Yesterday, the New York Times detailed the highly irregular manner preceding the administration’s decision to make the CSR payments once Congress refused to grant the White House’s request for an appropriation. Despite strong disagreements over the legality of these payments among IRS employees, top political appointees with the administration, including then-Attorney General Eric Holder and Treasury Secretary Jack Lew, signed off.
At a congressional deposition, David Fisher, an IRS financial risk officer at the time, testified that the process behind the authorization of the CSR payments was unusual. Moreover, he testified that the “cost-sharing reduction payments are not linked to the Internal Revenue Code, as far as I could tell, directly anywhere. There is no linkage to the permanent appropriation, nor is there any link to any other appropriation that was indicating what account these funds should be paid from.”
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Two recently filed lawsuits illustrate continuing difficulties the administration faces in implementing the Affordable Care Act, particularly under the constraints imposed upon it recently by Congress. Specifically, the suits illustrate the legal difficulties for the administration created by Congress’ limiting of “risk corridor” payments—made to insurers with high claims costs—to amounts contributed to the risk corridor program by insurers with low costs. Last year, CMS announced that it would have only $362 million in contributions to pay out $2.87 billion in requested payments, and so would only pay out 12.6 cents on the dollar for payment claims.
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ObamaCare is bringing out corporate America’s worst crony-capitalist impulses. The health-insurance lobby has teamed up with trial lawyers to sue the federal government—through individual lawsuits and a $5 billion class action—for not following through on a bailout deal buried in the law. This provision, the risk corridor program, would have required taxpayers to bail out insurers for losing money on the health-care exchanges. In late 2013, Sen. Marco Rubio introduced legislation to repeal the provision entirely and later another bill to make the program budget neutral. When it came time to pass a spending bill at the end of 2014, Congress succeeded in making it the law of the land that the bailout program could not cost taxpayers a single cent—which ended up saving taxpayers $2.5 billion. In December of last year, they repeated the feat. Now, Rubio is urging leaders in both the House and Senate to make this a priority and stop the bailout a third time.
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Rushing to enact the giant Obamacare bill in March 2010, Congress voted itself out of its own employer-sponsored health insurance coverage—the Federal Employees Health Benefits Program. Section 1312(d)(3)(D) required members of Congress and staff to enroll in the new health insurance exchange system. But in pulling out of the Federal Employees Health Benefits Program, they also cut themselves off from their employer-based insurance contributions.
Obamacare’s insurance subsidies for ordinary Americans are generous, but capped by income. No one with an annual income over $47,080 gets a subsidy. That’s well below typical Capitol Hill salaries. Members of Congress make $174,000 annually, and many on their staff have impressive, upper-middle-class paychecks.
Maybe the lawmakers didn’t understand what they were doing, but The New York Times’ perspicacious Robert Pear certainly did. On April 12, 2010, Pear wryly wrote, “If they did not know exactly what they were doing to themselves, did lawmakers who wrote and passed the bill fully grasp the details of how it would influence the lives of other Americans?”
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America had managed to get through the vast majority of its history without any contraceptive mandate. President Obama’s first term, all of which took place before the implementation of the directive, was not marked by a national crisis of access to birth control. The administration erred, however, when it allowed only a very narrow religious exemption, one that applied to churches but not to religious charities such as the Little Sisters of the Poor. After being slapped down by the courts once again on this issue, it makes you wonder why the Obama administration thought this entirely avoidable culture-war fight was worth starting in the first place.
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District Court Judge Rosemary Collyer has ruled for Congress in House v. Burwell, a case challenging the authority of the executive branch to pay Obamacare subsidies for which no money has been appropriated.
These are not the highest-profile subsidies; they’re something called the cost-sharing reduction, which lowers the deductibles and out-of-pocket expenses for families buying silver plans who make less than 250 percent of the poverty line. The federal government has paid the insurers a lot of money that wasn’t appropriated, and the House has sued to stop that.
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Here’s some bad news for the insurance industry: Unexpectedly generous corporate subsidies didn’t save companies selling ObamaCare policies from bleeding red ink. The worse news: Those subsidies are set to expire in 2017, meaning that insurers will have to make ends meet without billions in handouts.
Those are among the matters discussed in a study by the Mercatus Center, authored by Brian Blase, Edmund Haislmaier, and Doug Badger. Thestudy, based on detailed data derived from insurer regulatory filings for the 2014 benefit year, finds that companies that sold ObamaCare plans in the individual market lost more than $2.2 billion, despite receiving $6.7 billion (an average of $833 per enrollee) in “reinsurance” subsidies. Those reinsurance payments were 40 percent more generous on a per-enrollee basis than insurers had expected when they set their 2014 premiums.
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Even before President Obama leaves office, ObamaCare has begun unraveling.
The law was passed over the objections of a majority of Americans, it is still opposed by a majority of Americans — and their opposition has been vindicated. Last week, UnitedHealth Group announced that, after estimated losses of more than $1 billion for 2015 and 2016 under ObamaCare, the company was pulling out of most of its ill-fated exchanges. In fact, commercial insurers across the country are hemorrhaging money on ObamaCare at alarming rates.
The president promised these insurers taxpayer bailouts if they lost money, but Congress in its wisdom passed legislation barring the use of taxpayer dollars to prop up the insurers. Without the bailouts, commercial insurers are being forced to eat their losses — while more than half of the ObamaCare nonprofit insurance cooperatives created under the law failed.
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One of the reasons that ACA Exchange plans are losing money is their inability to attract enough healthy enrollees. Healthy people are, disproportionately, young people. And large numbers of young adults don’t have to enroll in ACA Exchange plans – because the ACA mandates that their parents’ employer provide them with coverage, and that coverage is almost invariably priced lower.
Anyone up to age 26 with a parent who has employer-based health coverage that includes dependents can enroll in the parent’s plan. This is called the “dependent care mandate,” and is a requirement of the ACA. There are no other requirements for this coverage option: the “child” does not have to live with the parent or be financially dependent or a dependent for tax purposes on the parent. The “child” could be employed and eligible for employer-based coverage on his/her own, but elect to take the parent’s coverage if it’s preferable.
Exchanges are being undermined, in part, by the ACA’s dependent care mandate.
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