American Journal of Law & Medicine

Health care reform in the year 2000: the view from the front of the classroom.

I. INTRODUCTION: WHERE HAVE WE BEEN?

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.(1) 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.

In the early years of my teaching career I was heavily influenced by my own mentors who insisted that American health care was fitfully, though inevitably, evolving towards some nationalized health care scheme and that I should organize my understanding of it accordingly. For example, I have always taught that the adoption of Medicare and Medicaid in the 1960s was one of the most significant changes in the structure of American health care during the twentieth century and I will continue to do so. Nonetheless, in the early years of my career I followed my own teachers' lead and emphasized what those programs left undone. Neither Medicaid nor Medicare resolved the problems of the working poor or of those for whom private insurance continued to be either unavailable or unaffordable.(2) Moreover, while committing all that money to health care for the elderly and the poor, Congress and the states had not--yet, I frequently implied--done anything to control costs on those programs, nor had they interfered with the autonomy of private providers or the province of private third party payers. Again, steps yet to be taken, I taught.

The health planning and other regulatory programs that followed in the 1970s fit nicely into that storyline. As health care costs continued to rise rapidly, government began to move again in that inevitable direction, first to control the costs of the publicly funded programs and then, hesitantly but increasingly, those of privately funded health care as well. Regional Medical Programs and Comprehensive Health Planning gave way to Health Systems Agencies and certificate-of-need requirements; there were even experiments with price controls and talk of empowering planners to decertify existing services.(3) Each piece was oddly fashioned, but I thought the overall pattern was pretty clear, as was the future.

There were times in the 1970s, when it appeared that we would take the next giant step, and at least I thought so, and I revised my teaching accordingly. As various national health insurance proposals moved on and off the political stage, I quickly reworked my class materials and built many of my classroom lessons around a comparison of the existing structural elements of American health care with what they might look like in the future under various nationalized schemes. I still have a faded chart in my notes contrasting Long-Ribicoff with Kennedy-Mills with the counteroffers forged by Nixon and Weinberger.(4) In retrospect, I wish I had spent less time on the specifics of these proposals themselves--their details seeming all important at the time and now long forgotten--and presented the national health insurance debates of the 1970s more as I now see them: good illustrations of the conumbral nature of American health politics and the ambivalent values that underlie them. The political lesson would have given my students more insight as to what was really going on at the time and left them better prepared to understand what followed.

It would have prepared me better too. I must confess: I had to reorganize my thinking as well as my teaching rather quickly in the Reagan years. In what seemed like a few short months I stopped teaching Jimmy Carter and his "nine percent solution" and started teaching Ronald Reagan and his New Beginning.(5) I had to explain why so many Americans who initially had responded so enthusiastically to Carter's promise of national health insurance were now equally enthusiastic about Reagan's plans to march us in exactly the opposite direction.(6) I realize now that what was actually going on during those years was much more complicated and even more predictable than that, but I think I missed a political lesson or two along the way. Instead, I tried to revise but retain my basic message. Maybe the fitful journey had stalled at a crossroads. Maybe it was not "How long?" but rather, "Which way?" After all, my mentors--I will hereafter stop blaming them and take more responsibility for my own short-sighted choices--repeatedly told me that American health care was in a state of crisis and that sooner or later, "something had to be done." Maybe they were only wrong about the inevitability of the "something." I started telling my students that Americans were facing some very fundamental choices concerning their collective health care. They had better understand those choices--I frequently paused here for dramatic emphasis--and be prepared to live with the consequences.

That approach worked pretty well for the first year or two. I did not even have to look very hard for usable class materials. In a way not seen before or since, the incoming Reagan Administration set out exactly what it wanted the federal government to look like, program by program, dollar by dollar.(7) Health care was not its top priority, but the Reagan Administration's agenda was no less specific: repeal the regulatory efforts of the 1970s, terminate many federal health programs, block grant others, and generally shift more responsibility for American health policy to the States and the workings of the private sector.(8) In fact, I was convinced--not happy, but convinced--that "Which way?" was largely a rhetorical question. The real questions of the day were how far would we pursue Reagan's agenda, and how different would the world be from what it might have been had we continued to follow the regulatory path.

As it turned out, that was not quite right either. It quickly became apparent, though I still wonder how quickly, that Reagan would not get everything he wanted, particularly regarding reforming health care. Congress honored his requests for health care deregulation pretty much line for line.(9) Many 1960s-style federal health programs--again I have forgotten the details but I remember telling my students that the poor and the elderly would find the world a very difference place, if they came to be--disappeared. But Reagan's plans to rework Medicare and, particularly, Medicaid were among his first major legislative losses.(10) Probably more importantly, the huge budget cuts that were supposed to follow from a leaner and more conservative federal health effort never materialized. To the contrary, federal health spending--Reagan and his revolution notwithstanding--continued to rise in the 1980s, as did health care spending generally, in much the same manner that had convinced Carter that he would have to impose big-time regulatory controls if he really wanted to pursue national health insurance.(11)

By the end of Reagan's first term in office, Congress was not only refusing to do some of the things that Reagan was asking, but was doing things that did not even fit into the Reagan strategy or, for that matter, any familiar political configuration. On its own initiative, Congress adopted a series of cost-containing measures for Medicare and Medicaid. The most prominent among these measures created prospective inpatient hospital payment based on diagnostic-related groupings, known more commonly, thankfully, as DRGs.(12) Congress also adopted legislation mandating that employers provide insurance to their former employees(13) and requiring most hospitals to provide emergency care to anyone regardless of their ability to pay.(14) Both these latter measures were added as riders to much larger consolidated omnibus budget reconciliation acts (and thus to this day we refer to them with the contrived acronym "COBRA").(15) Who knows what would have happened if they had been considered apart from the broader budgetary squabbles with which they were bundled. But they were enacted nonetheless over the vigorous objections of Reagan and his allies.

While none of this bothered me at all on a personal level--in fact, I was delighted--it became increasingly problematic for me as a teacher. What was happening did not look like a fundamental decision at a crossroads or a fitful journey. If my job was to describe and explain all this to the next generation, some quick pedagogical footwork was in order. Maybe even a whole new metaphor.

My initial reaction--and here the choice was mine just mine--was to try to stretch some of the same old notions just a little farther. …

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