May 22

NFIB vs Sebelius: The Supreme Court and ObamaCare

by Wayne W. Oliver, Vice President, Center for Health Transormation
Originally published in the Atlanta Journal Constitution on April 5, 2012

Last month, ObamaCare had its day (or days) in court. The case … NFIB, et.al. vs. Kathleen Sebelius, et.al. will be the most celebrated Supreme Court cases in modern history.

The Supreme Court heard six hours of oral arguments over three days. That is unprecedented.

There are 26 states that are suing the federal government. That is unprecedented.

The Supreme Court’s decision will impact over twenty percent of the US economy. That is unprecedented.

But what happens if the Supreme Court does strike down all or part of ObamaCare? We better have “Plan B” ready to go.

We all know that our healthcare system is broken. However, we can’t all seem to agree on how we reform or transform our healthcare system. Here is my short list of those things that the Congress should consider if the Supreme Court strikes all or part of ObamaCare:

  • Make significant changes to the way we litigate medical professional liability cases. Physicians today order too many tests, prescribe unnecessary medications, and inappropriately admit too many patients into hospitals because of the fear of being sued. The practice of defensive medicine contributes nothing to a physicians’ ability to diagnose, treat or care for patients. But defensive medicine costs patients, employers, taxpayers and health insurers billions of dollars each year and exposes us to unnecessary drugs, radiation and hassle. Insulate healthcare providers who use electronic health record systems and follow best patient care practices.
  • Move away from the traditional fee-for-service delivery model toward one based on positive patient outcomes. A 21st-century healthcare model encourages patients to be engaged in their own health care and creates incentives for doctors and hospitals when patients get well or stay healthy and less when patients keep returning to hospitals in a revolving-door fashion.
  • Advance consumer-directed healthcare. To empower patients with their own health care, we should reform the tax code to encourage more Americans to set up health savings accounts (HSAs). HSAs would allow consumers to pay for routine medical care, like we do for regular oil changes or tires on a car, and then use high-deductible insurance plans for major medical expenses. That is directly opposite of Obamacare, which taxes and restricts health savings accounts, dealing a blow to consumer-driven health care.
  • Allow individuals to deduct their costs associated with health insurance just like employers. Some individuals and families bear the entire cost of health coverage. But recently, we have seen health insurance premiums increase and become more expensive. Many employers have shifted the premium increase to employees. Individuals should be able to deduct their share of health insurance premiums from their federal taxes. Such a change in the tax code would encourage individual personal responsibility to maintain health insurance coverage.
  • Stop paying crooks through a more aggressive crackdown on criminal activity within Medicare and Medicaid. Some crooks claim it is more profitable to cheat the government in these programs than to engage in other illegal activities. The inspector general believes nearly 10 percent of Medicare cases are outright fraudulent. Hundreds of billions of dollars could be saved through better enforcement, whether rooting out nursing homes billing the government for deceased patients or criminals running HIV clinics that simply do not exist.
  • Create a culture which supports a patient-centered approach to healthcare. Whether it is expanding patient safety programs in hospitals or advancing wellness and prevention services, developing a patient-centered healthcare system places the focus on the individual and their specific, individual needs.
  • Create a 21st century Food & Drug Administration (FDA) which encourages innovative new medical therapies. The current FDA does not have the capacity or capability to more rapidly approve new drugs and devices which can cure or manage disease. As a result, the US is losing investment capital, intellectual property and good jobs to Europe and Asia because of the policies of today’s FDA.
  • Maintain federal incentives to ensure nationwide implementation of electronic health records by hospitals, physicians and other health care providers. An electronic platform not only reduces the chance for medical errors in treating patients, but also makes it more efficient and safer to transfer a patient’s history from one provider to another.

While some of these suggestions are not new ideas, they can serve as a good starting point if and when the Supreme Court strikes down all or part of the 2,700 pages of federal health reform.  We should be poised to fix what is wrong with our healthcare system and begin to examine what an effective, 21st century healthcare system looks like.

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