Somewhere in the massive 2,800 page Patient Protection and Affordable Care Act, there must be a provision explicitly giving the Department of Health and Human Services the power to selectively waive portions of the law for favored businesses and labor unions, you might think.
Or maybe not. Section 1001(a)(2) of PPACA gives HHS the power to determine the minimum coverage limit that insuring employers can set until the year 2014, when Section 1001(a)(1) kicks in and prohibits any coverage limits. It also provides that the Secretary must “ensure that access to needed services is made available with a minimal impact on premiums.” Defining terms and phrases like “access,” “needed services,” “available,” and “minimal impact” and how they relate to a minimum coverage limit were left to the mysterious ways of an unelected bureaucratic agency.
The statutory authority, then, for HHS was to set a low enough minimum dollar amount for coverage such that there would be “minimal impact on premiums.” For instance, HHS could have set the amount at $250,000 or $500,000 – or any random number, really – and it might have been possible for most employers to continue to offer coverage. Instead, HHS created a system of waivers, reviewed on a case-by-case basis by the Secretary’s staff, with little public criteria given on the matter.
There are at least two cases seeking information on these waivers currently pending in federal court: Torres v. U.S. Department of Health and Human Services and Judicial Watch v. U.S. Department of Health and Human Services. Both were filed in U.S. District Court for the District of Columbia and allege that HHS has failed to respond in a timely manner as required by the Freedom of Information Act.
WLF will continue to monitor these cases and address other developments in the quest to understand the new law and challenge its unconstitutional, unfair, and anti-free enterprise provisions. With reports of political favoritism in the granting of these waivers and a distinct lack of transparency over who wins and loses and why, it is important to keep the heat on government as it seeks to implement all of these new, complex regulations.