- The Washington Times - Monday, December 5, 2011

As one of a number of attorneys general challenging the federal health care law, I am cautiously optimistic that the Supreme Court will strike down the law and its requirement that

every citizen buy government-approved health insurance. Congress clearly has the power to regulate commerce, but using that power to force individuals into commerce goes too far. If the federal government crosses that line, it will have unlimited power to order citizens to buy virtually anything in the name of the “public good.” That is why I have said that Virginia’s lawsuit against the federal health care law is about liberty, not health care.

But I am not against health care reform. In fact, now is the time for Congress to replace the current unconstitutional law with measures that address our real health care problems while getting government mostly out of the way. The more the government is involved, the further a patient is removed from the decisions about his or her own health care and the less incentive he or she has to keep costs down.

True federal reform should bring the consumer closer to the actual cost of care, which ultimately brings prices down through consumer choice and competition. Reforms should:

c Allow the purchase of insurance across state lines. Policies in different states cover different conditions and treatments. It should not be illegal for a Virginia consumer to choose a Colorado policy if that policy has the coverage and price that best fit his or her needs. This was a reform I tried to pass in Virginia as a state senator.

c Encourage personal ownership of insurance policies by giving individuals who purchase their own insurance the same tax deduction employers get when they purchase insurance for their employees. This would reduce the out-of-pocket cost of premiums for individual policies and would reduce the problem of nonportability if one leaves an employer. It also would allow the individual consumer to shop the marketplace for the amount and type of coverage he or she needs and is willing to pay for.

c Incentivize the use of high deductible health savings accounts, which have lower premiums because they allow consumers to pay out-of-pocket for routine expenses while giving them insurance protection against more catastrophic costs. These accounts create incentives for individuals to use only the medical services they feel are necessary, which keeps premiums more affordable.

c Provide states with the flexibility to implement other market-based reforms, such as turning Medicaid into block grants based on population so states are not incentivized to grow their Medicaid rolls. Medicaid regulations on states also should be entirely eliminated.

c Allow patients to choose how to spend more of their health-care dollars. For Medicare, this might look like a voucher system instead of government single-payer.

In addition, while the federal government cannot mandate that the states do the following, states should consider these steps to reduce health care costs for consumers:

c Reduce the number of mandated benefits that state legislatures require insurers to offer in their policies. Mandates increase the cost of premiums dramatically. Why should consumers be forced to pay for benefits that they likely will never use? Instead, allow additional benefit packages to be offered as add-ons to a cost-efficient base package of benefits.

c Require transparency in pricing and outcomes, so apples-to-apples comparisons among providers are easier for consumers to evaluate.

c Put caps on malpractice liability. The cost of the enormous premiums doctors pay for malpractice insurance ultimately is borne by consumers through higher health insurance premiums and the higher costs imposed by expensive defensive medicine practices.

No alternative to the current federal health care law should have a mandate that forces citizens to buy health insurance. The system should open the way for consumer-driven choices and less government meddling. There are no silver bullets, but an empowered, informed, cost-conscious consumer who can choose among many competing providers based on price and quality will encourage innovation, force prices lower and improve the efficiency of the entire system, leading to increased access and better health care for all Americans.

Kenneth T. Cuccinelli II is attorney general of Virginia.