Now that a perverse combination of political posturing, magical thinking, and media mendacity has ruined what was probably the last real opportunity to cure us of Obamacare, the most we can hope for is relief from the disease’s worst symptoms. Ironically, the most promising source of this palliative care is the authority ceded to the secretary of Health and Human Services (HHS) by the Democrats who originally infected us. As HHS Secretary Tom Price recently tweeted, “There are 1,442 citations in @ACA where it says ‘The Secretary shall…’ or ‘The Secretary may…’ @HHSGov, We’ll look at every single one.”
When the Democrats passed the “Affordable Care Act,” they expected to be in control of Congress and the White House for a long time. Indeed, they thought the “reform” law would help tighten their grip on power. Likewise, they assumed that the authority they handed to the HHS secretary would be wielded by a fellow traveler like Kathleen Sebelius or Marilyn Tavenner. They certainly never imagined that HHS would be headed by someone like Price — an experienced legislator, a sophisticated health policy expert, and a respected physician — who also happens to be a highly articulate opponent of Obamacare.
Much of the pain Americans have experienced since the advent of Barack Obama’s “signature domestic achievement” is caused by HHS rules that can’t be found in the actual law. They are, rather, regulatory fiats issued by Sebelius and Tavenner pursuant to the enormous discretion Obamacare granted the HHS secretary. The most notorious example of such bureaucratic decrees is the notorious contraception mandate, which was used by the Obama administration as the basis for its assault on the religious liberty of Little Sisters of the Poor and other groups with moral objections to paying for abortion-inducing drugs.
Secretary Price will certainly make use of this authority to reverse the regulatory burden imposed by HHS on patients and health-care providers. A big driver of Obamacare’s premium increases is its package of ten “essential health benefits” (EHB). This is just a rebranded mandate scheme with which many states conducted botched experiments long before the advent of the “Affordable Care Act.” As I wrote in this space nearly a decade ago, such benefit mandates invariably drive up premiums. But Obamacare’s authors learned nothing from that history of failure. CMS provides this list of the EHBs they concocted:
The Affordable Care Act requires non-grand fathered health plans … to cover essential health benefits (EHB), which include items and services in the following ten benefit categories: (1) ambulatory patient services; (2) emergency services; (3) hospitalization; (4) maternity and newborn care; (5) mental health and substance use disorder services including behavioral health treatment; (6) prescription drugs; (7) rehabilitative and habilitative services and devices; (8) laboratory services; (9) preventive and wellness services and chronic disease management; and (10) pediatric services, including oral and vision care.
Price doesn’t have the power to unilaterally eliminate these EHB categories. The precise services that fall under each category, however, are not specified in the statute. In other words, HHS decided what the term “preventive and wellness services” actually means. That’s how Kathleen Sebelius and her creatures came up with the contraception mandate. As Donald Devine pointed out in this space last week, “There is plenty of room to review and limit the number and type of specific requirements and their resulting expenses for both individual and employer plans, and Secretary Price would know just how to do it right.”
In addition to this and other changes that would reduce upward pressure on premiums, Price is likely to make changes to the way HHS manages Medicaid. This brings us to one of the most ironic charges the Democrats have made against the HHS secretary — that he has declared war on the poor. In reality, the changes Price wants will have the opposite effect. Obamacare’s Medicaid expansion has converted a program primarily designed to help the poor into a single-payer system for able-bodied adults whose incomes preclude them from being categorized as “poor.” In fact, as the Hill reports, it has actually hurt the poor:
ObamaCare’s Medicaid expansion sought … to transform a safety net into an open-ended, free-for-all welfare program for non-disabled, working-age adults, the overwhelming majority of whom have no dependent children at home. Every penny spent on this new population is a penny that can’t be spent on the truly vulnerable. That’s just a fact. Many of these individuals – nearly 600,000 nationwide – currently sit on Medicaid waiting lists, hoping to get additional services that states say they need but, due to limited funding, states can’t afford. Literally, states have said, “You need this service but we do not have the adequate funding to provide it for you.” As a result, these individuals sit and wait. Many of them will die before they ever get the care they need.
That Tom Price wants to remedy this travesty is one of the reasons the Democrats have produced their trumped up charge that Price was involved in improper stock trades. In reality, having tricked congressional Republicans into killing their only chance to repeal Obamacare, the Dems are now after the last remaining threat to the law — Tom Price. But Price is as straight as a die, and they will fail to bring him down. They were too smart by half, when they gave the Secretary of Health and Human Services so much power when they passed Obamacare. What the HHS secretary gives, the HHS secretary can take away.