Government By Waiver

One of the more troubling aspects of the “health care reform” legislation enacted into law last year has been the ability of companies and unions to get waivers that relieve them from having to comply with certain aspects of the law.  The waivers relate to provisions of the law that prevent plans from using high deductibles or low annual limits to control benefits.  Unfortunately, many plans need such provisions to manage costs; without those provisions, employers and unions would need to jettison their plans as unaffordable.

The Department of Health and Human Services may waive those provisions for certain employer and union plans.  The HHS website explains that, to be eligible for a waiver, the plan must certify “that a waiver is necessary to prevent either a large increase in premiums or a significant decrease in access to coverage” and must inform plan enrollees “that their plan does not meet the requirements of the Affordable Care Act.”  Whether to grant the requested waiver then seems to be entrusted to the discretion of the HHS and its Secretary, Kathleen Sebelius.  To date, 733 company and union plans, covering 2.1 million Americans, have received waivers.

This concept of “government by waiver” is troubling.  I’m skeptical of the claims of some conservatives, who believe that the waivers are being handed out as rewards for prior political support.  I do, however, question a process that allows unelected bureaucrats to grants waivers from a law that is supposed to apply to everyone.  The waiver process is symptomatic of the accumulation of power in the Department of Health and Human Services that seems to be the true hallmark of the “health care reform” legislation. If the law remains in force, Americans will need to get used to the idea that HHS will be making all kinds of decisions that have a direct impact on our health care.

In addition, what does it say about this hastily drafted, poorly considered law that more than 700 plans have certified that one of the law’s provisions will either vastly increase costs or cause coverage to be sharply curtailed?  Does anyone doubt that, if all American businesses had been aware of the possibility of obtaining waivers, that 700 number would have been multiplied by a significant factor?  It also is worth noting that the waivers aren’t limited to small, Mom and Pop plans.  To the contrary, some of the plans that have received waivers have hundreds of thousands of participants.  According to the HHS website, the plans that have received waivers include the United Federation of Teachers Welfare Fund (351,000 participants), CIGNA (265,000 participants), Aetna (209,000 participants), and BCS Insurance (115,000 participants).  Given these waivers, how can the proponents of the “health care reform” legislation continue to contend that the legislation will neither increase costs nor reduce coverage?  By granting the waivers, the bureaucrats at HHS are admitting that the exact opposite will occur if the law is enforced as written.

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