Dear Sen Baucus, Sen. Grassley, Sen. Snowe, Sen. Bingaman, Sen. Conrad and Sen.Enzi:
I was pleased to hear Sen. Conrad state what has become painfully apparent in the last few weeks: there is not enough support for the "Public Option" for it to pass. This plan had no natural constituency, being neither a single payor program nor market-based reform.
However, knowing that "Public Option" is (in the words of GEN Clark) "a plan that won't work" does not make Co-ops "a plan that might." The following are some thoughts about how to achieve workable, market-based reform.
- One problem with the current system is that we need better buyers. Employers are, as GM and Chrysler painfully demonstrate, better at their core competancies than they are as benefit managers. Co-ops should not be payors. That idea is mutual insurance companies and they largely don't work. They should instead be buyers.
- The Co-ops should be self-insured ERISA-type plans, that are not built around employment. They should be legally structured to be able to do things that self-insured Employee Retirement Income Security Act ("ERISA") plans do: bargain with payors; contract with payors across state lines; have sufficient membership to lessen payors' reticence against insuring those with pre-existing conditions; and have the ability to design their plans around members' needs. (The UAW does not need to cover elective plastic surgery, the Screen Actors' Guild might.)
- They should be built around: existing not-for-profits that already offer insurance plans (e.g., AARP, Knights of Columbus, etc.); trade groups (e.g., Chamber of Commerce, AMA, ABA, Medical Group Management Association); and already existing union Multi-Employer Welfare Arrangements ("MEWAs"). This should not be "earn while you learn."
- An organization called USAA in the auto insurance business and the Screen Writers' Guild Heath Plan should be the models, rather than rural electrification co-ops.
- This will require substantial revision of ERISA and US department of Labor MEWA rules.
- Ending state corporate practice/fee splitting laws and state laws against for-profit entities owning hospitals by application of the Commerce Clause would be an important addition to this bill. Sophisticated commercial entities, like Wal-Mart, could make substantial progress in reducing cost, improving quality and expanding access if these artificial legal barriers, which effect the business of health care rather than the Practice of medicine, were removed.
- Tort reform at the Federal level, however, is Constitutionally problematic. These kinds of health and safety issues, the regulation of the practice of Medicine versus the regulation of the business of health care, are constitutionally within the purview of the states.
- The same would be true of expanding the scope of practice of Nurse Practitioners ("NPs") and Physician Assistants ("PAs"). Expanded use of PAs and NPs could be a significant source of savings and a great boon to expanded access to health care. In NY, NPs affiliated with Columbia University have their own practice. In other states, these professionals' scope of practice is far more limited. This is a clear burden on interstate commerce, but these practice restrictions are well within the health and welfare powers of the states.
- If the states were to make Medical Malpractice actions administrative (rather than legal) actions, something like worker's compensation or disability cases without punitive or exemplary damages, and if compliance with evidenced-based medicine protocols were made a rebutable presumption of being within the standard of care, then much of the money lost each year to defensive medicine and much of the money lost in medical errors might be saved. This, however, is an issue for the states.
In sum, work towards a co-op system is a positive first step toward real, valuable and constructive reform. I remain
Sincerly, John Minehan