HEALTH CARE/Joan Retsinas

Gotcha: The Obamacare Word-Game

In the battle to slay Obamacare, the Republicans are playing “Gotcha”. In this game the challenge is clear: find within the dense legalistic language of the Affordable Care Act, an ambiguity, and seize! Make your “interpretation” the basis for a full-fledged frontal assault on the law. Even if you don’t’ win, you will cost the government millions of dollars to fight you. So search on through the verbiage for possible loopholes.

Obamacare opponents did that in King v. Burwell. The law depended upon subsidies to defray the costs of insurance for people who, otherwise, could not pay the premiums. To reduce the census of “uninsured” in this country, the subsidies were a linchpin.

But the foes argued before the Supreme Court that the law granted subsidies only to people enrolled through a “state” insurance exchange. Since the law did not explicitly spell out “or federal” exchange, subsidies were not legal for enrollees in exchanges that operated under the federal government. (Originally, the architects of the law assumed that each state would establish its own exchange. Only when a slew of states balked, did the federal government step in.) One ambiguous sentence (Section 36B) sparked the suit. The upshot: residents in the 35 states that relied on the federal government for their exchanges could not get subsidies. The upshot of that: thousands of people, without subsidies, would lose insurance. In those states, the census of the uninsured would remain high. The Republicans had a plausible winning strategy for this round of “gotcha.”

Fortunately for residents in those states, the Supreme Court ruled, 6 to 3, for common sense. In retrospect, a Congress savvy to the lexical morass might have added to the legislation “or federal exchanges.” Presto: no more loophole. But unfortunately the drafters of the legislation were not sufficiently prescient: they didn’t spy this lexical loophole. The intent of the subsidies was always clear, but not clear enough for “gotcha.”

The Obama Administration just launched a strike against another sally. Under the Affordable Care Act, large employers that didn’t offer employees a “minimum essential coverage” policy” would face a fine up to $3000 per employee. The intent was clear: to make employers offer comprehensive, affordable, health insurance.

This battle devolved around the definition of “minimum value.” Briefly, for small employers and individual plans, the government specified the “minimum value” benefits. But for large employers, the standard was not specific: a plan should cover 60% of expected medical costs. To clarify that threshold, the legislation included a “minimum value calculator.” Architects of the law didn’t test the calculator sufficiently. More precisely, the large-employer opponents of the Affordable Care Act tested it far more rigorously. Common sense would dictate that a policy had to offer hospital insurance. Policies might differ in their allowances for medications, for hospital stays, for rehabilitation. But “hospitalization” was taken for granted. At least “covered” employees took it for granted: they assumed that their policies covered hospital stays. After all, doesn’t every policy?

In “Gotcha,” though, players take nothing for granted. Plugging numbers into the calculator, businesses spotted a loophole. Some policies might pass the calculator test, but omit hospital stays. Those calculator-tested plans covered preventive care, including vaccinations, but no serious malady or illness that would land an employee in a hospital. Fortunately for common sense, the Obama Administration spotted this ploy and moved to end those plans. (Kaiser Health News, “Obama Administration Disallows Plans Without Hospital Coverage,” Jay Hancock, Feb. 23, 2015).

The most egregious “Gotcha” move came with the language “allowing,” not “mandating” states to expand their Medicaid rolls. “Mandate” is a dreaded word, connoting a socialistic Big Brother. So the legislation does not “mandate” states to expand Medicaid. Yet the terms for expansion are so generous that governors could hardly refuse the chance. The federal government pledged to pick up most of the tab initially, so that a state’s low-income residents would get covered and the state’s hospitals would get reimbursed for “non-compensated” care. Large employers, fixated on their profits, might seize on “minimum value” plans; but surely governors, fixated on their citizens’ wellbeing, would not seize this loophole. Of course, a slew of Republican governors did seize the loophole, refusing to expand Medicaid. The governors won this round of “Gotcha,” ultimately a Pyrrhic victory.

As the law rolls forth, as more Americans gain coverage, only those at the political fringe will play “Gotcha.”

Joan Retsinas is a sociologist who writes about health care in Providence, R.I. Email

From The Progressive Populist, August 1, 2015

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