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Health Care Reform In The Year 2000: The View From The Front Of The Classroom

Published online by Cambridge University Press:  24 February 2021

Kenneth R. Wing
Kenneth R. Wing*
Affiliation:
School of Law, Seattle University, and School of Public Health and Community Medicine, University of Washington
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Extract

My thoughts about the status of American health care as it enters the twenty-first century have less to do with any theory or model—or even my own politics—and more to do with my efforts as a teacher. For the past twenty-five years I have taught introductory health law courses in law and public health schools. While what I teach and how I do so have changed enormously during that time, my basic objective has changed very little: preparing my students for the political and legal issues that they will likely confront in their individual and professional lives. It is a task that I find endlessly challenging. I have to amass and continually update a tremendous amount of information concerning individual and institutional providers, various financing arrangements, state and federal programs, and all the other things that many Americans only partially understand or ignore altogether. But the real challenge is in delivering this information. It must be presented in some useful and retainable way. As in all other important things, the devils in American health care can only be found in the details; but the trick for a teacher ultimately, is figuring out which devilish details are important, which are not and why, and how to pass all that along to tomorrow's decision makers—whether tomorrow is just tomorrow or whether it is the beginning of a new century.

Type
Articles
Information
American Journal of Law & Medicine , Volume 26 , Issue 2-3: The Changing Face of Law and Medicine in the New Millennium , 2000 , pp. 277 - 293
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 2020

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References

1 I have fairly strong, some would say unorthodox, views of what should be included in introductory health law courses. While those views are only tangentially related to this essay, you can find a lengthier explanation of what I teach—and why—in introductory courses in public health schools in the preface to my public health school textbook. See Kenneth R. Wing, The Law and the Public's Health vii-ix (5th ed. 1999). I have written a similar explanation of what and how to teach introductory health law courses in law schools. See Kenneth R. Wing et al., The Law and American Health Care xxix-xxxii (1998).

2 See Wing et al., supra note 1, at 166-68 (discussing the shortcomings of Medicare and Medicaid).

3 For a longer and more detailed description of these events, see id. at 32-43.

4 See id. at 38; see also Paul Starr, The Social Transformation of American Medicine 381-405 (1982) (discussing the health care crisis with respect to Medicare and Medicaid between 1970 and 1974, and the surrounding political conditions).

5 See generally Wing et al., supra note 1, at 44-50 (discussing former Presidents Carter and Reagan's approaches to health care).

6 See id. at 43-49.

7 See id. at 50.

8 See id. at 50-51.

8 See id. at 52-n.

10 See id. at 52-56.

11 See id. at 1094-97.

12 See 42 U.S.C. § 1395ww (1994); Wing et al., supra note 1, at 57.

13 See Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), § 10001, Pub. L. No. 99-272, 100 Stat. 82 (codified as amended at 26 U.S.C. 4980B) (relating to continuation coverage requirements of group health plans).

14 See COBRA, § 9121, Pub. L. No. 99-272, 100 Stat. 83 (codified as amended at 42 U.S.C. 1395dd) (relating to emergency medical conditions and women in labor).

15 See Wing ET AL., supra note 1, at 59-60 (discussing COBRA).

16 See generally James F. Blumenstein & Frank A. Sloan, Redefining Government's Role In Health Care: Is a Dose of Competition What the Doctor Should Order?, 34 Vand. L. Rev. 849, 924-26 (1981) (advocating market-oriented reform, and reduced government spending and regulation in health care); Thomas L. Greaney, Competitive Reform in Health Care: The Vulnerable Revolution, 5 Yale J. On Reg. 179, 179-80 (examining the competitive market reform movement in the 1980s and the government's resistance to regulation in health care); Jacob S. Hacker, National Health Care Reform: An Idea Whose Time Came and Went, 21 J. Health Pol. Pol'y & L. 647, 649 (1996) (discussing federal health care initiatives in the 1980s and early 1990s).

17 See, e.g., Robin Elizabeth Margolis, Health Trends, Healthspan, Sept. 1993, at 33, 33 (discussing the failure of Reagan's proposed Hospital Medicare Payment and Prospective Payment Systems).

18 See generally Alain C. Enthoven, A New Proposal to Reform the TaxTreatment of Health Insurance, Health Aff., Spring 1984, at 21 (1984) (discussing the possibility of involving the government directly in decreasing the cost of health care through tax reform); Walter McClure, Implementing a Competitive Medical Care System through Public Policy, 7 J. Health Pol. Pol'y & L. 2 (1982) (clarifying and proposing public policy strategies to promote competition in the American health care system).

19 See generally Cathie Jo Martin, Together Again: Business, Government, and the Quest for Control, 18 J. Health Pol. Pol'y & L, 359, 364, 385-86 (discussing the growth of business involvement in health care delivery, and President George Bush's “Heritage Plan").

20 See Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508, §§ 4351-58; 104 Stat. 1388, 1388-125 to 1388-137 (codified as amended at 42 U.S.C. § 1395ss (1994)).

21 See id. §§4601-06,4711-23, 104 Stat. 1388-166 to 1388-170, 1388-174 to 1388-194.

22 See Wing ET AL., supra note 1, at 247-48.

23 See id. at 164-68, 194-95 (discussing increases in Medicare expenditures). ^ See id. at 62-63.

25 Pub. L. No. 100-360; 102 Stat. 683.

26 Pub. L. No. 101-234; 103 Stat. 1979.

27 For a discussion of the ill-fated legislation, the politics of its repeal and the few provisions that survived, see Wing ET AL., supra note 1, at 61-62.

28 See id. at 1140-42.

29 See id.

30 See id. at 1142.

31 See id. at 1146. See generally Haynes Johnson & David S. Broder, the System: The American Way of Politics at the Breaking Point (1996).

32 See Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105 (codified as amended in scattered sections of 42 U.S.C.); Wing ET AL., supra note 1, at 213-17.

33 See id. at 218-19; see also infra note 69.

34 Pub. L. No. 104-191, 110 Stat. 1936 (codified as amended in scattered sections of 29 U.S.C. and 42 U.S.C).

35 See 42 U.S.C. § 1397aa-jj (Supp. Ill 1998).

36 See Health Care Fin. Admin., National Health Care Expenditures Projections: Table 2. National Health Care Expenditure Amounts, and Average Annual Percent Change, by Type of Expenditure (last modified July 14, 1999) <http://www.hcfa.gov/stats/NHE-Proj/projl998/tables/tabIe2.htm> (estimating expenditures for 1999). The Office of the Actuary in the Health Care Financing Administration (HCFA) maintains the most reliable data on national health spending. For recent updates, see Health Care Fin. ADMIN., National Health Care Expenditures Projections (last modified July 14, 1999) <http://www.hcfa.gov/stats/NHE-Proj/>. For a general description of private providers, see Wing ET AL., supra note 1, at 266-69, 407-12, 458-59, 558-67.

37 See Health Care Fin. Admin., National Health Care Expenditures Projections: Table 3b. National Health Care Expenditures. Percent Distribution and Per Capita Amounts by Source of Funds (last modified July 12, 1999) <http://www.hcfa.gov/stats/NHE-Proj/projl998/tables/table3b.htm> (estimating expenditures for 1999).

38 See Bradley R. Braden et al.. National Health Expenditures, 1997, Health Care Fin. Rev., Fall 1998, at 83.

39 A general description of Medicare and current program expenditures can be found in the sources cited in supra notes 36-38. A more detailed analysis of Medicare Part A spending with particular focus on its future solvency is published annually by the Board of Trustees of the Federal Hospital Insurance Trust Fund. See. e.g., Board Of Trustees, Fed. Hosp. Ins. Trust Fund, 2000 Annual Report 17-19 (2000). The Board of Trustees of the Federal Supplementary Medical Insurance Trust Fund publishes a similar annual report. Both reports, containing the data from which estimates in this essay were derived, are available at the HCFA website. See Health Care Fin. Admin., 2000 HI & SMI Trustees Reports (visited Apr. 4, 2000) <http://www.hcfa.gov/pubforms/tr/>.

40 For a detailed overview of the Medicaid program, see generally Kaiser Comm. On Medicaid & The Uninsured, Medicaid: A Primer (1999).

41 See Wing ET AL., supra note 1, at 11."'-77.

42 See id. at 412-14.

43 See id. at 88.

44 See Jennifer A. Campbell, U.S. Census Bureau, Health Insurance Coverage: 1998 (Current Population Rep. P60-208, 1999). For background on the number of uninsured and their characteristics, see Kaiser Comm. on Medicaid And The Uninsured, Uninsured in America: A Chart Book (1998).

45 See Wing ET AL., supra note 1, at 258-62.

46 See id. at 262-64.

47 See 42 U.S.C. § 1395dd (1994) (mandating that hospitals provide “necessary stabilizing treatment for emergency medical conditions and labor”). For a discussion of common law and state statutory proscriptions, see WlNg ET AL., supra note 1, at 301-14.

48 See id. at 301-36.

49 See id. at 496-503.

50 See id. at 266-282.

51 See Health Care Fin. Admin., National Health Care Expenditures Projections (last modified July 14, 1999) <http://www.hcfa.gov/stats/NHE-Proj/>; .see also Kenneth R. Wing, The Economic and Policy Environment of Health Care, in Health Care Corporate Law: Formation and Regulation, 1-2 (Mark A. Hall ed., 3d ed. 1995) (providing an historical analysis of health care costs).

52 For recent analyses of the financial condition of the two Medicare trust funds, see Health Care Fin. Admin., 2000 HI & SMI Trustees Reports (visited Apr. 4, 2000) <http://www.hcfa.gov/pubforms/tr/>.

53 See Wing ET AL., supra note 1, at 170-72.

54 See Mercer/Foster Higgins, National Survey of Employer-Sponsored Health Plans, 1998, MED. Benefits, Feb. 28,1999, at l, l.

55 For data on the costs of privately purchased health benefits, see sources cited supra notes 36-38. Note, however, that because a high proportion of private'insurance is purchased through the beneficiaries' employment, these aggregated data disguise the higher costs paid by small employers (or any small group purchaser) or any individual purchaser. For a good analysis of this problem, see Mark A. Hall, Reforming Private Health Insurance 16-22, 32-34 (1994).

56 See Wing ET AL., supra note 1, at 22-26.

57 See id. at 1183-204.

58 For a full explanation, see id. at 1094-103.

59 See id. at 1104-17.

60 See Health Care Fin. Admin., National Health Care Expenditures Projections: Table 2. Health Care Expenditure Amounts, and Average Annual Percent Change, by Type of Expenditure modified July 14, 1999) <http://www.hcfa.gov/stats/NHE-Proj/projl998/tables/table2.htm> (estimating expenditures for 1999).

61 See sources cited supra notes 36-38.

62 See, e.g., U.S. Bureau of Labor Statistics, 1998 National Occupational Employment and Wage Statistics (last modified Mar. 15, 2000) <http://www.bIs.gov/oes/national/oes_nat.htm>; Mary Chris Jaklevic, Physician Compensation Growth Slows, MOD. Healthcare, Aug. 2, 1999, at 34, 34 (surveying physician compensation across several specialties).

63 See Wing, supra note 1, at 1094-95.

64 See id. at 139-45.

65 See id. at 1171-73.

66 See id. at 1174-75.

67 Part I of this Article, concerning how I have taught developments in American health care, focuses exclusively on federal health policy. This is largely for simplicity. A good introductory health law course should trace the developments at the state level as well. Indeed, given what has transpired through the last several decades, it would be a serious error not to do so. While there are obviously different stories to tell in each state, many of the same lessons concerning who we are and where we are—and why—have been played out at the state level. For further discussion and some good state-level illustrations, see id. at 1151-83.

68 See 29 U.S.C. §§ 1001-1461 (1994) . The full story of the Employee Retirement Income Security Act, both the politics behind its enactment (which many so-called health law experts entirely overlooked at the time it was enacted) and its role in delimiting the options available to the states, is an excellent illustration of the conumbral nature of American health care policy. See Wing ET AL., supra note 1, at 121-24.

69 While the details are controverted, the basic outlines of the financial crises facing Medicare are undeniable and fairly straightforward, even as they are sobering. The Medicare Part A trust fund is on the brink of bankruptcy. See Wing ET AL., supra note 1, at 248. Part B spending has been rising even faster than Part A spending and demanding an ever-increasing share of the federal budget. See id. at 252. For the most recent assessments and data updates, see Health Care Fin. Admin., 2000 HI & SMI Trustees Reports (visited Apr. 4, 2000) <http://www.hcfa.gov/pubforms/tr/>. In the next few years, Americans must either contain the costs of both parts of the program or find new revenue sources to the tune of tens of billions of dollars per year. Even if we successfully navigate these waters, a second wave of financial crises will arrive in the second decade of the century. As the baby boomers reach retirement age, the Medicare benefits of a much larger proportion of the population will have to be supported out of the tax effort of a relatively smaller working population. Even tougher choices will have to be made.

70 For a discussion of the political history and likely future of Medicaid, see generally Wing ET AL., supra note 1, at 213-18; Eleanor D. Kinney, Rule and Policy Making for the Medicaid Program: A Challenge to Federalism, 51 OHIO ST. L.J. 855 (1990).