick (Grassley, Hatch, Bunning, and Ensign)

Compare these numbers to the universe of material about which Senators may wish to query Dr. Berwick:

2,700 – Pages in the health care law (including reconciliation legislation and Indian Health Service provisions)

4,103 – Pages of regulations implementing the health care law released between March 23 and September 23

Thousands – Pages of Dr. Berwick’s controversial speeches, journal articles, and other writings over the past 30-plus years

Given the plethora of potential questions and the modicum of time Senators had to ask them, there’s one other key number to keep in mind:

November 29 – Date the Senate returns from Thanksgiving break

Will Chairman Baucus call a follow-up hearing to give all Senators a fair opportunity to ask questions – and if so, when?  As Dr. Berwick himself would say, “‘Some’ is not a number, ‘soon’ is not a time…”

Ensign Amendment (#3710) on Individual Mandate

Below please find a summary from my colleague Gregg Nunziata regarding Sen. Ensign’s amendment (#3710) to strike the individual mandate penalty…
Senator Ensign is expected to offer a motion to strike the penalty associated with the individual mandate of the health care Act.  Please note this is subject to change.
Numerous objections have been raised against the individual mandate, including an assertion that it violates the enumerated powers of the legislative branch.
Commerce Clause

It has been argued that the individual mandate of the health care Act exceeds the federal government’s enumerated powers, even under existing Commerce Clause jurisprudence.  The claim is that it regulates Americans simply for existing, not for entering into any economic activity.  It purports to regulate inactivity by converting the inactivity of not buying insurance into commercial activity.

Additional background on this point is available in a writing from David Rivkin and Lee Casey, as well as a Heritage piece.  These writings argue that if the federal government has the power to require individual to purchase health insurance, then federal power would essentially be unlimited.

Constitutional adjudication

Some commentators have noted that the Supreme Court has not struck down major legislation on Commerce Clause grounds in generations.  The Rehnquist Court, however, in its rulings in Lopez and Morrison, made clear that the Clause was not a limitless grant of power.  Stuart Taylor, writing in National Journal, has argued that the Court “would and should” defer to the judgment of Congress on the Constitutionality of the legislation.

The Senate voted on various Constitutional points of order when it was considering the health care bill, including one expressly directed at the individual mandate, which was turned away by a vote of 39-60.

Ensign Amendment (#3593) on Liability Protections for Pro Bono Care

Senator Ensign has offered an amendment (#3593) to the reconciliation bill, to grant limited liability protection to those who provide pro bono medical care. The liability protections would apply to a provider giving care to someone who is uninsured, or unable to pay for their treatment. The liability protections would NOT apply to services outside the scope of the practitioner’s licensing (except to prevent the loss of life or serious bodily harm), or to cases of willful or criminal misconduct or gross negligence.

The amendment is supported by:

    • The Alliance of Specialty Medicine;
    • The Health Coalition on Liability and Access;
    • The American Association of Neurological Surgeons;
    • The American Association of Orthopaedic Surgeons;
    • The American Gastroenterological Association;
    • The American Society of Cataract & Refractive Surgery;
    • The American Urological Association;
    • The Coalition of State Rheumatology Organizations;
    • The Congress of Neurological Surgeons;
    • The Heart Rhythm Society;
    • The National Association of Spine Specialists; and
    • The Society for Cardiovascular Angiography and Interventions