Do Schwarzenegger Vetoes Signal a Push for Comprehensive Reform in 2009?

Governor Arnold Schwarzenegger vetoed a host of health care reform bills on Tuesday. Some of them were to be expected. For example, he struck down Senate Bill 840, Senator Sheila Keuhl’s attempt to create a government-run, single payer system in the state. The Governor has been on record as opposing this approach for years and has vetoed the concept in the past. His vetoes of several bills requiring medical plans to include coverage for certain conditions is also consistent with his previously stated opposition to coverage mandates.

But there were lots of surprises on the list, too. Governor Schwarzenegger vetoed legislation that would have made it far more difficult for carriers to insurance companies to rescind an insured once they’ve accepted an application for individual or family coverage (Assembly Bill 1945 by Assemblyman Hector De La Torre. No carrier practice has garnered more negative press — and bigger fines — than rescission. From a political point of view, AB 1945 was a soft ball. Yet Governor Schwarzenegger struck it down.

He vetoed legislation (Senate Bill 1440 by Senator Keuhl) to compel carriers to spend 85 percent of the premium they take in on medical care — even though this concept was contained in the unsuccessful comprehensive health care reform package the Governor was pushing for last year. The same fate befell Senate Bill 973 by Senator Joe Simitian that would have created a statewide public insurer to link together existing regional and county-based health plans even though it too was similar to a portion of the Governor’s own reform plan.

Governor Schwarzenegger’s veto of Assembly Bill 2 by Assemblyman Mervyn Dymally was especially surprising. It would have expanded the ability of the state’s existing high risk pool to help more Californians unable to qualify for coverage in the private marketplace due to pre-existing health conditions.  The program needs significant help to continue to meet its mission. He also vetoed Senate Bill 981 by Senate President Pro Tem Don Perata which would have prohibited “balance billing” by doctors and other care providers.

The Governor had his reasons for keeping these bills from becoming law. His veto message concerning AB 1945 deplored the practice of unfair rescission and listed consumer-protection provisions he would want to see in legislation dealing with the issue. But he noted that AB 1945 was “written by the attorneys that stand to benefit from its provisions” and would lead to unwarranted litigation. Similarly, he preferred a different solution to the problem of balance billing than the approach embodied in SB 981.

Vetoes of this type, over approaches to solving problems, are common. They represent legitimate policy and political differences. The Legislature, for example, considered several bills addressing recission. They could have worked with the Governor’s office to fashion a compromise that he would sign. That didn’t happen. The veto did.

But it’s Governor Schwarzenegger’s rationale for vetoing AB 2, SB 1440, and SB 973 that best illuminates what’s in store for California concerning heatlh care reform. In all three of his veto messages, Governor Schwarzenegger made clear he wants comprehensive health care reform. Piecemeal and incremental changes are unacceptable.

I’ve written previously about why state health care reform efforts usually fail. In my mind, meaningful and comprehensive reform will need to come from Washington. And while enacting such reform has been greatly complicated by the current financial crisis, it still remains near the top of the domestic agendas for both Senator John McCain and Senator Barack Obama.

If the new Congress and the next Administration succeed in enacting dramatic health care reforms, it could preempt laws and regulations at the state level. To me, this suggests the efforts of California’s leaders might best be spent in helping to shape what happens in Washington, DC. Governor Schwarzenegger apparently disagrees.

Governor Schwarzenegger’s vetoes make clear he intends to pursue a California solution. It’s not just what the veto messages say, it’s their political impact that is important. They keep pressure on lawmakers to enact substantial reform. His opponents, for example, will be unable to call for a “time out” on further changes to the system while the new laws are given a chance to work. His allies, while angry at the vetoes, will work all the harder to get their pet reforms enacted.

In some significant ways, the potential for success is greater in 2009 than it was in 2008. Governor Schwarzenegger will be negotiating with a new cast of Legislative Leaders.  He will will be working with a relatively new Legislature, many of whom will have no scars with from his previous effort. Yet, unlike in 2007 when he launched the Year of Health Care Reform, a year in which, for most of it, the Governor offered only general principals, in 2009 he can use his defeated reform legislation, Assembly Bill X1-1, as a detailed starting point.

Certainly, the task won’t be easy. It may even be impossible. The state’s finances are in shambles and health care reform is expensive.

But there’s a legacy to be attended to. Plus, the Governor does not like to lose and the defeat of ABX1-1 was both visible and painful. His vetoes are a clear signal of where he’s headed. Expect 2009 to be the Year of Health Care Reform. Again.

The Need to Do Something — But SB 1440 Isn’t It

We elect politicians to solve problems. That’s their job. It’s what we pay them for. No one campaigns for office proclaiming their intent to accomplish nothing. There’s always some injustice to right. There’s always a mess to fix. So no one should be surprised that current lawmakers in Sacramento are desperate to do something about California’s health care system. After all, there are real problems in the current system.

But there’s a difference between lawmakers really addressing problems and simply looking like their addressing problems. Take Senate Bill 1440 authored by Senator Shiela Keuhl. The bill would require carriers to spend 85 percent of the premium they take in on medical care. As originally introduced, SB 1440 would have had a devastating impact on the individual health insurance market. It would have increased costs, decreased competition and made it nearly impossible for independent agents to assist consumers in finding the right plan for their needs.

Fortunately, SB 1440 has been substantially amended since its original introduction. As it reads today, the biggest problem with the bill is it requires carriers to segregate their Department of Managed Care regulated plans from those regulated by the Department of Insurance. While it’s not surprising regulators and legislators perceive these plans to be worthy of distinction, from a consumer’s point of view it’s a meaningless difference. Governor Arnold Schwarzenegger and Senator Keuhl should address this issue in their negotiations concerning the legislation. But that’s not the overriding problem with SB 1440.

What’s wrong with SB 1440 is that it won’t lower premiums, which is the stated purpose of the bill. The Rand Corporation in a report by Neeraj Sood and Eric Sun titled “Health Insurance Premiums in California: The Role of Administrative Cost and Profits” examined the results of similar legislation in other states. They found states with no Medical Loss Ration legislation spend statistically the same percentage of premium as those that regulated the entire market (83 percent and 84 percent, respectively). While it’s true that states limiting the loss ratio of all coverage (individual, small group and large group) set targets at levels lower than the 85 percent called for by SB 1440, the report suggests consumers are unlikely to benefit from any premium savings.

The reason is that profits and administrative costs aren’t the problem with skyrocketing health care costs; it’s the price of medical treatment that drives premiums. The study found that 85 percent of the increase in revenue per enrollee between 2002 and 2006 was the result of medical costs.

Lawmakers could address 85 percent of the problem. But that’s hard work. It requires examining the drivers of increased medical costs and making tough decisions on how to reduce their rate of increase. It’s far easier (if less impactful) to go after health insurance companies and HMOs. Never mind that, as reported by the Rand study, the profits of California HMOs are less than the profitability of the companies comprising the S&P 500. The reality is that, along with oil and tobacco companies, they are about as easy a political target as exists.

So lawmakers will pass SB 1440 and declare a blow against rising insurance premiums. They may not be able to pass a budget, but they can teach those insurance companies a lesson. The fact that the legislation won’t have much, if any, impact on premiums is irrelevant. The fact that it won’t bring medical inflation down to general inflation levels doesn’t matter.

Because while we pay them for results, we have a tendency to elect lawmakers based on appearances. Which means the underlying problem remains.