![\"The](\"https:\/\/i0.wp.com\/www.dougsbriefcase.com\/blog\/wp-content\/uploads\/2014\/07\/credit-rightspeak.net_.jpg\")
<\/a>The House has autho\u00adrized the Speak\u00ader to sue the Admin\u00adis\u00adtra\u00adtion for over\u00adreach\u00ading in its Oba\u00admacare imple\u00admen\u00adta\u00adtion. He should sue over its cor\u00adpo\u00adrate wel\u00adfare pro\u00advi\u00adsions. [Cred\u00adit: rightspeak.net]<\/p><\/div>Hi Chet \u2013<\/em> \u201c<\/span>Valerie\u201d would be Valerie Jar\u00adrett, one of Pres\u00adi\u00addent Obama\u2019s clos\u00adest advis\u00aders. \u201cChet\u201d would be Chet Bur\u00adrell, CEO<\/span> of Care\u00adFirst Blue Cross. In the April 15 email<\/a>,<\/span> Jar\u00adrett advised the insur\u00adance exec\u00adu\u00adtive that he would have to live with 80 per\u00adcent of what his indus\u00adtry asked the White House for.<\/p>\n A month lat\u00ader, the Admin\u00adis\u00adtra\u00adtion relent\u00aded and gave the indus\u00adtry 100 per\u00adcent of what it asked for \u2013 a reg\u00adu\u00adla\u00adtion that will involve the give\u00adaway of an addi\u00adtion\u00adal $1 bil\u00adlion<\/a> in tax\u00adpay\u00ader funds to insur\u00aders par\u00adtic\u00adi\u00adpat\u00ading in the Oba\u00admacare exchanges.<\/p>\n If the Speak\u00ader intends to file a law\u00adsuit against the Admin\u00adis\u00adtra\u00adtion for abuse of pow\u00ader, as a res\u00ado\u00adlu\u00adtion<\/a> adopt\u00aded last evening by the House autho\u00adrizes him to do, he should sue over this.<\/p>\n Obamacare\u2019s imple\u00admen\u00adta\u00adtion has large\u00adly been unteth\u00adered from the text of the law. Key pro\u00advi\u00adsions have been waived, delayed, or direct\u00adly con\u00adtra\u00advened. The Admin\u00adis\u00adtra\u00adtion is levy\u00ading tax penal\u00adties on unin\u00adsured indi\u00advid\u00adu\u00adals, but not on cor\u00adpo\u00adra\u00adtions that fail to pro\u00advide cov\u00ader\u00adage to their work\u00aders. It is award\u00ading sub\u00adsi\u00addies<\/a> to peo\u00adple who mis\u00adrep\u00adre\u00adsent their income and legal sta\u00adtus, while threat\u00aden\u00ading com\u00adpa\u00adnies that object on reli\u00adgious grounds to cer\u00adtain forms of birth con\u00adtrol with fines of $36,500<\/a> per work\u00ader per year.<\/p>\n But for sheer impro\u00advi\u00adsa\u00adtion, noth\u00ading match\u00ades its deter\u00admi\u00adna\u00adtion to pad the bot\u00adtom lines of insur\u00adance com\u00adpa\u00adnies. The Administration\u2019s under\u00adstand\u00ading of its author\u00adi\u00adty to make these pay\u00adments has repeat\u00aded\u00adly shift\u00aded, chang\u00ading with each reg\u00adu\u00adla\u00adto\u00adry iter\u00ada\u00adtion and, more recent\u00adly, with each email exchange with insur\u00adance executives.<\/p>\n At issue is a cor\u00adpo\u00adrate wel\u00adfare pay\u00adment called \u201crisk cor\u00adri\u00addors.\u201d Under this Oba\u00admacare pro\u00advi\u00adsion (sec\u00adtion 1342<\/a>), insur\u00aders whose prof\u00adits exceed expec\u00adta\u00adtions sub\u00adsi\u00addize their com\u00adpeti\u00adtors whose mar\u00adgins dis\u00adap\u00adpoint. In the\u00ado\u00adry, the fed\u00ader\u00adal government\u2019s only role is to trans\u00adfer the \u201cexcess prof\u00adits\u201d of suc\u00adcess\u00adful insur\u00aders to com\u00adpa\u00adnies that suf\u00adfered \u201cexcess loss\u00ades.\u201d Prop\u00ader\u00adly enforced, it should not cost tax\u00adpay\u00aders a dime. It should be bud\u00adget neutral.<\/p>\n The insur\u00adance indus\u00adtry has urged a dif\u00adfer\u00adent inter\u00adpre\u00adta\u00adtion, one that would enti\u00adtle com\u00adpa\u00adnies to pay\u00adments if they end up dis\u00adburs\u00ading more in claims than they had antic\u00adi\u00adpat\u00aded, even if that required tax\u00adpay\u00aders, rather than oth\u00ader insur\u00aders, to finance the pay\u00adments. Until ear\u00adli\u00ader this year, the agency agreed with insur\u00aders, view\u00ading the risk cor\u00adri\u00addor pro\u00adgram as a cor\u00adpo\u00adrate enti\u00adtle\u00adment. Tax\u00adpay\u00aders would ease the pain of com\u00adpa\u00adnies that suf\u00adfered loss\u00ades or earned unsat\u00adis\u00adfy\u00ading profits.<\/p>\n But the Admin\u00adis\u00adtra\u00adtion had a change of heart. Sev\u00ader\u00adal changes, actu\u00adal\u00adly. A report<\/a> issued ear\u00adli\u00ader this week by the House Over\u00adsight and Gov\u00adern\u00adment Reform Com\u00admit\u00adtee recounts the back-and-forth that occurred this past spring:<\/p>\n In March 2014, after the Admin\u00adis\u00adtra\u00adtion sug\u00adgest\u00aded that it would imple\u00adment the Risk Cor\u00adri\u00addor pro\u00adgram in a bud\u00adget neu\u00adtral man\u00adner, insur\u00aders and their lob\u00adby\u00adists threat\u00adened that forc\u00ading bud\u00adget neu\u00adtral\u00adi\u00adty on the pro\u00adgram would mean much high\u00ader pre\u00admi\u00adums in exchange plans in 2015. In ear\u00adly April 2014, the Admin\u00adis\u00adtra\u00adtion attempt\u00aded to clar\u00adi\u00adfy the risk cor\u00adri\u00addor bud\u00adget neu\u00adtral\u00adi\u00adty with Valerie Jar\u00adrett com\u00admu\u00adni\u00adcat\u00ading to an insur\u00adance com\u00adpa\u00adny CEO<\/span> that the Admin\u00adis\u00adtra\u00adtion had deliv\u00adered 80 per\u00adcent of what the insur\u00aders sought. How\u00adev\u00ader, the Admin\u00adis\u00adtra\u00adtion was not fin\u00adished mak\u00ading the risk cor\u00adri\u00addor pro\u00adgram more gen\u00ader\u00adous to insur\u00aders and more dan\u00adger\u00adous to tax\u00adpay\u00aders. In May 2014, the Admin\u00adis\u00adtra\u00adtion adjust\u00aded the risk cor\u00adri\u00addor for\u00admu\u00adla to increase the chances that insur\u00aders would receive mon\u00adey through the pro\u00adgram and to increase the amount of mon\u00adey that insur\u00aders would receive (p. 31).<\/p><\/blockquote>\n Insur\u00aders expect to receive a lot of mon\u00adey from the pro\u00adgram as the result of the Admin\u00adis\u00adtra\u00adtion\u2019s lat\u00adest pol\u00adi\u00adcy pro\u00adnounce\u00adment: $1 bil\u00adlion by the committee\u2019s esti\u00admate. That esti\u00admate is based on the panel\u2019s sur\u00advey of 15 of the largest com\u00adpa\u00adnies that sell poli\u00adcies through the Oba\u00admacare exchanges. The sur\u00advey found that 12 of the 15 expect to receive cor\u00adpo\u00adrate wel\u00adfare pay\u00adments through the risk cor\u00adri\u00addor pro\u00adgram; just 1 expects to pay in. Insur\u00aders thus scored a crit\u00adi\u00adcal vic\u00adto\u00adry when the Admin\u00adis\u00adtra\u00adtion aban\u00addoned its plan to oper\u00adate the risk cor\u00adri\u00addor pro\u00adgram in a bud\u00adget neu\u00adtral way.<\/p>\n There\u2019s just one prob\u00adlem: HHS<\/span>, accord\u00ading to the Con\u00adgres\u00adsion\u00adal Research Ser\u00advice<\/a>,<\/span> has no legal author\u00adi\u00adty to make any pay\u00adments to any insur\u00adance com\u00adpa\u00adnies under the risk cor\u00adri\u00addor pro\u00adgram. Con\u00adgress must appro\u00adpri\u00adate the mon\u00adey. It has not done so and almost cer\u00adtain\u00adly won\u2019t.<\/p>\n But the lack of legal author\u00adi\u00adty to spend mon\u00adey won\u2019t deter the White House. They will spend it any\u00adway. The House may at some point take up a bill (H.R. 4406<\/a>) to pro\u00adhib\u00adit HHS<\/span> from mak\u00ading risk cor\u00adri\u00addor pay\u00adments that exceed receipts. But even if they were to pass this sen\u00adsi\u00adble mea\u00adsure, the Sen\u00adate would sure\u00adly kill it. And the mon\u00adey will sure\u00adly be spent.<\/p>\n There is but one path to pro\u00adtect tax\u00adpay\u00aders from an indus\u00adtry raid on the Trea\u00adsury. We are gov\u00aderned by a Con\u00adsti\u00adtu\u00adtion, not by exec\u00adu\u00adtive caprice. The fact that an indus\u00adtry real\u00adly, real\u00adly wants $1 bil\u00adlion and Valerie Jar\u00adrett real\u00adly, real\u00adly wants to give it to them does not make the expen\u00addi\u00adture constitutional.<\/p>\n The Con\u00adsti\u00adtu\u00adtion, how\u00adev\u00ader, is not self-enforc\u00ading. Con\u00adgress in its cur\u00adrent state of dys\u00adfunc\u00adtion can\u2019t \u2014 or won\u2019t \u2014 enforce it. That leaves only the courts. The Speak\u00ader has been autho\u00adrized (H. Res. 676<\/a>) to sue in fed\u00ader\u00adal court over \u201cthe fail\u00adure of the Pres\u00adi\u00addent, the head of any depart\u00adment or agency, or any oth\u00ader offi\u00adcer or employ\u00adee of the exec\u00adu\u00adtive branch, to act in a man\u00adner con\u00adsis\u00adtent with that official\u2019s duties under the Con\u00adsti\u00adtu\u00adtion and laws of the Unit\u00aded States with respect to imple\u00admen\u00adta\u00adtion of any pro\u00advi\u00adsion of the Patient Pro\u00adtec\u00adtion and Afford\u00adable Care Act.\u201d<\/p>\n Such a law\u00adsuit is hard\u00adly an ide\u00adal solu\u00adtion and it may prove futile, but it is the only one avail\u00adable in the cir\u00adcum\u00adstances. The House has giv\u00aden the Speak\u00ader the author\u00adi\u00adty to sue. He should use it to seek a court-ordered ban on these unlaw\u00adful cor\u00adpo\u00adrate wel\u00adfare payments.<\/p>\n Post\u00adscript:<\/strong> In argu\u00ading that pol\u00adi\u00adcy\u00admak\u00aders lack the legal author\u00adi\u00adty to oper\u00adate the risk cor\u00adri\u00addor pro\u00adgram as they evi\u00addent\u00adly intend to do, I am not sug\u00adgest\u00ading that any of these indi\u00advid\u00adu\u00adals or any rep\u00adre\u00adsen\u00adta\u00adtives of the insur\u00adance indus\u00adtry have behaved uneth\u00adi\u00adcal\u00adly. I know some of the White House staff that were engaged in these issues either per\u00adson\u00adal\u00adly or by rep\u00adu\u00adta\u00adtion and I believe them to be peo\u00adple of high char\u00adac\u00adter. Their appli\u00adca\u00adtion of the law is mis\u00adguid\u00aded; their moral pro\u00adbity is not in question.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":" Hi Chet \u2013 After speak\u00ading at length today with Jeanne and our oth\u00ader pol\u00adi\u00adcy folks, I do not think I have any more to add. They seem to have giv\u00aden you 80 per\u00adcent of what you request\u00aded and I am \u2026 Con\u00adtin\u00adue read\u00ading
\nAfter speak\u00ading at length today with Jeanne and our oth\u00ader pol\u00adi\u00adcy folks, I do not think I have any more to add. They seem to have giv\u00aden you 80 per\u00adcent of what you request\u00aded and I am not in a posi\u00adtion to sec\u00adond guess there [<\/em>sic] analy\u00adsis.<\/em>
\nSin\u00adcere\u00adly,<\/em>
\nValerie<\/em>\n