THE BLOG
11/18/2013 04:33 pm ET Updated Dec 06, 2017

Is Obama Careless? What If the Health Reform Is Un-fixable?

President Obama is in a fix -- well, not exactly, but he could sure use one for his singular achievement that promises to extend health services to those presently unable to afford them. While the Republicans have sought to dismantle this achievement for months on end, they are now dangerously close to doing so -- with the unwitting "help" of the President himself.

Millions of Americans have received notices of cancellation because their existing health plans fall short of the "ideal" or "one size fits all" (depending on your perspective) specifications in the Affordable Care Act (once proudly -- now more sheepishly -- claimed as "Obamacare").

President Obama said these cancellations would not happen -- not once, not twice, but dozens of times across the land.

Why did the White House not see this as happening? After all, it is Econ 101 to know that when costs exceed price, particularly when the law has fixed the costs, that rational insurers leave the marketplace to find something else to sell.

Obamacare has had its problems. Yet, the cancellation issue is not the equivalent of figuring out why the website doesn't work. Nonworking technology is the bane of our general existence. Why is there no service on my AT&T cell phone most of the time? Why do the windows on my Microsoft supported computer slam shut and throw my data away time and time again? (Like now when out of the blue, this message appears). 2013-11-16-photo.jpg

Why do the Cubs never win the pennant? These are all imponderables that are beyond the mind of man. It is unduly harsh to ask the secretary of Health and Human Services to answer questions that Bill Gates himself couldn't navigate. The Military is said to fear cyber warfare, but frankly, how will we know when it's occurring?

But imposing a mandatory content on policies is something of a different order. This was an overreach that was unnecessary to undertake in the effort, the compassionate and long-overdue effort, to provide medical care to millions who lack it in our nation.

The President in his characteristic has assumed the blame for the errors, as political reality, if not humility, dictates. True, nothing in the law requires that any person give up their policies but what went largely unexamined was whether those policies would continue to exist. The president does bear responsibility for that inconvenience and anxiety. He is right to try and find a fix for it. In a perfect world, maybe even in this one, Republicans might want to lend a hand. A midterm election is nearing, and of course, Republicans should not be given complete immunity since they've wasted dozens and dozens of hours of legislative time trying to disassemble, rather than make work, the delivery of healthcare the less advantaged.

Can this health plan be saved?

President proposes a one-year delay, which has all the appeal of tabling treating houses infected with termites as one steps through the floor. Deferral can't be the all-purpose formula for fixing reform. It's better than doing nothing because it should result in a small number of companies continuing to offer policies, but more is needed.

Part of the more that is needed is avoiding rhetoric that demeans existing policies as " junk". That's a bit like mocking your neighbor for driving the subcompact car when that is all he can afford. Even if the president has an ability to allow consumers to buy" junk" for a year, State insurance commissioners don't. The job of the insurance commissioners to ensure the integrity of those offering insurance products as well as the stability of the insurance market, and returning to their insurance market what is labeled "junk" even for 12 months won't sit well with them and is already being vehemently opposed.

It's not even clear that the delay sits well with the companies being given the deferral. If the effect of the deferral is that mandatory uniform coverage doesn't have to be acquired by everyone, this undermines the core assumption that won over insurance companies to Obamacare in the first place: namely, a guaranteed income stream supplied by the mandate that everyone have insurance and the further mandate that the insurance provided be of a uniformly comprehensive character.

If both can't be guaranteed, the deferral may keep a few more companies in the market but it won't be enough to save the program.

Does the president really want the program to be saved? There is an argument to be made that the combination of the deferral of the employer mandate - that is that large employers with more than 50 employees not be required to have an insurance element in their benefits package for 12 months while at the same time not deferring the obligation of individuals to have insurance -- was the clever White House way to push a larger number of individuals into the publicly subsidized aspects of Obamacare.

The Supreme Court found it constitutional to mandate that individuals buy insurance; there was no finding that we were obligated to buy it from the government. Is it the promotion of interstate commerce to monopolize it? That's a question that has not been satisfactorily answered in our jurisprudence.

It is even more intriguing question to ask not whether the government can displace all private insurance, but whether or not Congress could pass a statute mandating that insurance companies stay in the market and offer a given insurance product. The conservative opposition to Obamacare, of course, from the beginning was the not at all far-fetched, but ultimately unsuccessful, argument that the commerce power does not extend to affirmatively requiring that a person enter the market to buy a product. This is what Obama care does as young people only know too well.

Again, however, we did not get the full answer because the Chief Justice and the more progressive side of the court avoided a binding holding on that issue by characterizing the president's reform legislation as an act sustained by the taxing power. (An individual is not really being forced by insurance, but he is really being taxed for not having insurance if he doesn't buy it; apologies to all of my fellow citizens who readily grasp that there is no meaningful difference between the two propositions the court found to be significantly constitutionally different).

One suspects that a similar artifice could be used to repair Obamacare mandating that insurance companies not cancel policies that were in existence at a given date in order to qualify for participation in the present market, but this more complex artifice would do serious damage to an enumerated power that was not meant to do everything - far from it -- it was meant to leave a good number of things closer to home in the states. Is there a fix that makes sense? Yes, but it means going back to the drawing board, and given that, it may well mean that President Clinton - i.e. Hillary - or undercurrent speculation president Christie -- will be the one confronted with coming up with a design of universal health coverage that has yet to be fully explored or placed on the table. What might such an alternative look like? At least three paths are likely to be explored:

1. Skip the insurance company's altogether and implement fee for service provided directly by the federal government; this is where a good number of Democrats wanted to be in the first place and whether or not this is a good alternative depends upon whether you've had good or bad experiences with public service providers.

Almost everyone at this point will mention the Department of Motor Vehicles, but since I want to keep driving, I won't. I will mention that I served as US ambassador for several years which was both a challenge and a genuine honor, and my grousing now about insurance inconveniences takes nothing away from that assessment.

Curiously, given the present discussion, the federal employee program (FEP) (upon which Obamacare was modeled in terms of coverage) neglected in error to extend insurance coverage to me for the first six months of my foreign assignment. Luckily, no one in my family, including myself was ill during that period of time. Yet, what next occurred is what gives people hesitation about turning their health needs over to the government. When the FEP discovered that it had not charged me for the insurance that I had not used, which it had not actually provided, but which it claimed it would have provided if I had needed it, sent me a bill for what I had no occasion to use, didn't use, and to this day I am not certain I could have actually used, rather than receiving more likely letter from a government lawyer that I was not properly covered as my hypothetical claim was denied.

Why would I hypothesize such a letter denying coverage? Because in fact something very close to that has now occurred. It seems the FEP has difficulty both enrolling people on time and dis- enrolling them on time. After completing the construction of a new embassy compound, organizing and directing the rescue of hundreds of American citizens from Tripoli,, and negotiating several successful treaties and agreements with the Republic of Malta over Iranian trade sanctions, and avoidance of double taxation treaty, and other protections against the misuse of financial instruments to hide income offshore, I retired and returned to the states. Notwithstanding my formal notice of retirement and withdrawal from the FEP, the FEP continued to pay for my prescriptions and medical care for the next 2 ½ years. Generous? Actually disadvantageous both because the FEP has now billed me $5000 roughly for the expenditures that but for their interference would've been covered by my own insurance company that sees them is a bit out of time and it's not clear how much they if anything, will be reimbursed.

Bottom line: my intersection with federally supported and provided healthcare left me without coverage but charged for it and unwanted coverage but charged for it again. I realize this is a single anecdote but sometimes it doesn't take the house to fall numerous times to get out of the way. Moreover, while the voices on the other end of the phone in my case has have been pleasant enough, each letter is, unsigned, and the administrative burdens of seeking to work this out have not been facilitated in the least by the size of the organization.

When healthcare is the subject, care is the verb that we are most anxious to see affirmed. Is there a structural arrangement that could substitute for Obamacare should the repairs necessary to save the reform prove insufficient?

2. The Ted Cruz alternative: repeal Obamacare and do nothing. This doesn't make the status quo worse but it leaves our social and moral obligation to those who are without resource for medical care unattempted and unfulfilled. As angry and distressed as some of the president's own supporters are with the botched effort made by the White House, there is no American consensus for remaining indifferent to the needs of our fellow citizens. There is a third way and its attractiveness relates directly to this issue of greater expression of concern within families and even possibly beyond. This third way borrows from both Democratic and Republican ideology. What is this third way?

Individual and employer mandates are repealed (the Republican objective); citizens who can afford to do so will be encouraged by tax credits to buy insurance for the uninsured members of their extended family, and beyond, to underwrite insurance or the cost of care for members of the community whether or not related to them by blood marriage or adoption (this is the Democratic ideology of being our brother's keeper). This third alternative might be appealing to both the president and his conservative opposition, since it depends upon community organization and responsibility. Empirical data - some of it generated by the conservative think tanks - has long shown that when social welfare is delivered face-to-face, it is both better used and more effective at instilling responsibility, and where possible, self-sufficiency than when assistance is supplied by the remote, anonymous bureaucracies.

Using the tax code to encourage the funneling of resources from rich to poor from profit and nonprofit is hardly unheard of. What is novel here is that the transfers to be supported occur face to face, where needs are individually measured and met. There is, in short, a straightforward expansion of tax benefits for the health services provided to members of our own family, our neighbors, co-workers and friends. Whether that would cover the numbers needed to have this program be the equivalent of the promise of Obamacare is open to some question, but what is clear, it avoids the nationalization or over-reliance upon a heavily regulated insurance market, avoids at least some of the personalism of public provision and most tellingly, refocuses our efforts away from partisan naysaying or equally unhelpful defensiveness back toward whether or not the health of a fellow citizen has improved or been given a chance to do so.

Hey, we might even call it Ameri-care.