Implementing The Affordable Care Act: The Executive Branch’s Liberties With Statutory Language – Guest Essayist: Grace-Marie Turner

The Obama administration has spent billions of taxpayer dollars implementing the Affordable Care Act, often taking vast liberties with statutory language.  The administration’s actions were the subject of a House Ways and Means Oversight subcommittee hearing on Wednesday, chaired by Rep. Peter Roskam (R-IL).

Roskam is calling for a Special Inspector General to investigate the administration’s actions and track how tens of billions of dollars have been spent. Implementation of the sweeping and complex law stretches across eight separate federal agencies so no one agency IG can see the patterns and possible abuses taking place.

Rep. Roskam’s SIGMA Act (Special Inspector General for Monitoring the Affordable Care Act) would create an ObamaCare watchdog to conduct much-needed audits of the ACA to guard against further waste of tax dollars, such as the extraordinarily expensive and problem-prone exchange websites.

I testified before yesterday’s hearing, citing our work chronicling 31 instances in which the administration has issued regulations or guidance that conflict with the language of the statute.

While the ACA has caused enormous disruption to our health sector and economy, these problems have been exacerbated because the administration has played fast and loose with its executive authority.  Rather than abide by the law or ask Congress to amend it, the administration has instead made significant changes through regulation, guidance, and even blog posts.

50 changes to ObamaCare…so far

The Galen Institute has tracked the major changes made to the ACA since it was enacted five years ago, and we count at least 50 changes – 31 by the administration, 17 passed by Congress and signed into law by President Obama, plus two changes made by the Supreme Court.

One of the most prominent examples is before the U.S. Supreme Court in the King v Burwellcase, challenging the IRS regulation that extended premium tax credits to people enrolled in insurance through federal exchanges, even though the statute only allows the subsidies if states create their own exchanges.

Jonathan Adler of Case-Western Reserve University School of Law and Elizabeth Papez, former deputy attorney general, discussed at length the legal considerations in that case and other actions the administration has taken without statutory authority.

I focused in my testimony on additional examples of actions clearly contrary to the statute – such as allowing people to “self-attest” to their eligibility for subsidies in the exchanges and the blatant disregard for statutory trigger dates in delaying the employer mandate.

I also highlighted illegal bonus payments the Obama administration has made to try to postpone cuts required by the law to the popular Medicare Advantage plans for seniors.  The nonpartisan Government Accountability Office called for the administration to cancel an $8.3 billion program it has tapped to pay “quality bonuses” to Medicare Advantage insurance plans – plans often rated average, at best. The administration has ignored calls from the GAO and from Congress to stop the illegal payments.

Lack of transparency

The administration also has been criticized for its lack of transparency in its financing of the implementation of the law. For example:

Co-op funding: The administration last year provided $300 million in “solvency funds” to co-op health plans. There has been no explanation of the criteria used to give some co-ops added funding and others little or nothing.

Cost–sharing reductions: Ways and Means Chairman Rep. Paul Ryan asked Treasury to explain $3 billion in payments made to health insurers for cost-sharing reductions, spending never authorized by Congress. The issue is part of the lawsuit filed by House Speaker John Boehner.  The administration claims the payments are legal, but it undercut its own argument when HHS asked Congress for appropriations to finance the payments. Congress rejected the funding request, but the administration paid insurers anyway.

Congressional attempts to provide statutory authority rebuffed by administration

There have been numerous instances when the administration has made what many Members of Congress consider to be an illegal change to the law but a change with which they agreed, only to face a veto threat from the White House. For example:

Employer mandate delay: When the administration issued its blog post on July 2, 2013, announcing the employer mandate delay, the House of Representatives later that month passed bi-partisan legislation that would have given legal standing to the delay.  But the White House said the president would veto the legislation if it were to reach his desk.

Keep your Health Plan: Similarly, the House passed on November 15, 2013, with bi-partisan support the Keep Your Health Plan Act of 2013. It would have given legal permission to health insurance companies to continue to offer policies that did not meet ACA requirements.  The administration threatened to veto the legislation as well.

Legislation which was enacted to provide statutory authority to changing the law

The administration has claimed it made the changes through regulation because Congress refused to consider legislative fixes.  But the record proves that wrong:

Repeal of the CLASS Act. After extensive study, the Department of Health and Human Services concluded that the Community Living Assistance Services and Supports (CLASS) Act could not be self-sustaining as required by law.  Congress repealed the CLASS Act on January 2, 2013.

Repeal of the 1099 reporting requirement. On April 14, 2011, Congress repealed the controversial 1099 reporting provision that would have imposed a huge compliance burden on small businesses.

And the Medicaid fix. Couples earning as much as $64,000 a year would have been able to qualify for Medicaid because of definitions of income calculations in the ACA.  Congress saved taxpayers at least $13 billion when it amended this provision on November 21, 2011.

At least 17 changes to the ACA have been passed by Congress and signed into law by the president, proving that legal changes are possible.

More changes revealed

And writings by Prof. Andy Grewal of the University of Iowa College of Law were highlighted at the hearing, exposing new evidence that the administration is disregarding the statute in implementing the law:

Premium tax credits for some people under 100% FPL and for unlawful immigrants: The ACA allows tax credits to U.S. citizens with incomes between 100 and 400% of FPL, but IRS rules expanded the eligibility to extend the credits to citizens below 100% in some cases.

Also, Section 36B of the ACA grants credits to some non-citizens with low-incomes only if they are themselves lawfully present in the U.S. and cannot obtain Medicaid coverage. However, IRS regulations contradict the statute and allow subsidies if “the taxpayer or a member of the taxpayer’s family is lawfully present in the United States,” and “the lawfully present taxpayer or family member is not eligible for the Medicaid program.”

Reform was needed

Our health sector definitely needed reform, especially to expand coverage to millions of people who had been shut out of insurance in the past. There was bi-partisan support in Congress when bills were being debated to achieve these goals.

But instead of pursuing a targeted, bi-partisan solution, the vast Affordable Care Act was pushed through on a strictly partisan basis with unusual parliamentary maneuvers. This process did not leave Congress the usual ability to fix the many problems with the language in the Senate bill.

However difficult it may have been to implement this complex law as it was written and passed, the administration does not have the authority to amend it and spend billions of taxpayer dollars without congressional approval. Only Congress can change laws.

The hearing yesterday proved conclusively the need for a special inspector general to create an ObamaCare watchdog to conduct audits of the ACA and guard against further abuse of the constitutional process and waste of tax dollars.

Grace-Marie Turner is president of the Galen Institute (galen.org), a non-profit research organization focusing on market-based health policy solutions. 

Originally posted on Forbes, May 21, 2015

http://www.forbes.com/sites/gracemarieturner/2015/05/21/house-chairman-calls-for-obamacare-watchdog/

Click Here to Read More Essays From This Year’s 90 Day Study!

PRINT ARTICLE