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ObamaCare, for Some

October 20, 2010

¬†Well, well. In the clearest evidence so far that ObamaCare is harmful in practice and an election-year liability, the Obama Administration has decided not to enforce some of the law’s “consumer protections.” At least when the results are politically embarrassing.

Over the last several weeks the Health and Human Services Department has granted dozens of temporary waivers to certain ObamaCare mandates so that insurers and businesses won’t drop or cancel coverage. The most conspicuous went to McDonald’s to protect the “mini-med” plans for some 30,000 hourly workers from a rule that prohibits annual restrictions on benefits. Mini-med policies offer modest coverage at low premiums and other low-wage fast-food chains like Jack in the Box and Denny’s have been granted waivers as well.

Cigna, Aetna and a few other insurers have been given hall passes to continue selling mini-meds. Another went to the United Federation of Teachers Welfare Fund. The New York union offers city teachers supplemental drug coverage that would have been banned under the new rules.

At least this sudden regulatory flexibility is protecting the coverage that people have today, as President Obama promised. But it isn’t much of an improvement if HHS retreats only after a national political blow-up. After all, the essential point of the regulations was to destroy mini-med plans and other types of coverage that Democrats claim are insufficiently generous. Democrats from Mr. Obama on down call these rules “the patients’ bill of rights,” but people don’t regularly need exemptions from a bill of rights.

And is it really better that HHS will impose destructive regulations and then decide on ad hoc basis who they’ll hit? This is an invitation to play favorites, exact political retribution and pursue whatever arbitrary goals HHS Secretary Kathleen Sebelius and her successors happen to hold. ObamaCare amnesty shouldn’t go merely to the CEOs who can get White House aide Valerie Jarrett on the horn.

Recall, too, that the original McDonald’s memo the Journal exposed was actually warning about the future damage that will be caused by the forthcoming definition of the “medical loss ratio,” that is, what insurers are allowed to count as spending on health-care services. HHS said in a statement that Ms. Sebelius has the power to waive those rules too when they come out and “we fully intend to exercise her discretion under the new law to address the special circumstances of mini-med plans in the medical loss ratio calculations.”

In other words, HHS is pre-emptively declaring that it will grant a special dispensation to rules that haven’t even been finalized. Wouldn’t it be better to write less destructive rules in the first place? Or why not give everyone a waiver from everything?

The reality is that ObamaCare assigns HHS vast, undefined new powers that will mean whatever Ms. Sebelius and her team decides they will mean. The bill uses the phrase “the Secretary shall” or one of its variants more than a thousand times. Earlier this year, the Congressional Research Service found that ObamaCare created a “currently unknowable” number of new boards, commissions and offices, adding that “it is currently impossible to know how much influence they will ultimately have.”

HHS is also not building this bureaucratic apparatus in a transparent way. Ten of the 12 new regulations that HHS has issued in the last six months have been “interim final rules” that are not open to the ordinary process of public comment.

The White House had to play favorites with Senators and special interests to pass ObamaCare, and its implementation is no less ugly. But the waiver wave is most telling for what it says about the architects of this plan. By bending their own rules, they’re conceding their destructiveness.