The Supreme Court can go ahead and strike down a controversial requirement that Americans purchase health insurance, but that won’t undermine last year’s landmark health care reform law, former Vermont Gov. Howard Dean told a group assembled at a Denver law office last week.
“The individual mandate is absolutely not necessary, and if it gets overturned, it doesn’t matter,” said Dean, a practicing physician and former chairman of the Democratic National Committee. “The White House goes crazy when I say this, but the fact is, it doesn’t matter, it has very little effect on the insurance pools.”
Dean was in Denver on April 15 to talk about health care reform and politics with about two dozen attorneys and clients at the lower downtown offices of McKenna, Long & Aldridge. The international firm counts Dean, former U.S. Rep. David Skaggs and a number of past elected and executive-branch officials among its cadre of policy advisors.
Dean said the mandate — backers claim it’s the key to fully enacting the legislation but attorneys general from 27 states, including Colorado’s John Suthers, are asking courts to rule it unconstitutional — might sound indispensable on paper, but his own experience overhauling health care in Vermont tells him it isn’t.
“This is a really interesting feature of this bill because it’s completely unnecessary,” he said. “It is an academic creation, and something insurance companies worked very hard to get because, in theory, you do distort the purchasing pool of the insurance companies if young people opt out.” But that’s not what actually happens, he said.
Comparing Massachusetts, which has a statewide individual mandate, with his home state of Vermont, which doesn’t, he said that while both states cover nearly all their residents, the mandate only makes sure an additional 1 or 2 percent of the population has health insurance.
As Dean spoke, the Supreme Court was deciding whether to expedite hearing one of the lawsuits challenging the legislation — dubbed the Patient Protection and Affordable Care Act and signed into law just over a year ago — but after the weekend it was clear the court had decided to let the states’ challenges proceed through lower courts rather than take the unusual step to hurry the process.
The greater risk to health care reform, Dean said, is if the court decides to overturn the individual mandate but rules it can’t be removed from the rest of the law and throws the whole thing out. He said that raw political move wouldn’t surprise him from the current Supreme Court.
“My argument is, it doesn’t matter, unless, for political reasons — and this is a very political Supreme Court — they make a decision that because the individual mandate itself is unconstitutional, the whole bill is unconstitutional,” Dean said. “That would be purely politics, but this is a very political court. They have made very political decisions in the past that aren’t found in the Constitution or the law.”
The other threat to the bill, Dean said, is if President Barack Obama doesn’t win a second term and a Republican president dismantles the program. “That could happen,” Dean said, “even Sarah Palin could be president” — a statement he said elicits stunned disbelief from fellow Democrats. Don’t rule it out, he warned. “The fact is, you don’t know who’s going to be elected president, and anybody who gets the nomination of their party can win. Anything can happen.”
Dean — who ran for the 2004 Democratic presidential nomination in 2004 and pioneered use of the Internet to organize supporters — mentioned he hadn’t flown to Denver to deliver a partisan speech, but he also didn’t hold back when it came to tying a top Republican presidential prospect to Obama’s signature legislation.
“It is really true that what Mitt Romney did was really the model for what President Obama did — they are the same bill, essentially,” Dean said with an impish grin. “There are some very good things going on in Massachusetts,” he said. But he added that keeping medical costs under control is proving difficult under “the Romney bill,” same as it will be nationally without some more changes.
“There’s one reason” costs are out of control, Dean said. “It’s not evil insurance companies, evil doctors, evil hospitals, even evil pharmaceutical companies. We all have our contributions to this, but the real problem is that you pay a fee for service. You are paying me to do as much as I can to you and order as much as I can for you, whether it works or not.” The solution, he said, is a simple one that acknowledges market forces are out of whack under the current system. “You’ve got to get rid of fee-for-service medicine. If you keep paying me for whatever I do, I’m going to keep doing it.”
What will replace the current method? The so-called capitated care model, which pays health care providers a set amount per patient whether individual patients seek health care or not.
“We get rewarded incredibly heavily for high-end care in this country,” he said. “We do not get rewarded for taking care of people so they don’t need high-end care. It makes no sense at all. That’s where capitated medicine is going to make a big difference. I think it’s inevitable.” Currently, he pointed out, only a few very large corporations that self-insure and a handful of nonprofit HMO-style providers — including Colorado’s Kaiser system — use the model.
Though he cautioned he “was not a big fan” of the health care bill that passed, noting that he didn’t “consider the bill terribly groundbreaking,” he nonetheless praised parts of the sprawling law, which he said “has already dramatically changed the country for the better.” Dean singled out the ability for states to set up health insurance exchanges, which would let individuals and small groups compare and buy insurance online but are under fire in Colorado and other states by Tea Party groups.
“The exchanges make a lot of sense — they’re a Heritage Foundation idea, they’re a Romney idea,” he said, claiming opponents were blinded to the substance of exchanges by ideology. “The irony is that if the Tea Party ends up killing the exchange bill in the Colorado Legislature, the federal government will wind up running your exchange for you, so this is really not a very smart thing to be doing.” The good news, Dean added, is that “there are a number of Republican legislators saying, enough already, let’s run these things in a way that we see fit.”
On his way to the lunchtime briefing from the airport, Dean said, he strolled through several blocks of lower downtown and reminisced about the 2008 Democratic National Convention, which he brought to Denver when he was national party chairman. “I got so nostalgic walking down 16th Street to come down here,” he said, adding that he’s been to every DNC since 1980, but “this was the best convention I’ve ever been to.”
Joining the discussion was Donna Lynne, president of Kaiser Colorado — singled out by Dean as an innovator — and representatives from across the health and wellness spectrum, including Alan Lewis of Vitamin Cottage Natural Grocers and Dyan Alexander of pharmaceutical giant AstraZeneca. “This is no good for either of us,” Dean joked after posing for a snapshot with Alexander. “I think we can find some common ground,” she shot back.