The new ObamaCare rescue plan: Just don't use Healthcare.gov

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Time for Plan B.
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Time for Plan B.

The White House now estimates that about 80 percent of visitors to Healthcare.gov will be able to shop for and purchase health insurance glitch-free by the end of November. That's certainly an improvement — the site is running better, but still frustrating plenty of applicants and the human "navigators" who are supposed to help them enroll. But even if Team Obama meets that goal, they may be two months late (and 20 percent short) to convince people Healthcare.gov isn't just a lemon.

Now, it appears that the Obama administration has a Plan B: Make the website irrelevant.

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On Tuesday, the Centers for Medicare and Medicaid Services (CMS) said that pretty soon private insurance companies and brokers will be able to enroll all customers directly, including those applying for federal subsidies. That means "people interested in buying health insurance under ObamaCare could soon skip the Healthcare.gov website" entirely, says Jeffrey Young at The Huffington Post.

There's one big flaw in that Healthcare.gov workaround, of course. The federal and state websites are supposed to be online marketplaces, where you can shop for insurance plans like you would airline tickets on Expedia or Kayak. "Going directly to a health insurance company or a private broker would mean consumers couldn't comparison shop for all available options," acknowledges Young, but "it would make it easier to obtain coverage for next year in advance of the Dec. 15 deadline to choose a plan that will be in place on New Year's Day."

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Not to fear, says Andrew Sprung at Xpostfactiod. "Online health insurance brokers like eHealth and purely informational comparison shop sites ValuePenguin and HealthSherpa provide all the information that's supposed to be available on HealthCare.gov." Keeping in mind that there are "possible pitfalls to using a middleman," once customers can get subsidy quotes and enroll outside of the glitchy federal website, "someone please tell me: Who needs HealthCare.gov?"

Using a comparison site like ValuePenguin, as Sprung recommends, is still a little annoying — like shopping for a flight on Expedia, but then having to go to United.com to actually purchase the ticket — but probably less frustrating than sitting in front of your computer for hours shaking your fist at Healthcare.gov.

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"Maybe I'm being too optimistic here," says Andrew Sullivan at The Dish, but "this seems to me to be a very pragmatic way to get around much of the site's (and the ACA's) start-up problems.... What am I missing?"

What Sullivan and other enthusiasts of the just-ignore-Healthcare.gov plan may be overlooking is the actual Affordable Care Act. Megan McArdle at Bloomberg View looks at the text of the law and concludes that allowing insurers to directly sign up federally subsidized customers appears to be illegal. "There is some provision to appoint agents," so brokers might be kosher, she says "but the law specifically notes that those agents may not be health insurers."

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The Obama team is already stretching the law by allowing the federal exchange to enroll people in subsidized plans, since the ACA gives that authority only to state-based exchanges, says law professor Jonathan Adler at The Volokh Conspiracy. Now, "once again, the administration appears to be breaking the law to save it." Proponents of McArdle's reading of the law insist that, as Adler puts it, "the law's language is quite clear on this."

The language in laws is rarely quite clear to non-lawyers. And presumably, the legality of this embarrassing workaround will be determined in court. But here's how USA Today's Aamer Madhani describes the proposed opening of direct enrollment to subsidized health plans:

Under the Affordable Care Act, consumers can go directly to insurers to buy new policies that meet minimum benefit requirements, but only plans that are also available on the federal and state-run exchanges come with potential subsidies.

Insurance providers are supposed to be able to direct subsidy-eligible consumers from their websites to the federal marketplace "hub" to verify the consumer's income, but insurers are having the same problems with the hub that consumers who go directly to Healthcare.gov are having. The White House later underscored that under changes being contemplated, subsidies would continue to need to be reconciled and secured through the hub. [USA Today]

Looks like the Obama Administration can't just sweep Healthcare.gov under the rug, even if it wants to.

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