Archive for category: healthcare in America

Getting to a Unified System? Is It Desirable? Will It Ever Happen?

            I’d like to begin my last essay by thanking Clarke Cochran for an engaging three weeks of conversation.  Dr. Cochran represents what is best about dialogue concerning hard problems.  He is civil.  He is clear.  And, in what is best about Christian engagement with difficult conundrums, he presents his interlocutors’ positions with charity.  It’s been a pleasure “conversing” with him this month.  I hope we’ll have a chance to think together again about the place of Christian conviction as it relates to the American healthcare system.  Cochran is obviously an expert, and his ideas and positions are well worth reading.

            Now on to the substance.  I am confining my comments in this essay to Cochran’s first two contributions.  So, let me begin by the stating positions on which I think he and I agree.  First, I think that we agree that, by a person’s humanity, that person deserves, at a minimum, respect for their God-made creatureliness that should not be willingly destroyed by anyone, including the state.  Whether this means that the person has a right to healthcare, pressable against the state, is altogether another matter.  I’ve emphasized this point in both of my first two essays, and I won’t rehearse or extend my analysis on this point here.  Cochran wanted to move the conversation away from “rights talk” especially in his second essay.  And that’s OK.  Cochran wants to move away from what he sees as my stark position that either a person gets their healthcare needs met through one of the established channels (outlined below) OR the government provides to citizens as a matter of right.  Instead, Cochran’s proposal, as I understand it, is to have a universal-type of system that combines a mandate for coverage along with traditional employer-sponsored insurance and the existing government-sponsored programs, like Medicare (including an early option), Medicaid, and the Veterans Administration system, among others.  Perhaps I missed something, but Cochran’s proposal sounds a lot like the system we have had after March 26, 2010, the date that President Obama signed the Affordable Care Act into law (with, notably, the so-called “individual mandate” that President Trump has now gutted).

            Before I get to my main criticisms of Cochran’s plan, let me emphasize one other point on which he and I agree.  Though we differ in its expression, we both believe that justice plays a vital role in any Christian’s read of and interaction with the healthcare system.  There is a strong sense, as I view both Scripture and broader Christian theology, that justice demands the Christian do something about the tangible needs of his neighbor, regardless of whether the neighbor deserves that care.  I would say, though, that Cochran’s view of justice’s interaction with the system is more telescopic in nature, while mine is more microscopic.  What I mean is that Cochran’s view looks to engage the entire system based on his view of what justice (and his other foundational principles) require.  I am dubious that such a system-wide engagement or overhaul is possible.  While I don’t necessarily advocate for reforms only at the margins, I do not think that third-party payor-based, fee-for-service, profit-incentivized care is going away any time soon.  Simply, in at least the near-term future, I don’t think our current “system” is going away.

            So, it shouldn’t be all that surprising when I level my criticism of Cochran’s plan in a series of a few questions.  To wit: who is going to pay for this? If funding for parts of the plan come in the form of increased taxes, why does Cochran think that the current Congress would pass such a plan, the current President would sign such a plan, or the American people would support such a plan?  My guess is that, at the very least, the plank of Cochran’s plan calling for the expansion of Medicare (early entry around age 55) would call for a significant tax increase to accommodate those late-career, almost-senior citizens whose chronic and besetting health conditions make the generous slate of benefits in the Medicare program look particularly enticing.

            Cochran’s plan would necessitate the revival of one of the most controversial parts of the ACA – the “individual mandate”.  To prevent the evils of adverse selection, people who otherwise don’t care to or wouldn’t plan to buy health insurance must be made to buy health insurance.  You know the story.  Though the ACA’s individual mandate passes constitutional muster according to the Constitution’s Article I taxing power, that speaks neither to its wisdom nor its practicality.  Therefore, in a nod to popular sentiment, the Congress and President Trump killed the individual mandate as part of the 2017 tax reform package.  Simply, many Americans recoil at the idea of being forced to buy something that they don’t want to buy.  Perhaps that is borne out of the strident individualism that pulses through America.  Nevertheless, there will have to be a way to force Americans to jump into insurance pools to prevent those pools from “death spiraling” into destruction.

The “problem,” of course, with the failure of the individual mandate is that the mandatory coverage provisions found in the ACA and the mandatory treatment provisions found elsewhere in federal law (namely, the EMTALA law) remain.  So, policymakers face something of a Hobson’s choice – force Americans to buy a product that they might not want but that ultimately could be very good for them (in that it will pay for some of their healthcare needs), or not force them to buy health insurance, and then cover and/or treat them even after they get sick (the “guaranteed issue” provision of the ACA and the EMTALA law). 

            Further, does Cochran mean to keep the so-called “employer mandate” originally found in the Affordable Care Act?  The employer mandate has been an issue for some businesses ever since the ACA was enacted.  It was meant to incentivize small businesses to provide their workers employer-sponsored health insurance.  Instead, it has become a noose around some employers’ necks, with the requirement that some employers who do not provide health insurance pay a tax for every employee who must buy health insurance from an ACA exchange over a certain threshold.  Though constitutionally the tax levied pursuant to the employer mandate is not a “penalty,” practically speaking it feels like one to the small businesses whose profit is eroded by this requirement.

            These are just two of the problems that immediately come to mind when trying to wrestle with a universal-type of system like Cochran’s.  I might point out other issues if I had more time, space, and inclination.  Just one to end: any expansion of state Medicaid and/or last-ditch safety-net programs will have to reckon with the problem found in the ACA Medicaid expansion.  Medicaid is what we constitutional law professors like to call a program of “cooperative federalism”.  Basically, it is a partnership between the federal government and the state governments.  The federal government pays anywhere from 50% to over three-quarters of a state’s Medicaid budget, and the state government kicks in the rest.  We remember from the Supreme Court fights over Medicaid expansion that the main constitutional problem is that the federal government cannot force a state to take more Medicaid money or else lose all its federal Medicaid funding.  This was the “gun to the head,” in which state governments were told to expand their Medicaid programs to include 100% of all low-income people whose income fell below a certain threshold OR lose all the federal government’s contribution to their Medicaid program.  The Supreme Court ruled that this amounted to economic extortion and was deemed unconstitutional.

            You might also remember that there was a “sweetener” attached to entice states to expand their Medicaid programs – the federal government would pay for the entire expansion for a few years, and then the states would pay for up to ten percent of the expansion thereafter.  This seemed like a “no brainer” for the states.  What state would pass up “free money,” especially if it meant providing a vital service to its citizens?  There were some states that did not expand their Medicaid programs out of principle.  In other words, the big, bad federal government was not going to tell them what to do, even if it meant passing up money for the biggest line item in their budgets.  However, there was another force at work – the expansion money was crafted in such a way that it would gradually sunset after several years.  That means that states that have expanded their Medicaid programs will eventually have to pay 100% of the expansion.  This will cause a reckoning in the states that “go all the way” with Medicaid expansion.  Once the expansion money goes away, these states will have painful choices to make about their state budgets.  Do they keep the expansion and cut other programs, or do they keep the other programs and scuttle the expansion (which will likely prove to be very popular among its beneficiaries)?  Or does the state raise taxes to fund everything in its budget, including the expansion?

            Why rehearse all of this?  Well… it seems to me that if Cochran’s plan depends, even in part, on expanding Medicaid in any sense, then the states will have some of these unintended consequences to deal with.  

While matters of mandates, taxes, costs, and execution are important problems that any person advocating a universal-type of system must overcome, the most vexing issue that Cochran and other advocates of this type of system must answer for is the lack of bona fide common purpose or esprit de corps in America that is found in other nations with a true universal system.  America is made up of over 330 million people with many different attitudes, opinions, financial situations, desires, dreams, and most importantly for our purposes, visions of the common good.  We are a huge, populous country with many ideas of what it means and what it takes to be a good American.  Our cousins across the pond in Great Britain, while diverse in ethnicities and religions, are absolutely unified in their rock-solid belief in the National Health Service (NHS).  The NHS enjoys broad approval and appeal in Great Britain, notwithstanding the queues (sometimes months-long waiting lists for certain procedures), substandard (to many Americans) facilities, and parsimonious treatment.  This attitude of acceptance has solidified over many decades since the NHS was created in devastated post-World War II Great Britain.  For many Britons, the NHS is a national institution that is part of the British national identity and thus cannot be fundamentally changed or scrapped.

Let me be clear (and hopefully fair): Cochran is not advocating for such a unified program as Britain’s NHS.  But even his “universal-type” of system in which universal coverage is the goal is met with the high ideological and attitudinal wall that is contemporary America.  Let’s be frank – in the “wilderness” that is modern American life, the opinions and beliefs about who is deserving of care and protection in the form of healthcare insurance coverage varies wildly.  Witness one example: with respect to Medicaid expansion (part of the 2010 Congress’s and President Obama’s program to cobble together a universal-type of program through the Affordable Care Act), notice the balkanization of the states.  Most of the states that rejected Medicaid expansion are in the south and are Republican-leaning.  Many states that accepted Medicaid expansion are not in the south and are more progressive.  And that involved “free” money!  If we can’t have broad agreement on freebies, what makes us think that we can have broad agreement on much of anything else?

The point is this: who really expects to craft a comprehensive healthcare plan that will be palatable to a critical mass of Americans with different goals, priorities, financial situations, and who are used to a welter of different insurances?  I find that to be a near impossible task.  Maybe I’m being fatalistic.  Maybe I’m not idealistic enough.  However, what I really think I am is realistic.  I am realistic enough to know this: the main parts of our healthcare system are fee-for-service based.  So, follow me with my hypothesis: nothing in commercial (private) FFS insurance is going to dramatically change until the Medicare program collapses.  Projections for Medicare’s collapse shift all the time, but right now, the program is scheduled to run out of money (for hospital services) in 2029 (Carolyn Y. Johnson, “Medicare’s hospital trust fund will run out of money in 2029,” Washington Post Wonkblog, July 13, 2017).  If the program runs out of money in 2029 (or threatens to do so in the year or two before D-Day), I think Congress would seriously consider shifting the program immediately to a payment model something more sustainable.  But 2029 is a long way off.  To be fair, the powers that be over the Medicare program have been trying to introduce value and outcome-based reimbursement, hoping to displace FFS (Bruce Y. Lee, “Very Profitable Nonprofit Hospitals…But Where Are Those Profits?,” Forbes, May 8, 2016).  The displacement hasn’t happened yet.  And, at the margins the federal agency that operates the Medicare program (the Centers for Medicare and Medicaid Services) introduces “demonstration projects” all the time experimenting with new payment and delivery models.  None of those demonstration projects have yet to supplant traditional “Part A” (fee-for-service hospital coverage) or “Part B” (FFS service outpatient coverage) or even “Part C” (Medicare managed care that combines in HMO, PPO, and other managed care products the benefits of Parts A and B).

But if Congress ever does change Medicare’s basic delivery and payment model, then I believe the commercial insurance market will follow.  And when it follows, that will be the confluence of factors – the crisis – for America to rebuild a truly unified healthcare delivery and payment system.  But I don’t think it will come before such an implosion.  People like their PPO plans where they can choose their own doctors.  People like the idea of going to get a $1000 MRI for a $30 co-pay.  No person likes being admitted to the hospital.  But everyone likes the idea of racking up a five or six figure bill for a hospital stay and only having to pay $100.  You get my point.  Of course, what consumers love most about excellent health insurance represents one of the troubling problems with the overall system – care costs too much and consumers don’t pay enough for it, thus incentivizing them to use more of it (as Cochran previously has noted).

My point is this: the conditions are not right for a universal-type of system.  It’s unclear whether they ever will be right.  Further, we should ask if they should be right.  We should seriously consider whether the American system (such that it is) is the best that America can do given our cultural and political polarization and Americans’ affinity and demand for (relatively) low taxes.  An observation: T.R. Reid, a former reporter for the Washington Post, wrote an interesting book a few years ago entitled The Healing of America.  In the book, Reid summarized the distinctive features of several Western democracies’ healthcare systems.  All of them were “universal” in one way or another – whether a “soft” form of a universal system by means of a substantial safety net for citizens who, for whatever reason do not have health insurance – or a “hard” form of a universal system like the British NHS version of socialized medicine.  In each of these countries the population has generally rallied in favor of the payment and delivery system.  America is bigger (by orders of magnitude than some of the countries featured in Reid’s book), it has healthcare systems, rather than one system, and its population is of a divided mind regarding the merits of collapsing the disparate systems into one, universal system.  In short, America does not have the set of conditions necessary for a universal system to succeed.  And even with the “waystation” type of system found in the Affordable Care Act has proved to be largely unsuccessful, if we go by the political polarization it has fostered.

Two Concluding Thoughts

            I want to end this essay with just one “riff” about problems I see in America’s cobbled-together system, which if fixed, might bring more access to care for Americans who do not have a ready way to get care.  I also want to offer a correction concerning a solution to a problem that I offered in my second essay.

            First, ever since I started practicing healthcare law in 2001, I have been fascinated by the EMTALA law – the law that mandates that a person cannot be turned away from receiving a “medical screening exam” or “stabilizing treatment” when that person seeks care in an emergency room.  EMTALA is complicated and it brings with it interesting fact patterns (which is important for lawyers and law professors).  For consumers, it serves as an ad hoc last line of defense for receiving healthcare.  The hospital can’t “turf” you before you receive your medical screening exam to determine if you need stabilizing treatment.

            Because emergency rooms must provide patients a modicum of evaluation and treatment, those without health insurance have come to realize that they can receive non-emergency care there.  In a comment to one of this month’s prior essays, reader Julie Kuhl concluded that this is because these patients have Medicaid for their primary insurance, and many doctors’ offices do not accept Medicaid (because of troubling low reimbursement rates).  This may be so.  Regardless of the reason, “gumming up” the emergency room with non-emergent patients makes life miserable for everyone and likely delays needed care for acute patients.

            If this is the problem that I think that it is, then Congress would do well to reconfigure the EMTALA law to allow hospitals to build and open to the public urgent care types of clinics near emergency rooms so that non-emergent patients can be diverted from the emergency room and treated there.  These urgent care clinics would be required to accept Medicaid patients (and perhaps required to accept uninsured patients or state-insured safety-net patients).  Congress might consider sweetening the reimbursement for these clinics with special subsidies, etc.  However, and without diving into the details, it’s my opinion that significant “surgery” on the EMTALA law will have to be done for this idea to come to fruition.  This is because the evaluation and treatment obligations of EMTALA are automatically triggered when a patient contacts certain parts of the hospital.  There would have to be a statutory allowance for patients to be shunted to these urgent care types of clinics.

            I will admit an obvious problem with my plan.  It really does nothing for uninsured patients who have genuine emergency conditions.  These patients will be faced with substantial, and for all practical purposes, unpayable bills related to their care in the ER (and whatever follow-up care they might require). 

            Second, my correction.  In my last essay, I surmised that an intermediate solution to the “obscenity” of the uninsured being charged “full retail” chargemaster rates would be to offer them what amounts to an a “most favored nations” clause whereby the could not be charged more than some insurance benchmark – whether Medicare, Medicaid, or commercial insurance.  Little did I know (although I should have!) that the Affordable Care Act and the administrative regulations published thereto prevents not-for-profit hospitals from charging the uninsured more than what certain forms of insurance would reimburse to the hospital.  There’s a lot more to be said about that regulation, and I won’t do it here. Dear readers, I am embarrassed that I didn’t “run to ground” this regulation before letting my second essay go.  But I’m glad you and I know about it now!  For more on this regulation, please see, Jessica Curtis, “What Does the Affordable Care Act Say About Hospital Bills?,” Community Catalyst, June 15, 2015.

Conclusion

            It’s impossible to identify all the problems in the American healthcare system in 9000+ words.  I’ve only identified a few.  I want to leave you with a summary of my positions, both theological and practical:

First and foremost, Christians have personal obligations to care for the sick.  I wonder, if in the environment we live in today, that means a Christian ought to sacrifice his/her hard-earned money for the care of his less well-off fellows?

This obligation sounds in justice and emanates from each person’s incalculable worth as a creature made in God’s image.

Just because Christians and the Church may have obligations to care for the sick does not necessarily mean that the state has similar obligations.

In America, we have besetting problems which routinely disadvantage the poor and uninsured.  I’ve identified the phenomenon of the “chargemaster” and the poor seeking primary care in the emergency room.  The federal government has addressed how the non-profit hospitals charge uninsured patients.  There are other issues that target the uninsured, to be sure.  There is a welter of other problems which do not necessarily target the poor and uninsured but which nevertheless contribute to high costs and poor access.

America’s healthcare system is really a “system of systems”: a payment system (composed of government and commercial payers and the uninsured, and many ways of paying, including HMOs, PPOs, cash payments, etc.), a delivery system, a training and education system, a technology development system, among many others. 

Unifying this system will be very challenging, if not impossible.  There will need to be a catalyst to do so.  Note, that I’m not endorsing such a catalyst.  It’s just my opinion that one will be necessary in order unify the system.

I don’t think my solutions are necessarily marginal, but I do think change to the system in which more people get more access will come by “blocking and tackling” – making one change at a time to one problem at a time.

I’m not eager to give up my “Cadillac” level PPO plan.  I’d suspect that many other conscientious Christians are unwilling to give up their excellent health benefits either.  I’d further suspect that whether Christian or not, getting those who have great health plans to give them up for something less financially protective will be one of the hardest challenges in forming a truly unified system.  I genuinely wonder if that will ever happen.

So, there you have it.  I hope I have shown some light and not thrown off too much heat.  I do believe that in all things – our living, our working, and our thinking about and advocating for change in the American healthcare system, we do so under God’s kind superintendence, and thankfully, His mercy and grace.  May God have mercy on me, a sinner, as I have offered my thoughts, for I know I’m in desperate need of it!

It’s a struggle to move beyond binary thinking. Both Jeff and I (and Julie Kuhl in her thoughtful comments) struggle in different ways to find a healthcare language beyond Left and Right, beyond Liberal and Conservative, and beyond Rights versus Responsibilities. How often political and policy conversations degenerate into either/or confrontation! The beauty of Respectful Conversations, like the beauty of some forms of Christian theology, is to entertain three/four/more approaches to a topic.

However, this beauty sometimes minimizes real disagreements that help to move conversations ahead! This unfortunate possibility is higher when there is so much respect between participants that they are afraid to disagree. When Jeff began his first essay with such kind words about my own writing on healthcare and about my former employer, Texas Tech University, I started to worry that we would not have sufficient scope for difference. I do appreciate Jeff’s kind words, but even more I appreciate his deep engagement with the conundrums of the American healthcare system. Fortunately, I discovered key differences that I hope will move the conversation productively.

The Limits of Scripture in Policy Conversation

Jeff rightly points to the “thinness” of Scripture when it comes to healthcare policy prescriptions. He stresses how Jesus’ healing challenges Christians to attend to the suffering (Mt 25). Rightly again, he points to the responsibility of the church and how for millennia it organized care for the sick and dying. Yet, he says, again rightly, “I find nothing, either approving or disapproving, large-scale, top-down provision of health care services to a polity.”

I’ll leave until a bit later the implicit binary idea that government provision of health services must be “large-scale” and “top-down.” Rather, I want to agree with Jeff’s point about the limits of the Bible when it comes to the provision of modern, curative and preventative health care, about which it is understandably silent.

What to do in the face of such silence? Fortunately, some Christian traditions (I am thinking particularly, but not exclusively, about the Kuyperian and Catholic traditions with which I am most familiar) have developed social principles that allow faithful thinking about policy issues in ways that transcend partisan and ideological binaries. The words and actions of Scripture, particularly the prophets and Jesus, tell us much about the value and dignity of each human person, about God’s special care for the poor, the responsibility of rulers for justice, and about Christian responsibility to minister to the sick, the imprisoned, the lonely, and the outcast.

From this biblical foundation, using reason and experience, these Christian traditions fashioned principles of social thought and of prudential reason that apply general values to actual situations. In my essay, I outlined five such themes (human dignity, participation, justice, stewardship, and common good) and recommended healthcare policy reforms that I believe flow from them. This is the direction that Christian approaches to American healthcare and its failings should travel.

On this journey, there will be a place for Christian hospitals, clinics, and nursing homes, as well as a place for individual Christian compassionate care, as well as a place for government. I think that Jeff and I would both agree on this general principle, though not perhaps, on its specific form in the world. This mutual journey may create a kind of institutional mimesis (to which he alludes) in medical practices and financial arrangements, but it is often the case that secular institutions learn compassionate practices from Christian ones.^[i]

Excellent Care for All or “You Get What You Pay For”?

Jeff’s Story

I appreciated Jeff’s stories of the excellent care that he and his family received from the U.S. healthcare system (and its caring, intelligent, and competent practitioners). Given my social science-induced focus on the system and its deficiencies, I sometimes forget to acknowledge the value of what we have. Equally key is his simple, profoundly biblical statement, “What I have had, I want for everyone else.” In short, “Do unto others….!”

And what is that? Jeff again: “The system came through for me…. The health insurance from our various employers has been exceptional, and we’ve had no worries about how we’ll pay our medical bills.” I agree wholeheartedly. Everyone in a modern, wealthy, democratic nation such as ours deserves exactly that as a matter of justice and as an element of the common good. Such an employment-based insurance system, extended universally to all, is precisely what I advocated in my opening essay.

But now I hear Julie Kuhl’s excellent question in her comments on Jeff’s essay: “The old adage of the value of something is what you pay for it. If healthcare is ‘free’ (which we know as taxpayers is not true) does it have value?”

Julie’s Question

Although framed as a question, there is an implicit objection here to Jeff’s aspiration and to my proposal for universal coverage. Objections to “free” access to health care come from two sources – experience (Julie’s basis) and free market ideology. For the first, it is true that many who work in healthcare observe some recipients demanding this or that treatment, after having failed to take responsibility for prescription compliance or dietary changes. It’s frustrating. The provider knows how valuable (in time, money, effort) the care demanded; the patient is oblivious or focused on her/his “right” to the care.

For the second objection, market advocates claim that “skin in the game” is the only way to rationalize healthcare delivery: co-payments, deductibles, markets for insurance and/or treatments, health savings accounts, and other market mechanisms.

Fair enough. There is, I believe, a (limited) place for market mechanisms in healthcare. They should not, however, be exaggerated. “Market failure” is particularly prominent in medicine for a variety of well-known (though not universally accepted) reasons too complex to review here. But, perhaps more to the point, universal coverage/access need not be free. Many nations with national health insurance systems have a variety of premiums and of fees at the point of care. A U.S. reform that guarantees access could also include co-payments, deductibles, and insurance premiums. Indeed, my own proposal for a form of the current employment-based insurance system at its center implicitly includes these features. However, the major problem with fees is inability to pay (leading to delayed care). The United States’ high proportion of poor and low-income workers and our deep economic inequality make these more burdensome than other nations with better income support and greater equality.

Rights, Entitlements, and the Common Good

The Limits of Rights Talk

Jeff and I agree in principle on the limits and dangers of “rights talk.” His excellent description of how sickness disrupts community exemplifies how a communitarian focus touches the human condition and personal dignity more profoundly than rights claims. This point is fully congruent with my essay’s discussion of health and community. Although rights claims have their place, especially in the legal/constitutional realm that Jeff describes, they are too blunt and too binary (my rights limit your freedoms) to work as the primary Christian political principle.

Yet, I am worried by the individualism that appears in his essay: “America is built on the idea that her people can make of themselves what they want without government’s goodies softening the blow if they fail or have some calamity happen to them.” I understand the claims of Christian faith to be less individualistic and more solidaristic than he.

Entitlements versus Personal Responsibility: A False Binary

In short, my argument that the common good requires a system of national health insurance (which would “entitle” people to coverage for health needs) does not and need not preclude ways in which such a system might encourage personal responsibility. My own experience with good health insurance is like Jeff’s, but I’m guessing that, despite this good health insurance, both he and I try to exercise regularly, eat properly, and take medicines as prescribed.

Julie makes a related objection: “4. I don’t believe we can ‘fix’ healthcare until we fix the vast socioeconomic inequalities of our society. To do that I believe we need to start with education and add a huge dose of compassion without entitlement. There are many medical professionals within churches that could provide Sat. Clinics, administrators that can chart, records can be kept. Etc.”

My answer is “yes” to the need to address vast socioeconomic inequalities, as in my essay’s attention to the social determinants of health. Moreover, Christian and other organizations are part of the web of care and vital parts of the health safety net. It is not, I believe, a matter of either/or. A reformed healthcare system need not resemble a teeter-totter, where guaranteed access being “up” requires personal responsibility to be “down” or government responsibility being “up” demands churches to be “down.” (Or vice versa!)

The Common Good

I shall not repeat here the description of the common good in my original essay. But suspicion of the common good seems to me a too-frequent symptom of American Christianity’s subtle absorption of liberal individualism. I think this infection is not life-threatening in Jeff’s case, but I wonder why he refers to the “guise” of the common good (Section G under “rights talk”).

An Even Larger False Binary: Universal Access does NOT Require “Government-Run” Healthcare

It seems that both Jeff and Julie believe that a system of national health insurance requires a government-run health system. Perhaps I am wrong, but Jeff seems to imply such a claim, while Julie’s comments are rather explicit in their criticism of government-run health systems (both in the U.S. and abroad).

Of course, I am not sure what they or others who refer to “government-run” health systems understand by this term. The ironic incident of Tea Party objectors to “Obamacare” in 2010 shouting, “Keep government out of my Medicare,” comes to mind!

My own recommendations include retention of Medicare and Medicaid and the VA and military health systems (all “government-run,” but in very important different ways). But its center-piece is the private health insurance system. And private hospitals, clinics, nursing homes, and physician and dental practices remain just that – private.

Every national health system (except perhaps the United Kingdom) has significant private components, and there are numerous organizational and payment differences among Canada, France, Germany, Italy, Australia, and other modern nations. None is perfect, and none is a precise model for the U.S., but all provide quality care and universal access at a far lower cost. Many deliver substantial medical care through private organizations (sometimes faith-based).

Excellent Ideas, But Not Sufficient

Better Jobs for All

Jeff correctly observes that health insurance is a substitute for wages and recommends growing the economic pie so that good jobs at good wages and with good benefits are available to all. I certainly have no objection to that idea, though we may not agree on how to grow the economy! We may even agree that there should be a far higher minimum wage. Again, my own proposal for health system reform depends on employer-based insurance. However, there will always be low wage jobs, elderly and disabled persons, workers temporarily unemployed, and adults pursuing higher education. All these will inevitably require either public programs such as Medicare and Medicaid or public subsidies that allow them to afford employment-based insurance.

Prevention

Julie comments, “1. Neither essay had any focus on PREVENTATIVE care and education. Education is the backbone to any economic advancement and healthcare is no exception. Our bodies our temples of the Lord, we are fearfully and wonderfully made! As a Christian to educate myself and children on nutrition, exercise, warning triggers for common diseases, etc. is a low(er) cost option. In short proactive not reactive.”

My agreement is qualified. Of course, prevention is important. I hope that I follow Julie’s recommended practices. These plus recommended screenings (mammogram frequency at certain ages; regular endoscopy if one has Barret’s Esophagus, and so forth) are an essential part of health care. Moreover, evidence-based and medical panel recommended screenings should be included in universal coverage at no or little cost to the patient.

Too often, however, prevention is oversold as a cure for our expensive healthcare system. Yet, prevention in the form of health education is not cost free. In many cases, a very large population must be educated to prevent a relatively small disease incidence. This is not an argument against education; only a caution that a cost-savings analysis might not reveal monetary savings. Moreover, screenings are also not free and may not be cost-effective. Again, not an argument against them. Catching an early cancer is very important. But screenings entail false positives that may encourage postponed attention to symptoms or false negatives that may lead to unneeded and costly interventions.^[ii] Enhanced attention to prevent will not reform the healthcare system.

Left Undone

I am conscious of several issues raised by Jeff and Julie that I have not addressed:

• ·       Issues with Medicare, Medicaid, and other public programs
• ·       Chargemasters, Collection Practices, and Bankruptcies
• ·       Outcome Based Payment Models

I shall consider these in my third essay.

[i] White, K.R.; C.E. Cochran; and U.B. Patel, “Hospital Provision of End-of-Life Services: Who, What, and Where?” Medical Care, 40 (January 2002), 17-23 and Cochran, C.E. and K.R. White, “Catholic Sponsorship Matters?” Health Progress, 83 (January-February 2002), 14-16, 50.

[ii] See, for example, Russell, L.B., ed., Educated Guesses: Making Policy about Screening Tests (Berkeley: University of California Press, 1994).

Introduction

Before launching into the substance of my first essay, I’d like to take a moment to acknowledge what a pleasure and honor it is to be asked by Harold Heie to participate in the Respectful Conversations project.  I’m glad to have been recommended to Harold by my colleague, Adam MacLeod, who participated in last year’s inaugural Respectful Conversations series.  Thank you, Adam, for passing my name along, and thank you, Harold, for inviting me to write this month.

I’d also like to say what a treat it is to converse this month with Dr. Clarke Cochran of Texas Tech University and the Covenant Health Care System in Lubbock, Texas.  I first learned of Dr. Cochran’s excellent work in the intersection of religion and politics when I was a joint-degree student in law and religion at Emory University in the late 1990s-early 2000s.  His sterling reputation precedes him, and I anticipate that I will learn much from him as we try to untangle the painfully thorny knot that is the American health care system and the Christian’s role in it. 

I can’t let it pass before I note Dr. Cochran’s longstanding affiliation with Texas Tech University.  Even though I didn’t graduate (or attend) Tech, I do consider it to be my “family school”.  Three generations of my immediate family, including my grandfather, mother, father, and oldest brother graduated from Tech, as did an uncle, aunt, and cousin of mine.  My family loves Texas Tech, and I consider it a serendipitous high point of my career to date to engage in an extended public dialogue with one of Tech’s most distinguished scholars.

It is quite fortuitous that Harold asked me to write about the American health care system and the Christian’s role within it.  Even though I have been a law professor for the past eleven years, and a lawyer practicing in the area of health care law for the six years prior, and though I have published about different topics in the health care system, I have not intentionally tried to write an extended theological-ethical reflection about the Christian’s role in the health care system.  So, first and foremost, I consider this to be an opportunity to consolidate and refine my thinking about my different roles in the health care system: as one who thinks and writes about it as a law professor and as a patient and consumer who has interacted with the health care system quite a bit over the past eleven years, and one who executes both roles as a disciple of Jesus.

Because I am “working out my own salvation” in this area of my life, “with fear and trembling,” I thought I would break with the traditional argumentative structure of a persuasive essay, and instead offer a series of numbered and lettered paragraphs – more episodic thoughts about the topic Harold has given us.  In what follows I weave my own story – my own interactions with the American health care system, with my reflections – legal, economic, political, and theological – about that system. 

Biblical Reflections

1. I am working with the famous aphorism attributed to Karl Barth – I have my Bible in one hand and a newspaper in the other.  I try, however imperfectly, to make the Word of God the rule for my life in all things.  As I read it, I find precious little guidance as to how a government should structure the services it provides to its citizens.  In particular, I find nothing, either approving or disapproving, large-scale, top-down provision of health care services to a polity.

            A.  I find a strong injunction in the New Testament to give myself for the benefit of my fellow suffering human being, who Jesus likened to himself in Matthew chapter 25.  I am to visit the prisoner, feed the hungry, and yes, care for the sick.  Indeed, what’s sobering about this little parable in Matthew 25 is that Jesus seems to say that the Christ follower’s salvation depends on how conscientiously he attends to the physical needs of others.  This parable is a biblical personification of the little ditty “if it is to be, it is up to me.”  If the sick are to be cared for, it is up to me. It’s not another’s responsibility.  It’s my responsibility.  If I am to demonstrate my faith in Jesus, well, I really have to do it and get out there find some sick people to minister to.  I don’t mean that I can curry God’s favor by doing good deeds.  What I do mean is that I show Christ himself and the world that I am truly his disciple if I get down to peoples’ suffering where they are. 

            B. Interestingly, I can find no similar instruction by Jesus or Paul or any other New Testament writer for kings, rulers, or governments to take care of the sick of their kingdoms.  I suspect that such an instruction would sound discordant to Jesus’s original disciples or the first Christians and downright silly if it ever made it back to Herod, Caesar, or any other first century ruler.

            C. I perceive (though have no real empirical basis for this judgment) that Contemporary Christians have lost the sense of how the Christian Church, writ large, has ministered to the sick in the two millennia since Christ.  What started as individual and congregational care for the infirm has slowly morphed over the centuries into Christian denominations organizing not-for-profit hospitals or hospital systems, all of which collect fees for goods and services provided to patients.  It is rare indeed when those hospitals or hospital systems charge significantly less than their for-profit or secular non-profit peer facilities or systems.  It’s also rare when these hospitals or systems do not have a policy that they enforce regarding collection of unpaid fees.  In other words, our Christian-affiliated hospitals look much like their secular counterparts in aggressive pricing of health care services and collection practices.

            D. So, what would our churches today look like if we took seriously Christ’s instruction to “look after” [sic] the sick in our midst (MT 25:36)?  Certainly, this includes the ministry of presence, or suffering with the sick by being near them.  But it also must mean something more.  It must also mean seeing that their real, on the ground, physical needs are actually met.  It must mean that our churches are serious about paying what it takes to make sure that our congregants return to health. 

            E. But let’s be real about Christ’s injunction in Matthew 25.  Though there is excellent New Testament teaching that those in the Church should first take care of the “household of faith,” (Galatians 6:10), Christ himself wasn’t so insular.  Nowhere in Christ’s Matthew parable does he limit the ministry to the sick for that which only benefits Christ’s disciples.  Therefore, it seems to me that Christians’ healing ministry should be like that of Christ’s himself – open, inclusive, and willing to engage the hopeless and those in despair.

Rights Talk

2. No person of goodwill – whether Christian, Jew, Muslim, Sikh, Hindu, or whatever else – is glad to see a fellow human being physically suffer.  I’ve had my share of physical agony in my still relatively young life – far less than some people, though.  And I know this: overwhelming pain and suffering distorts the one who suffers and takes him, for however long the suffering lasts, out of true fellowship and communion with other human beings.

            A. How much worse must this suffering be if the person has no reasonable way of alleviating it? The person must wallow in their own misery, knowing there is no possibility for paying for the people or services, like hospitalization or specialized medical treatment that will mollify their agony. Or, if the person or her loved one forges ahead and seeks treatment without having a way to pay for it, what follows is a gnawing terror and desperation associated with having contracted for a debt that the sufferer might never be able to repay.

3. That prolonged physical suffering is sub-optimal and having no way to pay for it is even worse does not necessarily mean that the federal government should provide (pay) for that care, particularly as a claim of right.

            A. I recoil at the prospect of making much of anything a “claim” right, as in something that an American can take hold of or claim because of the mere fact that the person is in America.  As I understand it, America is built on the idea that her people can make of themselves what they want without the government’s goodies softening the blow if they fail or have some calamity happen to them.

            B. Further, a “right” is that which you and the government recognize that it cannot do to you, because what you seek to do is bound up in what it means to be a free human being.  For example, the government cannot abridge your right to worship God as you choose because humanness, by its nature, entails the person’s choice to render obeisance (or not) to a god or gods.

            C. Bound up in the idea of a “right” is a corresponding limitation on government power and not necessarily a demand for that which the government must do for you. 

            D. The genius of the American experiment in liberty is that the best of our constitutional rights are recognized in the text of the Constitution.  Thus, these rights are pre-political and not created.  The rights originally found in the Constitution (free speech, free exercise, due process, etc.) are not small carve-outs from vast expanses of government power.  Rather, they are bulwarks and barriers – capacious buttresses from a government that otherwise seeks to aggrandize authority and control for itself.

            E. So, no, I do not believe that health care is a “right,” constitutional or otherwise which must be provided by the government.  If the Supreme Court ever does decree that the 14th Amendment’s Due Process Clause means that access to government-provided health care is a “right,” that means that the government must provide it – by hook or by crook.  And that will mean significant expenditures in the federal budget, which also means that tough choices will have to be made about the line items that will have to come out of the budget. 

            F.  Even if health care is never formally ensconced as a claim right, it is absolutely clear from well-established Supreme Court doctrine that Congress could, if it wanted to, create a nationwide, all-encompassing, universal system of health care for everyone – rich or poor, black or white, young or old.  The power to do so would likely fall under Congress’s Taxing and Spending Powers found in Article I, section 8, clause 1 of the Constitution.  There is no doubt that Congress could legislate for a universal health care system pursuant to the Taxing and Spending Clause.  Medicare and Medicaid are two examples of partial universal systems created pursuant to Congress’s Spending Power.  There is no doubt, constitutionally speaking, that Congress could expand Medicare, for example, to cover all Americans or create a whole new universal program out of whole cloth, again, pursuant to the Taxing and/or Spending Clauses.

            G. If Congress ever decided to create such an all-encompassing universal system, it would likely do so under the guise that it is for the Nation’s common good.  The common good is that which benefits all of us.  Roads, clean water, a common defense are just three examples of goods that benefit all citizens and therefore probably ought to be provided by the government.  The argument that health care is a common good comes from the idea that good health is necessary to fully actualize oneself and be a robust member of the larger community.  Without health, a citizen is smaller, more insular, and is likely entirely focused on recovering her own private well-being and not how she might interact with other members of the community.

4. It seems to me, then, that if it were obviously advantageous for Congress to create a fully universal health care system, it would have already done so.  It hasn’t.  That’s probably true for at least a few reasons, not the least of which is what I call Americans’ reluctant satisfaction with the financial protection they receive from their current health insurance.  They may not be totally satisfied with the current fee-for-service system, but their current insurance is better than what they would have with a government-sponsored plan.  More on this below.

5. Congress has tried what I call “partial” universal systems – with mixed results.  Take for example the Veterans Administration system.  Now, is it nice that our nation’s veterans have their health care paid for and provided through a nationwide network of doctors and hospitals?  Undoubtedly, it is.  Frankly, providing a veteran (and family’s) health care needs is the very least that Americans can do to show their appreciation for the veteran’s service. But it is also true that our veterans are captured into the system.  If the veteran wants the government-provided benefit, he knows that he must come to the VA hospital to get it. And because veterans are so captured or stuck in the VA system, those who administer the system feel no burning need to compete for patients as do other players (public or private) in the system. Hence the problems and controversies with the VA we have seen in recent years.

Personal Reflections

6.  The American health care system has never failed me.  It came through for me when, as a two-year old toddler, I was flown by helicopter to the children’s hospital in San Antonio to receive several days of inpatient treatment under the breathing tent for severe bronchitis.

            A. The system came through for me as I grew up and saw my doctor for a balky knee, and as I went to the emergency room for a sudden and acute stomach ailment.  I was treated promptly and professionally, and the storm passed after a while.

            B. The system came through for me when I was a professional student and I contracted a rough case of pneumonia.  It knocked me out of my regularly-scheduled law school exams.  However, I had nary a worry about meeting my health care needs, though, as I was covered by my (then-new) wife’s exceptional health insurance from her employer.

            C. The system came through for me when I first broke my tailbone and later my elbow falling down my stairs at home.  (No, my wife didn’t push me.)  There were no problems with my care, as the top-shelf health insurance I had as a fringe benefit of employment with two leading law firms in Nashville, facilitated excellent emergency and follow-up care.

            D. The system came through for me as I’ve dealt with the diagnoses, flare-ups, and treatments of a couple of besetting gastrointestinal issues.  I’ve never given a second thought to the several times I’ve gone to the emergency room for these issues.  Frankly, a few $100 insurance co-payments have been nothing to me as I’ve sought relief in the ER.  I’ve given only a fleeting thought to taking the ambulance (twice) for these issues.  It’s not bothered me (from a financial perspective) that I’ve been admitted to the hospital twice for these issues, and I wasn’t concerned (about money) that these issues have required several rounds of invasive diagnostic testing and one surgery.  My wife and I have always had enough in savings to pay any cost-sharing for which we have been responsible.  Further, and most importantly, we knew that the outstanding health insurance provided by my university would cover the vast majority of the costs associated with my care.  For co-pays and other costs not covered by my health insurance, we used yet another fringe benefit of my employment, our flexible spending accounts.  In no way have my GI issues financially devastated me or my family.  In fact, if I were to put pen to paper, I would guess that we have not had to pay much, if any, money that we did not already plan to pay, in the form of either monthly health insurance premiums or monthly deductions for our FSAs.

            E. The system came through for me as I have filled prescriptions for me, my wife, and my children and they have gone to the hospital and diagnostic testing for a whole host of ailments and accidents.  Looking back over the past eleven years of my current employment (and really since my wife and I were married almost nineteen years ago), the health insurance from our various employers has been exceptional, and we’ve had no worries about how we’ll pay our medical bills.

Private Health Insurance

7.  The way that proposition, immediately above, is framed is very important.  The American health care system has never failed me because I, my wife (when first married), or my father (during my growing-up years) have all had excellent jobs with even better fringe benefits, including comprehensive health insurance.

            A. An observation is in order, I suspect.  As mentioned above, no illness, injury, or condition was ever so extensive or devastating that I, or anyone else in my family, exhausted our health insurance benefits.  I would probably think twice about the “excellence” of my health insurance if I had an illness that far outstripped my family’s ability to cover what insurance did not.

            B. Another observation is in order.  The jobs that I, my wife, and my father have had have either been professional (practicing or teaching law) or management positions where the firm’s needs for employees with specialized skills justified the firm offering excellent fringe benefits, including great health insurance.

            C. Yet another observation is warranted.  Health insurance is always a substitute for wages.  This is well-documented and incontrovertible.  Rational people are usually willing to take a little less in take home pay if their health insurance is great.  They will demand more in wages if the insurance is mediocre.  Further, it’s a fairly standard phenomenon for a prospective employee (or a couple, if the person is married) to extensively analyze their prospective employer’s health insurance, more than any other fringe benefit to see if it will meet the employee’s health needs and risk tolerance.

            D. OK, so what?  It seems to me that the best way to “grow the pie” of access to quality health care is for the conditions to obtain in the national economy so that high paying, great benefits jobs are created, so that these access-newcomers can step into the health care system with their new found insurance.  I know that what we’re really discussing in this month-long conversation are those people who don’t have great (or good enough) jobs and therefore don’t have good health insurance.  What to do about the health care needs of these folks?  I get that.  I get that not everyone will have a high-paying, management type of job with a “Cadillac” level PPO plan.  Surely we’ll discuss options for these people in our final two posts.  But in the meantime, it seems to me that the best way to have the peace of mind that comes with comprehensive health insurance is to get those jobs that provide that type of comprehensive health insurance.  Grow the economy so that more people can find good jobs with good benefits.  Notice that my plan does not depend on the government starting a new program or expanding an existing one.

Conclusion

In this blog post, I’ve moved from a brief meditation on the Christian’s obligation to personally look after his fellow human being as an act of devotion to Christ his Lord.  I then moved to the tenuous position that Americans are put in if they assume that government-provided health care is a “claim” type of right against the government.  Though there are few barriers to Congress creating a mandatory, universal health care system in which Americans must participate, that is a different proposition that to say that there is a constitutional right to health care.  I then moved the camera to my situation and confessed that my experiences with the health care system are unlike many Americans.  I’ve always been in a position where neither I, nor to my knowledge, anyone else in my family, has ever had to worry about health care bills because our jobs have been so good, all things considered.  What I have had, I want for everyone else.  May our economy grow such that everyone who needs great health insurance can have great health insurance.

Inblog posts, I hope that we can discuss structural defects in the American health care system that impose burdens on less well-insured Americans.  I’m thinking here of a few things: (1) the sub-optimal care at times provided by the Medicaid program, (2) the “charge master” phenomenon of billing the uninsured prices for hospital-provided goods and services orders of magnitude more than those with insurance, (3) the aggressive collection practices of some hospitals (even some non-profit hospitals), and (4) the difficulty experienced to access reliable and effective bankruptcy proceedings for those with overwhelming medical debt.