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Rights to Healthcare in the United States: Inherently Unstable

Published online by Cambridge University Press:  06 January 2021

David Orentlicher
David Orentlicher*
Affiliation:
Indiana University Robert H. McKinney School of Law; Harvard Medical School, Harvard Law School
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Extract

Although international covenants have long recognized a fundamental right to healthcare, and other countries provide healthcare coverage for all of their citizens, rights to healthcare in the United States have been adopted only grudgingly, and in a manner that is inherently unstable. While a solid right to healthcare would provide much benefit to individuals and society, the political and judicial branches of the U.S. government have granted rights that are incomplete and vulnerable to erosion over time.

Unfortunately, enactment of the Patient Protection and Affordable Care Act (ACA) does not change these fundamental weaknesses in the regime of U.S. healthcare rights. Millions of Americans will remain uninsured after ACA takes full effect, and rather than creating a more stable right to healthcare, ACA gives unstable rights to more people. As a result, even if ACA survives its constitutional challenges, access to healthcare still will be threatened by the potential for attrition of the rights that ACA provides.

Type
Article
Information
American Journal of Law & Medicine , Volume 38 , Issue 2-3 , June 2012 , pp. 326 - 347
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 2012

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Footnotes

This Article builds on an earlier piece, David Orentlicher, Health Care Reform: Beyond Ideology, 301 JAMA 1816 (2009).

References

1 Kinney, Eleanor D., Recognition of the International Human Right to Health and Health Care in the United States, 60 Rutgers L. Rev. 335, 338-39 (2008)Google Scholar (describing the right to healthcare in the 1948 constitution of the World Health Organization and in the 1948 Universal Declaration of Human Rights).

2 See id. at 348-52 (discussing debate over whether U.S. federal government should sponsor national health insurance legislation, including President Truman's and President Clinton's efforts for health reform).

3 See Monroe, James, American Political Culture and the Search for Lessons from Abroad, 15 J. Health Pol. Pol’Y & L. 129 (1990)Google Scholar, for a summary of the impact of American political culture and institutions on health policy.

4 Wideman v. Shallowford Cmty. Hosp., 826 F.2d 1030, 1033 (11th Cir. 1987) (“The Constitution is ‘a charter of negative rather than positive liberties.’”) (quoting Jackson v. City of Joliet, 715 F.2d 1200, 1203 (7th Cir. 1983)).

5 Id.

6 Id. (“[The Constitution] tells the state to let people alone; it does not require the federal government or the state to provide services … .”) (quoting Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982)).

7 Harris v. McRae, 448 U.S. 297 (1980)

8 Wideman, 826 F.2d at 1033. As the abortion example indicates, a refusal by government to provide coverage for care can effectively mean a denial of care. Medicare policy also illustrates this connection between funding and access. If the Medicare program decides not to reimburse physicians for a particular treatment, the treatment will not be available for the great majority of Medicare recipients. Cf. N.Y. State Ophthalmological Soc’y v. Bowen, 854 F.2d 1379 (D.C. Cir. 1988) (preventing physicians from billing Medicare recipients for the cost of an assistant surgeon during cataract surgery without prior approval by the Medicare program).

9 MARK A. HALL, MARY ANNE BOBINSKI & DAVID ORENTLICHER, HEALTH CARE LAW AND ETHICS 120 (7th ed. 2007) (discussing institutional responsibilities of mental hospitals).

10 Wideman, 826 F.2d at 1032 (“[W]e can discern no general right, based upon either the Constitution or federal statutes, to the provision of medical treatment and services by a state or municipality.”).

11 See HALL, BOBINSKI & ORENTLICHER, supra note 9, at 120 n.5.

12 A number of states recognized a right to receive emergency care at a hospital by common law. Id. at 106-09, 114.

13 See JONATHAN OBERLANDER, THE POLITICAL LIFE OF MEDICARE 18-22 (2003), for a general discussion of national health insurance between 1912 and 1952.

14 Id. at 18.

15 Germany was the first country to establish a government plan, doing so in 1883. Other European countries followed, with England adopting a plan in 1911. Id. (citing RONALD NUMBERS, ALMOST PERSUADED: AMERICAN PHYSICIANS AND COMPULSORY HEALTH INSURANCE 11 (1968)).

16 The American Association for Labor Legislation included academics, labor activists, and lawyers. Id.

17 Id. at 19.

18 Id. (citing ROBERT J. MYERS, MEDICARE 5 (1970)).

19 Id. (citing BEATRIX HOFFMAN, THE WAGES OF SICKNESS: THE POLITICS OF HEALTH INSURANCE IN PROGRESSIVE AMERICA 2 (2001)).

20 Id. at 19-20.

21 THEODORE R. MARMOR, THE POLITICS OF MEDICARE 5 (2d ed. 2000).

22 Id.

23 OBERLANDER, supra note 13, at 18.

24 Id. at 20.

25 Id. at 21.

26 MARMOR, supra note 21, at 5-6; OBERLANDER, supra note 13, at 20-21.

27 OBERLANDER, supra note 13, at 21-22.

28 MARMOR, supra note 21, at 8-9; OBERLANDER, supra note 13, at 21-22.

29 OBERLANDER, supra note 13, at 22-23.

30 Cohen later became Secretary of the U.S. Department of Health, Education and Welfare under President Lyndon Baines Johnson. Falk served in senior positions at the Social Security Administration and had a distinguished academic career at the University of Chicago and Yale University. See MARMOR, supra note 21, at 9 nn.2-3; Isidore Sydney Falk, SOCIAL SECURITY ONLINE: SOCIAL SECURITY HISTORY, http://www.ssa.gov/history/ifalk.html (last visited Feb. 25, 2012).

31 OBERLANDER, supra note 13, at 23-24.

32 Id.

33 Id.

34 Id.

35 Id. at 24.

36 MARMOR, supra note 21, at 11-12; OBERLANDER, supra note 13, at 23-24.

37 OBERLANDER, supra note 13, at 25.

38 Medicare includes four major components. Part A covers hospital services and is financed by a payroll tax, equally shared by employers and employees. Currently, employers and employees each pay a payroll tax of 1.45% of the employee's earnings. Part A is a mandatory program. KAISER FAM. FOUND., MEDICARE: A PRIMER 1, 14 (2010), available at www.kff.org/medicare/upload/7615-03.pdf. Part B covers physicians’ services, is voluntary (and taken by ninety-five percent of those who are eligible), and requires a monthly premium (which is deducted from Social Security payments). The monthly premium covers about twenty-five percent of costs, with the remainder covered by general federal revenues. Id. at 1-2, 14. Part C offers beneficiaries the option of receiving their care from a private Medicare Advantage healthcare plan. Id. at 1. Part D was added in 2006 and provides a prescription drug benefit. Id.

39 MARMOR, supra note 21, at 15-16, 96.

40 OBERLANDER, supra note 13, at 24-25.

41 Id. at 29.

42 MARMOR, supra note 21, at 56-57; OBERLANDER, supra note 13, at 29.

43 OBERLANDER, supra note 13, at 24.

44 Two-thirds of the costs would be covered by general revenues and one-third by individual premiums. Id. at 30.

45 Id. at 30-31.

46 Id. at 30.

47 Id.

48 Id.

49 MARMOR, supra note 21, at 46-47.

50 OBERLANDER, supra note 13, at 30-31.

51 Id.

52 Id.

53 Id.

54 Id. at 31.

55 Id. at 32. I use the term “deserving” not to indicate my own view, but to characterize what I believe is a real social ethic in the United States.

56 Id. 23-24.

57 Id. at 24.

58 See Mann, Cindy & Westermoreland, Tim, Attending to Medicaid, 32 J.L. Med. & Ethics 416, 418 (2004)Google ScholarPubMed (“The Medicaid program began by focusing narrowly on … children, their ‘caretaker relatives,’ and the ‘aged, blind and disabled’—all persons deemed too vulnerable to provide insurance for themselves.” (quoting Social Security Amendments of 1965, Pub. L. No. 980369, 98 Stat. 494 (codified as amended in scattered sections of 42 U.S.C.))).

59 KAISER FAM. FOUND., MEDICAID: A PRIMER 8 (2010), available at http://www.kff.org/medicaid/upload/7334-04.pdf [hereinafter KAISER FAM. FOUND., MEDICAID].

60 See Mann & Westermoreland, supra note 58, at 418.

61 KAISER FAM. FOUND., MEDICAID, supra note 59, at 8.

62 Id.

63 Id.

64 Id. at 8-9. Indigent seniors also qualify for Medicaid benefits to cover the costs of their Medicare premiums and co-payments.

65 JONATHAN ENGEL, POOR PEOPLE's MEDICINE: MEDICAID AND AMERICAN CHARITY CARE SINCE 1965, at 48 (2006). 42 U.S.C. § 1396u-1 creates the link between TANF and Medicaid. In addition to covering families with children and a single parent, the federal welfare programs also provide aid to the blind and others with permanent disabilities. Id. at 48. States have the option to extend Medicaid coverage to other poor persons, but their freedom to do so is limited. Id.

66 Id. at 49; KAISER FAM. FOUND., MEDICAID, supra note 59, at 8, 12.

67 MATTHEW BROADDUS ET AL., CTR. FOR BUDGET & POLICY PRIORITIES, EXPANDING FAMILY COVERAGE: STATES’ MEDICAID ELIGIBILITY POLICIES FOR WORKING FAMILIES IN THE YEAR 2000, at 36 (2002), http://www.cbpp.org/1-2-02health.pdf.

68 KAISER FAM. FOUND., MEDICAID, supra note 59, at 8.

69 Id. at 13.

70 Id. at 8-9.

71 Id. at 13.

72 Id. at 30.

73 PETER K. EISINGER, TOWARD AN END TO HUNGER IN AMERICA 51-52 (1998).

74 See generally Brown, Lawrence D. & Sparer, Michael S., Poor Program's Progress: The Unanticipated Politics of Medicaid Policy, 22 Health Aff. 31 (2003)CrossRefGoogle ScholarPubMed.

75 USDA Food Stamp Program: Food Stamps Make America Stronger, FOOD & NUTRITION SERV., U.S. DEP't OF AGRIC., http://www.fns.usda.gov/cga/FactSheets/SNAP.htm (last visited Feb. 26, 2012).

76 See LIZ SCHOTT, STACY DEAN & JOCELYN GUYER, THE CENTER ON BUDGET AND POLICY PRIORITIES, COORDINATING MEDICAID AND FOOD STAMPS 5-6 (2001), available at http://www.cbpp.org/archiveSite/9-14-01fs.pdf.

77 See id.

78 See id.

79 ENGEL, supra note 65, at 51.

80 KAISER FAM. FOUND., MEDICAID, supra note 59, at 7.

81 ENGEL, supra note 65, at 48.

82 KAISER FAM. FOUND., MEDICAID, supra note 59, at 5.

83 Mann & Westermoreland, supra note 58, at 418 (citing JOHN HOLAHAN, URBAN INST., VARIATIONS AMONG STATES IN HEALTH INSURANCE COVERAGE AND MEDICAL EXPENDITURES: HOW MUCH IS TOO MUCH? (2002), available at http://www.urban.org/UploadedPDF/310520_DP0207.pdf). This reflects data before Massachusetts adopted its 2006 healthcare reform.

84 See id. at 420.

85 Zuckerman, Stephen et al., Changes in Medicaid Physician Fees, 1998–2003: Implications for Physician Participation, W4 Health Aff. 374, 379 (2004)Google Scholar, available at http://content.healthaffairs.org/content/early/2004/06/23/hlthaff.w4.374.full.pdf.

86 In 2005, the differential narrowed significantly, but Medicaid in Maryland still reimbursed at only sixty-eight percent of the Medicare rate. MD. HEALTH CARE COMM’N, REPORT ON INCREASING REIMBURSEMENT RATES FOR PHYSICIANS PARTICIPATING IN THE MARYLAND MEDICAL ASSISTANCE PROGRAM AND MARYLAND CHILDREN's HEALTH PROGRAM 2 (2006), available at http://mhcc.maryland.gov/legislative/increasereimburserpt_0506.pdf.

87 Resneck, Jack Jr.,, Pletcher, Mark J. & Lozano, Nia, Medicare, Medicaid, and Access to Dermatologists: The Effect of Patient Insurance on Appointment Access and Wait Times, 50 J. Am. Acad. Dermatology 85, 88 (2004)CrossRefGoogle ScholarPubMed. This was not always the case. In its first years, Medicaid reimbursed doctors at higher rates than did private insurers. See ENGEL, supra note 65, at 63. As states found their Medicaid budgets unaffordable, they began to reduce reimbursement rates. See id. at 62- 63.

88 See CONG. BUDGET OFFICE, THE LONG-TERM BUDGET OUTLOOK 25 (June 2009).

89 ENGEL, supra note 65, at 52. My own medical experience validates this concern. At one time, I took care of patients at Wayne County Medical Center (which has since closed). The hospital was located in one of the western suburbs of Detroit but served patients throughout Wayne County, including residents of Detroit, the county seat. Many of the patients from Detroit lived more than ten miles from the hospital, and it was common for them to miss their follow-up appointments in the outpatient clinic because they had no good way to get to the hospital.

90 See id. at 52-53.

91 Friedman, Emily, The Compromise and the Afterthought: Medicare and Medicaid After 30 Years, 274 JAMA 278, 278-80 (1995)CrossRefGoogle ScholarPubMed.

92 See ENGEL, supra note 65, at 49-50, 60; see Friedman, supra note 91, at 280.

93 KAISER FAM. FOUND., MOVING AHEAD AMID FISCAL CHALLENGES: A LOOK AT MEDICAID SPENDING, COVERAGE AND POLICY TRENDS 22-23 (2011), available at http://kff.org/medicaid/upload/8248.pdf.

94 Id. at 11.

95 Id. at 7.

96 Id. at 38, 46-47.

97 Id. at 7.

98 Id. at 22.

99 KAISER COMM’N ON MEDICAID FACTS, SUMMARY OF HEALTHY INDIANA PLAN: KEY FACTS AND ISSUES (2008), available at http://www.kff.org/medicaid/upload/7786.pdf.

100 Dan Carden, State Enrolling More in Health Plan, Nw. IND. TIMES, Aug. 8, 2011, http://www.nwitimes.com/news/local/lake/gary/article_50744e52-9e45-58c6-9d94-d02011be62a2.html.

101 Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd (2006) [hereinafter EMTALA].

102 Id.

103 Id.

104 CONG. RESEARCH SERV., EMTALA: ACCESS TO EMERGENCY MEDICAL CARE 1-3 (2010), http://aging.senate.gov/crs/medicare20.pdf.

105 HALL, BOBINSKI & ORENTLICHER, supra note 9, at 126-27.

106 Medicaid: Eligibility, CTRS. FOR MEDICARE & MEDICAID SERVS., http://www.medicaid.gov/AffordableCareAct/Provisions/Eligibility.html (last visited Mar. 2, 2012).

107 Saving Money for Families and Small Businesses, U.S. DEP't OF HEALTH & HUMAN SERVS., http://www.healthcare.gov/blog/2011/01/saving-money.html (last visited Mar. 2, 2012).

108 See KAISER FAM. FOUND., MEDICAID COVERAGE AND SPENDING IN HEALTH REFORM: NATIONAL AND STATE-BY-STATE RESULTS FOR ADULTS AT OR BELOW 133% FPL 1 (2010), available at http://www.kff.org/healthreform/upload/medicaid-coverage-and-spending-in-health-reformnational-and-state-by-state-results-for-adults-at-or-below-133-fpl.pdf (different participation rates key to variable analysis).

109 See id. (different participation rates imply different amounts of families who can afford to purchase health insurance after subsidies).

110 Id. at 2.

111 EMTALA, supra note 101.

112 See, e.g., Zamosky, Lisa, Medicare Guidance Is Here, L.A. TIMES (July 11, 2011)Google Scholar, http://articles.latimes.com/2011/jul/11/health/la-he-health-411-20110711 (“You’re not alone when it comes to having difficulty finding a doctor who will accept Medicare, the government health insurance program for seniors. People have long complained that doctors have either dropped out of the program or are no longer accepting new Medicare patients into their practice.”).

113 See id.

114 Nancy-Ann DeParle, The Facts About the Independent Payment Advisory Board, THE WHITE HOUSE BLOG (Apr. 20, 2011, 5:46 PM), http://www.whitehouse.gov/blog/2011/04/20/facts-aboutindependent-payment-advisory-board.

115 See id.

116 Id.

117 See Jost, Timothy, The Independent Payment Advisory Board, 363 New Eng. J. Med. 103, 104 (2010)CrossRefGoogle ScholarPubMed; Orentlicher, David, Cost Containment and the Patient Protection and Affordable Care Act, 6 Fiu L. Rev. 67, 82 (2010)Google Scholar.

118 See Konrad, Walecia, When Choosing Health Care, Know What You’ll Owe, N.Y. TIMES (July 9, 2010)Google Scholar, http://www.nytimes.com/2010/07/10/health/10patient.html.

119 KAISER FAM. FOUND., EMPLOYER HEALTH BENEFITS: 2011 ANNUAL SURVEY 67, 101-02, 116 (2011), available at http://ehbs.kff.org/pdf/2011/8225.pdf. While employees are assuming greater costs, the percentage share of the costs has not necessarily increased. Id. at 66.

120 See KAISER FAM. FOUND., MEDICAID, supra note 59, at 7 (explaining that Medicaid covers mostly low-income and high-need populations).

121 See id. (displaying the various means of coverage by poverty level).

122 See WILLIAM JULIUS WILSON, THE TRULY DISADVANTAGED: THE INNER CITY, THE UNDERCLASS, AND PUBLIC POLICY 119 (1987) (noting that taxpayers viewed Medicaid as paying for services provided to welfare recipients but not to themselves).

123 Id. at 118-20.

124 See id. at 118 (“[O]nly programs based on the principle of equality of life chances are capable of substantially helping the truly disadvantaged.”).

125 See KAISER FAM. FOUND., MEDICAID, supra note 59, at 1 (“[T]he law creates a national framework for near-universal coverage and also outlines a comprehensive set of strategies to improve care and contain costs.”).

126 See id. at 8 (“Under the new health reform law, nearly everyone under age 65—regardless of category—with income below a national ‘floor’ will be eligible for Medicaid … .”).

127 See, e.g., Himmelstein, David U. et al., Medical Bankruptcy in the United States, 2007: Results of a National Study, 122 Am. J. Med. 741 (2009)CrossRefGoogle ScholarPubMed; Catherine Arnst, Study Links Medical Costs and Personal Bankruptcy, BLOOMBERG BUSINESSWEEK (June 4, 2009, 8:45 AM), http://www.businessweek.com/bwdaily/dnflash/content/jun2009/db2009064_666715.htm; Kristof, Nicholas D., Until Medical Bills Do Us Part, N.Y. TIMES, Aug. 30, 2009Google Scholar, at 8WK. Ironically, ACA may not in fact reduce bankruptcies driven by medical costs. Many of those who file for bankruptcy carry insurance, but cannot afford their share of the costs. See Himmelstein, David U., Medical Bankruptcy in Massachusetts: Has Health Reform Made a Difference?, 124 Am. J. Med. 224 (2011)CrossRefGoogle ScholarPubMed (finding healthcare reform in Massachusetts did not reduce number of medical bankruptcies).

128 ALISHA COLEMAN-JENSEN ET AL., U.S. DEP't OF AGRIC., HOUSEHOLD FOOD SECURITY IN THE UNITED STATES IN 2010 (2011), available at www.ers.usda.gov/Publications/ERR125/err125.pdf.

129 See, e.g., id. at 25; Melanie Mason, Food Stamps for Good Food, THE NATION, Mar. 28, 2011, at 21.

130 See Mason, supra note 129, at 21.

131 Housing subsidies may be inadequate for the poor, but they are very generous for the well-todo. See GILLIAN REYNOLDS, THE URBAN INSTITUTE, OPPORTUNITY AND OWNERSHIP FACTS NO. 6, FEDERAL HOUSING SUBSIDIES: TO RENT OR TO OWN? (2007), available at http://www.urban.org/UploadedPDF/411592_housing_subsidies.pdf. There are important federal income tax deductions for home mortgage interest and state property taxes. Id. Moreover, the value of these deductions is greater for the wealthy. See id. Those with larger mortgages, higher property taxes because of higher home values, or higher marginal tax rates realize the larger deductions. See Surrey, Stanley S., Tax Incentives as a Device for Implementing Government Policy: A Comparison with Direct Government Expenditures, 83 Harv. L. Rev. 705, 722-23 (1970)CrossRefGoogle Scholar. Overall, nearly eighty percent of federal housing subsidies go to homeowners and only about twenty percent to subsidize rental payments for the indigent. See Peter Dreier, Federal Housing Subsidies: Who Benefits and Why?, in A RIGHT TO HOUSING: FOUNDATION FOR A NEW SOCIAL AGENDA 106-07 (Rachel G. Bratt et al. eds., 2006).

132 There had been earlier, temporary programs for housing, such as a housing program tied to the war effort in WWI. FROM TENEMENTS TO THE TAYLOR HOMES: IN SEARCH OF AN URBAN HOUSING POLICY IN TWENTIETH-CENTURY AMERICA 19-20 (John F. Bauman et al. eds., 2000).

133 Gail Radford, The Federal Government and Housing During the Great Depression, in FROM TENEMENTS TO THE TAYLOR HOMES, supra note 132, at 102, 104-06.

134 Id. By 1936, Congress established income limits for the housing projects. Id.

135 Id. at 108-09.

136 Id. at 112.

137 R. ALLEN HAYS, THE FEDERAL GOVERNMENT AND URBAN HOUSING: IDEOLOGY AND CHANGE IN PUBLIC POLICY 93 (1995).

138 Id. For families with three or more children, rent could not exceed seventeen percent of income. See LEONARD FREEDMAN, PUBLIC HOUSING: THE POLITICS OF POVERTY 105-06 (1969).

139 FREEDMAN, supra note 138, at 106-07.

140 Radford, supra note 133, at 111.

141 Id.

142 Id. (citing per unit spending caps of $5000).

143 FREEDMAN, supra note 138, at 116.

144 See Radford, supra note 133, at 111-12 (citing per unit spending caps of $5000).

145 Id. at 111-12; see also FREEDMAN, supra note 138, at 115.

146 See Radford, supra note 133, at 113 (citing New Yorker's review of first two public housing complexes in Brooklyn, which describes them as displaying “Leningrad formalism”).

147 See id. at 115

148 See FREEDMAN, supra note 138, at 115-16.

149 See id. at 116.

150 See id.

151 Roger Biles, Public Housing and the Postwar Urban Renaissance, 1949-1973, in FROM TENEMENTS TO THE TAYLOR HOMES, supra note 132, at 143, 149.

152 Id.

153 Id.

154 Roger Biles, Epilogue to TENEMENTS TO THE TAYLOR HOMES, supra note 132, at 265.

155 See Jacobs, Lawrence et al., The Oregon Health Plan and the Political Paradox of Rationing: What Advocates and Critics Have Claimed and What Oregon Did, 24 J. Health Pol. Pol’Y & L. 161, 163 (1999)Google Scholar; Orentlicher, David, Controlling Health Care Costs Through Public, Transparent Processes: The Conflict Between the Morally Right and the Socially Feasible, 36 J. Corp. L. 807, 813-14 (2011)Google Scholar.

156 Orentlicher, supra note 155, at 813-14.

157 Id.

158 Jacobs et al., supra note 155, at 165-68.

159 David Orentlicher, supra note 155, at 814.

160 See id. at 110.

161 See Sisko, Andrea M. et al., National Health Spending Projections: The Estimated Impact of Reform Through 2019, 29 Health Aff. 1933, 1936 (2010)CrossRefGoogle ScholarPubMed.

162 See id. at 1938-40 (describing projected future growth in the distinct areas of public and private healthcare coverage under the ACA).

163 See Monahan, Amy & Schwarcz, Daniel, Will Employers Undermine Health Care Reform by Dumping Sick Employees?, 97 Va. L. Rev. 125, 182-83 (2011)Google Scholar.

164 See id.

165 See Richard S. Foster, Estimated Financial Effects of the “Patient Protection and Affordable Care Act,” as Amended, CTRS. FOR MEDICARE & MEDICAID SERVS., 7-8 (2010), available at http://www.cms.gov/ActuarialStudies/Downloads/PPACA_2010-04-22.pdf (“[S]ome smaller employers would be inclined to terminate their existing coverage, and companies with low average salaries might find it to their—and their employees’—advantage to end their plans, thereby allowing their workers to qualify for heavily subsidized coverage through the Exchanges.”); Hyman, David A., PPACA in Theory and Practice: The Perils of Parallelism, 94 Va. L. Rev. In Brief 83, 84 (2011)Google Scholar (referencing Monahan & Schwarcz, supra note 163, at 127-29).

166 See Hyman, supra note 165, at 102-03. For high-wage workers, the ACA provides only modest subsidies for obtaining coverage through an exchange. Id.

167 See Monahan & Schwarcz, supra note 163, at 129 n.8.

168 Eibner, Christine et al., The Effects of the Affordable Care Act on Workers’ Health Insurance Coverage, 363 New Eng. J. Med. 1393, 1394 (2010)CrossRefGoogle ScholarPubMed.

169 See id.

170 Monahan & Schwarcz, supra note 163, at 157-58.

171 ENGEL, supra note 65, at 48-49.

172 Id.

173 Health Coverage & Uninsured, KAISER FAM. FOUND., http://www.statehealthfacts.org/comparecat.jsp?cat=3 (last visited Mar. 2, 2012).

174 See EISINGER, supra note 73, at 39.

175 Id.

176 Id.

177 Id.

178 Id.

179 Id.

180 See supra notes 135-54 and accompanying text.

181 FREEDMAN, supra note 138, at 39-40.

182 HAYS, supra note 137, at 92-93.

183 Biles, Roger, Nathan Straus and the Failure of US Public Housing, 53 Historian 33, 39, 45 (1990)Google Scholar.

184 See id. at 39.

185 HAYS, supra note 137, at 93.

186 Id.

187 FREEDMAN, supra note 138, at 107.

188 Id.

189 Id. at 108.

190 Id.

191 Harris, Gardiner & Pear, Robert, Still No Relief in Sight for Long-Term Needs, N.Y. TIMES, Oct. 25, 2011Google Scholar, at D1.

192 Pear, Robert, Long-Term Care Is Latest Issue in Health Care Debate, N.Y. TIMES, Dec. 14, 2009Google Scholar, at A21.

193 Harris & Pear, supra note 191.

194 Pear, Robert, Health Law to Be Revised by Ending a Program, N.Y. TIMES, Oct. 15, 2011Google Scholar, at A10.

195 Id.

196 Id.

197 Pear, Robert, Health Care Law Will Let States Tailor Benefits, N.Y. TIMES, Dec. 17, 2011Google Scholar, at A1.

198 See MICHAEL S. SPARER, MEDICAID AND THE LIMITS OF STATE HEALTH REFORM 8-9 (1996); Kinney, Eleanor D., Rule and Policy Making for the Medicaid Program: A Challenge to Federalism, 51 Ohio St. L.J. 855, 857 (1990)Google Scholar (suggesting lack of uniformity in state implementation of Medicaid eligibility requirements may be inequitable).

199 See Kinney, supra note 198, at 857 (“[I]n 1985, New York with over 16 million people spent $7.5 billion on its Medicaid program and Texas, with a population of comparable size, spent only $1.4 billion.”).

200 See EISINGER, supra note 73, at 39 (summarizing amendments Congress made to the food stamp program in the 1970s that led to availability in every state and county by 1975).

201 Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 2001(a)(1)(C), 124 Stat. 119, 271 (2010).

202 Patient Protection and Affordable Care Act § 1302(b), 124 Stat. at 163; Pear, supra note 197, at A1.

203 Pear, supra note 197, at A1.

204 Essential benefits must include coverage for hospitalization, emergency care, out-patient services, maternity and newborn care, mental health and substance abuse services, prescription drugs, laboratory testing, preventive and wellness care, pediatric services (including dental and vision examinations), rehabilitative care, and habilitative care such as services for children with developmental disabilities. Patient Protection and Affordable Care Act § 1302(b), 124 Stat. at 163. In addition, coverage must be comparable to those offered in a typical employer plan, with states required to look for guidance to one of the following plans: (1) one of the three largest small group plans in the state; (2) one of the three largest state employee health plans; (3) one of the largest federal employee health plan options; or (4) the largest HMO plan offered in the state's commercial market. Pear, supra note 197, at A1.

205 Reinhardt, Uwe E., Reforming the Health Care System: The Universal Dilemma, 19 Am. J.L. Med. 21, 22–23 (1993)Google ScholarPubMed.

206 See About VHA, U.S. DEP't OF VETERANS AFF., http://www.va.gov/health/aboutVHA.asp (last visited Mar. 5, 2012) (explaining structure of Veteran's Health Administration and describing it as “the nation's largest integrated health care system”).

207 See id. (“VHA will continue to be the benchmark of health care and value in health care and benefits by providing exemplary services that are both patient centered and evidence based.”).

208 Reinhardt, supra note 205, at 23.

209 Pear, Robert & Calmes, Jackie, Obama Advances His Case; Health Bill's Cost Challenged, N.Y. TIMES, June 16, 2009Google Scholar, at A1 (reporting Obama's assurances to the AMA that he would not propose a single-payer healthcare system).

210 COMM. FOR ECON. DEV., QUALITY, AFFORDABLE HEALTH CARE FOR ALL: MOVING BEYOND THE EMPLOYER-BASED HEALTH-INSURANCE SYSTEM 54 (2007), available at http://www.ced.org/images/library/reports/health_care/report_healthcare07.pdf; see also Mueller, Keith J. et al., The Federal Employees Health Benefits Program: A Model for Competition in Rural America?, 21 J. Rural Health 105, 106 (2005)CrossRefGoogle Scholar.

211 COMM. FOR ECON. DEV., supra note 210, at 5-6; Fuchs, Victor R., Health System Reform: A Different Approach, 272 JAMA 560 (1994)CrossRefGoogle ScholarPubMed; Enthoven, Alain C., Consumer-Choice Health Plan—A National-Health-Insurance Proposal Based on Regulated Competition in the Private Sector, 298 New Eng. J. Med. 609 (1978)CrossRefGoogle Scholar.

212 The McCain and Ryan vouchers would be inadequate because they do not cover the full cost of healthcare insurance. In addition, insurers would not be required to accept all applicants and therefore could try to “cherry-pick” younger, healthier subscribers. See Clive Crook, The Trouble with McCain's Health Care Plan, NAT’L J., May 3, 2008, available at http://www.nationaljournal.com/njmagazine/wn_20080503_8652.php; Pear, Robert, G.O.P. Blueprint Would Remake Health Policy, N.Y. TIMES, Apr. 5, 2011Google Scholar, at A1.