Obamacare repeal: A way to turn the tide

Some feel that enactment of a single-payer system is inevitable, but the tide can be turned immediately by repealing the antitrust exemption uniquely enjoyed by health insurers since 1945.

Specifically, the Senate can simply co-adopt H.R. 372, the "Competitive Health Insurance Reform Act of 2017," which was passed by an overwhelmingly bipartisan vote of 416-7 on March 23, 2017.

This bill amends the McCarran-Ferguson Act to declare that nothing in that Act modifies, impairs, or supersedes the operation of antitrust laws with respect to the business of health insurance, including the business of dental insurance. This declaration does not apply to a contract, combination, or conspiracy to: [1] – collect, compile, or disseminate historical loss data; [2] – determine a loss development factor for historical loss data; [3] – perform actuarial services if the collaboration does not involve a restraint of trade; or [4] – develop or disseminate a standard insurance policy form if adherence to the form is not required. Prohibitions against unfair methods of competition apply to the business of health insurance without regard to whether the business is for-profit."

Insurers objected, oxymoronically claiming that this would prove anti-competitive because smaller insurance companies now benefit from sharing data, but Congressman Tom Garrett (R-Va.) explained why passage would be pro-competitive by undermining collusion among all insurance companies.

This one intervention would slash premiums, a key goal of opponents of the Cassidy-Graham-Heller-Johnson amendment, including Senator Rand Paul (R-Ky.) and Senators Ted Cruz (R-Texas) and Mike Lee (R-Utah).

It would also mesh with Sen. Paul's efforts to promote  Medical Savings Accounts and those of others to undermine the price-fixing that proposals by Speaker Paul Ryan (R-Wis.) had failed to remedy.

Rumor has it that, in the wake of failure to repeal and replace Obamacare, President Trump may take executive action to enhance interstate competition.

The problems with this approach are both generic (any executive order can be reversed by a subsequent president) and focused (this executive order could undermine consumer protections).

That's why repealing the McCarran-Ferguson exemption – which would enhance inter- and intra-state competition – is supported by both former senator Rick Santorum (R-Pa.) and Tea Party Patriots, as was discussed during a recent colloquium.

Yet Sen. Santorum harbors concern this bill, if brought before the Senate, could be blocked by invoking the Byrd Rule (as per a personal communication to this author, during the Senate Judiciary Committee Hearing on September 25, 2017), despite the facts that [1] this maneuver could be overcome and [2] the bipartisan House vote would portend almost unanimous Senate support, while being consistent with the basic goals of the Freedom Caucus.

Therefore, the Republicans should snatch an incremental victory from the jaws of defeat simply by ensuring that the Senate passes H.R. 372.

Robert B. Sklaroff, M.D. is a political activist who gratefully acknowledges the physician-mentorship provided by George Ross Fisher III, M.D. and Raymond J. Lodise, M.D. (over the decades) and the political clarity conveyed by Bill Pascoe of Tea Party Patriots (during recent months).

Some feel that enactment of a single-payer system is inevitable, but the tide can be turned immediately by repealing the antitrust exemption uniquely enjoyed by health insurers since 1945.

Specifically, the Senate can simply co-adopt H.R. 372, the "Competitive Health Insurance Reform Act of 2017," which was passed by an overwhelmingly bipartisan vote of 416-7 on March 23, 2017.

This bill amends the McCarran-Ferguson Act to declare that nothing in that Act modifies, impairs, or supersedes the operation of antitrust laws with respect to the business of health insurance, including the business of dental insurance. This declaration does not apply to a contract, combination, or conspiracy to: [1] – collect, compile, or disseminate historical loss data; [2] – determine a loss development factor for historical loss data; [3] – perform actuarial services if the collaboration does not involve a restraint of trade; or [4] – develop or disseminate a standard insurance policy form if adherence to the form is not required. Prohibitions against unfair methods of competition apply to the business of health insurance without regard to whether the business is for-profit."

Insurers objected, oxymoronically claiming that this would prove anti-competitive because smaller insurance companies now benefit from sharing data, but Congressman Tom Garrett (R-Va.) explained why passage would be pro-competitive by undermining collusion among all insurance companies.

This one intervention would slash premiums, a key goal of opponents of the Cassidy-Graham-Heller-Johnson amendment, including Senator Rand Paul (R-Ky.) and Senators Ted Cruz (R-Texas) and Mike Lee (R-Utah).

It would also mesh with Sen. Paul's efforts to promote  Medical Savings Accounts and those of others to undermine the price-fixing that proposals by Speaker Paul Ryan (R-Wis.) had failed to remedy.

Rumor has it that, in the wake of failure to repeal and replace Obamacare, President Trump may take executive action to enhance interstate competition.

The problems with this approach are both generic (any executive order can be reversed by a subsequent president) and focused (this executive order could undermine consumer protections).

That's why repealing the McCarran-Ferguson exemption – which would enhance inter- and intra-state competition – is supported by both former senator Rick Santorum (R-Pa.) and Tea Party Patriots, as was discussed during a recent colloquium.

Yet Sen. Santorum harbors concern this bill, if brought before the Senate, could be blocked by invoking the Byrd Rule (as per a personal communication to this author, during the Senate Judiciary Committee Hearing on September 25, 2017), despite the facts that [1] this maneuver could be overcome and [2] the bipartisan House vote would portend almost unanimous Senate support, while being consistent with the basic goals of the Freedom Caucus.

Therefore, the Republicans should snatch an incremental victory from the jaws of defeat simply by ensuring that the Senate passes H.R. 372.

Robert B. Sklaroff, M.D. is a political activist who gratefully acknowledges the physician-mentorship provided by George Ross Fisher III, M.D. and Raymond J. Lodise, M.D. (over the decades) and the political clarity conveyed by Bill Pascoe of Tea Party Patriots (during recent months).

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