THE TREATMENT JANUARY 20, 2010
Timothy Jost is a professor at Washington and Lee University School of Law. He posts regularly on the Politico health reform arena and on Georgetown University’s Legal Issues in Health Reform blog.
Last night’s Massachusetts shocker dramatically narrows options for health care reform. Until last night, House and Senate leaders were working together toward amendments that would improve some of the worst features of the Senate bill to resemble more closely the House provisions, with an eye toward both chambers enacting final legislation two to three weeks out. With the loss of a filibuster-proof majority in the Senate, this option is no longer viable.
Indeed, at this point, there is only one viable option--the House must adopt the Senate version as is, but demand from the Senate a commitment to improve it through budget reconciliation and from the White House a commitment to vigorous implementation. All other options seem worse. The Senate is not willing to fast-track House amendments to a vote before seating Brown, which would probably be politically unwise in any event. Starting over again would prolong a debate that has already gone on far too long, and final legislation would still need 60 votes in the Senate. Peeling off a Republican to get a sixtieth vote is pure fantasy. Trying to cobble together a new bill through reconciliation would mean giving up the health insurance reforms in the bill and much else. Abandoning health care reform totally would not only mean abdication of responsibility for fifty million uninsured Americans, it would mean abdicating the 2010 and 2012 elections to the Republicans.
Like most other progressives, I regard the House bill as on the whole a much better bill than the Senate bill, and had hoped that some of the stronger provisions of the House bill would become part of the final legislation. In fact, however, the fundamental framework of the House and Senate bills are very similar--insurance underwriting reforms, exchange-based insurance markets, an individual mandate, an employer mandate (of a sort), affordability subsidies, Medicaid expansions, Medicare payment reforms, and wellness and workforce reforms. The Senate bill gives us ninety percent of what the House bill would have given us, which is far better than nothing.
Differences between the House and Senate bill can be grouped into four categories. First, there are differences that are important but were never going to be fixed in any event. The 2014 implementation date of the Senate bill is a fatal flaw, but was not going to change. There was no possibility of the Senate adopting the House income tax surcharge on millionaires to finance the legislation. We were not going to get a public plan, or anything that looked like a public plan. Second, there are differences that can be fixed through reconciliation. Reconciliation bills are complicated, but they are not extraordinary. Congress adopts them regularly Improving the affordability subsidies for lower-income Americans and revising the tax on high-cost health plans can both clearly be done through reconciliation with 51 votes. The House should get a commitment from Senate leadership to do this before proceeding, but it should not delay proceeding to get it done. If there is anything we have learned from the last twelve months, it is that delay is fatal to reform. Third, there are differences that are important to some constituencies, but are not worth losing health care reform over. Repeal of the antitrust exemption for insurers, for example, was always symbolic rather than substantive, and would have had very little effect in the real world. The differences between the abortion language in the House and Senate bills are trivial. If anyone had told antiabortion advocates a year ago that health reform would mean the effective elimination of abortion coverage from private insurance in the nongroup and small group market they would have been ecstatic. But the Senate version will have the effect of doing this.
Finally, there are differences that are important, that cannot be fixed through reconciliation, and that might have been meliorated through House-Senate negotiations. The most important of these differences to me are the creation of a national exchange rather than 50 states exchanges and federal enforcement of the insurance reforms. The Senate bill, however, permits a federal exchange and federal enforcement in the absence of effective state exchanges and vigorous state enforcement of the law. Everything depends on a commitment by the administration to effective implementation of the legislation. If HHS promulgates weak implementation regulations and defers to the most feeble and ineffective attempts by the states at implementation, reform will be lost. If HHS promulgates rigorous implementation standards, begins immediately to create a national exchange to be implemented in states that refuse or fail to enforce the reforms and create exchanges, demands very high compliance standards from the states to avoid federal implementation, and grants state waivers from reform implementation only in rare circumstances and only upon clear and convincing proof of full compliance with waiver requirements, the Senate bill could give us most of what the House bill would have. But House leadership must get a commitment of full and vigorous enforcement from the White House before it proceeds. And the White House should give this commitment.
We are now in the end game of health care reform. There is still a chance at something resembling success. It is up to the House. But if the House enacts the Senate bill, with a commitment from the Senate to fix what can be fixed through reconciliation and a commitment from the White House to vigorous and aggressive implementation of the legislation, and in particular to push back hard against states that fail to fully implement the bill, there is still hope.