Obamacare Is the Problem, Not Kathleen Sebelius

Fixing Obamacare requires a change in policy, not just a change in personnel.

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In response to the botched launch of the federal health insurance website, Healthcare.gov, some members of the House and Senate are calling for the resignation of Health and Human Services Secretary Kathleen Sebelius. While this desire for accountability is understandable, lawmakers would do well to remember that the greatest human tragedies in the health care rollout stem from provisions in the Affordable Care Act itself – not from the HHS secretary’s oversight of the website.

Public policy, not people, is the problem. Fixing the problem will require changing the policy, not just changing the people who administer it.

The biggest failure of the ACA to date is that millions of people cannot keep their old health insurance plans. Instead, they must buy new plans with costly types of coverage they previously declined purchasing.

[See a collection of political cartoons on Obamacare.]

For example, the regulation specifying "essential" health benefits requires everyone buying health plans covered by the regulation to pay for 10 types of health benefits that all "non-grandfathered" health plans must cover, regardless of whether the plans are sold via the new health care exchanges or elsewhere. The list includes maternity and newborn care, pediatric oral and dental care, prescription drugs, mental health and substance abuse treatment. These mandates are in the law, and this coverage is deemed "essential" even for celibate priests, gay male couples and post-menopausal women. To add insult to injury, federal officials assure us that Washington knows best, asserting that these expensive new plans are better than the "substandard" plans people previously preferred to spend their hard-earned money on.

The law lightens the load on adults under 30 and people who would otherwise have unaffordable insurance by allowing them to purchase "catastrophic" policies that have lower premiums but do not cover as much of the costs of health care. A catastrophic policy is supposed to cover large, unexpected expenses while the patient pays out-of-pocket for smaller, routine expenses.

Yet in this case, the law turns the usual definition on its head, requiring even catastrophic policies to cover preventive services and check-ups. It also arbitrarily gives a reasonably healthy 29 year old the option of saving money on premiums by shouldering more of the risk of health care costs, while denying a reasonably healthy 30 year old that very same opportunity.

[See a collection of political cartoons on the economy.]

The ACA allows consumers to avoid some of the costly mandates if their health insurance plan is "grandfathered." The law exempted health insurance plans in force on March 23, 2010 from the essential health services requirements. It allowed regulators to define the point at which an insurance plan changes enough that it is no longer grandfathered.

The three departments that jointly issued the grandfather regulation – Health and Human Services, Treasury and Labor – adopted a very narrow standard ensuring that a plan forfeits its grandfathered status if it makes even routine changes. Under normal circumstances, the secretaries of the cabinet agencies writing the regulations would bear ultimate responsibility for their content.

[Vote: Is Obama Right to Restore Health Insurance Plans Canceled By Obamacare?]

But the process by which the ACA regulations were written was far from normal. Duke University health care economist Chris Conover and I documented in a 2012 study that the writing of ACA regulations was centrally directed from the White House. This is why former Sen. Thomas Daschle, a candidate for HHS secretary before Sebelius, was going to be appointed head of the White House Office of Health Reform as well as HHS secretary.

The ACA regulations were a team effort, quarterbacked from the Oval Office. While Sebelius may have concurred with the narrowly written grandfathering regulation that led many consumers to lose their old insurance plans, it’s likely the same regulation would have been issued regardless of who was HHS secretary.

After several weeks of web site snafus, President Obama noted, "The Affordable Care Act is more than just a website." And the ACA foul-up is much more than a website malfunction. Fixing the real problem requires a change in policy, not just a change in personnel.

Jerry Ellig is a senior research fellow with the Mercatus Center at George Mason University.

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