Friday, October 30, 2009

Could you put that plain language into the law, please?

Isn’t it interesting that there have been so many “plain language” versions and explanatory materials for the various health reform proposals coming out of both chambers of Congress? Perhaps it’s easier to discuss “plain language” intentions rather than actual legislative provisions, especially when the text of the final product will be so massive that only the most determined (or paid to do so) among us would undertake the job of actually reading the text. Politically speaking, there is also obvious utility in providing explanatory material so that health reform can be understood by the general public. Doesn’t that seem a laudable goal for the actual bill text, too?

As pointed out in the Washington Post, there is a movement afoot to get government agencies to use language in the documents that they issue (other than regulations) that will be easily understood by intended audiences. A bill introduced earlier this year (H.R. 946) by Representative Braley (Iowa) attempts to accomplish just that – with regard to executive agencies.

But what about laws – wouldn’t it be better for laws to be written in plain language, also? I suppose that one could argue that laws are written for lawyers, but then again, everyone is presumed to know the law – “ignorance of the law is no excuse,” as they say.

The Affordable Health Care for America Act (H.R. 3962), unveiled by House Democrats on October 29, is a handy example. The 1,990-page bill was supplemented by a host of documents explaining what it says, what it means, how it’s different from earlier proposals and its intended impact.

Descriptions and summaries of this sort are necessary and informative. The average person, even assuming an intense interest in health reform, just doesn’t have time to sit down and read 1,990 pages of text. But, even so, one wonders if the bill text could have been fashioned to be as straight-forward and easily understood as the text of all the materials offered by proponents to explain it.

Section 212 is a great example. Subtitled, “Guaranteed Issue and Renewal for Insured Plans and Prohibiting Rescissions,” it states that:

The requirements of sections 2711 (other than subsections (e) and (f)) and 2712 (other than paragraphs (3), and (6) of subsection (b) and subsection (e)) of the Public Health Service Act, relating to guaranteed availability and renewability of health insurance coverage, shall apply to individuals and employers in all individual and group health insurance coverage, whether offered to individuals or employers through the Health Insurance Exchange, through any employment-based health plan, or otherwise, in the same manner as such sections apply to employers and health insurance coverage offered in the small group market, except that such section 2712(b)(1) shall apply only if, before nonrenewal or discontinuation of coverage, the issuer has provided the enrollee with notice of nonpayment of premiums and there is a grace period during which the enrollee has an opportunity to correct such nonpayment. Rescissions of such coverage shall be prohibited except in cases of fraud as defined in section 2712(b)(2) 15 of such Act.

This particular provision would fall under the “laws are written for lawyers” category – although the subtitle probably qualifies as “plain language.” The problem is that one must trust that the subtitle conveys the general meaning of the provision because there is no way to know what the provision actually means just by reading the text.

But perhaps we shouldn’t worry because, according to the explanatory material provided by the bill’s proponents, “the Affordable Health Care For America Act will stop insurance companies from denying coverage to Americans with pre-existing conditions such as heart disease, cancer or diabetes and from hiking up rates or dropping coverage for those who get sick.” Section 212 probably falls somewhere under this explanation – you just can’t take it to court.

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