Rep. Joe Barton, R-Texas, thought he had Obamacare dead to rights. Or maybe he knew he didn't but pressed ahead anyhow.
With top executives from the private firms contracted to build Healthcare.gov seated before him on Capitol Hill, Barton presented a few lines of source code, which conclusively proved that Obamacare's insurance marketplaces were erected in gross violation of federal health privacy laws. Or so he insisted.
“Are you aware this was in the source code? Do you think that’s HIPAA [Health Information Portability and Accountability Act] compliant?” Barton asked Cheryl Campbell, senior vice president of the firm CGI, which built Healthcare.gov. “Admit it! You're under oath.”
I don't know if Campbell was befuddled or concerned or what, but she was definitely rendered speechless. She left the impression, however briefly, that Barton had uncovered major malfeasance.
But it didn't take a tech expert or a health privacy wonk to spot the weaknesses in his allegation. Within just a few minutes it became clear to everyone outside the impenetrable conservative information bubble that Barton's real goal was to intimidate people out of applying for coverage. The only contestable issue is whether he knew how deceitful he was being, or whether he buffoonishly believed he'd struck a major blow for medical bankruptcy.
First, Barton himself noted, "[t]his is the part of the signup that is hidden. The applicant does not see this, but it is in the source code. And what that blue highlighted area that’s been circled in red says is, 'You have no reasonable expectation of privacy regarding any communication or data transmitting or stored on this information system.'"
It's hard to fathom how consumers are waiving their privacy rights if the supposed disclaimer isn't visible, even in fine print. It's also hard to fathom how any information required by Healthcare.gov would violate HIPAA since it's not healthcare-related information.
One of the signature accomplishments of the Affordable Care Act is that it bans insurance company discrimination against people with preexisting health problems. It makes medical underwriting in health insurance a thing of the past. Which is why Healthcare.gov asks applicants nothing about their health statuses other than whether they're smokers.
Barton's triumph was thus short-lived. Rep. Frank Pallone, D-N.J., a senior Energy and Commerce Committee Democrat who helped write the law, caught on to the contradiction very quickly, and fired back at Barton in the now-infamous "monkey court" exchange.
"Monkey court" was a headline grabber but the phrase didn't in itself pertain to Pallone's point, which was genuinely profound. Because Obamacare makes preexisting conditions discrimination is a thing of the past, it effectively eliminates one of the most invasive aspects of applying for health insurance, and the risks the process once posed to your health information privacy.
First-timers won't appreciate it, but for all of Healthcare.gov's problems, anyone who's ever applied for insurance on the individual market prior to Obamacare will marvel at its simplicity. It eliminates the most time-consuming, and often degrading, part of the process altogether.
The problems with Barton's attack mounted even further.
It wasn't just that Obamacare moots certain privacy concerns, but the silver bullet -- the words Barton claimed were so damning -- weren't even intended to be there.
Healthcare.gov has genuine, addressable privacy concerns. But this isn't one of them. If Barton were actually interested in ameliorating the site's vulnerabilities, his staff wouldn't have handed him nonsense to use for grandstanding. The idea instead was to sow seeds of doubts in people's minds so that they take a pass on Obamacare. If enough of them do, then the law won't work.
But for that strategy to work, Barton's allegations would've needed to be at least contestable. Instead, they were self-discrediting.
Republicans' anti-ACA hysteria has become a liability. They are again squandering the genuine gift of Healthcare.gov's failure, this time by casting it as a horseman of the fictitious Obamacare apocalypse they've been promising for years but almost nobody believes is coming. At least not anymore.
Did Barton know how weak his charges were? I honestly can't say. On the one hand, we know the GOP's anti-Obamacare campaign hasn't been what one might call a paragon of scrupulousness. Maybe he assumed his performance would travel well online, scare a few people, and never cared whether the charges withstood even the mildest scrutiny. In that case, job well done.
On the other hand, it's Joe Barton.