The Time Is Right to Do What’s Right

Lexington, VA • Thursday, December 17, 2009

This commentary appeared originally in the Richmond Times-Dispatch on December 17, 2009.

We currently have a once-in-a-generation chance to fix our broken health care system. The House has passed legislation that will help us achieve the goal of affordable, quality health care for 96 percent of citizens. While the proposed Senate legislation is not perfect, it lays the groundwork for lowering costs, improving quality, streamlining delivery systems, and insuring the uninsured. The battle now being waged in the Senate will determine whether our children and grandchildren have secure access to affordable and high-quality health care, or our health care system continues to spiral out of control.

Health care reform legislation could not be coming at a better time. A recent Harvard medical study found that 45,000 Americans die each year due to lack of health insurance. More than 1 million Virginians are currently uninsured and many more are underinsured. Virginians have seen health insurance premium increases of close to 90 percent over the past 10 years, and thousands have gone bankrupt due to medical debt. If Congress fails to act, health care costs in Virginia are projected to skyrocket by 117 percent by 2016.

The insurance industry has devoted millions to fight reform. Opponents of reform have successfully spread misinformation about legislation and have intentionally created confusion regarding critical issues in the health care debate. Opponents allege, for example, that the reform bills fail to control costs and would increase the deficit. But the Congressional Budget Office (CBO) projects that the Senate bill will actually reduce the deficit by $130 billion by 2019 and would continue to decrease it thereafter, while covering 31 million more Americans.

The Senate legislation would provide legitimate cost savings for Medicare by reducing excessive payments to private insurers and controlling increases in provider payments. At the same time, it actually increases Medicare benefits. This is the reason the AARP has endorsed both the Senate and House legislation.

The Senate bill contains most of the creative ideas for cost control proposed over the past decade, including accountable care organizations, medical homes, and bundled payments. Many of these ideas are new, so their savings are hard to score. However, they are much more likely to succeed than the shop-worn Republican ideas.

The bill also reduces costs in the private sector. The CBO projects that after the subsidies in the bill are applied, the cost of insurance will actually drop by over 50 percent for more than half of all Americans in the non-group market. The legislation will not increase premiums in the group (employer-based) market; indeed, premiums for small employers who receive tax credits will drop. Individuals who currently purchase bare-bones policies for exorbitant prices will be able to purchase policies that provide 27 percent to 30 percent more coverage for little more than what they are paying now, less if they receive subsidies.

Unfortunately, good ideas for savings have been stripped from the bill. The CBO reportedly scored a strong public option as saving $110 million over 10 years. But the public option has been eviscerated, and may soon disappear.

Opponents of reform claim that tort reform and the purchase of insurance across state lines is a better approach. But the CBO has determined that rigorous limits on malpractice litigation would decrease health care costs by at most a half a percent. The bills do nothing to interfere with current state malpractice controls, but do not embrace malpractice reform as a silver bullet. On the other hand, both bills allow consumers to buy insurance from other states, and the Senate bill also provides for nationwide insurance plan sales.

In fact, the legislation relies primarily on market strategies, historically Republican ideas, to control health care costs. Nowhere, for example, does the Senate bill, as some have charged, give the Department of Health and Human Services the power to set premiums for qualified health plans. Indeed, the exchanges, health insurance marketplaces, would be run by the states.

Regardless of whether we pass health care reform legislation, we are currently slated to spend $35 trillion-plus over 10 years on health care. The legislation Congress is considering might add another 1 percent to 2 percent to that bill, but it will also cover 31 million-34 million Americans. We can't cover them for free, but this is not a bad deal.

Sens. Mark Warner and Jim Webb will have an important decision to make in the coming days. They will be asked to do the right thing for the right reason. If they support reform, there may be political repercussions in the short term. The insurance industry and tea partiers will certainly enlist their supporters to flood their offices with calls and visits.

However, in the end, Sens. Warner and Webb will find themselves on the right side of history. Most important, long after they leave office their constituents will benefit from increased coverage, lowered costs, and better quality care. No stranger to making tough decisions that bring repercussions, Martin Luther King Jr. once said, "The time is always right to do what is right."

Timothy S. Jost holds the Robert L. Willett Family Professorship of Law at the Washington and Lee University School of Law, and is the author of Health Care at Risk: A Critique of the Consumer-Driven Movement (Duke University Press, 2007). Contact him at (540) 564-2524 or

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