Health Insurance, Risk, and Responsibility after the Patient Protection and Affordable Care Act
The Individual Mandate, Sovereignty, and the Ends of Good Government: A Reply to Professor Randy Barnett
The conservative and libertarian objections to the individual mandate implicate some of the deepest and most contested questions concerning our Constitution, constitutionalism in general, and the relation of positive law—including constitutional law—to the ends of good government. It is no exaggeration to say that it even implicates questions about who we are. Professor Randy Barnett has recently argued that the mandate raises questions about the sovereignty of “We the People.” Specifically, Barnett contends that the mandate is unconstitutional because it violates the people’s sovereignty by “commandeering” them into buying health insurance. Why, one must therefore ask, is it wrong for a government to commandeer its own people?
From Health Care Law to the Social Determinants of Health: A Public Health Law Research Perspective
Americans, including opinion elites, do not spontaneously consider social influences on health. They tend to think about health and illness in medical terms, as something that starts at the doctor’s office, the hospital, or the pharmacy. They recognize the impact of health care on health, and spontaneously recognize the importance of prevention, but they do not tend to think of social factors that impact health.
They do, however, recognize social factors and see their importance when primed. Raising awareness of social factors is not difficult, although people more readily recognize voluntary behaviors that cause illness (e.g., smoking, overeating) than arbitrary or social factors (e.g., race, ethnicity, income).
In these tendencies, health lawyers may not differ from everyone else. Even health lawyers who are attuned to the social determinants of health—a phrase, by the way, that this RWJF report advises is just too wonky for general public consumption—often do not find themselves in a position to actively address them in their research. Yet even as health lawyers and health care policy experts celebrate the enactment of the Patient Protection and Affordable Care Act—a landmark policy achievement, no matter its ultimate fate—we have at least two good reasons to keep social determinants in mind: first, the relatively dismal state of population health in the United States is not caused primarily by a lack of health care, and second, even universal health care access will not make us substantially healthier as a society. Health care is a huge part of the American economy and undeniably a public good, but the stakes are too high for the public—and health law scholars—to continue neglecting the robust social structures that are shaping America’s well-being. Compared to other countries with our resources, and even some countries without them, we are doing poorly, and it is well past time we all got sick of it.
Government as the Crucible for Free Market Health Care: Regulation, Reimbursement, and Reform
In no industry is this interplay more important than in health care. A series of government programs, most initiated during the latter half of the twentieth century, literally created the health care system as it exists in the United States today. Hospitals grew to their present size and technological complexity because of funding provided by the Hill-Burton Act and Medicare. Medicare also funds physician training, as well as reimbursement for many physician-provided services. Pharmaceutical manufacturers rely on the National Institutes of Health to support basic biomedical research that leads to the development of new drugs. A huge tax subsidy for employer-sponsored coverage finances, in large part, the health insurance industry. Without these programs, none of these health care industry segments could have approached its present size or vitality. To ignore this dynamic is to ignore the true nature of American health care and to fundamentally misunderstand the opportunities for reform.
The Patient Protection and Affordable Care Act (PPACA) continues and extends this paradigm. It will expand coverage in large part by facilitating broader demand for individual policies, which will revitalize private insurance markets. It will also extend Medicaid, a program that in most states is administered by private managed care plans, to millions more beneficiaries. Far from representing a government takeover or novel incursion into the health care system, PPACA extends the underlying arrangement that has built and sustains the structure of American health care as it exists today. In the American health care system, private innovation and government intervention represent not opposing forces, but rather partners in a common enterprise.
Regulating Patient Safety: The Patient Protection and Affordable Care Act
Analysis of patient safety rests on four basic propositions. First, patient injury (ranging from minor injuries to death) is a recurring feature of health care and negatively affects roughly one in every ten patients, according to a systematic review of the literature. Findings by the Inspector General within the Medicare context support this estimated patient-injury rate. As these statistics attest, patient injury eludes easy solutions.
Restoring Health to Health Reform: Integrating Medicine and Public Health to Advance the Population’s Well-Being
Given the expansion of the health care enterprise, it is not surprising that the American political community is deeply focused on it. For a generation, health reform has been a dominant domestic political issue. The nation recently went through the politically grueling passage of the first comprehensive health care reform since the 1960s, with cavernous political divides on the role of government in financing and delivery of care. Critics portrayed modest proposals for cost-effectiveness comparisons—routinely accepted in other advanced democracies—as “death panels,” and the final law inhibits the use of quality cost-effectiveness analysis in coverage, reimbursement, and incentive structures. Within weeks of the law’s passage, twenty states filed lawsuits challenging the constitutionality of the individual mandate—a fundamental component of the reform.
Commerce Clause Challenges to Health Care Reform
Something went wrong on the way to the courthouse, however. District courts in Virginia and Florida have ruled that Congress lacks the constitutional authority to require legal residents to obtain health insurance. Three other federal judges have upheld federal authority in cases that special interest groups and individual litigants brought.
Despite the split outcomes (which fell along the party lines of the judges’ appointing presidents), these courts agreed on several issues. No court thus far has found a violation of individual rights protected by the Bill of Rights, and no court so far has accepted (or indicated much support for) the government’s position that Congress’s tax power supports the mandate. In Florida ex rel. McCollum v. U.S. Department of Health & Human Services, the Northern District of Florida rejected the states’ arguments that forcing them to implement key PPACA provisions violates the Tenth Amendment. Thus the Commerce Clause and the ancillary Necessary and Proper Clause will be the primary focus of ongoing litigation over the constitutionality of health care reform. Conservative legal scholars who have previously criticized the expansive scope of federal commerce power see in this litigation the opportunity to impose new limits on its capaciousness. Accordingly, the Commerce Clause arguments merit close attention in order to understand their strengths, weaknesses, and implications for other areas of constitutional doctrine and public policy.
Three Models of Health Insurance: The Conceptual Pluralism of The Patient Protection And Affordable Care Act
The new health reform law, the Patient Protection and Affordable Care Act of 2010 (PPACA), manifests this “conceptual pluralism.” It evokes all three of these notions of the types of risks Americans should share—now more collectively post-reform—through insurance. While the goals of these three theories dovetail at times (e.g., promoting health will in some cases also reduce medical care costs), at other times they are at odds. Conceptual pluralism thus complicates implementation of PPACA as regulators must manage tensions and make tradeoffs among these goals.
Health Insurance Reform And Intimations Of Citizenship
At face value, PPACA primarily seeks to make the individual and small-group health insurance markets rational and workable, to fill the enormous gap that has existed in coverage, and to create insurance exchanges to regulate quality and police access. Upon full implementation, it will achieve nearly universal, but also probably quite uneven, coverage and will perpetuate a deeply fragmented model of social insurance. If one imagines the health care system as a political domain, with the various institutions and subsystems as components, PPACA is less like our Constitution and more like a reinvention of the Articles of Confederation. Under PPACA, health insurance in the United States will remain a federated collection of risk pools, located in workplaces, public systems, and the new exchanges.
Nonetheless, the debate that has accompanied PPACA’s adoption is about something bigger than spending curves, comparative effectiveness, or even medical-loss ratios (not that any of those should be considered trivial). The deep structure of this hyper-technical statute gestures to the existence of a health care universe that, in Habermasian terms, could be its own lifeworld. For persons with chronic diseases, the health care system truly becomes a world unto itself. For others, it may be more like a foreign country visited for an intense but brief period of time, or perhaps one to which we pay little attention. Although the internal operations of the health care universe are seldom thought of as political, its power is such that, upon entry, it may bring us life or death, profit or poverty, autonomy or dependency.
Convicts and Convictions: Some Lessons From Transportation for Health Reform
filibuster-proof majority in the Senate and a sizeable majority in the House, the decades-long road to Democratic delivery of comprehensive health reform had finally come to an end (along with conservatism and the Republican party). President Obama had promised to deliver health reform—although he allowed that if you liked your existing arrangements, you could keep them. Polls indicated that Democrats had maintained their traditional edge over Republicans in public trust to handle health care. Pharmaceutical companies and insurers had been bought off or intimidated into silence, ensuring there would not be a repeat of the “Harry and Louise” commercials that helped sink the Clinton health reform effort. The path to success was clear, as long as the Administration let Congress write the bill. Once Congress enacted the Patient Protection and Affordable Care Act (PPACA), Democrats would receive the thanks of a grateful nation, and their electoral dominance would be assured. The only real question was whether to include a public option to placate the left; everything else appeared to be a done deal.
Reality intruded, as it always does. The enactment of PPACA was an excruciating and extended process, with twists and turns that a novelist would have been embarrassed to include in a work of fiction. Former Senate Majority Leader Tom Daschle, the President’s first choice to lead the Department of Health and Human Services and run the health reform effort, was forced to withdraw his nomination after it emerged that he had underpaid his taxes by more than $100,000. Opposition to PPACA led to loud and rancorous public meetings between legislators and their constituents during the summer of 2009. Opponents accused proponents of lying about whether people could keep their health care coverage and whether PPACA would cut Medicare; proponents accused opponents of lying about “death panels” and the “government takeover” of health care. The “public option” was in, then out, then (maybe) back in again. Medicare for the near-elderly was in, then out.
Reflections on the National Association of Insurance Commissioners and the Implementation of the Patient Protection And Affordable Care Act
Yet PPACA also expands the responsibility and authority of the states. The states, for example, are primarily responsible for enforcing PPACA’s insurance regulatory reforms. They are also responsible for establishing the exchanges—the entities through which Americans will purchase insurance and apply for subsidies—and for managing reinsurance and risk adjustment programs. According to the Act, states will be responsible for reviewing health insurance premiums and for assisting consumers with complaints against their insurers.
However, PPACA not only increases the authority of the federal and state governments, it also empowers and assigns significant responsibility to a private agency: the National Association of Insurance Commissioners (NAIC). The NAIC is a private, nonprofit organization that has coordinated the activities of the nation’s state and territorial insurance commissioners since 1871. Its members are the insurance commissioners of the states and territories. Traditionally, the NAIC has drafted model statutes and regulations for the states, served as a clearinghouse for insurance data, and provided a forum for insurance commissioners to discuss and address regulatory issues.
The Freedom of Health
since 2006, when a three-judge panel of the D.C. Circuit recognized
a fundamental liberty interest in obtaining experimental drugs (later
overturned en banc), health law scholars have debated the
usefulness and propriety of protecting individuals’ liberty in medical
decisionmaking. Unlike the international
“human right to health,” this American “freedom of health” would
operate primarily as a restriction on—rather than as an obligation
for—governmental regulation of medical decisionmaking.
That is, in the somewhat disputed parlance of constitutional law, the
right would be a negative one rather than a positive one,
protected alongside other negative
liberties under the Fourteenth Amendment’s guarantee of substantive due process.
Health Reform and Public Health: Will Good Policies but Bad Politics Combine to Produce Bad Policy?
Despite these compromises, public health researchers and practitioners have reason to celebrate. Simply put, PPACA fundamentally altered and improved the public health infrastructure of the United States. Fully implemented, PPACA promises to markedly improve clinical preventive services and transform our nation’s response to traditional centerpiece public health concerns, including HIV/AIDS, substance abuse, mental health disorders, and other conditions.
Of Stars and Proper Alignment: Scanning the Heavens for the Future of Health care Reform
But as this is written, in March 2011, the Affordable Care Act’s future, and the future of health care reform more broadly, is far from certain. Two federal district courts have ruled that what many regard as the Act’s keystone provision, the individual mandate to purchase health insurance, The first court concluded that the offending provision can be excised from the law and the remainder left intact; the second held that the provision is so integral to the overall legislative scheme that the entire law must fail. Since three other district courts have already rejected challenges to the Act’s constitutionality, it is virtually certain that the Supreme Court will ultimately review the Act. If the case takes the traditional route through the courts of appeals, then it should reach the Supreme Court around the time of the national elections in November 2012. On a parallel track, the newly installed 112th Congress has begun to consider a repeal of the law. Despite the formidable obstacles that a repeal attempt would have to overcome—unlikely passage in the Senate and a likely presidential veto—the winds of opposition are blowing so strongly that a repeal is at least within the realm of possibility. Setting aside these challenges and assuming the Affordable Care Act survives, it is an open question whether the Act can deliver on its very ambitious promise to secure basic health care coverage for almost our entire population without bankrupting the nation’s health care financing system or reducing the quality of care those who are now covered enjoy. Clearly the road to universal health care is a difficult one for the United States. Like previous trips, this one may again prove to be a road to nowhere.