The regime to insurance companies: come on, let's bend the rules a little bit

Megan McArdle reports on the conference call HHS held for journalists yesterday:

Over the course of the conference call, it became clear, as Sarah Kliff writes, that “Much of Health and Human Services' plan is less about new requirements, and more about pushing insurance plans to take certain steps to smooth the transition into new health-care law plans. The administration is ‘encouraging’ insurers to allow people who sign up after the Dec. 23 deadline to start coverage on Jan. 1 -- and urging them to accept payments for those January policies after the first of the month.”

They are also “encouraging” insurers to provide coverage to anyone who has made partial payments -- one person called them “down payments.” Though no one seemed quite clear what this meant; do people normally make down payments on a monthly insurance premium? Were people having trouble making their full payments through the system? My best guess is that they’re asking insurers to cover people whose subsidy calculations were off until the paperwork can be straightened out. But I didn’t really hear a good answer on the call.

This tells us a few things, I think. The first is that the administration is deeply worried about people who had insurance they liked who are now going into January with either no insurance or with insurance that doesn’t cover doctors and treatments they’re receiving. And because the administration has access to the enrollment data, this further suggests to me that the enrollment spike we saw at the very end of November and the beginning of December has not reached a pace at which they can reasonably expect that the 5 million people who had their plans canceled will have replaced their coverage by Jan. 1. There’s no way to know for sure, of course, but if enrollment was still rapidly accelerating, they wouldn’t need to basically beg insurers to help them eke out as many December enrollments as possible.

The second thing it tells you is that the administration has reached the limits of its November strategy of using last-minute rule-making to implement on-the-fly changes to the law. Most in the latest round aren’t even rules, or even changes to rules; they’re requests. The insurers may well go along -- they, too, have a big stake in Obamacare’s success. But by making the request in public, the administration has given itself room to blame insurers when people lose access to doctors, drugs or insurance. Now they can say, “Well, we asked them not to do that.”

Are there still water-carriers out there willing to call something this pliable "the law of the land?"