HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Sunday, January 29, 2012

Guest Blogger James T. O'Reilly: What will the RomRichOrum Alternate to PPACA Look Like?

Floridians who saw pale, overstressed law professors revive themselves over the semester break are now seeing a larger wave of perhaps $10,000,000 in television spending by pale, overstressed “campaign media consultants” in the runup to the Jan. 31 primary between Gingrich, Romney, and Santorum. With Florida’s massive Medicare and Medicaid populations, it’s a good time to look amidst the campaign rhetoric for specifics to answer the question:“If not Obamacare, which you detest, which alternatives to the PPACA would you adopt?”

I have more than a little interest in the subject, as West expects me to write a 2012 update to my textbook, Healthcare Rulemaking Guide (shameless plug omitted). The real test of a lawbook author is not history or process, it is prognostication of the future. The writer must tell the reader what she or he will need to know in 4-6 months, given the long lead time of production and marketing at large publishers. So I have been tuning in to the preferences expressed by the campaigns. Obama has his, of course, so one must focus on the phenomena emerging from the GOP side. The Supreme Court’s 5 separate issues will stand or fall as they may; I am looking past them to the Republican alternative formats and attempting to cover their alternative among the options for 2012-2013’s edition.

Killing the universal mandate is of course a way for the health insurance giants to simultaneously lose purchasers and declare the tradeoff elements of PPACA “inoperative” as the balance had been struck for insurers’ support in early 2010. And doing what Tea Party leadership in the governor’s office of states like Ohio want, the death of the “Insurance Exchanges” model, is apparently popular with the conservatives who champion the rights of states to be free of federal controls (with the exception of those absolutely necessary controls on states that impinge on “job creators”). The 2,200 pages of PPACA contain many small provisions for which lobbyists fought successfully and these are unlikely to be undone.

But what will President Gingrich’s CMS do with Medicare cost controls in place of the “radical change” that PPACA provides? Which health insurer’s lobbyist is closest to the ear of the former Speaker; what is Humana’s desire for squeezing physicians while AMA lobbyists are pressing for loosening controls on prescribers? Everyone is against fraud, everyone who voted in the South Carolina primary was for middle class family values, but what specific statutory changes will follow the de-funding of the PPACA compromise? Romney has spoken in generic terms of citizens (note the distinction from the much-bashed immigrants) being free to purchase private insurance that is aided by some form of state directions. President Santorum will protect the sperm, the egg, and everything before birth, but is vague about governmental aid in paying for the care of the child thereafter.

Surely there is a Tampa GOP convention platform committee maven who is busy scribing the party’s specific plans for funding affordable health care “when The People rise up and end the nightmare of Obamacare”. Is there a health law prof out there who aspires to be that maven – if so, can you please share with us how your RomRichOrum candidacy will change the details of the PPACA bargain for the better?

-James T. O'Reilly

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