Thursday, November 21, 2013

Obama Admin Announced it Would Break the Law Again This Week, ho, humm...

Most of the media latched into the fact that in a status call on Obamacare earlier in the week, the Administration announced that the whole website still needs about 40% more work to be built. Astonishing.  But the Administration also announced yet another blatant violation to the text of PPACA. 

This from Sarah Kliff at WaPo:
Direct enrollment through private insurers is getting easier. Insurers should be able to directly enroll shoppers through their own Web sites at this point, including (and this is the important point here) people who are shopping with insurance subsidies. "We do believe the majority of those high priority fixes for direct enrollment have been addressed," Bataille said. "We continue to work through some additional issues and make sure that [insurers] are seeing those fixes work. They will be more actively utilizing those direct enrollment processes."
When pressed on whether this would be true for Americans shopping with subsidies - and who would need to connect to the federal government to find out what subsidy they should receive - Bataille said, "Correct, that is for the subsidy eligible population."
The minor detail here is ... that is illegal under the unambiguous language of PPACA.  As you can read from Megan McArdle at Bloomberg   
The language of the statute is quite clear:
"(2) PREMIUM ASSISTANCE AMOUNT.--The premium assistance amount determined under this subsection with respect to any coverage month is the amount equal to the lesser of--

"(A) the monthly premiums for such month for 1 or more qualified health plans offered in the individual market within a State which cover the taxpayer, the taxpayer’s spouse, or any dependent (as defined in section 152) of the taxpayer and which were enrolled in through an Exchange established by the State under 1311 of the Patient Protection and Affordable Care Act, or

"(B) the excess (if any) of--

"(i) the adjusted monthly premium for such month for the applicable second lowest cost silver plan [silver plans are only in the Exchange] with respect to the taxpayer, over

"(ii) an amount equal to 1/12 of the product of the applicable percentage and the taxpayer’s household income for the taxable year.
There is some provision to appoint agents. But the law specifically notes that those agents may not be health insurers:
(A) IN GENERAL.--A State may elect to authorize an Exchange established by the State under this section to enter into an agreement with an eligible entity to carry out 1 or more responsibilities of the Exchange.

(B)ELIGIBLE ENTITY.--In this paragraph, the term ``eligible entity'' means--

(i) a person--

(I) incorporated under, and subject to the laws of, 1 or more States;

(II) that has demonstrated experience on a State or regional basis in the individual and small group health insurance markets and in benefits coverage; and

(III) that is not a health insurance issuer or that is treated under subsection (a) or (b) of section 52 of the Internal Revenue Code of 1986 as a member of the same controlled group of corporations (or under common control with) as a health insurance issuer; or

(ii) the State medicaid agency under title XIX of the Social Security Act.
This is not the first time the administration has suggested that it's going to go against the plain text of the law, either. 
The emphasis and [] are mine.

See also Another Illegal ObamaCare Fix? from law professor Jonathan Alder.

Update: I've received a couple of comments from people claiming they were able to get subsidies directly from the Blue Shield of California website.  I'm not sure what is going on there, perhaps Blue Shield of California assisted them in enrolling via our Covered California Exchange website, which is working better than any federally facilitated site.  But this is what Blue Shield says on their website:
5.  Health insurance exchanges are state-run marketplaces where individuals and small businesses can buy health insurance for coverage beginning in 2014. The health insurance marketplace for California is called Covered California and will be available in 2014.
 Individuals may get financial assistance to make coverage more affordable and be able to compare and choose health coverage that best fits their needs and budget. Subsidies will only be available via Covered California to individual consumers who qualify.
The underscoring is mine.

Screenshot from November 21, 2013 at approximately 10:15 AM:

This is what Coved California says on page 15 in its November 2013 report to the Governor on the Health Exchange: