If it’s necessary to exempt entire states from the health care “reform” act, do you think maybe it ought not be a federal law?
In a tacit acknowledgement that Obamacare doesn’t work, the Obama administration has issued dozens of waivers exempting “mini-med” health insurers from Obamacare’s rules:
White House Press Secretary Robert Gibbs on Oct. 7, 2010, defended the administration’s decision to grant 30 businesses waivers from the Patient Protection and Affordable Care Act’s minimum annual limits. Waivers were granted to several employers and insurers, including BCS Insurance, which insures workers at McDonald’s.
But the waivers are just temporary, and will no longer be available come 2014. At that point, all those people will lose their insurance.
I first noted the mini-med problem here.
The latest in Barack Obama’s make-it-up-as-we-go-along approach to implementing the law:
You’ve no doubt heard about the latest ObamaCare “delay”–the announcement that the Internal Revenue Service will waive fines on certain employers that do not provide workers with medical insurance. That “employer mandate,” which by law took effect this year, had already been put off until 2015. Now it won’t be enforced until 2016 for companies with between 50 and 99 employees, and those with 100 or more will escape fines if they offer insurance to 70% of their employees rather than the 95% stipulated in the law.
Of course, they have no statutory authority for any of that. And yes, that’s still an outrage, however common it is becoming from this administration. But I want to look a different aspect of this. Employers can avoid the mandate until 2016 if they can get below 100 employees. And thus the administration responds:
Obama officials made clear in a press briefing that firms would not be allowed to lay off workers to get into the preferred class of those businesses with 50 to 99 employees. How will the feds know what employers were thinking when hiring and firing? Simple. Firms will be required to certify to the IRS–under penalty of perjury–that ObamaCare was not a motivating factor in their staffing decisions. To avoid ObamaCare costs you must swear that you are not trying to avoid ObamaCare costs.
The administration has no statutory authority to make any such demand, and even if it did, the statute would be unconstitutional. But that may not matter, because no one wants to be harassed by the IRS, even if they have the law on their side.
What the Obama administration is saying is this: go ahead and cut jobs to get under 100, but don’t tell anyone that’s what you’re doing. If we see any embarrassing stories about Obamacare job cuts, we’re siccing the IRS on you.
New York City health inspectors have been harrassing post-Sandy relief workers:
Bobby Eustace, an 11-year veteran with the city’s fire department tells FoxNews.com that on Sunday he and his fellow firefighters from Ladder 27 in the Bronx were issued a notice of violation for not maintaining restaurant standards in a tent set up in Breezy Point, Queens, to feed victims and first responders. . .
Eustace says that the Health Department worker then checked off a list of violations at the relief tent, including not having an HVAC system and fire extinguisher. “He told us that he might come back to see if we fixed the violations. . .”
When questioned, the NYC Department of Health said that its inspectors were only supposed to give advice, not issue violations. Of course, that’s exactly what they would say. (It might even be true, but government must be judged on its actions, not its reportedly good intentions.) Moreover, even if we accept that the inspectors were only supposed to give advice and the department somehow failed to communicate that simple fact to the inspectors, the fact remains that the department sent out health inspectors to interfere with relief workers, however rigid that interference was supposed to be.
The key fact I want to note is that this doesn’t somehow happen automatically. Someone thought it was a good idea to send health inspectors to interfere with relief workers and ordered that it be done.
This incident is depressingly typical. During the Gulf oil spill in 2010, the Coast Guard shut down an oil skimming operation because they did not have the required number of life jackets and fire extinguishers on board. Again, someone decided to do this. Indeed, the entire oil spill debacle was greatly exacerbated by the Obama administration’s punctilious enforcement of counter-productive rules.
This brings me to my central point. The people currently running our government will issue waivers as they see fit, mostly to advance their own political agenda (more on the pernicious effects of this in a future post), but no one can expect a waiver from their overbearing state simply because such a waiver ought to be issued!
Put another way, they issue waivers to serve their interests, not ours. You only want to serve people made homeless by a hurricane? Tough. You only want to clean oil from the Gulf of Mexico? Too bad.
So when the EPA writes milk-storage rules so broad that they cover spilled milk, and they say not to worry, they would never enforce it that way? Don’t you believe them. Someone is itching to enforce that rule.
Which brings me to Obamacare. The Obama administration has issued countless Obamacare waivers to mitigate the disastrous effects of their legislation. Why? Because they didn’t want it to be seen as (even more of) a disaster in advance of the election. But the election is now behind us. Do not expect those waivers to be renewed.
These people are itching to enforce those rules. If some people lose their jobs, what do they care? This administration made it very clear in 2009 and 2010 that nationalizing health care was more important to them than employment. If lots of people lose their health insurance, what do they care? They don’t want you to have private health insurance anyway.
These people send health inspectors to keep disaster victims from being fed; you think they care about your job, or your health insurance? Think again.
We well know that the Obama administration will not grant a religious exemption for its contraception/abortion mandate, but, for some, it actually does provide an exemption to the entire mandate (124 Stat. 246, here):
[Applicable individual] shall not include any individual for any month if such individual has in effect an exemption under section 1311(d)(4)(H) of the Patient Protection and Affordable Care Act which certifies that such individual is a member of a recognized religious sect or division thereof described in section 1402(g)(1) and an adherent of established tenets or teachings of such sect or division as described in such section.
Section 1402(g)(1) is a provision of the tax code that governs groups exempt from paying Social Security tax. It applies, for example, to the Amish. Some have suggested that the exemption would apply to Muslims; Snopes says that’s not clear (although, for some reason, they rate the claim “false” rather than “undetermined”).
But I want to point out that, in any case, the exemption is drafted incorrectly. (Maybe it’s silly to point out flaws in the law when the entire thing is an atrocity, but never mind that.)
The Social Security provision prevents people claiming benefits after obtaining an exemption from paying the tax (1402(g)(1), here):
Such exemption may be granted only if the application contains or is accompanied by . . .
(B) his waiver of all benefits and other payments under titles II and XVIII of the Social Security Act on the basis of his wages and self-employment income as well as all such benefits and other payments to him on the basis of the wages and self-employment income of any other person . . .
But as far as I can determine, there is no such provision in Obamacare. The guaranteed availability provision applies to everyone, not only to “applicable individuals” (124 Stat. 156):
Subject to subsections (b) through (e), each health insurance issuer that offers health insurance coverage in the individual or group market in a State must accept every employer and individual in the State that applies for such coverage.
Thus, to claim a religious exemption to the mandate, one must forego claiming Social Security benefits, but one can still exploit guaranteed issue.
This is wrong in both directions. On the one side, it allows exactly the sort of free rider the mandate was supposed to prevent: a person belonging to an exempt sect can remain outside the mandate until he or she becomes sick, and then obtain insurance. On the other side, persons with a religious objection to health insurance cannot receive the exemption unless they also waive the Social Security benefits toward which they have been paying their entire lives.
This is a good example of why it’s a good idea to read a bill before you pass it.
Of the latest batch of Obamacare waivers, 1 in 5 went to Nancy Pelosi’s Congressional district. With 435 Congressional districts (not counting DC), it seems hard to explain this by chance alone.
What do we, the public, know about the decision process for waivers? Anything at all?
It’s a good thing that Healthcare.gov doesn’t work, because the system is also insecure:
As HealthCare.gov was being developed, crucial tests to ensure the security and privacy of customer information fell behind schedule.
CBS News analysis found that the deadline for final security plans slipped three times from May 6 to July 16. Security assessments to be finished June 7 slid to August 16 and then August 23. The final, required top-to-bottom security tests never got done.
The House Oversight Committee released an Obama administration memo that shows four days before the launch, the government took an unusual step. It granted itself a waiver to launch the website with “a level of uncertainty … deemed as a high (security) risk.”
Agency head Marilyn Tavenner accepted the risk and “mitigation” measures like frequent testing and a dedicated security team. But three other officials signed a statement saying that “does not reduce the risk” of launching October 1.
Ultimately, the letter recommended that Tavenner issue an Authority to Operate for six months while security testing continued on the site, which she approved. “This is a temporary Authority to Operate,” Sebelius said as she examined the document during the hearing. . .
Yet Sebelius’s matter-of-fact description of the temporary authorization is a lot different from the 2012 memo from Zients on federal cyber-security.
Page 11 of the Zients memo includes the following section:
Does OMB recognize interim authority to operate for security authorizations?
No. The security authorization process has been required for many years, and it is important to measure the implementation of this process to improve consistency and quality government-wide. Introducing additional inconsistency to the government’s security program would be counter to FISMA’s goals.
(Via Instapundit.) Counter to FISMA’s (the Federal Information Security Management Act) goals perhaps, but essential to the Obama administration’s political goals, and you know which takes priority.
The system’s insecurity isn’t just theoretical either. They’re already finding exploitable security holes.
Here is a good example of what is wrong with our regulatory state:
[EPA Administrator Lisa Jackson] was questioned [by a House subcommittee] on a variety of topics, ranging from the effects of the agency’s proposed climate rules to whether the EPA would regulate spilled milk.
Rep. Jeff Flake (R-Ariz.) made the spilled-milk allegation, asking: “How can the EPA promulgate new rules like this? What’s next — sippy-cups in the House cafeteria?”
Jackson said the agency moved to exempt milk storage from proposed regulations on inland oil containment facilities. “We made it clear in our rules that we were not going to apply the rules to spilled milk,” she said.
So these people are writing regulations so broad that they cover spilled milk, but not to worry: they won’t apply them in that case!
How about some freakin’ rule of law, dammit?!
Write the regulation so it means what it says! If you have to institute arbitrary exceptions to avoid obviously absurd results, you’ve written the regulation too broadly. You are giving the power to determine our fate to people, rather than to the law.
And that brings us back, once again, to health care nationalization. Philip Hamburger explains that the myriad waivers that the Obama administration is issuing for the new health care regime violate the Constitution, because they give the president the power to decide who does and who does not have to follow the law. (More here.)
When the CBO scored the Baucus plan, it found that it did not widen the deficit, under the assumption (among others) of drastic cuts in Medicare reimbursements. The CBO report was skeptical that the cuts would actually happen:
These projections assume that the proposals are enacted and remain unchanged throughout the next two decades, which is often not the case for major legislation. For example, the sustainable growth rate (SGR) mechanism governing Medicare’s payments to physicians has frequently been modified (either through legislation or administrative action) to avoid reductions in those payments. . . The long-term budgetary impact could be quite different if those provisions were ultimately changed or not fully implemented.
The CBO’s skepticism was with good reason. Democrats have already introduced the bill that would boost Medicare reimbursements. So the plan that the committee asked the CBO to score was a lie. There’s no other word for it.
Anyway, with the new legislation, we’re looking at hundreds of billions in new spending and new deficits.
POSTSCRIPT: It will be entertaining to watch the Democrats waive “PAYGO” for this thing; proving that PAYGO is a complete sham.
(Via Hot Air.)