Rubio opens new front in war on ObamaCare

Greg Nash

Sen. Marco RubioMarco RubioGuess which Cuban-American 2016 candidate best set themselves up for 2020? Budowsky: Why Warren masters Trump Meghan McCain: ‘I no longer recognize my party’ MORE (R-Fla.) is opening a new front in his attacks on ObamaCare as he campaigns for president.

After trying to bring publicity to his efforts to limit the Affordable Care Act’s “risk corridors” program, Rubio and Sen. Orrin HatchOrrin HatchBacteria found ahead of Olympics underscores need for congressional action for new antibiotics Burr pledges to retire after one more Senate term Leaders appoint allies, adversaries to Puerto Rico growth task force MORE (R-Utah), the chairman of the Finance Committee and a campaign backer, wrote a letter on Tuesday arguing that the Obama administration is breaking the law with another “bailout” of insurance companies.

“We are again disappointed with the Administration’s willingness to unlawfully direct money to health insurers at taxpayers’ expense,” they write.

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Their letter concerns ObamaCare’s “reinsurance” program, designed to protect insurers against high costs for sicker enrollees in the early years of the law. Under the program, the government collects money from insurers and then redistributes it to those with high-cost enrollees.

ObamaCare required that in its first year, 2014, the reinsurance program would collect $10 billion to redistribute to insurers, and another $2 billion to go to the Treasury Department. But not enough money was collected to cover those totals, so the administration, through regulations put forth in 2014, prioritized giving money to insurers over the $2 billion to the Treasury.

“This is unacceptable,” Hatch and Rubio write. “The statute in question is unambiguous, and the [Health and Human Services] regulation and recent practice violates its clear directive.”

They point to a report from the nonpartisan Congressional Research Service to back up their claim that the administration is violating the law. The CRS report found that the administration’s interpretation “would appear to be in conflict with a plain reading” of the healthcare reform act.

The text of ObamaCare states that the $2 billion “shall be deposited into the general fund of the Treasury of the United States and may not be used for the program established under this section [i.e. the payments to insurers].”

Asked about the issue at a Senate Appropriations hearing last week, Health and Human Services Secretary Sylvia Mathews Burwell noted that her department put forward public regulations laying out its approach and the same complaints were not raised at the time.

“We believe that we have the authorities and as I mentioned [earlier], we actually published for comment and notice the approach that we were going to take to use those authorities, and did not have any of the concerns raised as part of that public process,” Burwell said.

Tim Jost, a health law expert at Washington and Lee University who supports ObamaCare, said that he found the administration’s interpretation “reasonable” given that it did not collect enough money to cover all the costs and the primary purpose of the section is the payments to insurers, not “general tax collection.”

“It’s the continuing struggle of the administration to make the statute work,” Jost said, noting that ObamaCare is a complicated law concerning a complicated health system, and Republican opposition has made tweaking it difficult.

“There's no possibility of amending to try to fix the statute, so they just proceed in trying to read the statute in a way that makes it actually work,” he added. “So that's what they're doing here.”