Volume 8  Number 2  March 8, 2011
Second Opinions

More About the Health Care Bill II

I am indebted to a close friend and relative, a medical director of a major insurance plan who brought me up to date on the health care reform bill. I learned that effective this past October the bill "mandated first dollar coverage for all preventive services. That means there are no co-pays for preventive office visits, vaccines, mammograms, screening colonoscopies, and so on. Eliminating these co-pays takes away a significant barrier to preventive services." How many headlines have you seen in the media informing us of these benefits that are already helping millions of families?

Speaking of opponents of the bill in Congress, it turns out that congressional members have to wait until the first of the month to join the Federal Employees Health Benefits Program (FEHP). One recently sworn in Republican made the news when he wrote how unfair it was that he had to wait a couple of weeks to get coverage. How long will the rest of us have to wait for Government-supported health care?

Recent History of Opposition

The most sweeping change to federal health law in more than 55 years, was made law with passage of The Patient Protection and Affordable Care Act H.R. 4872, on March 21, 2010. Yet efforts to repeal it or have it declared unconstitutional have swollen the media and dominated the nation's politics for the past two years. "While President Obama and Democrats were celebrating in Washington, Republicans around the country were filing the first of what ultimately would become more than 20 lawsuits against the measure's so-called "individual mandate".

What is the "Individual Mandate"

The "individual mandate" clause in the health care reform law is the provision that requires nearly every American not already insured to purchase health insurance or pay a penalty starting in 2014. In a recent Harris Interactive/HealthDay Poll, half of U.S. adults oppose the clause; yet in another poll of 3,000 adults 71 percent polled in mid-February agreed with the suggestion that "for health insurance to work, it is necessary to include people who are healthy in order to help pay for those who are sick." People remain confused only because they hear the constant shouting about the mandate led by a chorus of political and economic forces that seek to undermine the law by having it declared unconstitutional. Misinformation, distortions, and outright lying abound. Why are those in higher reaches of the Government afraid to speak out?

What are the actual facts behind this critical requirement in the health care law? I quote parts of a superb article by Ezra Klein which appeared in the Washington Post a year ago showing how the mandate actually works: "Most people will never notice the mandate, as they get insurance through their employer... But of those who aren't exempt and aren't insured, the choice will be this: Purchase insurance or pay a small fine. In 2016, the first year the fine is fully in place, it will be $695 a year or 2.5 percent of income, whichever is higher." If coverage would cost more than 8 percent of your monthly income, or you're making very little, you're not required to buy insurance. Compare a fine of $695 with the average cost of health insurance for Americans, about $7,000 a year.

What is the penalty if you don't buy insurance and you don't pay the penalty? Klein explains: "Well, not much. The law specifically says that no criminal action or liens can be imposed on people who don't pay the fine. For now, the penalties are low and the enforcement is non-existent. The irony of the mandate is that it's been presented as a terribly onerous tax on decent, hardworking people who don't want to purchase insurance. In reality, it's the best deal in the bill. A cynical consumer would be smart to pay the modest penalty rather than pay thousands of dollars a year for insurance. In the current system, that's a bad idea because insurers won't let them buy insurance if they get sick later. In the reformed system, there's no consequence for that behavior. You could pay the penalty for five years and then buy insurance the day you felt a lump..." (My italics.)

Is the Health Care Reform Bill Really Unconstitutional?

Laurence H. Tribe, a professor at Harvard Law School, and the author of "The Invisible Constitution" has written an Op Ed in the New York Times that to my mind, convincingly demonstrates the constitutionality of the legislation:

"Since the New Deal, the court has consistently held that Congress has broad constitutional power to regulate interstate commerce. This includes authority over not just goods moving across state lines, but also the economic choices of individuals within states that have significant effects on interstate markets. By that standard, this law's constitutionality is open and shut. Does anyone doubt that the multitrillion-dollar health insurance industry is an interstate market that Congress has the power to regulate?

"Many new provisions in the law, like the ban on discrimination based on pre-existing conditions, are also undeniably permissible. But they would be undermined if healthy or risk-prone individuals could opt out of insurance... For the system to work, all individuals — healthy and sick, risk-prone and risk-averse — must participate to the extent of their economic ability." In other words, without the individual mandate provision, those with health insurance would end up paying huge premiums for those who chose to stay out. Those who didn't purchase insurance they could afford would have made a choice to take a free ride on the health care system. They know that if they need emergency-room care they can't pay for, the public will pick up the tab.

Professor Tribe points out that in this regard, the health care law is little different from Social Security. He reminds us that the Supreme Court unanimously recognized in 1982 that it would be difficult, if not impossible to maintain the financial soundness of a Social Security system from which people could opt out. "The same analysis holds here: by restricting certain economic choices of individuals, we ensure the vitality of a regulatory regime clearly within Congress's power to establish. Even if the interstate commerce clause did not suffice to uphold mandatory insurance, the even broader power of Congress to impose taxes would surely do so. After all, the individual mandate is enforced through taxation, even if supporters have been reluctant to point that out." Professor Tribe predicts the Supreme Court will hold the law constitutional. I only hope he's right.

Health Care Coverage in Israel and Other Countries

Israel has an exemplary and successful health care system with 46 hospitals, 2,000 community oriented primary care clinics, three rehabilitation hospitals, and several professional schools of medicine, dentistry, and pharmacy. Every citizen, Jew, Christian, and Arab is entitled to basic health care as a fundamental right. Dr. Rafi Cayam, Director of Medicine for the Jerusalem District, states that four key elements make their system work so well: Universal coverage, cradle-to-grave coverage, basic and catastrophic care, and full access to medication. The Patient's Rights Law mandates universal and comprehensive health care and requires every resident of Israel to register with one of Israel's four health care organizations. It is illegal for health funds to bar applicants on any grounds.

These group insurance funds are capitated according to number of members. Statistics released by the Organization for Economic Cooperation and Development (OECD) show in 2009 life expectancy in Israel is 81, putting Israel in the top 14 countries in the world, with Japan at the highest, 83 years. Compared to Europe or the U.S. Israel ranked higher than average for newborn and up to 5 year child mortality rate. There are problems to be sure, in terms of cost increases, but this combination of private and Government supported health care is a good example of a system that works considerably better than most countries — ours in particular. Records are almost completely computerized, with over 85% of doctors using electronic medical records, compared to only 15% in the U.S.

We have a lot to learn from Israel and many countries in the EU, particularly The Netherlands, France, and Germany. The question remains whether we will ever reach their level of acceptance in supporting the idea that health care is a fundamental right of all citizens in an advanced democratic society.

Much currently proposed legislation, including limiting universal coverage and maintaining for-profit private insurers by eliminating a "public option" do not, in my opinion, inspire hope that we will significantly reform the current system for decades.

Martin F. Sturman, MD, FACP

Copyright 2011, Mathemedics, Inc.

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