The Boys Are Back In Town… But Will They Have Much Repeal?

Photo by K3nna via flickr

A week before the election, the  L.A. Times quoted Senator Orrin Hatch (R-Utah) as saying his party “could come up with a healthcare system that American people would not only be proud of, but would actually love.”  That same article reported how Republican and other conservative candidates have been promising to repeal the Patient Protection and Affordable Care Act (PPACA) without proposing a viable alternative.  In fact, the Republican track record for the past decade isn’t anything to trumpet.  Rather than lowering healthcare costs and expanding access to care,

from President George W. Bush’s election in 2000 to the end of GOP congressional majorities in 2006, Republicans failed to pass major healthcare changes despite evidence of an escalating crisis.

American workers saw their health insurance premiums jump 78%, as the average price tag for an employer-provided family health plan surged to $11,480 a year, according to a survey of employer health benefits by the nonprofit Kaiser Family Foundation and the Health Research & Educational Trust.

That took a toll on businesses and employees. In 2000, 69% of employers provided their workers with health benefits, the Kaiser surveys found. In 2006, 61% were offering health insurance.

By the time Republicans lost control of Congress, an estimated 43.6 million Americans did not have health insurance, up from 41.3 million six years before.

Be that as it may.  The election has taken place, the Republicans have regained control of the House, and the country is left to wonder: are the days of PPACA — or any kind of healthcare reform — numbered?  The Washington Post observes that election day “[e]xit polls showed… roughly half the public wants to repeal the bill but that the other half wants to keep or expand it, setting the stage for a potential showdown.”  Prescriptions, a N.Y. Times health blog, interviewed a a portfolio manager and health care strategist, and found that he “‘[didn't] think anybody wants to kiss off 30 million new customers’….  What the health insurers and drug and device makers want is not repeal, he argued, but ‘reform light.’”

Granted, the Democrats still control the Senate, a Democratic president remains in office for at least two more years, and the Republicans didn’t win enough seats to override a presidential veto.  So if an outright repeal isn’t in the cards, then what other options do the Republicans have to scale back this “monstrosity,” to borrow the colorful phrase used by incoming House Speaker and Minority Leader John Boehner (R-Ohio)?

The N.Y. Times suggests that Republicans might direct Congress to chip away at or eliminate the less popular PPACA provisions, such as the tax on manufacturers of medical devices, the requirement for many employers to contribute to insurance for employees, or the mandate that everyone have health insurance.  The article notes that

with Republicans winning control of many governors’ mansions and making gains at the state legislative level, they will be able to determine how the new law is carried out locally.

Republicans in Congress said they would try to give states more latitude and discretion on issues like the design of health insurance exchanges. The law calls for creation of an exchange in each state and says only government-approved insurance plans can be sold on the exchange.

The new rules, though stricter than in the past, may well be less stringent than they would have been if Democrats had not taken what Mr. Obama described as “a shellacking.” In addition, Republicans said they would try to cut the budget for federal enforcement of the law and related rules.

On Wednesday, Rep. Boehner expressed his belief that “the health care bill will kill jobs in America, ruin the best health care system in the world and bankrupt our country.”  In response to these claims, Kaiser Health News asked 3 dozen people across the country,  including physicians, CEOs and Presidents, administrators: ”[i]f you ended up in an elevator with Rep. Boehner, what single thing would you urge him to do about health care in this country?”  (Click here to read their responses.)  I’d urge him to repeal his stance.

Election Fallout and Why State Initiatives to Exempt Residents from Health Care Law are Not Just Symbolic

Photo by Ex1le

As the election results filter in and America finds itself trying on some level to read tea leaves, analysts and pollsters are hard at work trying to get a sense of why things fell out the way they did. Most pertinent to this blog, of course, is just what kind of role the health care law played in these elections. The Wall Street Journal’s Health Blog writes:

Official exit polls put health care as the second-most important issue driving votes, with 19% of those surveyed by Edison Research (for media organizations) saying it was their key issue, Politico reports. That paled, however, to the 62% who said the economy was most important.

Time Magazine’s Swampland Blog has a quick and effective breakdown of the health reform impact on a number of candidates. Entitled “Mixed Results on the Health  Reform Referendum,” you can find that here.

I have, however, issue with one aspect of the Time piece. It states:

Voters in Arizona, Colorado and Oklahoma also had a chance to weigh in on symbolic ballot initiatives to amend their state constitutions to exempts residents from portions of the Affordable Care Act. These are symbolic because federal law trumps state law — the point of the initiatives is basically to send a message of opposition. Oklahoma voters resoundingly approved their measure. (Missouri voters acted similarly in August.) It’s still early, but Colorado voters look like they are more split, with 55% of voter voting against the measure with 24% of precincts reporting. In Arizona, even fewer votes have been tallied — the count stands at 56% approving the measure with 14% of precincts reporting. (emphasis added).

I do not discount that these initiatives have symbolic value, but as I’ve noted before on this blog, such initiatives are not wholly symbolic. When the AMA’s Amed News wrote a similar story regarding the similar Missouri initiative, I noted that a federal judge in Virginia found standing in a challenge against the health care law based upon just such an initiative. I wrote:

Generalities aside, as is best in this regard, it strikes me that the Missouri initiative may have more than just symbolic value. Importantly, in the recent federal court decision regarding Virginia’s suit against the individual mandate, the judge in that case found standing for the state of Virginia–an exceedingly important, though procedural, ruling. It is exceedingly important because without standing the case could simply not go forward. The judge in the case found standing for Virginia’s 10th Amendment claim largely based upon a law passed subsequent by the state of Virginia. Regarding that matter I wrote:

In deciding the standing issue, Judge Hudson, according to Professor Jack Balkin, made much of the “Virginia Health Care Freedom Act– which asserts that no Virgina citizen may be forced to purchase health care insurance; that this law conflicts with the federal Affordable Care Act, and therefore Virginia has standing to challenge the act under the 10th amendment.”

Virginia’s Act was passed subsequent to the federal law in question; other states challenging the individual mandate do not, at present, have such a law to rely on. As Professor Balkin points out, however, the Virginia Act being deemed sufficient to buttress standing in a States’ rights Tenth Amendment claim is interesting– to say the least. It begs the question.

In more than just symbolic terms, Missouri may have just answered that question–at least in terms of 10^th Amendment standing–if, of course, its federal district court sees the matter in the same way as did Judge Hudson. Certainly not guaranteed– the Missouri Federal Court is not bound by the Federal Court of Virginia– but nonetheless, Missourian’s just laid claim to an argument that has won elsewhere.

Arizona, Colorado and Oklahoma may have just done the same.

Public Option Faring Better Among the Public than the Republican Party

Photo by Bev Sykes

A couple of polls just released are well worth considering– prefaced perhaps by Senator Baucus’ having just said, according to Kaiser Health News, “that the Senate is unlikely to approve major health care legislation this year that includes a pure form of the controversial government-operated insurance program…” and that “it is highly unlikely Democrats could muster the 60 votes needed to overcome a GOP filibuster and pass health care legislation that includes a public option.”

‘There are various versions of the public option bandied about … [and] we’re trying to see what makes the most sense,’ Baucus said. ‘The goal is health care reform … that can get 60 votes. … I don’t know if there are 60 votes for the pure kind of” public option proponents are demanding.’

In response to reporter questions about Sen. Thomas Carper’s (D-Del.) plan–which would leave it up to the states to decide whether to establish a public plan or not (an idea said by KHN to have been “embraced” by  Sen. Chuck Schumer (D-N.Y.)), Senator Baucus replied: “That’s new, that’s interesting … We’re trying to figure out what some of the unintended consequences [of it] will be.”

According to a recent Washington Post/ ABC News poll, a rather overwhelming number of Americans find such a state by state approach–when coupled with availability to only those who lack affordable private options– more than interesting. The Washington Post reports that:

If a public plan were run by the states and available only to those who lack affordable private options, support for it jumps to 76 percent. Under those circumstances, even a majority of Republicans, 56 percent, would be in favor of it, about double their level of support without such a limitation.

As for a Public Option on a national level– without the affordability limitation– WaPo reports that

On the issue that has been perhaps the most pronounced flash point in the national debate, 57 percent of all Americans now favor a public insurance option, while 40 percent oppose it. Support has risen since mid-August, when a bare majority, 52 percent, said they favored it.

In what may well be a related note, ABC News reports that the Republican Party is experiencing some difficulties as of late:

Only 20 percent of Americans now identify themselves as Republicans, the fewest in 26 years. Just 19 percent, similarly, trust the Republicans in Congress to make the right decisions for the country’s future; even among Republicans themselves just four in 10 are confident in their own party. For comparison, 49 percent overall express this confidence in Obama, steady since August albeit well below its peak.

The Republican Party’s difficulties are shown in another result as well; in an early assessment of preference for congressional candidates in 2010, the Democrats lead by 51-39 percent.