One reason that health care supporters have given for not wanting to go the route of reconciliation is that you would lose all of the insurance reforms and regulations that will end the practice of rescissions, the denial of coverage due to pre-existing conditions, and the price discrimination against the sick. The LA Times has a story today on regulation as the linchpin of the health care bill.
But shorn of a “public option,” the Senate healthcare bill has reverted to a long-established practice of leveraging government power to police the private sector, rather than compete with it.
Despite the resistance among Republicans and conservatives to more government regulation, even the insurance industry has agreed to broad new oversight of their business in exchange for the prospect of gaining millions of new customers.
Ending rescissions, mandating preventive care with no cost-sharing, guaranteed issue and community rating (modified for age) are very important steps to a saner health care system, along with the other host of regulations. But Mcjoan has done a very good job at Daily Kos explaining how the bill isn’t totally secure on all of these fronts. Her most recent effort takes a look at rescissions:
‘SEC. 2712. PROHIBITION ON RESCISSIONS.
‘A group health plan and a health insurance issuer offering group or individual health insurance coverage shall not rescind such plan or coverage with respect to an enrollee once the enrollee is covered under such plan or coverage involved, except that this section shall not apply to a covered individual who has performed an act or practice that constitutes fraud or makes an intentional misrepresentation of material fact as prohibited by the terms of the plan or coverage. Such plan or coverage may not be cancelled except with prior notice to the enrollee, and only as permitted under section 2702(c) or 2742(b).
It’s all going to boil down to how “fraud” and “intentional misrepresentation of material fact” are going to be interpreted in the regs written for this bill. Because insurance companies have been using “fraud” as the means for cutting people off for a long time [...] The bottom line for insurance companies will always be the bottom line. We don’t want insurance company lawyers defining “intentional fraud.”
The bill contains several pieces that are open to interpretation, and whether or not you think they’ll succeed depends on your belief in the success of the government over insurance industry lawyers to manage those interpretations best. For example, there’s the bit on banning only “unreasonable” annual caps on expenditures, in the Senate bill, or the ability to sell nationwide plans and skirt existing state insurance regulations.
But I have a different concern I’d like to share, one that the LA Times article covers as well: Where is the police force?
But the success of this approach may well depend on whether regulators have been given enough authority, a question that has received considerably less attention than the ideologically charged battle over a new government insurance plan [...]
Although the bill mandates that state and federal regulators review rate increases, it is unclear how the regulators would evaluate what insurers want to charge and how aggressively they would restrain the industry.
I just want to offer into this debate an example of how the lack of a police force for these regulations should distress anyone who thinks they are somehow bulletproof.
The California Department of Managed Care has been going after rescissions in California for several years. They have put together lawsuits, distributed fines, et al. In one case, they fined Blue Cross of California $1 million dollars for rescinding patients. Blue Cross just didn’t pay it. And the Department of Managed Care decided not to sue them over it, BECAUSE THEY KNEW THEY WOULD BE OUTGUNNED IN COURT.
California regulators admitted Thursday that for more than a year they didn’t even try to enforce a million-dollar fine against health insurer Anthem Blue Cross because it feared they would be outgunned in court.
In early 2007, the Department of Managed Health Care pledged to fine the state’s largest insurer for “routinely rescinding health insurance policies in violation of state law.” But they never did.
The department’s director, Cindy Ehnes, told The Associated Press on Thursday that, when it comes to rescissions, the agency has had success in forcing smaller insurers to reinstate illegally canceled policies and pay fines, but Blue Cross is too powerful to take on.
“In each and every one of those rescissions, (Blue Cross has) the right to contest each, and that could tie us up in court forever,” Ehnes said of the approximately 1,770 Blue Cross rescissions between Jan. 1, 2004, and now.
“They have the largest number of rescissions, so as a practical matter for the department it does present some practical challenges that are different from a Health Net (of California) or a PacifiCare,” referring to providers who, along with Kaiser Permanente, have made settlements with the state to reinstate health care coverage.
The bigger the company, with the more rescissions, the less likely it is for regulations to be effective.
Incidentally, when the Department of Managed Care finally did take one of these rescission cases to court, in May of this year, they lost it. And they lost it because the plaintiffs made an agreed settlement with the insurance company, rather than prolong a trial they may have lost. In that settlement they basically stipulated that Blue Shield, the insurer in this case, was correct to rescind their policy.
In all, the couple made 11 stipulations that represent an abrupt reversal in the position that they had maintained since Blue Shield rescinded their coverage after a 2001 car accident that led to many medical bills.
Now, keep in mind with all of this that California’s Dept. of Managed Care is the biggest entity enforcing insurance regulation in the entire country, both before and after this bill. They oversee 21 million enrollees in the state. They haven’t lost every attempt to regulate the industry – but they haven’t won all of them, either. And meanwhile illegal rescissions still occur routinely in the state of California.
The HHS Secretary has made some promises to give state regulators the necessary authority to enforce the rules, but I’m not sure that solves this problem, the same one put forth by Andrew Jackson about John Marshall: “Marshall has made his decision, now let him enforce it! …”




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Now wouldn’t this all be simpler with a single payer system? Yes, I know such isn’t being considered but ,again,why not. Especially in view of what is being reported.
Ironic isn’t it that lawyers are lambasted by industry when it doesn’t benefit them but they have tons of lawyers on staff to protect their profits.
Everyone needs to read this. Exactly my concern and why I we need a strong PO. I have been trying to tell people not to give a insurance companies any more power and think you will be ever to improve health care. I fight with my insurance company to cover benefits regularly and know first hand they are ruthless.
judas forking priest — even the state of california is afraid of blue cross
Yes, and so [wink, wink] are campaign contributions. Maybe the millions of dollars the health care industry funnels to law makers [employed by the taxpayers] to regulate it will persuade them to see things in the industry’s favor—and maybe the lawmakers will vote their consciences instead.
Of course everything is open to interpretation. But here things get trickier. Legislators pass ambiguous laws. But bureaucrats in the executive branch enforce them. Now, in the Bush administration we had flagrant examples of how the White House put pressure on agencies and departments to execute and enforce the laws in a particular way. Sort of the bureaucratic rendition of Bush’s signing statements.
Will the Obama adminstration go the same route? The Obama administration as we have come to know it these past 6 to 8 months.
Oh, count on it.
but Blue Cross is too powerful to take on.
Too big to regulate = too big to fail?
James Ridgeway:
Our system of government regulations isn’t really what we think of as regulation at all. Rather, it throws up a facade of rules, which corporations walk right through. And no wonder, since although the regulations are supposed to be arrived at independently and designed for the public good, corporations have long had a hand in writing them, as well, thanks to the power of lobbying, campaign contributions, and the revolving door between business and government.
Rather than being enacted to protect the public from the limitless greed of private industry, many regulations are actually passed in support of corporations. The worst example is probably the Securities and Exchange Commission, which is just a clubhouse for Wall Street. Another top contender is the Food and Drug Administration. The basic legislation passed by Congress in the 1930s and updated in the early 1960s set policy governing the sale and use of drugs, which demanded that companies demonstrate the proposed product is safe and efficacious. But that policy directive was quickly abandoned. Today the drug manufacturers breeze through the FDA, setting their own rules for use, establishing their own prices, and exercising their monopoly rights within the patent system which in the case of pharmaceuticals is maintained for their benefit.
It’s already happening in certain supposedly politically-insulated agencies:
IRS decision with respect to Citibank’s $38 billion dollar loss carryforward…
Often the case with major insurance reimbursent/payment disputes, as with rescission, the individual on the receiving end winds up dead before the issue is resolved, or in such dire need of cash that they’ll settle for cents on the dollar.
The only people who have to obey regulations are poor people.
There are a couple of tools that regulators can use that get results…
1. big daily fines (“big” sufficient to get the code violators attention– a $1000 a day seems to work for city code inspectors while the EPA’s $25,000 a day fines for Clean Water Act violations may be too low).
2. Quickly go into court for injunctions for the small stuff— inaccurate recordkeeping, say so when you go into court for the big stuff— its not for breaking the law but for hitting the violator and its managers personally contempt of court. During World War II, the Office of Price Administration got around the weak criminal penalties by such a use of injunctions.
In theory, government regulators shouldn’t be afraid of any private company… in practice, its the rare regulator who (like the OPA) who works for a boss like FDR who has their back.
I just posted this link in another thread also. He addresses, and I think with clarity, wider issues even than the problems of enforcement in this type corporate enterprise.
http://www.gainesvilletimes.com/news/article/27291/
Your report is proof that Lieberbamacare is designed to screw the public and enrich the Insurance cos and the Politicians.
Kill The Bill. No Public Option = Major Screwing for average US Americans.
Yes, Rush Limbaugh and Glen Beck hate lawyers except the ones they employ.
Here’s a stupid question: why wouldn’t you just pass the regulations (which would survive a filibuster attempt) under the regular rules, then pass the budget-affecting portions of the bill under reconciliation?
So, why don’t we yank the insurance companies anti-trust exemption. Then we could regulate them at the Federal level and even out the playing field a bit.
it gets better (as in not, especially for states that have tried to do a decent job of insurance regulation).
from the letter to pelosi and reid:
Thanks for the analysis. But all I need to know about the effectiveness of “government regulation” is how well it stopped Wall Street from crashing the financial system. All it takes is another president like Bush (or Obama the way things are going) to thwart government regulation. Even though a great deal of deregulation has occurred since Reagan, laws and regs still on the books weren’t enforced leading to the crash. I’m so angry at the Corporate Democrats and Mr. Bait and Switch Obama right now, I’d like to see Progressives just walk away and let the whole health care thing blow up in their crony capitalist faces. If this bill passes with the coverage enforcement provision and no public option, I hope it’s challenged in the courts and ruled unconstitutional. If not, civil disobedience will be my course of action – along with finding a third party.
And how are they going to force people to carry health insurance? Are people going to end up in jail for not getting having health care (maybe in jail is the only way they get medical care)? Many are far too poor to pay a fine and fines will mount up and never be paid. Its not going to hurt the people who have nothing and the people struggling will just have another burden.
Have you seen Olbermann and Wendell Potter on the health care sell-out? They pretty much destroy Obama and the Democrats attempts to spin and lie:
“Senate Bill a Big Win for Insurance Companies,” Countdown with Keith Olbermann, December 16, 2009
http://www.msnbc.msn.com/id/3036677/#34455097
Because maintaining the insurance monopoly was the very first of 175 concessions to Ben Nelson even before the 300 concessions to Joe Lieberman.
In the system of Capitolism,you may buy,you may sell OR ABSTAIN;TARP(Time for another revolution)Democracy,Hell we live in a MONEYCRACY!
double post
battling recissions in court is not working well.
a) As a practical matter, the law on fraud, etc for people signing up for health plans is written in most states in a way that greatly favors the insurance companies (they have good lobbyists if you haven’t noticed). I’ve read suggestions that it’s similar in the Senate Bill, but I would need to verify that.
b) moreover, what’s been happening is that the insurance companies will basically draw it out and harass people for years, and then settle right before if they are about to lose.
c) Each case would have to be heard on a case-by-case basis, so A LOT of people, usually poor and sick, would be going through that hell.
d) Recissions simply being illegal has not helped in the states that have them, because of the lack of enforcement. A law is nothing without being enforceable.
__
there would be some fairly easy ways to have the Executive Branch or the states be responsible for enforcing this instead of just the courts:
a) assign enforcement power to some executive branch agency, LIKE THEY HAVE DONE WITH ASSIGNING ENFORCEMENT FOR THE MANDATE TO THE IRS
b) bribe the states to enforce it by paying them for it – give them the money to do it and condition the money on using it for enforcement. That would not violate the 10th Amendment.