During the health care debate, one of the biggest question marks that I had was whether the insurance regulations, which would be handled by the states and not a federal regulator, would be enforceable. Countless examples of insurance companies getting off scot-free, or of state insurance commissioners lacking the will or the resources to stop them, raised my concern. Now, Robert Pear and Kevin Sack at the New York Times add to that concern by discovering that some state insurance commissioners don’t even have the authority to uphold the regulations in the Affordable Care Act.
Faced with the need to review insurance rates and enforce a panoply of new rights granted to consumers, states are scrambling to make sure they have the necessary legal authority to carry out the responsibilities being placed on them by President Obama’s health care law.
Insurance commissioners in about half the states say they do not have clear authority to enforce consumer protection standards that take effect next month.
Federal and state officials are searching for ways to plug the gap. Otherwise, they say, the ability of consumers to secure the benefits of the new law could vary widely, depending on where they live.
We already see this in the wild variations of the Medicaid law, which relies on state participation in the funding. After a review by the federal government, California, Florida, Hawaii, Michigan, Nebraska, Oklahoma, Virginia and Wyoming acknowledged they do not have full authority to enforce the succession of laws associated with the ACA.
In some states, legislatures have prepared for this by passing laws to explicitly give authority to their state insurance commissioners to enforce these consumer protections. Maryland, North Carolina and New Hampshire completed this in the past several months. But do you think Oklahoma will? Or Wyoming? In order to actually enforce the law, they’ll have to just, um, persuade insurance companies to do the right thing. Or, they’ll use more general laws banning deceptive trade practices, which insurers are sure to fight in court.
The original sin here was to outsource regulation of the ACA to the states, probably because of the money it would have taken to set up a federal agency. The Obama Administration has some money through the Health and Human Services Department that they will offer to states to help them with rate reviews and other enforcement capabilities (that could happen as early as today), but funding is less the issue than ability under the law to enforce. And this was completely predictable.
Meanwhile, read from Consumer Watchdog about the street activism happening at the National Association of Insurance Commissioners meeting, where they are putting in place many of the rules. Sadly, the lobbyist armies are out in bigger force:
Unbelievably, the NAIC may agree in a vote (probably Tuesday) to let insurance companies deduct their sales fees–i.e. payments to insurance brokers for selling you a policy– before calculating the medical care ratio. This is a multibillion-dollar amount nationwide, and brokers get paid every year that you keep a policy.
If that happens, it will amount to a sellout of major proportions. I’ll be delighted to eat every word of this if the rumor proves wrong, but we heard yesterday that some commissioners were already backing the industry on broker fees.
If the insurance lobby wins on all of these lobbying issues, the number they publish for the percentage they are spending on health care will be meaningless. Health reform will fail from the beginning to contain insurance costs.
What the NAIC sends to HHS will be a proposal, not a done deal. HHS has every right to send back the lobbyist language and demand regulations that actually do what the law asked–to make insurance companies operate more efficiently, with less overhead, maybe some smaller CEO salaries, and no dedicated right to ever-rising profits.
UPDATE: Jon Cohn managed to write a 1,600-word piece on implementation of the Affordable Care Act without mentioning this issue.




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Regulations that won’t be enforced. I’m shocked.
Thanks dday for keeping us up to snuff on these issues. My usual comments are pretty snarky because I’m so tired of same-ole-same-ole, but I do appreciate your work. If the situation ever REALLY changes, I’ll read it from you first.
thank you David -
along with this beyond glaring omission, Cohn includes a few inartful statements in his treatise – this one in particular jumped out:
(emphasis mine)
and yeah David, what my pal eCAHN said !
okay, I see he qualifies the “same prices” drivel by throwing in a “2014″
The health care act is a misnomer. It is a health insurance act. For profit health insurance is the problem, not the solution.
Obama’s difficulty is that he’s never met a compromise he can’t embrace. He seems to think compromise is a worthy end in itself. He doesn’t understand some compromises take so much, you no longer remain what you were.
After all, most insurance commission were created to rubberstamp insurance company rates.
Peterr has a fresh cross-post available: As Students Return to College, Student Loan Fraudsters Rejoice
Does anyone else recall the challenge to the Brady Bill tht made it to the Supreme Court?
State and local law enforcement officers objected to being required to conduct background checks on those attempting to purchase firearms. An Opinion written by Scalia struck down that provision claiming,
It seems to me that requiring state insurance commissioners to enforce federal regulations and requiring states to set up exchanges are extremely vulnerable under this precedent.
The “public option” was the compromise.
What we ended up with is a complete sellout.
Cohn didn’t mention it because he was and is in the tank in a big way for the bill. One thing I’ve noticed with Obama’s die-hard supporters over the last year is that they are every bit as willfully self-deceptive as any bible-thumping creationist. Whenever any bit of data contradicts their rosy worldview, they don’t just ignore it; they’re constitutionally unable to comprehend it, because comprehension might lead to doubt, and they can’t have that.
LOL – :-)
after two years – the NAIC actually testified about what the National Association of Insurance Commissioners was and what they do. Guess no one noticed that the NAIC can do nothing and that individually each commissioner has varying amounts of authority – and likewise as st staff and tradition of regulation. They were so determined to only allow Federal regulation only if the state chose to not regulate that they wrote the law that way – and only now find out that the dreaded Federal Regulation might occur because of lack of laws in the States.
Well, that puts Liz Fowler, former chief health counsel to Senate Finance Chairman Max Baucus and former Vice President of Public Policy and External Affairs for WellPoint, Inc – our dear health insurance company – into a corner as she runs health care reform as Obama’s Health and Human Services Deputy Director at the new Office of Consumer Information and Insurance Oversight that actually runs the new Health Care Reform Law. What will Obama do ??? (hey – just a bit of sarcasm as we know they have nothing to fear from her regulations).
not a problem as Scalia’s worries are met by HCR since the state need do nothing – the feds will regulate if nothing is done.