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Election 2004: the new political realities for medicine

From the December ACP Observer, copyright 2004 by the American College of Physicians.

By Robert B. Doherty

Republican gains in last month's election will move federal health policy in a decidedly more conservative direction on three key issues: medical liability tort reform, consumer-driven health insurance and implementation of the Medicare prescription drug legislation.

At the same time, President Bush's ability to achieve his goals on these and other priorities will come up against three major obstacles. Those include the lack of any public mandate for health care reform, Senate rules that require a super-majority of votes to pass controversial legislation and a ballooning federal budget deficit.

The GOP achieved impressive gains in Congress, winning a 55-45 advantage in the Senate and a 231-204 edge in the House of Representatives. Although President Bush won re-election by a relatively small margin in both the popular vote (51% vs. 48%) and the Electoral College (286 votes to 252), he rests his claim for a mandate on the fact that he received 59 million votes—the largest in American history.

But by other measures, election results suggest that voters remain evenly split between the two major parties.

In statehouse races, for instance, Democrats posted modest gains. Going into the election, Republicans controlled 21 state legislatures while Democrats controlled 17, with chambers split between the parties in 11 states. After last month's election, Republicans will control 20 statehouses and Democrats 19, with 10 remaining split between the two.

Voters' views on health care

Neither party, however, received a mandate from voters on how health care should be reformed.

An analysis of public opinion polls taken before the election found that health care was ranked No. 4, behind the economy, Iraq and terrorism, as the decisive issue on which voters would decide which presidential candidate to support. The top health care concerns of those surveyed were the cost of health care and prescription drugs (24%), Medicare and health care for the elderly (24%), and the uninsured and access (mentioned by only 14%).

Surveyed seniors had mixed opinions about the new Medicare prescription drug legislation, with 48% taking an unfavorable view of the reform, 27% favoring it and 25% expressing no opinion.

Surprisingly, the two health care issues getting the most attention in Washington—health care quality and medical liability reform—did not register as important voter issues in pre-election surveys.

Only 1% cited quality as a major concern, and none—no subgroup of voters at all—identified medical liability as a top election priority. In fact, voters in Nevada and Florida approved state ballots related to liability reform, but measures in Oregon and Wyoming were defeated. (See "Voters weigh in on mixed bag of state ballot measures.")

Prospects for liability reform

President Bush has stated that medical liability reforms, centered around a $250,000 cap on noneconomic damages, will be among his top legislative priorities in 2005.

The outgoing House of Representatives twice passed such measures, but each time those reforms died in the Senate, falling just one or two votes short of a majority. Republican gains in the new Senate may have narrowed the distance to passage of tort reform, but they do not close the gap.

Tort reform opponents will certainly use Senate procedures to require 60 votes to pass such a measure, which means the president and his Senate allies will need unanimous support among the 55 Republican members, as well as another five Democratic votes, to carry the day.

That task will be even more formidable if the three returning Republican senators, Richard C. Shelby (Ala.), Arlen Specter (Pa.) and Lindsey Graham, (S.C.)—who have opposed caps on noneconomic damages in the past—maintain their current opposition.

Getting federal tort reform passed will be an uphill battle, which is not to say that it can't be done. Fortunately, President Bush seems prepared to spend the political capital he needs to prevail. However, the question remains whether he has enough voter support to pressure Democrats and the few recalcitrant Republicans to get on board.

With polls showing that most voters favor tort reform, the president may have the breadth of public support he needs. But with few voters citing liability reform as one of their top concerns in pre-election surveys, it remains to be seen how strong that support will be.

Access for the uninsured

The election results do not favor any major expansions of health care coverage for the uninsured. The unfortunate reality is that with only a small percentage of surveyed voters ranking access and the uninsured as a top concern, there is little reason to believe the public will demand immediate results from the president or Congress.

President Bush and Republican congressional leaders are expected to push for legislation that would provide tax subsidies for low-income individuals and small businesses to set up health savings accounts. Health savings accounts allow individuals to accumulate pre-tax dollars to fund routine medical care, and feature a high deductible insurance policy to cover expenses above a catastrophic cap.

The president views expanded use of health savings accounts as a way to put consumers, not employers or businesses, in charge of funding their own health care. However, few experts believe that broader use of such accounts will substantially reduce the number of uninsured.

Medicare prescription drugs

Finally, the 2004 elections make it much less likely that Congress will make major revisions in the Medicare prescription drug benefit.

Democratic candidate Sen. John Kerry (Mass.) had promised to ask Congress to change the legislation to authorize federal price negotiations with drug companies and allow re-importation of drugs from Canada.

President Bush, however, opposes such changes. AARP and other consumer groups have said they will pressure Congress to lower drug costs and close coverage gaps in the drug benefit.

But closing that coverage gap would be prohibitively expensive, and both industry leaders and the White House would strongly resist any effort to encourage federal negotiations on drug prices. On the other hand, it may be possible to strike a compromise on limited drug re-importation if safety concerns can be satisfied.

ACP's agenda

The College has to factor in these election results as it refines its 2005 legislative agenda. On some issues, the opportunity to achieve ACP's objectives will be strengthened-but on others, it will be reduced.

On medical liability reform, the College will support the administration's renewed push for tort reform, particularly for a cap on noneconomic damages. At the same time, ACP will show a willingness to consider other reforms that could reduce liability premiums should there not be enough votes to pass caps.

On access, the College will support incremental measures to expand coverage for vulnerable groups. The College will continue to make the case for comprehensive reforms to provide coverage to all Americans.

And on Medicare reform, ACP will support improving the 2003 legislation to provide greater protection for low-income beneficiaries against high drug costs.

A top College priority will continue to be reforming the Medicare physician payment system. We want to start by halting additional Medicare physician payment cuts. We then want to develop new models to reimburse internists for effectively managing chronically ill patients.

Voters have signaled their desire for small steps, not giant strides, on most of the nation's major health policy issues.

The College now has to take those political realities into account. But we also should not abandon our long-standing commitment to comprehensive approaches to expanded access, improved quality and lower liability premiums just because the immediate political climate may be more conducive to marginal progress, not major reform.

Robert B. Doherty is ACP's Senior Vice President for Governmental Affairs and Public Policy.

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