Many states are wisely signaling that they aren’t interested in doing the Obama administration’s bidding on Obamacare. As a result, many if not most of Obamacare’s insurance exchanges — the heart of the beast — will have to be set up and run by the Obama administration at the federal level.
States are not required to set up Obamacare exchanges, but it seems to have surprised observers that many are choosing not to. Politico reports that, with only 17 states so far having said they will set up the exchanges, the “Department of Health and Human Services’s role in bringing the law to life is going to be a lot bigger than originally thought.” More than a third of all states have already said they won’t set up the Obamacare exchanges. Among others, Republican governors Scott Walker, John Kasich, Sam Brownback, Rick Perry, Bobby Jindal, Nikki Haley, Nathan Deal, Paul LePage, Robert Bentley, Mary Fallin, and Sean Parnell have said they’ll refuse to set up the exchanges in their states.
In Missouri, voters took matters into their own hands, approving a ballot measure to vest authority over the decision in the Republican-led state legislature, rather than leaving it up to the Democratic governor. Missouri will not be establishing an exchange. Utah governor Gary Herbert, meanwhile, has opted for a sort of mild civil disobedience, saying that his state will continue to pursue “our version of an exchange based on defined contribution, consumer choice, and free markets” — a type of exchange that is rather plainly banned by Obamacare.
States’ refusal to be complicit in this crucial aspect of Obamacare should shine a spotlight on the development of the federal exchanges — and what it illuminates won’t be pretty.
The Obama administration’s congressional allies botched the drafting of this aspect of the health care overhaul, as the plain language of Obamacare doesn’t empower federal exchanges to distribute taxpayer-funded subsidies to individuals; it empowers only state-based exchanges to distribute the subsidies. (The administration pretends otherwise.) Moreover, the Department of Health and Human Services (HHS) is lagging behind in developing the federal exchanges.
It gets worse. HHS has contracted with a subsidiary of a private health care company to help build and police the very exchanges in which that company will be competing for business. The person who ran the government entity that awarded that contract has since accepted a position with a different subsidiary of that same company. An insurance industry insider (speaking on the condition of anonymity) says that HHS, in an attempt to hide this unseemly contract from public view until after the election, encouraged the company to hide the transaction from the Securities and Exchange Commission.
According to my source (the basis for most of this account), in January, HHS awarded Quality Software Services, Inc. (QSSI) what the Hill describes as “a large contract to build a federal data services hub to help run the complex federal health insurance exchange.” At that time, the director of Obamacare’s newly established Center for Consumer Information and Insurance Oversight (CCIIO) — which the Hill describes as “the office tasked with crafting rules for the national exchange” — was Steve Larsen. Larsen had been the insurance commissioner for Maryland when Obama’s HHS secretary, Kathleen Sebelius, was the insurance commissioner for Kansas, and the two are reportedly close. The CCIIO awarded the Obamacare exchange contract to QSSI while Larsen was the CCIIO’s director, and he played a central role in planning the construction of the exchanges — although it’s not known whether he made the decision to award the contract to QSSI or not.
Under the contract that it signed with HHS, QSSI’s power would be substantial — as QSSI would shape, run, and affect companies’ ability to compete to sell insurance through Obamacare’s federal exchanges. The Hill writes, “A draft statement of work for the contract awarded to QSSI states the contractor should provide services necessary to acquire, certify and decertify health plans offered on a federal exchange.” Moreover, “It stipulates the contractor should monitor agreements with health plans, ensure compliance with federal standards and” — somewhat strikingly — “take corrective action when necessary.”
QSSI, apparently realizing what a valuable asset it had in the contract, started shopping itself around. Meanwhile, Larsen left the CCIIO and took a highly paid position with Optum, a subsidiary of UnitedHealth Group, in June. Sometime this summer, UnitedHealth Group bought QSSI.
The Hill writes that the “quiet nature of the transaction, which was not disclosed to the Securities and Exchange Commission (SEC), has fueled suspicion among industry insiders that UnitedHealth Group may be gaining an advantage for its subsidiary, UnitedHealthcare.” The Hill adds, “One critic familiar with the business rivalries of the insurance industry compared UnitedHealth Group’s purchase of QSSI to the New York Yankees hiring the American League’s umpires.” In other words, UnitedHealth Group, through QSSI, would be able to police the same field in which it would be a competitor.
In addition, QSSI would have access to valuable data. The Obama administration likes to compare Obamacare’s prospective insurance exchanges to websites like Travelocity and Expedia, but the comparison is inapt. Travelocity and Expedia don’t regulate airlines, stipulate the length of runways, or transfer money from younger passengers to older ones. In truth, Obamacare’s federal exchanges will be an extremely complicated technical endeavor to set up and run, as (among other things) they would involve compiling massive amounts of risk-selection data on individual Americans. In addition to raising extraordinary privacy concerns, the data involved would be like gold to insurers. To quote my source, “If you can capture this data, you’re going to win.”
When HHS became aware of UnitedHealth Group’s purchase of QSSI, it couldn’t realistically void the contract, because the Obama administration was already too far behind in setting up the federal exchanges. To void the contract would mean delaying the exchanges’ implementation by many more months. The Hill writes: “[G]iven how late the administration has been in issuing rules for the exchanges, it would be extremely difficult to void a key contract, find another company to perform the work and still meet the 2014 deadline.”
Unwilling to void the contract, HHS instead went to work on setting up a firewall designed to block United-Health Group from gaining access to QSSI’s data, presumably out of a desire to keep UnitedHealth Group from gaining an unfair advantage. Then, likely in concert with the White House — and to the chagrin of many HHS employees — Sebelius and other senior HHS officials decided that word could too easily get out about the firewall project. If it did, it would alert people to UnitedHealth Group’s having gained a potentially huge competitive advantage — a political concern for the White House on the cusp of the election, especially in light of the crony capitalism charges that have plagued this administration. Therefore, HHS, under Sebelius’s leadership, suspended work on the firewall and told United-Health Group not to alert the SEC to the purchase — as UnitedHealth Group was legally required to do within four days of the transaction — until after the election.
HHS’s actions have drawn the attention of the Senate Finance Committee. The committee’s ranking Republican, Sen. Orrin Hatch, has asked Sebelius for information, but Sebelius has not complied with his written requests and deadlines.
Prior to the election, most reporters — or their editors — weren’t interested in looking into any of this too closely. But in the wake of the refusal of elected GOP leaders in the states to do the Obama administration’s bidding on Obamacare, the development of the federal Obamacare exchanges might now receive closer examination. The idea of funneling about $1 trillion (according to the Congressional Budget Office) over Obamacare’s real first dozen years (2014-25) from American taxpayers, through Washington, to private insurance companies was always problematic. But it’s more problematic to hire a subsidiary of one of those insurance companies as an architect and policeman of the exchanges through which the Obama administration intends to have this abundant taxpayer money flow, more problematic still that Obama’s first head of the CCIIO may have profited personally from the venture, and most problematic of all that HHS may have told a private company to violate federal securities law in order to aid Obama’s reelection prospects.
Is this really the sort of “reform” of the American health care system that anyone wants?
Jeffrey H. Anderson is a senior fellow at the Pacific Research Institute.