Adventures in administrative law

The Wall Street Journal devotes an editorial to the latest decree promulgated by Queen Seeb and the powers-that-be in the Obama administration:

Late Thursday, the Health and Human Services Department suddenly released a new regulation that explains “there have been unforeseen barriers to enrollment on the exchanges.” The passive voice is necessary because the barriers are all the result of politically driven delays, the botched website and the exchanges that transmit false information about enrollment to insurers.

So with a mere 11 business days to go before coverage is supposed to start on New Year’s Day, HHS is trying to pre-empt patient uproar by unilaterally ordering plans to backdate all exchange applications. People can sign up for a plan on the exchange as late as Dec. 23. If an application winds up in some technology void, or it is passed to the insurer inaccurately or too late to process, that coverage nonetheless begins on Jan. 1.

For decades, people have also paid the first month’s premium in full for coverage to start, but not under the new rule. Simply selecting a plan is sufficient as long as buyers eventually make a “down payment,” however much that might be. Upon receipt, the insurer is responsible for all medical claims incurred that month.

The White House seems to understand that hundreds of thousands of patients may soon discover that they face gaps in coverage through no fault of their own, but because their old plan was canceled and the exchanges malfunctioned. Some will have life-threatening illnesses, or be diagnosed as such, and require certain advanced or continuous treatments that they will not be able to obtain. ObamaCare will be blamed and rightly so, which is why the White House wants to transfer political accountability to the insurers.

HHS says the new rules are only suggestions to ensure “a more seamless transition,” but there’s nothing voluntary here. The regulatory fine print reveals that HHS intends to kick insurers off the exchanges if they don’t obey. Having destroyed the old individual market, HHS will only certify the new “qualified health plans” if insurers “adopt policies to prevent disruptions in treatment of episodes of care.”

This means that HHS is also mandating that insurers treat out-of-network doctors and hospitals as in-network providers. Other ObamaCare benefit and redistribution mandates have raised prices, and the White House leaned on insurers to keep premiums down. The only cost-control tool at their disposal was to shrink to narrow low-reimbursement networks that exclude specialists, academic medical centers and childrens hospitals, much like Medicaid.

Whole thing here. Not to put too fine a point on it, this is banana republic stuff.

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