Post by Christina S. Ho
Senior Fellow and Project Director of the China Health Law Initiative
The passage of universal health care, or (near-universal health care in this case), as Obama proclaimed, finally affirms in principle that as a society, we owe some security to one another against the life-and-death risks that can befall anyone from illness or injury. And it was in honor of this proposition that when the House passed the Senate bill and the package of fixes, I got out the crystal, poured a toast. And then I started thinking about how the sides would already be girding for the next battle.
And I don’t mean the lawsuits to block reform, or the fantasy scenario of repeal. Instead I’m thinking about the slow grinding battle that will take place over years, even as a similar battle has been waged in previous decades over Medicare. At stake in this struggle—which will be a struggle of inches–is the nature of health insurance. Repeal is not the way to roll-back the transformation in our social safety net that health reform has wrought.
Health reform skeptics and opponents have already managed to slip in provisions that could serve as toeholds for future incursions—including a carveout from health insurance standards for the so-called “young invincibles” (Sec. 1302(e) of the Senate Bill) so they can buy catastrophic high-deductible coverage. This fragments the risk pool and sets the conditions for health care to be viewed as something people fund through cash savings.
Examples abound, but even a recent history of Congressional fights over Medicare reveals exactly this type of maneuvering. As society’s guarantee of certain hospital and physicians’ benefits primarily for the aged, Medicare was a target for opponents of health care entitlements who worked to erode the defined benefit promised under the program. Representative Paul Ryan nakedly avows the voucherization of Medicare in his recent bill, but voucherization by increments, shifting risk (under the guise of choice) to the seniors, and transforming assistance to a defined contribution by Medicare and no more, has been the creeping agenda of conservative interests for a while. The success in Medicare has been limited, but sufficient to constitute a thorn in the side of the left.
Medicare Advantage, for example, transfers set subsidies out of the Medicare Hospital Insurance and Supplemental Medical Insurance Trust Funds to private insurance plans to provide benefits. Medicare had already guaranteed certain benefits to seniors; the delivery of those benefits through a private insurance product served as a fig leaf only. But even that seems marginally better to those driven by an ideological horror of citizens expecting any guarantee from the government. When it became clear that the private insurance plans could not afford to provide the benefits as cheaply as the government, we did not allow them to trim back benefits. The logic of Medicare, as a promise of certain benefits, clashed and ultimately prevailed against the logic of a voucher system. We paid more and more to the private plans to bribe them to maintain coverage, ultimately much more than it would have cost to deliver the benefits through traditional Medicare. That overpayment, to appease the demand for private delivery of benefits, even if entirely cosmetic, will finally be reined in by this health reform bill.
The Medicare prescription drug benefit, passed in 2003, represented a masterful play by the opponents of health entitlements, posing as a new health benefit, but introducing for the first time into Medicare a health item that the government was barred from directly assuring. Instead the government provided a “voucher”-like subsidy to private entities to offer drug coverage. This was all the more shocking given that these private prescription drug plans were not a product the market had ever thought to offer—they did not exist and had to be wholly created in order to satisfy the uncompromising ideological refusal to allow government to provide benefits to anyone but private industry. Recognizing the possibility that no such private entities would be willing to undertake this new function, the legislators were at least willing to allow a trigger for government to step in to assure that the benefit would still be provided.
If this was what Medicare was up against, at least Medicare started with the premise of a benefit that the government would arrange for and guarantee more or less directly, and seniors have a chance to re-enroll in traditional Medicare if they are dissatisfied with the private Medicare Advantage plans. In health reform, the Democrats relinquished that ground early on, excluding a “public option.” The path toward voucherization of health care is arguably within sight, and it is but a short distance further to argue that individuals should be able to “cash out” the premiums and subsidies into some kind of savings account. Instead of guaranteeing health security, this framework could devolve into a defined contribution, and a rejection of governance as a mechanism for addressing collective risks. If I were an opponent of health reform, once the volume dies down on repeal and lawsuits, I’d be trying to expand the domain of health savings accounts.
In addition to defending their ground against these efforts, what might Democrats consider as next steps? Many are undoubtedly developing their list of fixes even now. Medicare buy-in, a perennial issue, should be kept alive. It seems to me that Medicare Part D should be rethought—when we as a society guarantee benefits, we should be able to assure that we can manage those benefits affordably, and government delivery should be an option. The administrative standards on insurance, benefits, and exchanges will be crucial, I imagine. I would be curious to see what others think will emerge as key items on both sides’ long-term strategic wish-lists.
Categories: Legal Issues
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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.