Like children gathered around a card table, America’s special interests are engaged in a high stakes game of Monopoly. But the winner of this game gets more than a day or two of bragging rights; this time the spoils are nothing less than control of our health care delivery system for the foreseeable future.
Let’s meet the players: on one side, Big Medicine; across the table, Big Insurance; and between them, Big Government. There’s room at the table for a 4th player…but we’ll get to that later.
Introducing Big Medicine
To compete in this high-stakes game, Big Medicine is reforming itself into large, multi-disciplinary organizations. Independent hospitals are merging into hospital systems. Hospitals and doctors are coming together as self-regulating Accountable Care Organizations (ACOs).
The Supreme Court’s imminent decision on the Affordable Care Act will trigger a political firestorm whether they accept the legislation in its entirety, throw out every page of the 906-page bill or do something in between, which is the most likely outcome.
If the high court follows the polls, it probably will rule the requirement that individuals purchase insurance – the mandate – is unconstitutional but leave the rest of “Obamacare” intact. A CBS/New York Times poll released earlier this month showed that 41 percent wanted the entire law overturned, 24 percent supported it fully and 27 percent supported it but wanted the mandate eliminated.
Pooling the latter two groups suggests there is majority support for the coverage expansion, insurance protections and delivery system reforms contained in the bill – as long as there is no mandate. It was only the Obama administration’s decision to include the requirement that individuals purchase health coverage – something done to win insurance industry backing for the law – that gave opponents the cudgel they needed to stoke widespread opposition to reform.
The insurance industry, recognizing many of the reforms are popular, is already preparing for a thumbs-down ruling on the mandate. Three major carriers, UnitedHealth, Aetna and Cigna, said last week they would continue to allow young adults to stay on their parents’ plans until age 26, pay for 100 percent of preventive services and eliminate lifetime caps on coverage, reforms from the ACA that are already in place.
If the Court throws out both the “individual mandate” (the rule requiring that virtually all Americans buy insurance, or pay a fine), and the provision that insurers must cover all applicants, and cannot charge higher premiums, even if a new customer has just been diagnosed with cancer? This might sound like the end of reform, but in fact, many of the most valuable reforms in the legislation would almost certainly still stand–including those that will change the way we pay for care, reducing costs, while lifting quality. Under the Affordable Care Act (ACA), hospitals will continue to find ways to reduce preventable errors–or face financial penaltie.. Doctors who succeed in managing chronic diseases, keeping their patients out of the hospital, will receive rewards. Medical students willing to practice in underserved areas “Where No One Else Will Go” will receive scholarships, and their ranks will grow. New funding will double the capacity of Community Health Centers that can provide medical homes for many who now receive their care in an ER. Reform will go forward.
There is, of course, the possibility that the court could declare the entire Affordable Care Act unconstitutional, but this seems extraordinarily unlikely. Too many planks in the law already are being implemented, and patients are benefiting. As Henry J. Aaron pointed out in an earlier post on this blog, overturning the law would be an “Rx for Chaos.”
Still, even if the judges “only” throw out the mandate and the requirement that insurers cover everyone, the results will be, as former Obama administration adviser Ezekiel Emanuel recently put it in a New York Times opinion piece “less than optimal.” (Unlike Rahm Emanuel, Zeke is known for understatement.)
Under this scenario, premiums for those who do buy insurance would climb because, without the mandate, insurers could no longer count on millions of new, healthy customers. Instead of “the 32 million Americans predicted to gain coverage under the health insurance reform act, only around 16 million Americans would gain coverage,” observes Emanuel.
This morning’s post by Matt Yglesias notes a fairly obvious but important issue that bears attention.
The comportment of conservative Supreme Court justices in oral argument leads many people to seriously consider what would happen if ACA is crippled or struck down. (Like Jonathan Cohn, Henry Aaron, David Cutler, Charles Fried, and Jonathan Chait, I was appalled by the oral argument. You can read my column at healthinsurance.org for more on that subject.)
Several commentators assert, or at least have mused, that overturning ACA might improve the prospects for a single-payer system. It’s easy to see why one might think so. Single-payer is less vulnerable to the commerce-clause challenge that bedevils the mandate. Outright failure of ACA would discredit bipartisan, market-based strategies within many core Democratic groups. The political and organizational simplicity of single-payer is appealing, too. Killing ACA heightens the contradictions of our fragmented and costly health care financing system, while taking off the political table some of the most workable strategies for incremental reform. Absent a serious and workable alternative, Medicare for all might look surprisingly attractive some years from now.
Still… I just don’t see it.
In the first place, I am confident that a smart and determined conservative judiciary would entertain new constitutional challenges to a single-payer system. Such a system would end or would damage much of the private insurance industry. It would reorder relations between the states and the federal government. It would upend self-insurance arrangements under ERISA, and more. If you believe ACA’s 2,700 pages was long and complicated, wait until you see the junk DNA that would accompany a politically and administratively viable single-payer bill. That’s fertile legal ground for opponents, even absent the current political polarization of the federal judiciary.