The WasteWatcher: The Staff Blog of Citizens Against Government Waste

They Knew. They All Knew.

The WasteWatcher is the staff blog of Citizens Against Government Waste (CAGW) and the Council for Citizens Against Government Waste (CCAGW). For questions, contact blog@cagw.org.


We are seeing a lot of panic on Capitol Hill these days as Obamacare continues to unravel.  Certainly, the functionality of the Healthcare.gov  website was initially the primary focus of concern.  But when millions of Americans began to lose healthcare policies they liked in spite of the president’s numerous promises that “you can keep your healthcare plan if you like it – period,” the fear in Washington, D.C. has ratcheted upward.  Most of the angst is seen among Senate Democrats that face re-election next year in “red states” and expressing shock that so many people are losing their policies.  Several are taking initiatives to try to “fix” the problems with Obamacare.

Meanwhile, due to pressure from Senate Democrats, President Obama offered an administrative “fix” today to Obamacare that supposedly will allow people to keep their plans.  But many are questioning whether the fix is legal or if it is, will even work.  Considering the fix is only for 2014, millions of consumers will likely experience similar problems with their health insurance plans a year from now.

Tomorrow, the House is expected to vote on legislation, H.R. 3350, the “Keep Your Health Plan Act,” which would allow insurance companies to continue to offer for sale health insurance policies that were terminated by Obamacare’s regulatory requirements.  That legislation will only offer partial relief.

Earlier this month, Senators Mary Landrieu (D-LA) and Joe Manchin (D-WVA) introduced the “Keeping the Affordable Care Act Promise Act.”  According to an article in The Hill, Sen. Landrieu “admitted Monday that the bill is needed because millions of health plans are being canceled under ObamaCare for failing to meet the law's new standards” and declared "we said to people that if they have insurance they like, they can keep it… we didn't say that if they have insurance they like that doesn't meet the standards or that meets the minimum standards, they can keep it.”  She claims that her bill, S. 1642, would make changes to the grandfather clause within Obamacare and said the regulation was "not written as tightly as it should have been."  The Hill reports under Landrieu’s bill all insurance companies “would have to continue to offer plans offered before the new ObamaCare standards took effect, and would also have to explain to policyholders how their current plan might fall short of those.”

Other co-sponsors of S. 1642 are Senators Dianne Feinstein (D-CA), Kay Hagen (D-NC), Jeff Merkley (D-OR), and Mark Pryor (D-AR).  They said in spite of the president’s actions today, they plan to move forward with their legislation.

Here is what they have said recently about Americans being able to keep their healthcare plan.

Senator Feinstein in an interview on CBS’s, “Face the Nation.”

Schieffer: The president said in the beginning that one thing was that if you liked the health care program you had, you could keep it. We now know there was debate within the administration before he said that as to whether that was actually a promise that could be kept.  Should the president not have made that statement?

Feinstein: Well, as I understand it, you can keep it up to the time — and I hope this is correct, but this is what I’ve been told — up to the time the bill was enacted, and after that, it’s a different story.  That part of it, if true, was never made clear.”

Senator Hagen in a November 8 press release:

North Carolinians deserve health care that works.  An apology is only helpful if it is followed by direct and meaningful action to get the Affordable Care Act working, which is why I've pushed to extend the open enrollment deadline and am supporting a bill that would allow people to keep their current plans.  The administration should join these efforts to fix the problems.

Senator Jeff Merkley in a November 13 press release

Our health care law laid out a vision that those who like their current individual healthcare plan can keep it, and that vision must be honored,” said Merkley.  “The original bill had a grandfather provision, but that provision did not work as intended.  When insurance companies changed significant provisions on policies, those policies lost their grandfather status.  I am sponsoring Senator Landrieu’s bill to fix that.”

Senator Mark Pryor in a November 7, press release

Today I signed on to the “Keeping the Affordable Care Act Promise Act,” a common-sense bill that would grandfather thousands of Americans’ health care plans.  I’ve urged the White House to fix this administratively, but until that happens, this is the most reasonable solution.  As I’ve said many times throughout this process, I will always work to find responsible solutions to fix problems where they exist."

While these senators and other politicians express concern about people losing their health plans, they were forewarned more than three years ago by Senator Mike Enzi (R-WY) on June 22, 2010 when he cautioned that newly released grandfather regulations would actually make people lose their health plans.  He repeated his warning on September 29, 2010 when his resolution S.J. Res. 39 was under debate.  The resolution was intended to protect health plans people liked and wanted to keep.

These are excerpts of what Senator Enzi said on June 22:

  • Earlier this week, the administration published a 121-page interim final rule that will have a major negative impact on millions of small businesses across the country.  This new rule, which implements just two pages of the health care law pertaining to grandfathered health plans, will increase the costs these businesses will pay for health insurance.  This new rule violates the President’s repeated promises from last year and the year before that under the new health care law, if you like what you have, you can keep it.”
  • A chart on page 54 of the rule states that the Departments of Treasury, Labor, and Health and Human Services estimate that between 39 and 69 percent of the businesses will lose their grandfathered health plan status.  This means these businesses’ health plans will not be able to keep their current plans but, rather, will be required to comply with one of the expensive mandates included in the new law.
  • I have a copy of the chart to show the folks back home.  This chart shows the administration’s own estimates, which indicate that only about half of Americans will be able to keep what they have.  The picture, of course, is even worse for small businesses.  Health and Human Services estimates that by 2013, up to 80 percent of small businesses could lose their grandfather status.
  • The low-end estimate is 49 percent of them will have to go to something different if they cannot be grandfathered, the midrange estimate is 66 percent, while the high-end estimate is 80 percent of small employer plans will have to give up what they have right now because there are more federally mandated requirements they have not been meeting.
  • One of the most disturbing aspects of this new rule is it will actually make it harder for employers to make changes that could hold down the cost of their health care.  Once this interim final rule becomes effective, which will be July 12 of this year—less than a month from now—large and small businesses will have few options for both keeping costs in check and maintaining their grandfather status.  If an employer does any one of the following things to manage their costs, they lose the health care they have: If they eliminate any benefits, they lose their grandfather status.  If they increase coinsurance rates, they lose their grandfather status. If they increase deductibles or out-of-pocket limits beyond minimum levels, they lose their grandfather status.  If they increase copayments beyond minimum levels, they lose their grandfather status.  If they decrease the employer share of the premium by more than 5 percent, they lose grandfather status.  If they add an annual limit or decrease the lifetime or annual limit, they lose grandfather status.  If they change their health insurance carrier, they lose their grandfather status.
  • The simple truth is, because this new rule will drastically tie the hands of employers, few employers are expected to pursue grandfather status.  That means more than half of Americans who like what they have won’t be able to keep it.  As I said earlier, this is not a mistake.  This is exactly what the President and the majority controlling Congress want. They want all Americans to be forced to buy the kind of health insurance they think you should have.  Never mind that you can’t afford it. Never mind that employers faced with the choice of either paying for health insurance or paying a new penalty will be less likely to hire new workers and will probably even lay off workers.  Simply put, this rule States: Washington knows best. Never mind the President promised Americans who like what they have can keep it.  This new rule is pretty clear: If you like what you have, you can’t keep it.

In September, Senator Enzi offered a resolution, S.J. Res. 39 that would have provided “for congressional disapproval under chapter 8 of title 5, United States Code, of the rule relating to status as a grandfathered health plan under the Patient Protection and Affordable Care Act.”  If passed, it would have it forced the administration to change the rule.

During the debate, Sen. Enzi made similar statements to those he made in June.  He read letters from citizens, insurance representatives, and businesses that expressed the harm that the grandfathered regulations would cause to their health plans.  He was joined by other senators in support of his resolution.  Here are some excerpts from Senator Grassley’s (R-IA) remarks during the debate where he echoed Enzi’s concerns:

  • Mr. President, Congress meets in the District of Columbia. The District of Columbia is an island surrounded by reality.  Only in the District of Columbia could you get away with telling the people if you like what you have you can keep it, and then pass regulations 6 months later that do just the opposite and figure that people are going to ignore it.  But common sense is eventually going to prevail in this town and common sense is going to have to prevail on this piece of legislation as well.  I support the resolution of Senator Enzi, disapproving the regulation on grandfathered health plans.  The partisan health care overhaul enacted last March and subsequent implementation represents so many broken promises that I hardly know where to begin.  But the resolution of Senator Enzi certainly sheds some light on one of the most glaring broken promises we have seen so far, and is as good a place as any for us to start.  Time and again throughout the health care debate, supporters of the health care overhaul assured voters that even after their proposal became law, ‘‘If you like what your current health plan is, you will be able to keep it…
  • The administration’s own regulations prove this is not the case.  Under the grandfathering regulation, according to the White House’s own economic impact analysis, as many as 69 percent of businesses will lose their grandfathered status by 2013 and be forced to buy government-approved plans…
  • This is not just about confusion, it is also about costs.  When employers and individuals make even modest changes to their benefits and lose grandfathered status, they are forced to buy a new government-approved health care plan that in most cases will cost more than their current plan.  That means the government will tell employers what benefits they have to cover, to whom they have to offer coverage, and how much they are going to have to contribute.

And of course other Senators objected to the resolution.  Here is a statement of Senator Harkin (D-IA), the Chairman of the Senate Health, Education. Labor, and Pensions (HELP) Committee:

  • The resolution offered by Senator Enzi claims to protect small businesses by repealing the grandfather regulation, which defines which insurance plans and businesses have to comply with certain consumer protection provisions of the Affordable Care Act.  However, if passed, the businesses and Americans could be in the worst of all worlds, losing the clear rules that allow them to keep the plans they have while not gaining additional consumer protections that apply when their plan changes.

And here is a comment from Senator Baucus, chairman of the Senate Finance Committee:

  •  A weather vane shows when the wind is blowing and in what direction it is blowing and a resolution such as this shows when it is election season.  This resolution is a political stunt.  It is an election-season effort to take potshots at the new health care reform law.  Before the Senate now is a joint resolution of disapproval under the Congressional Review Act of 1996. Colleagues will recall that the Congressional Review Act is part of what some folks called the Contract with America.  This particular resolution would nullify a regulation that is essential to implementing the new health reform law.  The resolution is, thus, a transparent effort to undermine the new law.  I urge my colleagues to oppose the resolution

Interestingly, both Senators Harkin and Baucus, who helped craft Obamacare in the Senate, were up for election in 2014.  They decided to retire instead.

The Senate took a vote on Sen. Enzi’s resolution, found just below:

Yeas - 40

Alexander (R-TN)
Barrasso (R-WY)
Bennett (R-UT)
Bond (R-MO)
Brown (R-MA)
Brownback (R-KS)
Bunning (R-KY)
Burr (R-NC)
Chambliss (R-GA)
Coburn (R-OK)
Cochran (R-MS)
Collins (R-ME)
Corker (R-TN)
Cornyn (R-TX)
Crapo (R-ID)
DeMint (R-SC)
Ensign (R-NV)
Enzi (R-WY)
Graham (R-SC)
Grassley (R-IA)
Gregg (R-NH)
Hatch (R-UT)
Hutchison (R-TX)
Inhofe (R-OK)
Isakson (R-GA)
Johanns (R-NE)
Kyl (R-AZ)
LeMieux (R-FL)
Lugar (R-IN)
McCain (R-AZ)
McConnell (R-KY)
Risch (R-ID)
Roberts (R-KS)
Sessions (R-AL)
Shelby (R-AL)
Snowe (R-ME)
Thune (R-SD)
Vitter (R-LA)
Voinovich (R-OH)
Wicker (R-MS)

Nays - 59

Akaka (D-HI)
Baucus (D-MT)
Bayh (D-IN)
Begich (D-AK)
Bennet (D-CO)
Bingaman (D-NM)
Boxer (D-CA)
Brown (D-OH)
Burris (D-IL)
Cantwell (D-WA)
Cardin (D-MD)
Carper (D-DE)
Casey (D-PA)
Conrad (D-ND)
Dodd (D-CT)
Dorgan (D-ND)
Durbin (D-IL)
Feingold (D-WI)
Feinstein (D-CA)
Franken (D-MN)
Gillibrand (D-NY)
Goodwin (D-WV)
Hagan (D-NC)
Harkin (D-IA)
Inouye (D-HI)
Johnson (D-SD)
Kaufman (D-DE)
Kerry (D-MA)
Klobuchar (D-MN)
Kohl (D-WI)
Landrieu (D-LA)
Lautenberg (D-NJ)
Leahy (D-VT)
Levin (D-MI)
Lieberman (ID-CT)
Lincoln (D-AR)
McCaskill (D-MO)
Menendez (D-NJ)
Merkley (D-OR)
Mikulski (D-MD)
Murray (D-WA)
Nelson (D-FL)
Nelson (D-NE)
Pryor (D-AR)
Reed (D-RI)
Reid (D-NV)
Rockefeller (D-WV)
Sanders (I-VT)
Schumer (D-NY)
Shaheen (D-NH)
Specter (D-PA)
Stabenow (D-MI)
Tester (D-MT)
Udall (D-CO)
Udall (D-NM)
Warner (D-VA)
Webb (D-VA)
Whitehouse (D-RI)
Wyden (D-OR)

Not Voting -1

Murkowski (R-AK

Congress, especially the Senate, was warned by Senator Enzi what President Obama’s grandfathered regulations would and wouldn't do.  They were warned that individuals and businesses would lose health plans the president promised they could keep.  Senator Enzi gave his senate colleagues the opportunity to fix the grandfather rule in 2010.  Fifty-nine senators, including Senator Landrieu and the senators supporting her legislation voted ‘NO.’

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