The Hindenburg of Health Care

Amid the furor surrounding the disastrous performance of, no mention has been made about the website's original purpose.  In fact, it was never intended to be a gateway where people apply for health care insurance; rather, was supposed to provide accurate and reliable healthcare insurance information for every state in one centralized location that was accessible to everyone. 

The proof is found in the language of the Affordable Care Act itself.  Section 1103 of the law mandates the secretary of health and human services to establish a mechanism "in consultation with the states" that includes "an Internet website" where residents and small businesses can "identify affordable health insurance coverage options" in their respective states.

At the time the bill was written and passed into law, President Obama and congressional Democrats assumed that the majority of states would agree to establish health care exchanges.  In a 2011 Washington Post op-ed, Kathleen Sebelius assured readers that ObamaCare puts states in the "driver's seat," declaring that states weren't "just participating in implementation of the law; they're leading it."  But with two thirds of the states opting out of establishing a health care exchange, the unexpected happened.  Although under the law HHS has authority to build state exchanges in states that decline to do so themselves, HHS and the White House never anticipated that so many states would opt out.  At the same time, Congress repeatedly refused to authorize additional funding for the Affordable Care Act, thus thwarting HHS's ability to establish the state exchanges.

HHS's solution to the problem was to transform from an information-only website to the website where millions of individuals and families would purchase health care plans and apply for tax subsidies.  But the law does not give HHS legal authority to do so.  Section 1321 of the law specifically states that "the Secretary shall ... establish and operate such Exchange within the State[.]"  The law's language is clear: HHS has authority to establish exchanges in states that decline to participate, but it does not have authority to consolidate and operate multiple state exchanges from one centralized website.

This distinction is not simply a technicality -- the change has far-reaching consequences.  Already scam artists have created phony "official" health care websites in an attempt to lure unwitting applicants and fraudulently obtain their personal information.  With all of the confusion and glitches surrounding ObamaCare, it should come as no surprise that many have fallen victim to these bogus websites. 

Lawsuits against ObamaCare, including ones that challenge other "technicalities," are currently winding their way through the courts.  A key issue is whether low-income applicants are entitled to receive premium assistance tax credits in states run by the federal government.  Similarly, whether HHS has the legal authority to consolidate and operate multi-state exchanges from one website is an important issue for the courts to examine.

Technicalities matter.  By directing millions of Americans to, enormous power and control is being transferred from two thirds of the states to the federal government.  Equally troubling is the lack of transparency to the enrollment process once an application is submitted.  Each state has its own state insurance commissioner, insurance laws, and regulations, so it should come as no surprise that HHS's "one-stop shop" approach is cloaked in confusion and secrecy.

Despite apologizing to the millions of people who have already received cancelation notices for their health care plans, and despite repeated assurances to the public that the glitches will be fixed by November 30, Americans remain skeptical.  They have good reason to be.  Starting January 1, 2014, with few exceptions, everyone must have health care insurance coverage for himself and his dependents or pay the individual mandate penalty.  With so much at stake for individuals and families, it is critical that the law is objectively, not politically, scrutinized and any legal challenges resolved.   

There was a time not too long ago when airships were believed to be the future of air travel.  The Hindenburg disaster quickly ended that vision.  Similarly, the evidence is mounting that ObamaCare, once heralded by President Obama and Democrats as the future of affordable health care, is also a disastrous debacle.  After only seven weeks since the rollout of began, it is doubtful that glitches to the system can be fixed by next week as promised.

More important is whether HHS overstepped its legal authority.  The White House and congressional Democrats must show leadership by acknowledging that piecemeal fixes will not solve the seemingly insurmountable problems already apparent.  Implementation of the law should be postponed until President Obama can assure the public that the legal challenges are resolved, the systemic glitches are fixed, there is full transparency to the application process, and the threat of identity theft is addressed.  Should President Obama continue ignoring the obvious and insist that the law will succeed, history will likely remember his legacy legislation as the Hindenburg of Health Care rather than the Affordable Care Act. 

Constance Jacobs is a freelance writer and blogger living in Oakland, California.  Her previous blogs on ObamaCare can be found at

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