The Hill’s Jason Millman reports that in an effort to undermine the implementation of the Affordable Care Act, Republicans are now questioning whether Secretary of Health and Human Services Kathleen Sebelius has the authority to temporarily exempt limited benefit plans — so called mini-meds — from some of the requirements of the new law:
Republicans have been increasingly critical of waivers granted by the Obama administration to organizations that cannot meet a new mandate to provide at least $750,000 in coverage in 2011. They say the waivers, granted for just the annual limits requirement, are indicative of problems in the law. […]
But House Republicans with oversight powers say the massive overhaul doesn’t explicitly grant the administration power to provide waivers.
“The entire waivers process is predicated on the ability of the secretary to grant waivers in the first place,” said Rep. Trey Gowdy (R-S.C.), chairman of the House Oversight Health subcommittee. “However, this seemingly fundamental step — the statutory basis for waiving compliance with the law — appears to have been wholly neglected by the plain language of the statute.”
It seems to me that the Secretary’s authority for regulating “annual limits” can be found in Section 2711 of the Affordable Care Act (pg. 33 in this PDF), which states: “a health insurance issuer offering group or individual health insurance coverage may only establish a restricted annual limit on the dollar value of benefits… as determined by the Secretary.” “[T]the Secretary shall ensure that access to needed services is made available with a minimal impact on premiums,” the law says. In other words, it would seem that Sebelius has the authority to determine what constitutes a “restricted annual limit” that can still be imposed before 2014.
And while progressives generally aren’t too crazy about allowing mini med plans — subprime insurance offered to lower wage employees — to skirt important consumer protections, the administration believes that it has to waive certain requirements for specific plans to ensure that individuals are not denied access to needed services or face significantly increased premiums before they have more coverage options in 2014.
The irony here is that conservatives — who have long argued that ACA represents a one-size-fits all approach to health policy — are trying to deny HHS the flexibility to ensure that some plans and beneficiaries aren’t adversely affected by the law’s requirements. (The very requirements they rally against). And, they’re arguing that by taking advantage of all of the provisions in the ACA — including the flexibility it offers — the Secretary is somehow demonstrating that the law is defective.