The man who once headed the marketing department for former Massachusetts Gov. Mitt Romney’s Health Connector told a group of business people Tuesday that it was the “prototype” for the president’s Affordable Care Act.
Kevin Counihan—the former chief marketing officer of the Massachusetts Connector and the new CEO of Connecticut’s Insurance Exchange Board—said when he would talk with staff from the White House about what they were doing in the Bay State he learned that they had internally coded the project “Massachusetts Avenue,” because it was so much like the Massachusetts law.
Counihan made his remarks at the MetroHartford Alliance’s breakfast discussion on the U.S. Supreme Court’s recent health care decision, which upheld the individual mandate as a tax and allowed state’s to expand their Medicaid programs.
When the law was passed in Massachusetts in April 2006, the Romney administration made it very clear to us that “this is not a tax. This is a penalty,” Counihan said.
Eric Fehrnstrom, Romney’s adviser in Massachusetts and now the presidential campaign, “referred to it as a penalty,” Counihan said. “It’s very hard for us who grew up with this to say a tax.”
Bruce Boisture, of counsel at Day Pitney, said the court’s 5-4 decision found the individual mandate does not regulate existing commerce, but allows individuals to enter into commerce. He said the fact that the justices found it to be a tax received very little attention during oral arguments and seemed to be a “throw away” issue argued by proponents of the law.
But “it carried the day,” Boisture said.
“The nimble chief justice concluded the shared responsibility payment has the three hallmarks of levies that have passed muster in prior decisions under the tax power,” Boisture said. “First, its scale makes it not punitive with respect to the violation…Second, it is imposed without regard to the willfulness of the predicate action…Third, it’s collected as part of the general revenue system and not by special enforcement.”
So if a law has those three characteristics, “it’s a tax for constitutional purposes,” Boisture said summarizing the court’s decision.
Ted Tucci, a partner in Robinson and Cole, said there’s a misconception out there that the Affordable Care Act was a “health care reform statute.”
“But what I would suggest to you is that really tells only about half the story about what the legislative purpose of the Affordable Care Act is all about,” Tucci said.
He said the preamble of the law makes it clear the intention is not only to insure citizens in one way or another, but also to decrease the cost of health care at the same time as improving the quality of care.
Tucci opined that a majority of Americans would tell you they’re not happy with their current health care because the system, as it exists, is based on the quantity of services delivered, not the quality.
But if everyone buys health insurance or gets included on a government plan, won’t it take longer to see a doctor and actually receive care?
Counihan said in Massachusetts only 1.2 percent of the population is uninsured and the waiting period to see a doctor has gone up from 38 days to 44 days.
He said the other thing that happened was even though the “penalty” in Massachusetts was less than the cost of insuring employees, the percentage of employers offering insurance increased from 70 percent to 77 percent.
“The employers in small firms are pretty paternalistic,” Counihan said. “The idea about there being a resident mandate about which there would be a penalty attached if they didn’t get insurance, didn’t make them feel good.“
He said he doesn’t know if that’s going to apply in Connecticut or nationally, but where it existed in one state that’s what occurred.
Health care costs have actually declined 5 percent in Massachusetts for the second consecutive year, Counihan said. By bringing in a large number of previously uninsured but healthy residents into the mix and increasing the number of insurance plans being offered through competitive bidding the Bay State was able to lower health care costs.
What about the political implications?
Shortly, after the decision was released there was a cry for “repeal” or “replace” by opponents.
“I would suggest to you that I think complete repeal of the Affordable Care Act is highly unlikely,” Tucci said.
The political problem is there’s no specific constituency group that will get behind a repeal effort, Tucci said. Even before the decision was released private health insurance companies were promising to maintain certain aspects of the law even if it was overturned, he added.
“The practical problem that I think opponents face with respect to the Affordable Care Act, is billions of dollars have already been spent to implement this law, so how do you unscramble the egg?” Tucci said.
He said he thinks there’s a lot of risk associated with gutting the major portions of the law.
Counihan said he thinks the 2012 election is about jobs and neither campaign really wants to talk about health care.
Former U.S. Sen. Rick Santorum, and one time presidential candidate, may have been right when he said Romney would have more difficulty than any other Republican candidate in the field because he’s going to have difficulty differentiating the Massachusetts plan from the ACA, Counihan said.
“It’s going to come up in the debates, but I think both campaigns are going to try and stay away from it,” he added.