Health Insurance Report™ helps you track and analyze legal, legislative, and regulatory developments affecting the health-insurance industry throughout implementation of the Affordable Care Act...
By Sara Hansard
May 20 — The top Republican on the House Ways and Means Oversight Subcommittee says a special inspector general should be appointed to oversee implementation of the Affordable Care Act.
Delays and waivers of ACA provisions employed by the Obama administration without congressional approval are “unprecedented in American history,” Rep. Peter Roskam (R-Ill) said during a May 20 hearing. His bill (H.R. 2400) to establish an Office of the Special Inspector General to monitor the ACA, was introduced May 18.
“If one president can ignore parts of the health-care law, can another president ignore the whole thing?” Roskam asked. The hearing focused on administration actions to delay the law's employer mandate to provide coverage to employees in 2013, allowing people who lost coverage to keep noncompliant plans until as late as 2016 and the Internal Revenue Service rule allowing subsidies to be issued to enrollees in the federal exchange, which the U.S. Supreme Court is scheduled to rule on in June in King v. Burwell.
Roskam said his bill is modeled after the special inspectors general that Congress created for Iraq and Afghanistan reconstruction and the Troubled Asset Relief Program that “together have produced taxpayer savings of almost $10 billion.”
Grace-Marie Turner, a critic of the ACA who is president of health policy organization Galen Institute, said Roskam's legislation is needed because the administration has “wasted billions of dollars in taxpayer money implementing the Affordable Care Act. With eight different agencies charged with overseeing implementation of this law, it is very difficult for any one inspector general to oversee the implementation.”
There have been “at least 50 changes” to the ACA since it was signed into law by President Barack Obama in 2010, Turner said. The administration has made 31 changes, 17 changes have been passed by Congress and signed into law by Obama and two changes were made by the Supreme Court, she said.
Changes made by the administration that aren't based on the language of the statute include allowing people to self-attest to their eligibility for subsidies, allowing exchange subsidies for people under 100 percent of the poverty level and to illegal immigrants, and using most of an $8.3 billion quality bonus payment program for Medicare Advantage plans to postpone the pain of cuts to the program by awarding the bonuses to plans rated average or worse, Turner said.
While the ACA provides tax credits for citizens with income between 100 percent and 400 percent of the poverty level, the IRS expanded the eligibility to extend the credits to citizens below 100 percent of poverty in some cases, Turner said in her written testimony. She also said IRS regulations expanded on the ACA’s language allowing the credits to noncitizens who are lawfully present in the U.S. by allowing them to family members as well.
She said the Government Accountability Office called for the administration to cancel the $8.3 billion Medicare Advantage quality bonus payment demonstration program and to allow the quality bonus payment system established by the ACA to take effect. If the system doesn’t adequately promote quality improvement, it should be modified, the GAO said.
Jonathan Adler, a professor at Case Western Reserve University Law School who has been a central figure in arguing that the subsidies provided through the federal exchange are illegal, said that the Treasury Department and the Department of Health and Human Services “have repeatedly disregarded the plain text of the Affordable Care Act and the limits on their statutory authority.”
The employer mandate, which imposes large shared responsibility payments on employers with the equivalent of at least 50 full-time employees that fail to offer qualifying coverage to employees, was supposed to take effect Dec. 31, 2013, Adler said. In July 2013, Treasury announced in a blog post it would delay the employer mandate by a year, and in February 2014 Treasury further delayed the mandate until 2016 for firms with fewer than 100 employees, he said.
“The administration has repeatedly disregarded statutory limits on its authority” in administering the ACA, such as by waiving the law's minimum coverage requirements after many people lost their insurance plans when the law was implemented, Adler said. “Administrative agencies have no warrant to rewrite statutes or waive statutorily-imposed obligations,” he said.
Robert Weiner, a partner with law firm Arnold and Porter LLC, argued that “the opponents of the ACA have disrupted” the constitutional system of checks and balances “through legal and extra-legal efforts to thwart implementation of the law.”
Weiner said that efforts to thwart implementation of the law by filing litigation against it began “seven minutes after the law was signed.” The Supreme Court upheld the law in large part in that suit, NFIB v. Sebelius, in a landmark ruling in 2012 upholding the law's constitutionality.
“If the committee is looking for executive overreach I'd submit that it's looking in the wrong place,” Weiner said. Congress's “dysfunction” has resulted in the administrative actions by the executive branch, he said.
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