The GOP’s Health Care Cronyism

Tom Price’s health reform bill violates federalism, and the GOP’s own promises, in order to protect special interests.

The next round of the Great Health Care Debate is upon us.

Congressional Republicans are finally in a position to pass legislation not just to repeal but also to replace Obamacare. Emerging plans to do so constitute a major development in the five-year-old Affordable Care Act saga.

Prediction: By mid-July it will be clear whether the Grand Old Party can in fact put an alternative to Obamacare on the desk of the author of Obamacare.

As the debate ramps up, more and more Republicans are coming out with detailed plans to fix America’s broken health care system. So far, we’ve seen entries by Senators Richard Burr, R-N.C., Ron Johnson, R-Wis., and Bill Cassidy, R-La., and Rep. Paul Ryan, R-Wis. The House Republican Study Committee, a caucus of more conservative members, will soon unveil an updated version of its own plan.

All of these plans are comprehensive and serious. All would tend to reduce health care costs and increase the number of Americans with (voluntarily purchased) health insurance. That’s the good news.

The bad news is that some of them also come with a generous helping of cronyism.

Priceless. Take, for example, the new bill by Rep. Tom Price, a medical doctor from Georgia and chairman of the House Committee on the Budget. Price is a rising star in the House Republican leadership and a true health reform expert. Friendly and well-spoken, he’s a natural to lead his party on health care issues, and it’s a mantle he’s cheerfully shouldered.

But his bill, the “Empowering Patients First Act,” reveals what can happen when an all-too-human lawmaker undertakes to write laws with huge financial impacts for his own profession. Price’s bill is schizophrenic, a Jekyll-and-Hyde combination of market-oriented reforms and special-interest provisions, with the latter benefiting mostly Price’s fellow physicians. One almost imagines the bill having been written by two separate personalities: “Noble Reformer Tom Price” and “Water-Carrier Tom Price.”

Noble Reformer Price’s handiwork, found mostly in title I of the bill, is truly admirable. It reveals deep insight into what plagues our health system and prescribes sensible remedies. In addition to fully repealing Obamacare, this part of the bill includes bold, well-thought-out reforms to facilitate greater access to tax-free Health Savings Accounts and to equalize the tax treatment of individually purchased and employer-sponsored insurance. Such reforms would, as the bill’s title suggests, empower patients by promoting consumer choice and competitive markets.

Noble Reformer Price also proposes to repeal Medicare’s individual mandate and thus liberate older Americans to escape Medicare’s price controls and bureaucratic rationing. Bravo!

The darker side. Now enter Water-Carrier Price. (Cue ominous music.) He has contributed, in the remainder of the bill (specifically titles IV through X), a long list of special-interest provisions.

Section 401, for example, authorizes new federal “best practice” guidelines written by medical societies, designed to give physicians extra protections from malpractice lawsuits. These guidelines aren’t merely educational, though. They’re established as powerful litigation tools in state courts. If a physician can show he followed them, his accuser must meet a higher burden of proof to establish negligence. That may be a good idea, but it’s unconstitutional. The power to regulate civil justice is reserved to the states under our federal system. There’s neither a legal nor a practical justification for federal medical malpractice reform. States have this. They can reform their tort systems, and many have done so, with success.

More from Water-Carrier Price:

  • Fund the creation of state-level “administrative health care tribunals” dominated by medical societies and structured to favor physicians in malpractice disputes. (Section 402)
  • Give physicians a new federal right to pay their malpractice penalties in installments (to help them avoid bankruptcy). (Section 403)

These, again, may be good ideas, but they create a special level of treatment for physicians that no other industry enjoys. Why single out doctors for protection? Imagine if these sorts of protections were given to, say, the manufacturers of defective airbags. (“Your Honor, we followed the best-practice guidelines established by the Airbag Manufacturers Council.”) 

And more:

  • Enable physicians to charge more than Medicare allows. (Section 901)
  • Bar states from limiting what physicians can charge Medicare patients. (Section 902)
  • Bar the Department of Health and Human Services from trying to stop physicians from charging more than a health insurer allows. (Section 905)
  • Create a special tax break for emergency-room physicians. (Section 904)
  • Give medical specialty societies a central role in, and veto over, the development of federal physician performance-based quality measures (presumably to help shield physicians from Medicare payment cuts). (Section 702)

Another provision, Section 601, would give employers a new federal right to demand from insurance companies extremely detailed claims and payment information, the better, one assumes, to give employers more leverage in their contract negotiations with health plans.

But this item has to be my favorite:

  • Exempt physicians from federal antitrust laws so they can negotiate collectively against private insurance companies. (Section 1001)

Medical cartels. Because health care doesn’t cost enough. (Tellingly, these cartels would not be allowed to negotiate against federal health insurance programs. That would increase government spending.)

Now, to be fair, any serious reform of our health system is bound to benefit some industrial interest or other. But the tendency of Price’s bill is too plain to be dismissed as inadvertent. It’s a tureen full of piping-hot special-interest gravy, ready to be poured out over the eagerly awaiting mashed potatoes of the American Medical Association and the U.S. Chamber of Commerce. 

Fair-weather federalism? It’s not so much the bad policy that galls. It’s the hypocrisy.

Less than three weeks ago, both houses of Congress passed a 10 year budget plan containing the following statement of congressional policy (meaning, of course, Republican policy): “Reforms should be made to prevent lawsuit abuse and curb the practice of defensive medicine, which are significant drivers increasing health care costs. The burden of proof in medical malpractice cases should be based on compliance with best practice guidelines, and States should be free to implement those policies to best suit their needs.” (Emphasis added.)

The author of that resolution? None other than Price, in his capacity as House budget chairman.

Fair-weather federalism? Maddening.

Selective anti-cronyism? Disgusting.

Shameless hypocrisy? Price-less. (Pun intended.)

Dean Clancy, a former senior Republican official in Congress and the White House, writes on U.S. health reform, budget and constitutional issues. Follow him at deanclancy.com or on twitter @deanclancy.


[Originally published at usnews.com, May 22, 2015. @usnewsopinion. Republished at deanclancy.com.]

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