More Scott v. Napolitano, unfortunately: Obamacare edition

A family friend in the Army Medical Corps tried to lawsplain Scott v. Napolitano back at me the other day by way of laying out the mechanics of the Affordable Care Act employer mandate. This friend has a habit of making strident, poorly nuanced comments about the law, using a wound-up version of the unassailable authority of Walter Cronkite, but he’s perceptive enough to be worth hearing out regardless.

His explanation was that small employers with 25 or more employees that never offered health insurance before are scrambling to collect employee medical information so that their insurers can properly analyze and pool their risk exposure for the group insurance plans that they will be purchasing. He blamed federal regulators for forcing employers to gather this information–erroneously, I suspect, since federal agencies are generally subject to more stringent privacy regulations and naturally more reticent about intruding into citizens’ privacy than are health insurers. He was probably just spitting out too complicated an authoritative pronouncement in too short an oration to think through the phrasing of the details, although it’s possible that he had in fact heard claims that the insurers’ hands were tied and found these claims credible. Of course, the Affordable Care Act is one of the most galling and grotesque examples of regulatory capture to be passed by Congress in living memory, and it was passed at the behest of one of the most psychopathically corrupt business lobbies ever to take root in the United States. Having been laden to the breaking point with classically fascist state-robber baron sweetheart agreements, the ACA is widely believed to be a dangerous new frontier in the implementation of a social democratic welfare state, the latter in turn long construed in nuttier American circles as a barely attenuated strain of the Soviet command economy, with all its attendant human rights horrors. The health insurance companies have muddied the waters again. American health insurers, after all, have seized privileges that no life or property insurance company could exercise without the executives or salesmen responsible coming under criminal indictment for fraud. Property and life insurance companies simply don’t habitually prey on their policyholders in the brazen ways that health insurers do.

So of course these companies have the moral turpitude to mine the data of everyone they can berate into providing a written medical history declaration and then falsely claim that their hands were forced by a controversial and poorly implemented new federal law. You can be damn sure that they wanted to Hoover up this information with no regard for its relevance to their legitimate business operations long before the Affordable Care Act was even under debate, while there’s no certainty that federal agencies with jurisdiction over employee health and welfare are interested collecting this information. (Intelligence and law enforcement agencies are a separate matter. Labor, HHS, and the like just aren’t that malevolent.) These are companies that love to catch their policyholders in petty lies. They’re driven by a predatory derangement that normal people cannot grasp.

An insurer’s need for the medical histories of all individual employees for risk-pooling purposes cannot be explained without assuming ulterior motives. This friend of mine said that insurers want to know whether their corporate clients hired a bunch of old guys with heart disease or healthy young people. Any competent actuary, of course, could produce a usable risk estimate from nothing but aggregated age and sex data. These are group plans, after all. The risk is spread among hundreds, if not many thousands, of individual beneficiaries. The very aggregation of so many beneficiaries into a single risk pool smooths out the effects of any individual’s exceptionally high or low payout demands. The risk level converges further on the national mean if employees’ spouses and dependents are covered; in this case, insurers know that they will be liable for prenatal, delivery, and pediatric expenses well beyond those of their primary beneficiaries and can plan accordingly.

If it is in fact the insurance companies that are demanding these intrusive medical history questionnaires as a condition of issuing employer policies, what they’re really doing is forcibly datamining the plebes because they have staked out a pretext to do so. This would be entirely in character, since the health insurance industry is one of the most vicious cartels in the United States today. These are companies that take a truly sick pleasure in abusing people. It’s self-evident that they should be given personal medical information strictly on a need-to-know basis; even when they do need the information for legitimate purposes they cannot be trusted to refrain from abusing it for illegitimate ones.

This friend from the Medical Corps told me that these questionnaires are here to stay and I’d “better get used to it.” This isn’t so much like saying that I’d better get used to being polar-beared in Black Kensington as it is like saying that I’d better get used to getting cold-cocked by Lt. Josey for no reason whenever he damn well feels like it. Health insurance companies are functionally quasi-state actors. Even small private employers have a significant power advantage over employees, one that they can readily abuse if they’re owned or run by immoral people. If some hoodlum jumps out from behind a minivan and calls me Whitey with a look in his eyes suggesting that he’d sincerely like to kick my white ass, he’d better hope that there aren’t any cops within earshot, or it’s more likely his ass that’s on the line, so maybe catching a cracker isn’t the sort of thing that one wants to do around culturally Irish members of the warrior caste. If Lt. Josey decides to ninja arm-roundhouse me straight down to the pavement the way he did to that Puerto Rican chick for getting mouthy, it’s a lot harder to get the police on my side; he is the police. Even if every other cop on the block thinks he’s a loose cannon, he’s a lieutenant, and one does not simply defy the white shirts. It takes officials in higher places than that hot mess of a street fair to make sure that Josey’s on a vacation far away, and if you didn’t see that reference coming from the moment I first mentioned the lieutenant’s name, you should have. Keep in mind, too, that the creeps who run insurance companies aren’t low-functioning brutes like Jonathan Josey who build up a head of steam and end up bumrushing a bitch while she’s running away in fear, throwing her to the ground, and having a couple of blue shirts haul her off in cuffs. No, they’re much worse, and much more dangerous. They’re high-functioning shitstains who know better than to impulsively show their true colors just because they’re pissed off about some minor street fair melee.

Americans are apparently too superficial to notice this, although it makes a certain practical sense, insofar as a bullshitter who calls other bullshitters out on their bullshit will surely be called out on his own bullshit in turn. Incidentally, it’s crucial to corrupt quite a large minority of a population in order to make such a fraudulent regime viable; in the United States, this minority is something like a quarter or a third of all adults. Winter Storm Tommy, the Saskatchewan screamer of single-payer health insurance, would have paid our amber waves of grain a visit decades ago if employers weren’t making sure to keep a critical mass of bougies (read: likely voters) covered with not-entirely-insulting health plans, and a Clement storm it would have been, indeed. (Oh, dear, I did not just write that. That’s way worse than appropriating an Outfield classic to explain internal affairs workings at the Philadelphia Police Department. And if you didn’t have to look any of that up, there’s something wrong with you, too.) In spite of this effort to placate a critical mass of Americans, the cruel, vicious, lawless regime of privately administered health insurance contingent upon full-time employment was maintained for decades, in ever more egregious form, against the wishes of a large swath of the electorate who saw it for the moral and practical disaster that it is.

There’s a fatalistic pragmatic argument for getting used to this sort of regime, as our friend told me, but it’s an extremely distasteful one. It’s impossible to assent to a regime of extortionate datamining and rescission at will by the dominant party, and to do so understanding the implications of assenting to this regime, without feeling a sense of shame for being a civic failure. The possibility that the datamining is being done at the behest of federal regulators doesn’t really lessen the disgrace, since the Affordable Care Act is a turd sandwich of a reform effort, one that was blatantly perverted by shithearted mercenaries working on behalf of rapacious health insurers. In any event, the insurers have contrived to have a huge captive market dropped into their laps, and American health insurers are just about the dead last people who should be trusted not to rape and pillage a captive market. Regardless of who is actually responsible for insisting on the datamining of employee medical histories, it’s an unacceptable practice, one worthy of civil disobedience. A citizenry with a functioning pair of balls would stop it cold.

Here’s where things may get interesting, especially for federal court watchers. As far as I can tell, although I haven’t read any of the ruling in National Federation of Independent Business v. Sibelius, SCOTUS upheld the Affordable Care Act on a narrow basis as a constitutional exercise of Congressional taxation power. I’ve heard nothing to indicate that the employee privacy concerns at issue in Scott v. Napolitano were argued in NFIB v. Sibelius or that they formed any basis for the majority opinion holding the ACA to be constitutional. Maybe I’m making a half-cocked layman’s attempt at blawgging here, but it seems that if the individual or employer mandates of the ACA are construed as taxation matters, the amount of intrusiveness permitted to enforce them should be equivalent to the intrusiveness of IRS tax return forms. The IRS demands a narrow, limited scope of information from taxpayers, mainly to determine that their tax payments are honest and accurate, and it does so using forms that are no more baroque than the individual taxpayer’s finances. That is, the 1040 and supporting forms are nowhere near as intrusive or pointless as the medical history questionnaire I was asked to fill out at the pear orchard. Meanwhile, Scott v. Napolitano apparently stands as a major precedent in employee medical privacy matters, and I haven’t found anything to suggest that it’s on course to be appealed. (Hey, it’s just employee privacy, not death panels. Who gives a shit?)

If I’m not mistaken, then, the lawfulness of fishing expeditions into the medical histories of individual employers by group plan providers under the auspices of the Affordable Care Act remains unlitigated. So maybe what’s missing is for someone with a much higher tolerance than I have for legal minutiae and the wankery that they inspire to force the insurers into some federal district court so that a judge can officially tell them, yes, you guys are creeps and no, you can’t do that.

As Ken White has said, the law is majestic.

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