Editorial Board

Congress Can Fix Health-Care Law Without Destroying It

One way the U.S. Congress could respond to Thursday’s Supreme Court ruling on the individual insurance mandate would be to yank the debate over health-care policy back to square one. Simply overturn the law and start from scratch, as the Republican chorus is calling for.

House Majority Leader Eric Cantor has promised a vote to repeal the Affordable Care Act as soon as next week, and Mitt Romney has underlined his pledge, if elected president, to dispense with it on his first day in office.

What an enormous waste of progress that would be, given that in its two years of existence the Affordable Care Act has already taken many sound steps toward improving health-care quality, getting a grip on costs and arranging for significantly more Americans to have insurance.

Republicans run the risk of looking like wreckers, not problem-solvers -- not a good image in an election year, no matter what polls say about support for the law. There is a smarter course for them. They should assemble a list of ways to tweak the act to make it work better -- and more to their liking. President Barack Obama and Senate Majority Leader Harry Reid, after all, have acknowledged improvements should be made.

Here’s what we would do. First, and most urgently, the law’s requirements on creating state-based health-insurance marketplaces need to be adjusted slightly to give states more time to comply. Many states postponed or refused to set up these health-insurance exchanges, which are meant to help uninsured individuals and small businesses find affordable coverage. Insurers are to compete for business by offering a buffet of plans, so long as they provide a minimum package of benefits and charge the healthy and the sick the same price for comparable coverage.

Both the states and insurers have a lot of work to do in preparation for the Jan. 1, 2014, deadline when exchanges are supposed to be up and running -- especially those states where officials delayed acting because they assumed the Supreme Court would invalidate the law. Even before 2014, other deadlines loom. By January 2013, states are supposed to demonstrate that they will be able to run a functional exchange. More important, by October 2013 they must have set their eligibility criteria and begin enrollment.

There’s no need to extend all the deadlines; that would risk piling delay on top of delay, and postpone the ability of some 24 million uninsured people to find affordable coverage. But Congress could tell the Health and Human Services secretary to extend the January 2013 deadline -- for demonstrating exchange capability -- to states making a good-faith effort.

Down the road, Congress could fine-tune the substance of the law, adding provisions to further address the basic challenge of making health care more effective and efficient.

It could do more, for instance, to encourage “bundling” of care -- that is, paying doctors and hospitals a flat rate for addressing a patient’s specific problem, such as a heart-bypass operation or a hip replacement, rather than billing separately for each test and treatment. Medicare demonstrations of bundling have suggested it can reduce the cost of medical services by 10 percent, according to an analysis released in January by the Congressional Budget Office.

Eventually, assuming this success continues, provisions should be written into the health-care law to require bundling, especially for expensive chronic conditions such as diabetes and congestive heart failure.

Then there’s medical malpractice, an issue Republicans have long argued must be addressed. The health-care law does almost nothing to discourage providers from ordering too many tests and treatments merely to protect themselves from being sued. Many proposals have been made over the years to simply limit damages in malpractice lawsuits. But there is a more effective approach to help doctors and hospitals improve the care they provide: Give some protection against lawsuits to those who follow medical practices that have proved, in clinical studies, to work well.

Such preferential treatment for “evidence-based” medicine makes more sense than protections found in many state laws for “customary” practice -- treating a patient as most other doctors in their area would. Customary practice, if not based on the best available medical knowledge, may be wasteful or even dangerous. The health-care law provides for pilot projects to test the evidence-based strategy. As with bundling, the law could push harder for its widespread adoption.

Republicans may have different priorities for improving the law. Instead of looking to overturn it, however, they should find a way to work on health-care reform that builds on the progress already made.

    To contact the senior editor responsible for Bloomberg View’s editorials: David Shipley at davidshipley@bloomberg.net .

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