The Supremes and ACA: Is opposing coverage for the poor really just mean?

In the context of the historic and momentous Supreme Court decision legalizing gay marriage across the US, and its affirmation of the Fair Housing Act, the third of the “trifecta” of progressive decisions announced this week, the ruling against those who argued that the ACA forbid federal financial support of federally-sponsored rather than state-sponsored insurance exchanges, seems rather pedestrian. After all, it just decided that the intent of the ACA was to achieve what its intent was – greater insurance coverage for the American people – and this would not be invalidated by 4 poorly-chosen words in a 1,000 page bill. What is more worthy of note is that there were three Supreme Court Justices who voted against it, when it was clearly not a real issue of law but an end-run to get it invalidated on a technicality. The low point of the dissent was Justice Scalia’s juvenile characterization of the majority decision as “jiggery-pokery”, an archaic expression most recently used in the public domain in a Harry Potter movie. Of course, Scalia could make a fair Harry Potter villain; not the potent evil of Lord Voldemort, but more of a scowling, snarling Severus Snape.

But the decision has real meaning. It means that millions of Americans in the 34 states that elected to not establish state-based exchanges and thus depend upon federal ones will not lose their health insurance. That is a good thing for those people, and it is a good thing for America. It does nothing for those people who were excluded by the SCOTUS decision 3 years ago (also written by Chief Justice Roberts) that, while validating ACA, precluded requiring states to expand Medicaid. This left millions more in the states that have not done so (like mine, Kansas) without insurance.  It certainly does nothing for the millions of those without legal documentation who live here, or the many others who fall between the cracks of the law. It still leaves us without the moral, medical, social, and economic advantages that come from a truly universal health system such as any of those adopted by every other wealthy nation, which achieve better health for less cost (see graphic). But it does make us seem slightly less cruel and benighted.

Not that this will end the discussion. A small article in the New York Times of June 27, 2015 notes that “Legal challenges remain for health law”.  These include a lawsuit by House Republicans led by Speaker John Boehner maintaining ACA is invalid because it spends money not appropriated by Congress, and a series of suits by religious organizations about the law’s requirement that they cover contraception. Indeed, the whole opposition to the law has becoming akin to a religion itself; according to its opponents (obviously also including all the Republican candidates for President) it is bad as a matter of faith, even though it does so much good. Yes, it does good in costly ways, ensuring that insurance companies make their profit; it does it in arcane ways; it does it in ways which in fact cost some people more than they might have otherwise paid. But it provides several million people the opportunity to not be the Donna Atkins or Tommy Davis of the future (see Dead Man Walking: People still die from lack of health insurance, November 17, 2013).

In response to a blog in which I posted a map that shows that the vast majority of those remaining uninsured are in the states of the former Confederacy and suggested that while Southern people might not be meaner than others, the impact of their policies was (Medicaid expansion and uncovered lives: are people meaner in the South?, February 8, 2015), Bobby Cohen wrote in a comment “If meanness doesn't explain the rejection of Medicaid expansion by Southern states, what does?” Well, for many people, I suppose, it is ignorance, of the sort demonstrated by “Keep the government’s hands off my Medicare!” or what I have called the “Craig T. Nelson fallacy” (“I've been on food stamps and welfare. Anybody help me out? No. No.”!!). Or the beliefs of some of the people in southeast Kansas interviewed for Kai Wright’s excellent article “Life and Death in Brownback’s Kansas”, published in the June 22/29 issue of The Nation where it seems that “Everyone is convinced that someone else is getting a better deal, that somewhere a horde of Kansans are gaming the system and preventing the truly needy from getting help.” In a true “What’s the Matter with Kansas”[1] illustration, even the doctor at the community health clinic who is fighting hard to get care for her impoverished patients who would have otherwise had Medicaid is conflicted; Brownback, after all, is a strong anti-abortion advocate, as is she.

All of these may explain some of the position of the leaders of this movement, but a better explanation can be found in the answer to one of the questions in “Steven Pinker’s Mind Games”, a psychology quiz on the NY Times website: “the best liar is the one who believes his own lies”. But it is hard to look at, not to mention listen to or read, the hard-core right-wing justices on the Supreme Court (who, unlike the GOP’s many presidential candidates are not even running for office) without thinking that they are, essentially, mean. They are not only against helping people when it will cost them, not altruists (another Pinker question), but even when it will save them money (again, see graphic).

I do not claim to be a legal scholar of the status of any of the Supreme Court Justices, or indeed the President. I gained some understanding from “The elusive right to health care under US law”, by Prah Ruger, Ruger, and Annas in the June 25, 2015 issue of the New England Journal of Medicine, published before any of these SCOTUS decisions were announced.[2] It’s a good and readable article which helps medical people like me understand some of the logic of court decisions. One line I found of particular interest was “American constitutionalism has championed negative liberties more than positive rights.” The idea is that the Constitution says government should not be allowed to take away our individual liberties (e.g., our guns) but not so much that we have a right to things (e.g., health care).

And yet, as pointed out by Gail Collins in “Supremes hit a high note”, this Court has “…destroyed the nation’s campaign finance laws, limited workers’ rights to challenge wage discrimination and women’s rights to control their bodies. And basically disemboweled a 50-year-old Voting Rights Act that Congress had renewed by increasingly large margins on four different occasions.” These decisions, almost all of which came out differently from those of the last 2 days only by the “swing vote” of Justice Kennedy (Chief Justice Roberts did join the majority in the decision on ACA), do not always follow this logic. It is quite an extension of the idea of liberty to say that corporations are people (the founders certainly didn’t think so) or money is speech. It is quite opposite protecting individual liberty to have laws limiting the ability of women to obtain contraception or abortion (although they can sure have guns!). Whether put forward by ignorant bigots, self-serving politicians, or sanctimonious Supreme Court Justices, the concept is most consistently “people should be allowed to do whatever they want, as long as they want the same things I do, but not what I disapprove of”. Sometimes, particularly when describing the actions of the powerful, this is described as political. But I think Dr. Cohen is right; it is essentially mean.

A phrase we commonly hear is that “mean people suck”. They do, but more important, when they have positions of power, they can do a lot of damage to others.

  

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[1] Thomas Frank. “What’s the matter with Kansas?”. Henry Holt. 2004 [interestingly, published in the UK and Australia under the title “What’s the matter with America?”!] ISBN 0-8050-7339-6.

[2] Jennifer Prah Ruger, Ph.D., M.S.L., Theodore W. Ruger, J.D., and George J. Annas, J.D., M.P.H., The Elusive Right to Health Care under U.S. Law, N Engl J Med 2015; 372:2558-2563June 25, 2015DOI: 10.1056/NEJMhle1412262

ACA benefit programs: will state to state variation be good or bad?

With the passage of the Affordable Care Act (ACA) a larger portion of Americans will be getting health care coverage. For some, such as young adults who can now be kept on their parents’ insurance until 26 (provided their parents have insurance that covers family members!), there has already been benefit. As the 2014 roll-out of the most significant benefits gets closer, there is a lot of focus on the details, including the flexibility given to states to determine the benefits package that companies will have to offer, and whether it will be good or bad.

Writing in the New England Journal of Medicine, Alan Weil, MPP JD (“The value of federalism in providing essential health benefits”)^[1], provides a positive slant on the “federalist” approach to ACA roll-out, in which individual states will have flexibility in choosing which of 10 plans for providing “essential health benefit” (EHBs) they will use. While there are 10 EHBs that must be included, and the state insurance exchanges’ benefits must be based on a “typical insurance plan”, states will have considerable latitude in determining both what is “typical” and what scope to offer for these services; in addition, states will decide whether these plans need to cover benefits beyond those 10, and which they will be. Weil sees this as a good thing, citing the “states as a laboratory for good policy” in the sense that there will be different approaches. He cites 3 benefits: 1) different states, trying different approaches, will see which work “best” in the real world. For example, a single decision made by the federal government on what benefit package to offer (seen as the alternative) would, perhaps, cover treatments that turn out to not be of real benefit to people (he cites autologous bone marrow transplantation as an example of a treatment that was widely covered before it was found to be ineffective); 2) the “typical insurance plan” mandate would make people “have a plan similar to what their neighbors already have”; and 3) it would be consistent with local values. This last is somewhat problematic, since states are hardly very “local”, and have proven themselves to be very willing to enact policies that punish minority points of view (or even majorities, since much power resides, as at the federal level, with those constituencies with the most resources).

In the same issue of NEJM, Jennifer Prah Ruger PhD, writes “Fair enough? Inviting inequities in state health benefits”[2]. She makes many points about potential lack of equity in treatment that are not only possible, but are likely to result from allowing such state-to-state variation. The fact that Weil feels he has already dispensed with the “equity” argument: “The most common, but least convincing, argument against the secretary's federalist approach has to do with equity. It is a truism that state flexibility will yield differences within the country and that those differences cannot be defended on the basis of differing basic human needs for health care services. But those inequities must be viewed in context…” does not make such criticism illegitimate. In fact, Weil is making Prah Ruger’s point, that individuals will suffer negative health consequences because they live in one state rather than another. He sees this as acceptable; she does not. The strongest point that Weil makes is that a single national decision on a benefits package may yield a bad one; Prah Ruger argues that at least it would be consistent. I tend to agree more with her. While some states may have more generous benefits (and even better, since “more generous” is not always better if it provides access to ineffective or harmful services), many – and probably more -- will offer less than a federal program would. The current Medicaid program is a good example of how widely disparate benefits packages can be between states and how much people can suffer from a lack of benefit.

The most important point that Prah Ruger makes derives, interestingly, from Aristotle, the principles of horizontal and vertical equity. Vertical equity means that people with different sets of needs receive different quantity and quality of services (she uses the example of the difference between the treatment needed by people with conjunctivitis and glaucoma to restore “normal ocular function”; perhaps a better one would be between those with myopia and glaucoma). Horizontal equity would require that different people with the same needs have the same treatment options available. She makes clear that such principles do not require that everyone get the same benefits or the same outcomes, but that the principle of proportionality should apply, “…that similar cases should be treated similarly and different cases differently, in proportion to their differences.”

Vertical equity, in which everyone gets the same services whether they need them or not, obviously does not make sense. While the same services should be available to everyone when they need them, whether employed by ACA, a national health insurance system, or private insurance companies, it does not make sense to offer the wrong services to people when they are more expensive, nor is it reasonable to offer inadequate services because they are less effective. Understanding the relative cost and benefit of services to different people in different sets of circumstances is critical to both containing cost and increasing quality. A very interesting “Viewpoint” on this issue is offered by Robert H. Brook, MD ScD in JAMA (“Do physicians need a ‘shopping cart’ for health care services?”^[3]). He describes the on-line shopping most of us are familiar with, which gives us the cost of the items that we are interesting in purchasing, offers us both alternatives and other options that “people who bought this item might be interested in”, and tabulates what we have ordered in our shopping cart. And gives us at least two opportunities to not order, by asking us to confirm our intention. He does not argue that physicians should always order cheaper tests or therapies, but by knowing what the “basket of services” they are ordering for patients would cost, both for the patient and the insurer (“For example, if the insurance company paid the pharmacy $80 and the patient paid $8, the cost of this service is $88,”), they would have a better sense of what was of most value.

Horizontal equity, however, is really the most important issue. The absence of this characteristic is the fatal flaw in our current “system” and is likely to continue even with ACA. It means that everyone doesn’t get the most appropriate therapy for their condition, but rather that some people do not get enough, while others may get too much and even suffer ill effects as a result. Despite scare stories about rationing, the fact is that we have always had rationing, but it has been on the basis of the resources (mainly financial) a person has rather than on the basis of need. The problem with having different options in different states is that it will be the most disenfranchised who lose out in the states with meaner benefit packages, while those with resources will be able to access care.

Making the right care available to all the people who need it is the only reasonable goal for a health system. The rest is distraction.

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[1] Weil A, The value of federalism in defining essential health benefits.,N Engl J Med. 2012 Feb 23;366(8):679-81

[2] Ruger JP, Fair enough? Inviting inequities in state health benefits.,N Engl J Med. 2012 Feb 23;366(8):681-3

[3] Brook RH, Do physicians need a "shopping cart" for health care services? JAMA. 2012 Feb 22;307(8):791-2.