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August 2015 The making – and almost breaking – of ObamacareSteven Brill America’s Bitter Pill: Money, Politics, Backroom Deals, and the Fight to Fix our Broken Healthcare System, New York, Random House, 2015 (528 pp). ISBN 9-78081298-668-6 (paperback) RRP $34.99. The Patient Protection and Affordable Care Act (ACA, colloquially called Obamacare) is an historic piece of legislation that improves the health and healthcare of every American. But what will surely come to be seen as President Barack Obama’s key legacy is also one of the most divisive laws enacted in the United States in recent memory. The polls show Obamacare is the law Americans love to hate, even as they appreciate the new healthcare benefits and protections that the ACA has delivered (Aravois 2014).
As someone who was in Washington DC and was involved in the enactment and early implementation first-hand as a bit player, I found Steven Brill’s book, Bitter Pill: Money, Politics, Backroom Deals, and the Fight to Fix our Broken Healthcare System, both fascinating and frustrating. I saw different aspects and issues and players than he does. This book will be instructive for an outsider but I would caution that it presents only part of the whole story and blinkered views of some of the issues that are covered. The major focus of Brill’s book is on expanding health insurance coverage, how to pay for this, and how to implement this. The ACA establishes a near-universal guarantee of access to affordable health insurance (Rosenbaum 2011), providing coverage for about 94 per cent of the American population, reducing the uninsured by 31 million people, and increasing enrolment in Medicaid (the public insurance program for low income families and individuals) by fifteen million beneficiaries. However while this is the crux of the ACA reforms it is not the totality and it is the wide-ranging scope of the law that makes this a genuine and sustainable reform package. The law also improves the fairness, quality, and affordability of health insurance coverage and acts to increase the value, quality, and efficiency of healthcare and to reduce wasteful spending. An important aim is to strengthen primary healthcare access and prevention. This is achieved with strategic investments in the primary care workforce and the expansion of clinical preventive care and community prevention activities. There is recognition that the healthcare system must be more accountable to a diverse patient population and address health disparities. (See Russell (2013) for a concise summary of the law.) There is little focus on these latter issues in Brill’s writing.
The book is divided into four parts. Part 1 addresses the development and enactment of the ACA. Parts 2 and 3 deal with the issues of implementation, specifically with the establishment of the federal and state insurance exchanges that enable eligible Americans to purchase approved healthcare insurance policies and use their tax credit entitlements to assist with the cost. In Part 4 the author briefly draws his conclusions about what has been done, what could or should have been done and then proposes his own alternative. The book is interspersed with real-life horror stories to demonstrate why healthcare reform was and remains an imperative. And the author has his own special insight on this: just as he was finishing the book, he was suddenly turned from impassioned journalist and analyst to vulnerable patient. As he admits, when it came to his own healthcare needs and concerns, policies, theories and issues he once saw as important flew out the window. He wanted immediate care, regardless of cost. THE DEVELOPMENT AND ENACTMENT OF THE acaI have a real problem with how Brill accounts for the development and enactment of the ACA legislation in the US Congress in Part 1 of Bitter Pill. Brill and I evidently saw quite different parts of the elephant that was the ACA bill. I think this stems from the fact that Brill’s account was based primarily on conversations with key players in the Senate, so Senate efforts are given primacy. Yet actors and actions in the House of Representatives were also critical to the bill’s provisions and progress. The book gives scant attention to key actions in the House where, under Speaker Nancy Pelosi's leadership, three separate committees were able to merge their efforts into a bill that was passed on the House floor on 7 November 2009. Meanwhile across the Capitol, the Senate was reeling from the death of Ted Kennedy who had been expected to drive a strong, bipartisan approach as the powerful Chairman of the Health, Education and Labor Committee. In his absence Senator Max Baucus, Chairman of the Finance Committee, wasted precious time trying for a bipartisan approach that he could not deliver (Pear & Herszenhorn 2009). Thus the Senate version of the bill was not voted on until 24 December 2009 and there was no push for a conference to align the two bills over the Christmas break. That meant that when Republican Scott Brown, who won in an upset the special election to serve out Kennedy’s term and who had campaigned strongly against the proposed healthcare law, took his seat in January 2010, the Democrats no longer had the 60 votes needed to prevent a filibuster and pass a conference agreement (Goodman & Norbeck 2014). The delay caused by Baucus’ fruitless courting of Republican votes nearly meant the end of Obamacare before it was even enacted—a point Brill fails to note. In the end there was a fall-back solution that worked but undermined the content of the bill: the Democrat leadership used the budget reconciliation process (which cannot be filibustered and so only requires 51 votes to pass the Senate) to get a single bill passed by the House and the Senate. (See Reich & Kagan (2015) for a detailed description of the budget reconciliation process.) Getting some reluctant Democrats on board required a lot of bargaining and special provisions. This approach meant that the possibility of strengthening the Senate bill through the House-Senate conference process was lost. Also most of the legislative drafting was done by the Senate Office of Legislative Counsel and the people involved were arguably less skilful than their House counterparts. One of the consequences of this was the ‘inartful’ language that led to one of the two Supreme Court cases later brought against the law (Supreme Court of the United States, King v Burwell, 2015). But everyone involved recognised that the perfect should never be the enemy of the good, and it was a very special day when, on 23 March 2010, President Obama signed the ACA into law. The issues about how it got to that point are in many ways the purview of the political nerds, but policy wonks need to know that these were key to the shape and content of the final product.
What Brill gets right in this section of his book are the turf fights, the conflicts of ideas, approaches and priorities that existed from the very beginning, the issues around who was in charge (or not in charge), a sense of the complexity and also of the ferocious battle between policy and politics. While he sidesteps the full scope of the Congressional battles because of his Senate focus, and misses other battles such as that around the Prevention and Public Health Fund completely, he does convey effectively the infighting inside the Obama Administration and I can attest to Brill’s assessment of the personality conflicts involved. The infighting was essentially about extending coverage versus cost containment. The main protagonists were in the White House, Treasury, and the Department of Health and Human Services, but these were not just departmental differences; there was no commonly agreed approach inside these departments. The book outlines well the important roles of big pharma, the medical device industry, insurance companies and hospital chains. Their nervousness about the legislation was over-ridden by their leadership, which sensed the political momentum for reform, and the recognition that the status quo was not working for them. They wanted to be at the table as stakeholders, not as victims. They knew that there would be costs, but saw that these would be balanced out by benefits from increased coverage. In contrast, the book skims over the huge opposition mounted against the ACA from the Republican Party, the Tea Party and segments of the media. So much of this preyed on the public’s gullibility about the dangers of socialised and government-controlled medicine, paying no heed to the fact that Medicare and veterans’ care are government programs and that private insurers were already making decisions about patients’ care and costs based on dollars, not evidence. The willingness of the public to believe the worst about the reforms was exploited to the extreme in stories that were promulgated about death panels and rationing of healthcare services—fallacies that put an end to provisions relating to end-of-life care and comparative effectiveness (Chandra, Jena & Skinner 2011). Australians are amazed that Americans fell for the arguments and language that were invoked then—and continue to this day—and we find it incongruous that the world’s most powerful nation is so hindered by a xenophobia ungrounded in reality. IMPLEMENTING THE ACAPassing a law of the scope and magnitude of the ACA is just the beginning. The real action around healthcare reform lies in the thousands of pages of implementing regulations that must be drafted and integrated with or replace existing regulations. And there are dozens of different funding and delivery systems. As Brill highlights, getting so many regulations on so many key issues written was a challenge that was not well met. The prime problem was the continuing issue of who was in charge, along with conflicting priorities and an inability to make the minor amendments that are always necessary for major legislation because of the increasingly partisan Congress. In Part 2, Brill serves up an informed and enlightening (and consequently excruciating) story of continued Administration infighting and the siloed responsibilities over a key aspect of the implementation of the ACA—the building of the federal health insurance exchange. The ACA provides for each state to create a Health Benefit Exchange. This is an online ‘shopping centre’ that brings insurance companies together to offer affordable insurance plans, where people who don’t get their insurance through their employer, Medicare or Medicaid can go to buy coverage. A federal exchange was also established to serve the populations of those states which chose not to establish an exchange. That turned out to be a majority, so the federal exchange needed to cover the populations of 36 states—a huge task. The problems of building a sophisticated computer system that was simple for consumers to use at the front end, but that provided the complexity and safeguards needed at the back end, were aggravated by a lack of in-house knowledge about what was needed and the inadequate expertise and experience of the consultants who were brought in. No-one knew who was in charge and when questions were raised, the usual response of risk-averse senior bureaucrats was not to investigate but to reassign responsibilities. Such warnings as were bravely delivered were ignored or even rejected. It was a recipe for real disaster. Disaster was exactly what the opponents of the ACA wanted. The attacks on Obamacare (originally a term of derision but then willingly adopted by the President) have only grown since its enactment. The House of Representatives has voted more than 50 times to repeal the law, and there have been two cases taken to the Supreme Court (although only one of these fell into the time frame of this book). Obamacare was a key issue in the 2012 presidential campaign, which saw the delicious irony of Mitt Romney denouncing what he had implemented, as the very effective precursor to the ACA, in Massachusetts. It will certainly be an issue again in the 2016 campaign.
But as Part 3 shows, somehow, at the last minute, disaster was (mostly) averted. What could have been a dreadful failure was a very wonky system in October 2013 when the exchange was launched. While people struggled to use the clunky system, they were visiting the site and (in smaller numbers) enrolling. Brill provides a very detailed description of how the system was finally fixed that is unlikely to be meaningful to most Australians but does provide some lessons around the value of expertise and facing facts and the poison of hubris that are relevant to those who work in e-health. A ‘Tiger Team’ of IT geeks saved the day. By the time the enrolment deadline of 31 March 2014 arrived, the site was able to handle the traffic generated by the final enrolment blitz. In fact, by midnight 31 March, 4.8 million people were enrolled through the federal website and 2.3 million through state exchanges, which was 100,000 people above the original target (Kaiser Health News 2014). There was palpable relief in the Obama Administration—after four long and troubled years of implementation, Obamacare was finally happening. WHAT CAN BE LEARNT FROM THIS SAGA?Brill rightly recognises the importance of what has been achieved through the ACA and the significance and cost of the lost opportunities to make the law even better. However entrenched and systemic problems cannot be changed overnight, no matter how good the reforms, and there will continue to be dreadful stories about America’s healthcare for many years to come. A Hillary Clinton victory in 2016 will facilitate the ongoing adjustments that are needed to a law of this scope and importance; a Republican victory will once again place Obamacare in jeopardy, although there would be strong public opposition to a complete repeal of the benefits they are currently receiving. In an interesting turn of affairs, just as he was pondering how to conclude his book, Brill was rushed to hospital for major surgery for an aortic aneurysm. This gave him a new perspective on the healthcare system and its costs. At the time, all he and his family wanted was the best possible care, later he wrestled with and queried enormous, incomprehensible bills. This experience led him to formulate a proposal for ‘fixing’ Obamacare. However it is clear that while his experience provides a specific, personal example of both the best and the worst of American healthcare, it has not given him any special policy insight. To the reader, I say: conclude the book when Part 4 starts—there is little to be gained from reading further. I think where Brill is headed with his ideas is that he wants to reduce the number of insurers and/or providers in the system as a way of cutting out the middlemen and their excessive mark-ups. That makes sense—single payer systems (such as Australia’s Medicare) are the most cost efficient (Kulesher & Forrestal 2014). But he would leave how this should happen to the most aggressive providers in the market place. Here-in lies the problem: competition doesn’t work in healthcare because healthcare services are not simply commodities, and the failure to deliver them equitably has consequences for individuals, the community and the nation. It was the growing cost of this marketplace failure that drove President Obama’s reforms in the first place. What Brill is really aiming for can only be achieved with universal healthcare. IMPLICATIONS FOR AUSTRALIAThe most important lesson for Australia is not one that Brill makes directly but it does come through indirectly. Reform requires vision, brave leadership, persistence in the face of adversity and resilience. It’s definitely not a task for the faint hearted interested in quick fixes. Real reform needs a holistic approach such as that encompassed by the ACA—tackling not just expanded coverage and affordability but issues such as cost controls, quality and safety, encouraging innovative new ways to deliver and fund services, workforce expansion, prevention and reducing health disparities.
Whitlam’s struggle to implement Medicare and the Hawke Government’s struggle to revive it are not well known to many Australians, and so there is little sense of the leadership required. The health reforms of the Rudd-Gillard Governments, now cast aside, were really reforms of the federal-state financing of public hospitals. The American experience with Obamacare shows how important it is to look beyond four year political cycles, and that there are no silver bullets to achieve the significant reforms needed to a deliver a healthcare system for the 21st century. Reviews of Medicare items, isolated pilot programs for the better management of diabetes and e-health records will not deliver meaningful and lasting achieve improvements in efficiencies, quality and safety if they are not done under the umbrella of a long-term, articulated and planned reform vision. CONCLUSIONBrill covers the issues in Obamacare up to mid-2014 so the full extent of the successful implementation of the reforms is not discussed. The scene in mid-2015 is very encouraging: nearly 90 per cent of Americans now have health insurance and the percentage of uninsured is at an historic low; the estimated cost of Obamacare continues to fall due to lower-than-expected cost of health insurance premiums; forecasts of healthcare spending are down; there are real improvements in quality and safety; 31 states have expanded Medicaid cover; and the law has withstood two Supreme Court challenges (Krugman 2015). It appears that despite its flaws and the huge opposition to the idea if not the provisions, the ACA is working as intended and it is here to stay. Stephen Brill has written one of the first books about this great achievement. There will be many more to come. REFERENCESAravois, J. 2014, Poll: Americans hate Obamacare (until they use it), Americans Blog, 18 November [Online], Available: http://americablog.com/2014/11/poll-americans-hate-obamacare-unless-actuall-use-love.html [25 July 2015]. Chandra, A., Jena, A.B. & Skinner, A.S. 2011, ‘The pragmatist’s approach to comparative effectiveness research’, Journal of Economic Perspectives, vol. 25, no. 2, pp. 27–46. Goodman, L. & Norbeck, T. 2014, ‘A look back at how the President was able to sign Obamacare into law four years ago’, Forbes Magazine, 26 March [Online], Available: http://www.forbes.com/sites/physiciansfoundation/2014/03/26/a-look-back-at-how-the-president-was-able-to-sign-obamacare-into-law-four-years-ago/ [25 July 2015]. Kaiser Health News 2014, White House touts breaking original enrolment target, KHN Morning Briefing, 1 April [Online], Available: http://khn.org/morning-breakout/white-house-announces-7-million-enrollees/ [25 July 2015]. Krugman, P. 2015, ‘Hooray for Obamacare’, New York Times, 25 June [Online], Available: http://www.nytimes.com/2015/06/26/opinion/paul-krugman-hooray-for-the-aca.html?_r=0 [25 July 2015]. Kulesher, R. & Forrestal, E. 2014, ‘International models of health systems financing’, Journal of Hospital Administration, vol. 3, no. 4, pp. 127–139. Pear, R. & Herszenhorn, D. 2009, ‘Baucus offers health plan but lacks GOP support’, New York Times, 16 September [Online], Available: http://www.nytimes.com/2009/09/17/health/policy/17health.html?_r=0 [25 July 2015]. Reich, D. & Kogan, R. 2015, Introduction to budget ‘reconciliation’, Center on Budget and Policy Priorities, 22 January [Online], Available: http://www.cbpp.org/research/introduction-to-budget-reconciliation [25 July 2015]. Rosenbaum, S. 2011, ‘The Patient Protection and Affordable Care Act: Implications for public health policy and practice’, Public Health Reports, vol. 126, no. 1, pp. 130–135. Russell, L. 2013, ‘Explainer: What is Obamacare?’, The Conversation, 30 September [Online], Available: http://theconversation.com/explainer-what-is-obamacare-18642 [25 July 2015]. Supreme Court of the United States No. 14-114. King v Burwell decision. 25 June 2015 [Online], Available: http://www.supremecourt.gov/opinions/14pdf/14-114_qol1.pdf [25 July 2015]. Dr Lesley Russell is an Adjunct Associate Professor at the Menzies Centre for Health Policy, University of Sydney. During 2009–10 she was a Visiting Fellow at the Center for American Progress, and in 2011–12 served as a Senior Policy Advisor to the US Surgeon General. She has also worked as a senior advisor on health in the US Congress and the Australian Parliament. View other articles by Lesley Russell:
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