Commentary by Dave Durenberger – July 5, 2012

THE SUPREME COURT DECISION

Will go down in history not because it alters the course of either public policy or appellate jurisprudence. It’s neither Dred Scott nor Brown v. Board of Education. It’s not Bush v. Florida or Citizens United v. FEC. The Chief Justice of the United States decided it was not the job of the highest court in the land to make law when the Congress already had. Justice Roberts turned out to be more the constitutional conservative than his four right-of-center colleagues by his specificity. Regarding the separation of powers, regarding the individual mandate’s “regulation of the uninsured as a class is in fact particularly divorced from any link to existing commercial activity.” And his finding that giving the executive branch power to enforce so large an expansion of the Medicaid program by withholding federal funding of any state Medicaid money was unconstitutionally “coercive.”

WHO NEEDS TWO WEEKS IN MALTA?

The stridency of the right-wing attacks on Chief Justice Roberts has led him, laughingly, to attribute his two week teaching tour of Malta to seeking a safe haven. In truth, the extremists’ attacks on his opinion are designed to make sure he doesn’t stray again from the orthodoxy of the Scalia/Kennedy (who woulda guessed)/Roberts/Alito wing of the Supremes.

IS IT A TAX OR A PENALTY OR A USER FEE?

The Chief Justice is of the opinion that the penalty enacted on those who choose not to buy health insurance under the new law after 2014 is a constitutional exercise of Congress’ spending and taxing authority. The penalty/tax falls only on those who make the choice that it might cost them less to pay the penalty/tax than the insurance premium and plan cost-sharing. So why isn’t this a lot like former Governor Pawlenty’s argument that a tobacco tax is a user fee, not the tax that MN court decided it was? A user fee for those who use tobacco. Or use the option to pay a penalty rather than share the cost of health care coverage with our fellow citizens. Take note:  Mitt Romney has taken a different tone from the “massive tax” crowd on this point.

WHY DO I CARE?

I believe Obamacare is here to stay. The best Republicans can do is reform its public subsidy provisions along the lines of a premium support, or defined public contributions to premium costs. So, to me, the Court decision was a really BIG DEAL. It means the U.S.A. is launched on a “road less travelled” to the only national health care “system” in which health care is privately designed and delivered in markets that reward high value, not high priced innovation, and is insured by private health plans who compete for informed consumer choices to lower premiums by lowering the risks of poor health. By the time my oldest son (age 49) is eligible for Medicare, private insurance will be affordable for him and his employer, and the public subsidy for Medicare will be affordable to all taxpayers. Now I want President Obama to believe that he has made a huge contribution to lowering the future costs of entitlements.

REPUBLICANS WANT TO TAKE THE ‘BIG DEAL’ DOWN A.S.A.P. AND REBUILD ON ITS FOUNDATION

In the July 3 New York Times, David Brooks makes the “Capretta Case” for a Republican health policy reform. Jim Capretta is a former Senate Budget Committee staffer under Sen. Pete Domenici (R-NM) turned D.C. health policy guru. In 1993-94, he played a role in designing the Republican attack on Bill/Hillary Clinton’s “government takeover of the best health care system in the world.” With a long list of new boards, and agencies, and rules and regulations which Sen. Arlen Specter (R-PA) converted into a mind-numbing chart which helped kill the bill. In his current effort, Capretta is joined by Bob Moffitt of the Heritage Foundation who invented the individual insurance mandate and posed with Gov. Romney during the signing of Romneycare.

THE POLITICS

Haven’t changed. From the day in mid-2009 that Senate Republican leader Mitch McConnell declared his party’s goal to be making President Obama a one-term president,  every single elected Republican in America, at both the federal and state level, pledged to oppose what turned out nine months later to be the Patient Protection and Affordable Care Act (Obamacare). That ended a multi-year effort by Republican and Democratic members of the U.S. Senate to craft a bi-partisan health policy reform law, launched Sarah Palin and Michele Bachmann into a tea party frenzy, and the August Town Hall meetings into campaigns against ”death panels” and “socialized medicine. Republicans won the 2010 elections. The MA author of Romneycare became the leader of “Repeal and Replace Obamacare” and the Roberts decision regarding the mandate became ”the most massive tax increase in American history.”

OBAMA, OBAMACARE AND NOVEMBER 6TH

Republicans wasted no time in targeting Obamacare as an excuse to defeat Obama. Speaker Boehner said, “Obamacare is driving up the cost of health care.” Mitt Romney says Obamacare raised your taxes by $500 billion. Cong. Erik Paulsen (R-MN), who led a House effort to strip the law of $21 billion of its tax funding, declared “health insurance premiums are on the rise, seniors face fewer health plan choices, and companies are laying off workers.” Cong Michele Bachmann (R-MN), calling the Court decision “a sad day for freedom, liberty, and the American people,” said the law requires “government knows best health care, comes between you and your doctor, and raises your taxes to make those choices for you.”

Readers of this commentary know I believe the president has failed an important responsibility he has in educating us about the value to each of us in all that Obamacare health policy. His televised reaction to the Court’s decision was more of the same old talking point sales pitch. It hasn’t moved the needle on public opinion in more than two years and Republicans want us to believe that’s because we all know what the law means and we don’t agree with it. Until the president tells us from the heart what it is about health reform he believes made it worth risking his presidency to accomplish, he and we will be forced to listen to hundreds of millions of dollars in false advertising condemning the man who brought us Obamacare. 

HEALTH CARE INDUSTRY LEADERS HAVE A STAKE IN THIS OUTCOME

People in responsible leadership positions in the health care industry, non-profit and for-profit, are well aware of the consequences in unsettled national health policy.  For too long they’ve been forced to respond to the policy vagaries of government efforts to contain costs. They supported Obamacare because it rejected government driven payment policies like single payer and all-payer and fee-for-service Medicare, in exchange for a patient-centered, value driven, health improvement alternative. Community by community across the country, these leaders are positioned for informed, resourced, consumer-driven health and healthcare.  The Republican alternative offers only a return to the old days and fiscal cliffs at every level of government tell them this means less and less government support for a system that hasn’t worked.

WHAT HEALTH CARE INDUSTRY LEADERS THINK ABOUT THE LAW AND THE OPINION

Kaiser Permanente is the largest integrated managed care nonprofit in America and one of the largest health insurance companies in the country. Its CEO is George Halvorson from Menagha, MN, who sent a message to KP employees after the Supreme Court decision.  In this message, Halvorson made three points: (1) Health insurance reform is critical to changing what we pay for in health care and who pays; (2) The new law has many more provisions relating to improving accountability in care design and delivery than provisions for insurance; (3) Health care change has models all over the country, including Kaiser, on which the new law is built.

WHAT RED STATE GOVERNORS NEED TO THINK ABOUT

26 Republican governors have sought to have the law found unconstitutional. Some have refused to take federal funding for any implementation, and others have decided to implement some, but not all provisions. The law’s provision that the federal government would fund 100% of expanding eligibility for poor moms and kids below 133% of poverty, to low-income families up to 400% for four years and then at 90% through 2022 has some governors concerned. While the Court said the feds cannot coerce the states into taking the money, states still like the move from an average of 57% federal match to 100/90%.  But they worry about what happens after 2022.

This is a perfect time for governors of both parties from all states to enter the predictable congressional/executive discussions over entitlement reform. Especially around the future eligibility and funding for Medicare and Medicaid. States seem eager to use federal money to reform their health and health care systems. Republicans like the idea of converting the federal support of public insurance to “defined contribution” premium support for private insurance. Now that private insurance must play by a set of new risk-assumption rules in exchange for the mandate to cover all comers, is a perfect time to consider a “swap” with the feds of responsibility for acute care, long term care, and health-related social programs.

HEALTH REFORM AND TAX POLICY

No one doubts that the next Congress must deal with entitlement program eligibility and financing. This includes a 1986-like major overhaul of the federal income tax. Everything is on the table, as they say, including Medicare taxes on persons 65 and older or disabled who earn more than $80,000 per year. We are currently paying substantially more than the rest of you for Medicare, thanks to the Republican Medicare Modernization Act of 2003. Republicans today are pointing to Obamacare’s 0.9% increase of this tax for persons earning over $200,000 and couples earning $250,000 and the addition of a 3.8% tax on unearned (interest, dividends) income.

As I approach my 78th birthday, may I ask why I must pay so much more of a premium for the same coverage everyone else receives for substantially less? If that sounds selfish, then why cannot I apply the IRA that I am forced to sell-off and get taxed on toward my premium? After all, I might have chosen to do what most 65 year olds do and retire from the workforce and take my OASDI and Medicare taxes on earnings with me.

HEALTH CARE POLITICS 2013

Mitt Romney will not be successful in repealing Obamacare if he is elected president. He shouldn’t promise it, but he’s stuck trying to keep the Michele Bachmanns of this world on boar with promises of “executive orders.” Romney’s “presidential transition chief” is a wise former Utah governor and Bush 43 HHS Secretary who has spent the last four years running a health consultancy helping implement Obamacare, among other tasks. 

Governor/Secretary Mike Leavitt is the key to how Romney debates health reform in the campaign and how he implements it if elected. His emphasis will be on strengthening national rules and local implementation; something the Obama administration would have been well-advised to do right after the law was signed. Leavitt, and former Governor/HHS Secretary/ US Senate candidate Tommy Thompson (R-WI), may well be available to help re-elected Pres. Obama as well. If asked.

BUDGET RECONCILIATION

Romney has signaled his intention as president to “replace” Obamacare one provision at a time through executive orders. That helps him deal with some of the “new boards, commissions, regulations” that conservatives hate, but not the big costly coverage expansion. This will be left to budget reconciliation where 51 votes (including the GOP VP) can defund Medicaid expansion and other spending provisions. Republicans say Democrats did it to send Obamacare to Obama in separate House and Senate bills. True, but Senate Dems in September 2009, in an effort to get some Republicans to the drafting table on the bill, refused to go the 51 vote reconciliation route and were rewarded by Republicans stiffing them until Scott Brown’s election in Massachusetts took away the Dems filibuster proof advantage.