Will Obamacare be repealed? Will it be replaced? Will it be repaired like an old bridge collapsing over a river somewhere in Tennessee? Who knows! But while we wait to find out, President Donald Trump wants to use his executive power to tinker with some of the law’s rules that govern the insurance market—and his health policy team is apparently making some incredibly creative use of their middle-school math skills to do it.
According to the Huffington Post’s Jonathan Cohn, Trump’s Department of Health and Human Services has already submitted a list of rule changes to the Office of Management and Budget, which has to approve them before the lengthy public process required to rewrite a regulation can start. The list isn’t public, but Cohn talked to a number of insurance industry “consultants and lobbyists” who said the White House has been kicking around three ideas, one of which would be a truly remarkable feat of legal hairsplitting.
Under Obamacare’s current rules, insurers are only allowed to charge seniors up to three times more than younger adults. This is called the age-rating band, and it generally makes coverage cheaper for the older customers and more expensive for the young. Insurers themselves happen to hate the current setup—they’d prefer something closer to a 5-to-1 ratio, which was more the norm pre-ACA. They also claim that would lead to a better functioning insurance market overall.
Trump can’t expand the age band that far without legislation. But he’s going to try to widen it a bit. Here’s Cohn (bolding mine):
Insurers would have more leeway to vary prices by age, so that premiums for the oldest customers could be 3.49 times as large as those for younger customers. Today, premiums for the old can be only three times as high as premiums for the young, which is what the Affordable Care Act stipulates. According to sources privy to HHS discussions with insurers, officials would argue that since 3.49 “rounds down” to three, the change would still comply with the statute.
It’s legal because rounding! Rounding! I am a pretty big fan of the Chevron principle, which says courts should generally defer to executive agencies when it comes to statutory interpretation. But man does this stretch credulity. I’m not even saying it’s necessarily bad policy; insurers have had trouble enrolling enough young folks to stabilize the Obamacare markets in many states and, who knows, maybe a more flexible band would help a little. But the legal justification is just priceless.
Anyway, to whomever came up with this: Your fifth grade math teacher should be beaming.
