Primum non nocere
by James A. Bacon
In his book “The Last Line of Defense,” Attorney General Ken Cuccinelli delineates his constitutional views as the state’s top lawyer and he opines on the philosophical principles that undergird his approach to public policy. But he provides few specifics on how he, as the presumed Republican candidate for governor this year, would govern if elected. Laying out a campaign platform was not his intention, of course, as the book is not a campaign document but a description of how he and other Republican AGs fought the Obama administration’s unconstitutional erosion of state sovereignty.
However, we do get a glimpse of Cuccinelli’s thinking in one realm, that of health care. Because so much of his book is devoted to his legal battle against the Patient Protection and Affordable Care Act (Obamacare), Cuccinelli digresses briefly to discuss how to reform Virginia’s health care system if Obamacare were rendered ineffective by state action (by opting out of the Medicaid expansion and the set-up of a health insurance exchange).
As it happens, Cuccinelli’s views on the subject coincide largely with my own: First do no harm. The current system of health care in the United States is a mess, he writes. But the answer is not giving government more power. In effect he subscribes to Bacon’s axiom of political reform: Before you create new laws, regulations and programs to fix what’s broke, un-do the laws, regulations and programs that broke it in the first place.
The book treats us to no more than a bullet-point description of Cuccinelli’s market-based remedies but the proposals are suggestive. At the federal level, the AG would allow the purchase of insurance across state lines, give individuals who purchase their own insurance the same tax status as employees who purchase it through their employers, and incentivize the use of Health Savings Accounts.
That’s all fine and good (and pretty standard fare), but the governor of Virginia doesn’t have much influence over federal law. Within the realm that governors can control, Cuccinelli would:
- Roll back the mandated benefits required for the purchase of private insurance plans;
- Eliminate restrictions against the purchase of health insurance across state lines (presumably by means of interstate pacts);
- Require transparency in pricing without which it is difficult for consumers to exert meaningful influence in health care markets; and
- Put caps on malpractice liability.
I am comfortable with the first three measures but believe the fourth to be superfluous in Virginia, given the fact that the commonwealth’s malpractice laws are pretty reasonable to begin with. Also, I believe the list of needed reforms is only partial. Others include: (1) The state should create more than transparency for prices, it needs to create transparency for risk-adjusted medical outcomes, too; (2) the state should eliminate Certificates of Public Need, which restrict competition between health providers; (3) the governor should use his bully pulpit to encourage (not coerce) hospitals, physicians and other providers to embrace best practices that boost productivity and improve the quality of medical outcomes; and (4) the governor should establish the goal (a tall order, admittedly) of making Virginia the healthiest state in the country by means of such strategies, highlighted on this blog, as creating more walkable/bikeable communities, encouraging the consumption of more nutritious food, and working ceaselessly towards the goals of cleaner water and cleaner air.
I don’t sense that Cuccinelli has given these matters anywhere same the amount of thought that he has to the constitutional issues arising from Obamacare. But if he wants to govern well – and persuade others that he can govern well – he would be well advised to flesh out his ideas.
