“Three R’s” Against ObamaCare

My colleague Jeff Anderson has coined a winning slogan for the continuing struggle against ObamaCare: “Repeal and replace.”

But there’s another “R”: Resist!

Anticipating repeal, governors have significant opportunities to put sand in the gears of ObamaCare. Two have recently taken exemplary action:

• Nebraska Governor Heineman has told his state’s education establishment (i.e. teachers’ union bosses) that the costs of ObamaCare will hit their budgets, because the state will have to raid education funding to pay the price of ObamaCare.  It’s a great way to fragment the big-government coalition that rammed ObamaCare through, and is desperate to block repeal.
• Minnesota Governor Pawlenty has signed an executive order forbidding his bureaucrats from applying for federal grants to set up a state-based “exchange” which would limit people’s choice of health insurance under ObamaCare.  It’s important not to establish a new politically appointed bureaucracy dedicated to implementing a law that is going to be repealed before January 2014, when the exchanges are supposed to dictate what health insurance people can have.

Every governor should look to resist using these and other tactics.  In California, the pro-single-payer legislature has sent Governor Schwarzenegger a bill to set up an exchange that would likely be the most restrictive in the country.   Signing it would create a terrible legacy, and complicate his successor’s ability to resist ObamaCare.

Medical-Tort Law: Ranking the States

How much do a state’s laws governing medical malpractice and other torts relevant to health care affect the availability of care?  Plenty!

Lawrence J. McQuillan’s & Hovannes Abramyan’s 2010 edition of the U.S. Tort Liability Index, which has a number of measurements included in the U.S. Index of Health Ownership, ranks states according to 42 variables.

Eight of the measurements in the U.S. Tort Liability Index are relevant to the U.S Index of Health Ownership: One output and seven inputs. The previous edition of the U.S Index of Health Ownership included six measurements of medical tort, but McQuillan & Abramyan have discovered more variables for their 2010 edition of the Tort Liability Index, allowing more detailed measurement.

As a partial update of the U.S. Index of Health Ownership, this brief analysis calculates a medical-tort index from a simple average of the eight relevant variables.  Mississippi, Nevada, Michigan, Colorado, and Louisiana lead the pack; while Vermont, Rhode Island, Kentucky, Pennsylvania, and Iowa bring up the rear. Even the leaders, however, lag in some measurements.

Mississippi, for example, leads on procedural rules: Pre-trial screening or arbitration and conditions on the use of expert witnesses. However, it does not limit lawyers’ ability to abuse their privilege by limiting their share of awards. Colorado and Louisiana also fail to impose limits. Unfortunately, the laggards do not show a similar pattern: The bottom five states perform poorly in all eight measurements.

Reducing the burden of medical tort is critical to increasing Americans’ health ownership and reducing medical costs that curtail our access to care. Some progress is evident, but states aiming to improve their medical-tort laws still have a long way to go.

Nurses, Hospitals, & The State

Under ObamaCare, those who believe the government should decide how much medical care you deserve, and how it should be delivered, are eager to impose their preferences nationwide. Nurses’ unions lead the charge, armed with a recent study that could use more examination than it is getting from politicians and the media.

In 2004, the California Nurses Association (CNA) strong-armed a law through the state legislature that mandates a ratio of one nurse to five patients in surgical wards, one to six in psychiatric wards, one to four in pediatric wards, one to three in maternity wards, and one to two in intensive care. As of September 2009, 14 states and DC had such legislation or similar regulation, and 17 more states were considering legislation. The CNA, which has national ambitions, has long agitated for Congress to make this a federal diktat, and U.S. Senator Barbara Boxer carries the union’s water on Capitol Hill.

Sensing that the clock is ticking for the Democratic majority to impose such a law, the media tout a study led by Linda Aiken, of the University of Pennsylvania’s Center for Health Outcomes and Policy Research. This study compared a number of outcomes for hospitals in California, New Jersey, and Pennsylvania. The latter two states have no mandatory staffing ratios and fewer nurses per patient. Aiken and colleagues concluded that if New Jersey and Pennsylvania hospitals had achieved California’s staffing ratios, New Jersey’s hospitalized patients would have experienced 13.9 percent fewer deaths and Pennsylvania’s 10.6 percent.

There are a number of ways to critically assess this study, and its political implications. First, the responses came from mailing surveys to 80,000 nurses in California, New Jersey, and Pennsylvania, of which about 22,000 responded. Many of the questions address quality of work-life, which was (perhaps obviously) reportedly superior in California. Self-reports might be acceptable for such indicators, but to expect nurses accurately to recall and report data on patient mortality is way too much to expect from a mailed survey. Actual claims data would result in much more confident conclusions.

Second, beyond government mandates, a number of causes drive nurse-patient ratios. In the June 18 New York Times, nurse Theresa Brown, cheerleading the study’s conclusions, unwittingly trumps her argument by reporting that the Pittsburgh hospital where she is employed voluntarily exceeds the recommended thresholds.

Third, even if the California standards are appropriate for California, and perhaps Pennsylvania and New Jersey, it is irresponsible to use this one study to demand that Congress apply them throughout the United States. If advocates want to use the results to influence legislatures in Harrisburg and Trenton to replicate the California law, that is their business. Congress, however, has neither the constitutional authority nor the competence to determine whether these standards should apply to 47 other states.

Fourth, the blunt conclusion of the study – that government should simply command hospitals to hire more nurses – ignores more fundamental causes of the nursing shortage. In a 2007 article, John M. Welton, RN, reported that most nurses were independently employed by patients until the 1920s, and provided care in the home. Nurses and patients agreed on payment directly. As technology enabled hospitals to deliver more acute care, nurses increasingly became employed by hospitals. Welton argued that the problem with nurse staffing lies not in numbers, but that nurses’ incomes are no longer determined by patients directly.

Hospitals bundle nursing costs with room and board charges, leading to crude decision-making about staffing. Welton recommends that hospitals should unbundle these costs and charge them by intensity of service. Obviously, this approach requires very complex data and collaboration between hospitals and insurers, which pay the bills. Thinking that the U.S. government could take the lead in such a valuable reform is utterly delusional, as the current legislative proposal to impose top-down, federally dictated, nurse-staffing ratios demonstrates.

Like schools, health facilities should be amongst the most innovative operations in 21st-century America, not the least. For Congress to impose an outmoded, industrial-age strait-jacket on hospitals will condemn patients to inferior care at the mercy of union bosses. Those union bosses will soon become all-powerful, unless Obamacare is repealed.

Healthy San Francisco’s Job-Killing Taxes To Live On

The U.S. Supreme Court has denied the Golden Gate Restaurant Association’s appeal of a 9th Circuit decision that permits San Francisco to levy a punitive tax on businesses to fund its public-health bureaucracy.

I’ve previously challenged research produced at UC Berkeley, which concluded that the ordinance did not cost jobs.  Plus, I’ve noted the job-killing effects of the Healthy San Francisco program in a series of blog-entries.

The GGRA had argued that the city ordinance violated ERISA, the federal law that regulates job-based benefits.  But that is all water under the bridge.  Kathleen Sebelius, U.S. Secretary of Health & Human Services has formed a (small and exclusive) mutual admiration society for government-run health care with Gavin Newsom, Mayor of San Francisco, so this decision will surely be welcomed by her and all ObamaCare-backers.

Does this judicial failure to overturn a mandate in San Francisco allow us to handicap the success of the lawsuits against ObamaCare’s national mandate? Unlikely: The San Francisco lawsuit relied on a federal law, ERISA, whereas the anti-ObamaCare lawsuits rely on the U.S. Constitution.

Plus, ERISA is not really a very effective law, as I’ve written about previously.  Strategically, it’s a weak foundation to rely upon, for those who advocate individual choice in health care.

Medical Turf Battle Settled by Political Balance of Power

When government regulates an activity, expect that activity to enter the political arena.

Such is the case with health care, which even prior to ObamaCare was heavily subsidized by taxpayers and regulated by government. In California, a new battle is brewing.

As the Sacramento Bee says, “Psychologists have fought with psychiatrists, nurses with doctors, optometrists with ophthalmologists, and veterinarians with dog groomers.”

In this case, there’s a political fight between a group of doctors and a cancer hospital.

Columnist Dan Walters puts it into perspective:

The outcome, however, will not be settled on the basis of what’s best for patients. Like all medical turf battles in the Capitol, it will be determined by which side mounts the most adroit political operation.

And that is, or should be, a little scary.

In a more-free system, the shape of the industry–such as what will be the relationship between doctors and a hospital–would be determined by the millions of interactions between customers (patients) and business owners (hospitals), not to mention third-party assessors of quality and many other voluntary actors.

For the longest time, though, it’s not the power of voluntary choice that has held sway, but who has the best lobbyists who can curry the most favor with the most powerful politicians.

Price Controls Pass California General Assembly

The California General Assembly has passed a measure requiring companies that sell individual health insurance policies to obtain state approval before raising premiums, co-pays or deductibles. The Senate has not acted on the bill.

Food is important for well-being too, and arguably, more directly vital than health insurance. Should the state of California regulate the price of food, too? Oh wait, I shouldn’t say that. Don’t want to give them any more ideas.

Meanwhile, Massachusetts insurers are asking, “Mother, may I?” of state regulators, hoping to raise their premiums. So far they’ve not had any luck.

The Unbearable Lightness of Being a Santa Clara County Supervisor

Imagine reading this headline in your local paper: “Cops Bust Hamburglar!”

Ridiculous? Maybe not, if you’re a resident of California’s Santa Clara County, at the southern edge of Silicon Valley, where the Board of Supervisors found the time to pass an ordinance preventing restaurants from using toys or gifts to induce parents and children to patronize them.

This is a county where the deficit is running at $230 million, the District Attorney’s office has cut staff who represent children in custody cases, and the Sheriff has cancelled a standing patrol outside the jail (which houses 4,000 inmates).

But the county’s political class, which has proven itself incapable of managing the legitimate duties of county government, now fantasizes that  it can solve the problem of childhood obesity by preventing restaurants from giving out Iron Man™ action figures.

Read more here.

California’s Collaboration With ObamaCare: Not So Fast?

Yesterday, I had the privilege of speaking with California Secretary of Health & Human Services, Kim Belshé; and Leslie Cummings, Executive Director of California’s Managed Risk Medical Insurance Board (MRMIB) on Monday.

MRMIB will be responsible for preparing California’s application for the new federally funded high-risk pools, which are due to launch on July 1.  This is the first substantive step in California’s collaboration with ObamaCare, as pledged by governor Schwarzenegger.

One of the immediate problems with these new pools is that the federal government does not have the money to fund them for as long as they will need funding.  So, 19 states have declined to participate, unwilling to make such an unsustainable commitment.

California is in a catastrophic fiscal situation, so I was disappointed to learn that the governor has ordered his appointees to go full steam ahead with the application for a new high-risk pool.

On the other hand, I was pleasantly surprised to learn from Secretary Belshé that the proposal needs a 2/3 vote in favor in both chambers of the legislature.  A staffer explained to me that this is because the bill authorizing the request would be classified as an ”urgency”, because non-urgent bills don’t take effect until next January.

There is a bill to authorize the request, AB 1887, introduced by a Republican Assemblyman and amended on May 28 to reflect passage of ObamaCare.  According to the Legislature’s website, it is currently a “non-urgency” measure, so it would have to be re-classified before moving ahead it time for the federal bailout. 

Unfortunately, it had passed the Assembly Health Committee with a unanimous vote.  So, we will see whether the Republican minority can successfully resist the blandishments of short-term federal dollars, in exchange for long-term fiscal and political pain.

Big Nanny Says: No Happy Meal for You

As a friend of mine put it, in reaction to this next story, “Heaven forbid we should expect errant parents to take control of their children. Let’s let government make the decision for ALL of us!”

The Institute of Medicine doesn’t like fast food, and said so in a report a few years ago. In its report, the IOM, a nonprofit organization chartered by the U.S. Government, said, “Public policy programs and incentives do not currently have the support or authority to address many of the current and emerging marketing practices that influence the diets of children and youth.”

One county is taking that authority–or at least that power–upon itself. Where else? California, where  Santa Clara County has banned McDonalds’ Happy Meals. Just shows that you can never please some nannies: the Big Arches, under pressure from the food police, started offering fries-free happy meals several years ago. I wonder if the county will try to prohibit county residents from accessing the site HappyMeal.com, since the site obviously seeks to entice young children to come over to the dark site of foods not approved by the food police.

Just another example of how obscure reports from high-minded organizations can eventually become tools to take way your freedom of choice.

Schwarzenegger: The First (And Last) Republican Governor For ObamaCare

Oh, the joys of being a Republican who has abandoned the principles of limited government but doesn’t have to face the voters again!

Unlike that other lapsed conservative, Florida governor Charlie Crist, California governor Arnold Schwarzenegger has decided to leave politics after his term ends next year — but he can still cause plenty of harm in the meantime.

He’s just become the first Republican governor to endorse Obamacare and pledge that his state’s government will implement it, ASAP.  Governor Schwarzenegger had previously criticized the “Cornhusker kickback” (which gave an extra Medicaid bailout to Nebraska), but not on principle. He just thought that the federal government should give the same kickback to every state — which it did in the “reconciliation” bill.

This has long been a pattern of Governor Schwarzenegger’s: When the spending gets tough, the tough go to D.C. for a federal bailout. In fact, Obamacare provides short-term gains for long-term pain. It’s brutal on state budgets, for any number of reasons. As Grace-Marie Turner discusses in the Wall Street Journal, the first challenge is newly instituted high-risk pools, for which Obamacare will send a huge tab to states. Then there’s the Medicaid expansion, which will impose even more costs on them. Furthermore, rich states get a bigger federal Medicaid bailout than poorer ones do. And states might even lose revenue from premium taxes on health plans, to boot.

What’s not to like?

Fortunately, both of governor Schwarzenegger’s likely successors as Republican governor of California, Meg Whitman and Steve Poizner, have made strong commitments to support repeal of Obamacare and its replacement with real reform.

Governor Schwarzenegger will pass his final eight months in office pushing legislation in Sacramento that will sacrifice Californian patients’ choices and the state’s budget on the altar of Obamacare. One of Mr. Poizner’s or Ms. Whitman’s most critical tasks, as newly elected governor in January 2011, will be to unravel whatever harmful laws he manages to impose, and ensure that California is prepared to fully participate in the movement to repeal and reform Obamacare.