Paul Harwood lives outside Portland, Oregon
If there are two things I enjoy doing, they’re watching Countdown and catching interviews with Michael Moore, so I got a two-fer last Friday when I watched the podcast of Thursday night’s edition of Countdown. (Please: Don’t tell Keith Olbermann that I watch the podcast rather than the broadcast. Let that be our little secret.) I caught Lawrence O’Donnell interviewing Michael Moore about health care. Because I’m unemployed and so have time on my hands, and because there were so many bizarre claims about the contents of the HCR bill being tossed around during the debate, I’d already spent time spelunking through the depths of the bill…and so my ears perked up when I heard him saying this:
MOORE: If the insurance company is caught denying somebody because of a preexisting condition ... their fine, according to this new law, is $100 a day. One hundred dollars. Now, do you think they're going to take the fine, or do you think they're going to pay thousands of dollars to help you if you have cancer? I think they're probably going to take the fine ... You can't find that in the bill, it's so hidden ... My team of researchers spent a couple weeks on it and they found where this is going to be just $100 a day ... If anybody's watching this, get the bill online, see if you can find where that is, if you can actually find it and break the code, send me a thing on twitter and I'll come over and wash your car.
I thought he was kidding about the car wash, but come Saturday morning Michael was tweeting about the fact that nobody had yet cracked the code, and I thought, “What the heck?” I had a copy of the HCR bill on my hard drive (doesn’t everyone?) so I thought I’d have a go at solving the mystery.
Through all of the hoohaw surrounding the recent health care reform debate, there were a couple of facts that seemed particularly clear. First: America has a fairly complex health care delivery system. Gone are the days when the local doc would carry his little black bag to your bedside if you happened to take ill, and then -- despite what some obliviously retrograde Republicans would have us believe -- happily accept a few chickens in payment. Instead, we have a labyrinthine and highly interconnected set of administrative feedback loops that weld the health care providers to their shadow selves, the insurance company accountants, in an increasingly unhealthy symbiosis. Second: The legislation crafted to reform the system is correspondingly complex. Given that the Obama Administration’s goal was to reform the health insurance market without destroying it, the instrument of choice was necessarily a scalpel rather than a meat cleaver.
And the result? A 2,400 page bill (not including the reconciliation fix) that almost defies any attempt to read and comprehend it. The big problem with just sitting down and reading the bill is that much of its action occurs offstage. Many of its provisions are changes to existing law; these changes are contained in amendments, the reading of which requires some sort of nonlinear awareness that I do not appear to possess. Here’s a representative gem pulled at random from the Patient Protection and Affordable Care Act, as passed by the Senate:
(B) by transferring such section (as amended by subparagraph (A)) so as to appear after the section 2703 added by paragraph (4); (3)(A) in section 2702 (42 U.S.C. 300gg–1)— (i) by striking the section heading and all that follows through subsection (a); (ii) in subsection (b)— (I) by striking ‘‘health insurance issuer offering health insurance coverage in connection with a group health plan’’ each place that such appears and inserting ‘‘health insurance issuer offering group or individual health insurance coverage’’;
Well, you get the idea. There are vast stretches of the bill that are made up exclusively of such amendments, and they’re pretty much impossible to read and comprehend on their own. This strategy makes sense if you’re a lawmaker – in fact, I assume it’s unavoidable, unless you’re willing to abolish existing law every time you want to change it – but it also presents the temptation to cram new provisions into existing legal structures, whether sensible or not.
And that’s where the hundred-dollar per day penalty for naughty health insurers comes in, and that’s what I’m really here to talk about. Finding the part of the bill that deals with pre-existing conditions is easy; it’s right there in the table of contents:
Sec. 2704. Prohibition of preexisting condition exclusions or other discrimination based on health status.
The problem is that section 2704 deals with amending the “Public Health Service Act”, and we all now know what a syntactically recursive mess the bill is when it’s amending existing law. However, the thought of Michael Moore washing my car – and the chance to talk some political smack with him over a glass of lemonade on my front porch afterward – was just too strong to resist. So, the first problem was to find this Public Health Services Act. Wikipedia was my friend here; the wiki entry led me to search for the Public Health Services Act by its legal designation, US Code 42. I found the full and current text of US Code 42 on a House web site and from there it was a matter of searching for the section that was amended by the HCR bill. Michael had already let slip what I was looking for: A $100 fine. The section dealing with non-compliance turned up fairly quickly, and then all I had to do was look back in the HCR bill for revisions to that particular section, and Bob was my uncle. Total elapsed time, from reading Michael’s tweet to my own tweet pointing out the amended section in USC 42: a little less than an hour.
So how was I able to do it so quickly, when Michael’s staff had labored for much longer to find the same information? I had some information that they did not. Knowing the size of the penalty was crucial. His folks were looking for a piece of straw in a haystack. Through diligence, they finally found it, and Michael announced it on Countdown. That was my big leg up. Searching for a specific penalty is much easier than trying to find out whether or not one exists, and, if it does, how big it is.
What are we to make of a penalty of only a hundred dollars a day per affected individual when balanced against the potential cost of treating that individual? Surely, there must be an enforcement mechanism with more bite to it. Can naughty insurance companies be de-listed from the insurance exchanges? That would seem to have more bite than a hundred bucks a day. I did a quick scan through the parts of the bill that deal with the insurance exchanges, looking for some mention of de-listing, but was unable to find any. Perhaps they’re there, and were also buried so deep that Michael will have to offer another car wash to turn them up.
Now I’m looking forward to the hundred dollar car wash. My son-in-law has a nice big Ford pickup truck, and I’m feeling the urge to do some off-roading. I have to tell you: Here in the Pacific Northwest, it can be pretty muddy through most of the year.
Paul Harwood can be reached at email@example.com
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