Chuck Lauer: What We Need to Do if the Supreme Court Strikes Down the Healthcare Law

If the Supreme Court strikes down all or part of the Patient Protection Affordable Care Act, as everyone seems to be predicting, it would be a stunning indictment of the self-interested deal making that created this very flawed law.

I want to say from the get-go that I believe in health reform. Anyone who truly understands the problems in healthcare today knows that reform is desperately needed. It will have to happen, one way or another, or we will all be sunk. But so-called "Obamacare" missed the mark.

Something monumental like health reform needed the sign-off of the American people. That never happened. According to the most recent poll, 53 percent of the people oppose Obamacare, and only 39 percent support it –– a reading that hasn't changed that much since the law was passed two years ago.

There was never any public debate. The architects of Obamacare cobbled together a bunch of deals with lobbyists who represented every nook and cranny in the healthcare industry. When the law was being drafted in 2009, more than 1,750 organizations and companies hired some 4,525 lobbyists to represent their interests, spending more than $1.2 billion, according to a study by the Center for Public Integrity.

This year, when the Supreme Court agreed to consider challenges to the law, the big healthcare interests once again made their case, sending in a flurry of amicus briefs to the court. The 130-plus amicus briefs sent in are thought to be a modern record.

Because President Obama failed to lead on health reform and failed to forge strong public support, the law became a complicated mess that no one individual can possibly understand. The regulations for the law are said to be 2.1 million words long, which is about two and a half times the length of the King James Bible. How's that for simplicity and transparency!

The degree of self-interest behind the law is appropriate to the level of political dialog we see all around us today. That dialog has shrunk to the narrowest of interests: "What's in it for me?" Notions of fairness or concerns for the whole just get thrown out the window. In one political debate this year, the audience actually booed the Golden Rule – "Do unto others as you would have them do unto you."

The rampant self-interest we wallow in today is not limited to any particular party. When the new president began telling the world that he was going to push for a bill to change healthcare in the United States forever, all the special interests came forth.

I have to say, some healthcare fiefdoms agreed to take significant hits in exchange for possible future gains. Hospitals, for example, agreed to take $155 billion in Medicare cuts over 10 years, but in return they hoped to get more patients because healthcare coverage would expand. And there were some very cynical deals, such as completely stopping the growth of physician-owned hospitals. That group didn't have enough clout to survive the stampede.

Even some big players with lots of clout, like the American Medical Association, lost in the deal making. To make up for the new Independent Payment Advisory Board, which will meddle with physician reimbursements, the AMA was assured that the law would get rid of the sustainable growth rate formula, which sets off automatic Medicare cuts that need to be overridden by Congress each time. In the end, however, the SGR fix was removed, because it would have pushed up the price tag, and that would have turned off some very skittish senators. The physicians had to be thrown under the bus.

The Supreme Court's decision is expected by late June. If the court touches the law in any way, the cynical deals that were made two years ago will start falling like dominoes. If the court removes the individual mandate, insurers would have to raise rates, because people with preexisting conditions wouldn't have to buy insurance until they got sick. The court could save the insurance industry by striking down the requirement to cover preexisting conditions. But the coverage mandate would be gone, and with it the extra patient volume that was promised to the hospitals.

The house of cards that is Obamacare would fall. However, that might not be so bad. Without all the special deals, it would then be up to the healthcare industry to save itself. The various constituencies in healthcare don't need incentives to understand that things have to change. Every healthcare executive knows that if we don't agree to serious changes, everyone will be hurt. Instead of vying with each other for special deals, we'd have to accept the simple fact: "United we stand, divided we fall."

Healthcare leaders would have to embrace the values they teach within their organizations, which are all about "breaking down the silos" and making sure people function in teams instead of like a bunch of prima donnas. Also, hospitals are starting to get very serious about efficiency, which will be an absolute requirement in the future.

But even as we talk about teamwork and efficiency, other values still embraced by the industry are getting in the way of reform. Healthcare is not used to viewing patients as customers, who have to be consulted and catered to. We're the only industry I know that treats customers rather indifferently. We don't make a point of asking patients what they want. And that was a major flaw of Obamacare: the public was never consulted. Americans were told what they should want and –– surprise, surprise ¬–– they didn't like it!

Before we decide on any reforms, we need to get feedback from the American people: It's your healthcare system; what do you want it to look like? If Americans can't stomach the individual mandate, which is patently obvious in poll after poll, then what would they agree on? There should be a national debate on the big-picture issues, such as whether healthcare is a right or a privilege, and who should finance it? This could be done in a series of town hall meetings.

Americans also need to be educated. If they are ignorant of the challenges in healthcare, they will be stampeded by incendiary terms like "death panels," and they will not see any connection between the mandate to buy insurance and required coverage of preexisting conditions. We don't have to throw out all of Obamacare. There are many parts of it that can be built on, such as accountable care organizations and insurance exchanges.

Focusing the people's attention on healthcare requires leadership, which has been woefully lacking so far. Whoever wins the presidential election this November needs to step forward and lead. The president needs to call on the American people to help forge a Magna Carta for healthcare. What are our healthcare priorities? How do we propose to get there?

Next, we need to create a healthcare Marshall Plan. Healthcare reform could be achieved without a lot of subsidies, because there is still a great of waste in the system. We need to identify it and eliminate it. I propose getting hospital supply chain directors involved, because they know where the waste is.

For an undertaking as immense as reforming healthcare in the United States, each of us needs to go beyond our own self-interest and look to the whole. President Lincoln said it best: "A house divided against itself cannot stand." Mr. Lincoln, living in an even more divisive era than our own, asked everyone to respond to "the better angels of our nature." That is what we need to do today.

Chuck Lauer (chuckspeaking@aol.com) was publisher of Modern Healthcare for 33 years. He is now an author, public speaker and career coach who is in demand for his motivational messages to top companies nationwide.

More Articles Featuring Chuck Lauer:

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Chuck Lauer: Farewell to an American Hero
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