Doctor Fate wrote:I gave a very specific example. Why? Because a broad-based, national law intending on being everything to everyone has many unintended consequences.
Nothing you have said addresses this situation specifically.
if you look at
the original Oregonian article rather than the Peggy Noonan op-ed, you'd know that on the day you posted the reference, something happened. It was of course a 'fear' not an actuality that her money would be stopped.
And seeing the update I noticed a few things:
Officials with the state Department of Human Services said Friday that federal officials have agreed to work with the state to develop "the right processes" to allow guardians -- often times relatives -- to continue as paid caregivers. It's unclear yet what those processes will be, said Patrice Botsford, director of developmental disabilities services for the department.
So, Oregon will work with the feds to work something out. So as long as they work that through she won't lose her money.
So the 'specific case' is being dealt with among the 454 others that are in a similar situation.
The purpose of the federal provision is to protect against the possibility of financial fraud, since the guardian who develops a care plan has the ability to hire himself or herself as the paid caregiver.
However, Oregon has allowed guardians to be paid caregivers for more than 10 years under various federal waivers, reportedly without issue.
WAIVERS! OMG!
Hang on, though. that means that the ACA didn't bring this idea it, it was in earlier legislation and was waived for Oregon due to their own programme.
The new provision is part of the K Plan, a Medicaid state plan option under the Affordable Care Act. Oregon is the first state to implement the plan, which emphasizes home- and community-based services.
And here's
a link to Oregon's K Plan.
So here's the thing:
1) The ACA probably copied the clause of other federal laws to guard against the problems of fraud and conflict of interest when a guardian is also a paid-for caregiver.
2) Oregon has previously obtained waivers to those provisions, and therefore should be able to again. I guess it does so by demonstrating rigour in how it administers its programmes.
3) Any waiver is not proof of the failure of the ACA itself, as it's the same as previous waivers for older legislation. It may demonstrate that federal legislation can cause complications when it comes into contact with how the states interpret them and wish to act. But it should not be used to extrapolate (as Noonan does) that the particular act is so awful.
A lot of the issue is, however, that US law is often set up saying that the government can only do limited things in limited situations. And in this case, it's paying someone to be a carer that the government wants to do. But of course we don't want a welfare provision that can be abused, say where instead of an independent provider of care, having an interested party be commissioned and paid to provide the care. It is key because in the same laws (and Oregon's K Plan) the guardian is also the main representative for the interests of the patient if they cannot be themselves.
They could avoid restrictions, and then open the door to fraud. Then people would raise hell about how the ACA leads to fraud. Not you though, DF, eh?
They could use greater scrutiny and oversight, and then increase the costs of overheads. Then people would raise hell about how the ACA adds to bureaucracy and wastes money. Not you though, DF, eh?
Or then can exclude risky situations and, well, then you get people raising hell about how people fear (not actually will, but 'fear') that they'll lose out.
Now, I would expect that people think it is generally a good thing that US law works that way, as opposed to the alternative - that unless disallowed in law, the government do what it likes. That is pretty much the situation in UK law, although we have over time been adding laws to say what the government cannot do.
But I guess your founders (who we absolutely must not insult or criticise) had a reason to turn that around.