I blogged this screw-up last week, but much to my surprise, insurance companies appear ready to make an issue of it. That may be useful in calling public attention to how shoddily the bill was drafted and how The One, who promised immediate coverage for kids, oversold it, but is the “we don’t have to insure sick kids after all!” hill really the one the industry wants to die on?
To insurance companies, the language of the law is not so clear.
Insurers agree that if they provide insurance for a child, they must cover pre-existing conditions. But, they say, the law does not require them to write insurance for the child and it does not guarantee the “availability of coverage” for all until 2014.
William G. Schiffbauer, a lawyer whose clients include employers and insurance companies, said: “The fine print differs from the larger political message. If a company sells insurance, it will have to cover pre-existing conditions for children covered by the policy. But it does not have to sell to somebody with a pre-existing condition. And the insurer could increase premiums to cover the additional cost.”
Congressional Democrats were furious when they learned that some insurers disagreed with their interpretation of the law.
Tom Maguire got deep, deep into the weeds of the statutory language this morning to try to hash this out. In a nutshell, because the Dems were nervous about delaying the benefits of their glorious boondoggle until 2014 — which was necessary, as you’ll recall, so that they could game the CBO’s first-decade cost estimate — they decided to speed up coverage for kids with preexisting conditions to this year. Except, in their haste, they did a crappy job with the drafting and only amended one of the four relevant statutory sections. Result: If insurers choose to sell a policy to a sick kid’s family, they have to cover his preexisting condition, but there’s nothing in the law — until 2014 — that requires them to sell a policy in the first place. The money question per Maguire is whether this really was negligence at work (and negligence on the GOP side in failing to catch it and exploit the issue) or whether the Dems fully intended to permit this loophole for the next four years and are now caught because The One misunderstood it and/or overhyped it.
I’ll give you another option, though. What if the Dems purposely left this section ambiguous in hopes that it would invite a challenge from the insurance industry and, ideally, the GOP? The exemption for preexisting conditions is probably the single most popular provision in the bill; extending that exemption to sick children would, I suspect, poll somewhere in the neighborhood of 90 percent. What better way to sell the bill to a wary public than to manufacture a showdown with the evil, heartless insurance companies and their Republican “corporate cronies”? If nothing else, a vote in Congress to correct the drafting “error” and close the loophole would be a poison pill for the GOP. If they vote no, they “hate sick kids”; if they vote yes, the base will take it as a sign that they’re not serious about repeal. All of which is to say, if this really is an accident, it’s a very happy one for Democrats.