Archive for month: April, 2021

Series Editor: Richard Riegelman

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LT H Health Policy

and Law Sara E. Wilensky, JD, PhD Department of Health Policy and Management, Milken Institute School of Public Health, The George Washington University

Joel B. Teitelbaum, JD, LLM Department of Health Policy and Management, Milken Institute School of Public Health, The George Washington University

Essentials of

FOURTH EDITION

 

 

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Library of Congress Cataloging-in-Publication Data Names: Teitelbaum, Joel Bern, author. | Wilensky, Sara E., author. Title: Essentials of health policy and law / Sara E. Wilensky, Joel B. Teitelbaum. Description: Fourth edition. | Burlington, Massachusetts: Jones & Bartlett Learning, [2020] | Joel B. Teitelbaum’s name appears first in previous edition. | Includes bibliographical references and index. Identifiers: LCCN 2018058317 | ISBN 9781284151619 Subjects: | MESH: Health Policy—legislation & jurisprudence | Insurance, Health—legislation & jurisprudence | Social Determinants of Health | Health Care Reform | United States Classification: LCC RA395.A3 | NLM WA 33 AA1 | DDC 362.10973—dc23 LC record available at https://lccn.loc.gov/2018058317

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© Mary Terriberry/Shutterstock

Prologue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .vii About the Editor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .xv About the Authors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xvii Contributors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xix

PART I Setting the Stage: An Overview of Health Policy and Law 1

Chapter 1 Understanding the Role of and Conceptualizing Health Policy and Law . . . . . . . . . . . . . . . . . . 3

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Role of Policy and Law in Health Care

and Public Health . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Conceptualizing Health Policy and Law . . . . . . . . . . . . . 5

The Three Broad Topical Domains of Health Policy and Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Social, Political, and Economic Historical Context . . . . 6 Key Stakeholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Endnotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Chapter 2 Policy and the Policymaking Process . . . . . . . . . . . 11

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Defining Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Identifying Public Problems . . . . . . . . . . . . . . . . . . . . . . . . 11 Structuring Policy Options . . . . . . . . . . . . . . . . . . . . . . . . . 12

Public Policymaking Structure and Process . . . . . . . . . 13 State-Level Policymaking . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 The Federal Legislative Branch . . . . . . . . . . . . . . . . . . . . . . 14 The Federal Executive Branch . . . . . . . . . . . . . . . . . . . . . . 21

The Health Bureaucracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 The Federal Government . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 State and Local Governments . . . . . . . . . . . . . . . . . . . . . . 28 Interest Groups . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Endnotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Chapter 3 Law and the Legal System . . . . . . . 33 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 The Role of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 The Definition and Sources of Law . . . . . . . . . . . . . . . . . 35

Defining “Law” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Sources of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Key Features of the Legal System . . . . . . . . . . . . . . . . . . 39 Separation of Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Federalism: Allocation of Federal

and State Legal Authority . . . . . . . . . . . . . . . . . . . . . . . . 40 The Role of Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Endnotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

Chapter 4 Overview of the United States Healthcare System . . . . . . . . . . . . . . . . . . . . . . . 49

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Healthcare Finance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

Health Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Direct Services Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Healthcare Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 The Uninsured . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 The Underinsured . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 Insurance Coverage Limitations . . . . . . . . . . . . . . . . . . . . 61 Safety Net Providers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 Workforce Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

Healthcare Quality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 Key Areas of Quality Improvement . . . . . . . . . . . . . . . . . 68 Assessment of Efforts to Improve Quality . . . . . . . . . . . 71

Contents

iii

 

 

Comparative Health Systems . . . . . . . . . . . . . . . . . . . . . . 71 A National Health Insurance System: Canada . . . . . . . 71 A National Health System: Great Britain . . . . . . . . . . . . . 73 A Socialized Insurance System: Germany . . . . . . . . . . . 74 The Importance of Health Insurance Design . . . . . . . . 75

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77

Chapter 5 Public Health Institutions and Systems . . . . . . . . . . . . . . . . . . . 81

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 What Are the Goals and Roles

of Governmental Public Health Agencies? . . . . . . . 81 What Are the 10 Essential Public Health Services? . . . 83 What Are the Roles of Local and State Public

Health Agencies? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 What Are the Roles of Federal Public Health

Agencies? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 What Are the Roles of Global Health

Organizations and Agencies? . . . . . . . . . . . . . . . . . . . . 90 How Can Public Health Agencies Work Together? . . . 91 What Other Government Agencies

Are Involved in Health Issues? . . . . . . . . . . . . . . . . . . . . 91 What Roles Do NGOs Play in Public Health? . . . . . . . . 92

Nongovernmental Organizations . . . . . . . . . . . . . . . . . . . 92

How Can Public Health Agencies Partner With Health Care to Improve the Response to Health Problems? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

How Can Public Health Take the Lead in Mobilizing Community Partnerships to Identify and Solve Health Problems? . . . . . . . . . . 95

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96

Endnotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 Further Reading . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 Other Sources Consulted . . . . . . . . . . . . . . . . . . . . . . . . . . 109 Source for Political Affiliation of Senate . . . . . . . . . . . . 109 Source for Political Affiliation of the

House of Representatives . . . . . . . . . . . . . . . . . . . . . . . 109

PART II Essential Issues in Health Policy and Law 111

Chapter 6 Individual Rights in Health Care and Public Health . . . . . . . . . . . . . 113

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113

Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 Individual Rights and Health Care: A Global

Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116 Individual Rights and the Healthcare System . . . . . 117

Rights Under Healthcare and Health Financing Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118

Rights Related to Freedom of Choice and Freedom From Government Interference . . . . . . . 119

The Right to Be Free From Wrongful Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125

Individual Rights in a Public Health Context . . . . . . 128 Overview of Police Powers . . . . . . . . . . . . . . . . . . . . . . . . 128 The Jacobson v. Massachusetts Decision . . . . . . . . . . . . 129 The “Negative Constitution” . . . . . . . . . . . . . . . . . . . . . . . 130

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133

Endnotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134

Chapter 7 Social Determinants of Health and the Role of Law in Optimizing Health . . . . . . . . . . . . . 137

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138 Social Determinants of Health . . . . . . . . . . . . . . . . . . . 139

Defining Social Determinants of Health . . . . . . . . . . . 139 Types of SDH . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139 The Link Between Social Determinants and

Health Outcomes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141

Law as a Social Determinant of Health . . . . . . . . . . . 142 Right to Criminal Legal Representation

vs . Civil Legal Assistance . . . . . . . . . . . . . . . . . . . . . . . . 144

Combating Health-Harming Social Conditions Through Medical-Legal Partnership . . . . . . . . . . . . 146

The Evolution of an “Upstream” Innovation . . . . . . . . 147 The Benefits of MLPs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150

Endnotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151

Chapter 8 Understanding Health  Insurance . . . . . . . . . . . . . . . . . . . . 153

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 A Brief History of the Rise of Health

Insurance in the United States . . . . . . . . . . . . . . . . . 154 How Health Insurance Operates . . . . . . . . . . . . . . . . . 156

Basic Terminology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156 Uncertainty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157 Risk . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158 Setting Premiums . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160 Medical Underwriting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161

iv Contents

 

 

Managed Care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162 Cost Containment and Utilization Tools . . . . . . . . . . . . 163 Utilization Control Tools . . . . . . . . . . . . . . . . . . . . . . . . . . . 164 Common Managed Care Structures . . . . . . . . . . . . . . . 166 The Future of Managed Care . . . . . . . . . . . . . . . . . . . . . . 169

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170

Endnotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171

Chapter 9 Health Economics in a Health Policy Context . . . . . . . . . . 173

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173 Health Economics Defined . . . . . . . . . . . . . . . . . . . . . . . 174

How Economists View Decision Making . . . . . . . . . . . 174 How Economists View Health Care . . . . . . . . . . . . . . . . 176

Economic Basics: Demand . . . . . . . . . . . . . . . . . . . . . . . 176 Demand Changers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176 Elasticity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178 Health Insurance and Demand . . . . . . . . . . . . . . . . . . . . 179

Economic Basics: Supply . . . . . . . . . . . . . . . . . . . . . . . . . 180 Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180 Supply Changers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180 Profit Maximization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180 Health Insurance and Supply . . . . . . . . . . . . . . . . . . . . . . 181

Economic Basics: Markets . . . . . . . . . . . . . . . . . . . . . . . . 182 Health Insurance and Markets . . . . . . . . . . . . . . . . . . . . . 182 Market Structure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182 Market Failure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187

Endnotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187

Chapter 10 Health Reform in the United States . . . . . . . . . . . . . . . . 189

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189 Difficulty Achieving Health Reform

in the United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190 Culture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191 U .S . Political System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191 Interest Groups . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193 Path Dependency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193

Unsuccessful Attempts to Pass  National Health Insurance Reform . . . . . . . . . . . . . 194

The Stars Align (Barely): How the ACA Became Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197

Commitment and Leadership . . . . . . . . . . . . . . . . . . . . . 197 Lessons From Failed Health Reform Efforts . . . . . . . . . 199 Political Pragmatism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201

Overview of the ACA . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201 Individual Mandate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203 State Health Insurance Exchanges/

Marketplaces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206 Employer Mandate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213 Changes to the Private Insurance Market . . . . . . . . . . 214 Financing Health Reform . . . . . . . . . . . . . . . . . . . . . . . . . . 215 Public Health, Workforce, Prevention,

and Quality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216

The U .S . Supreme Court’s Decision in the Case of National Federation of Independent Business v. Sebelius . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217

States and Health Reform . . . . . . . . . . . . . . . . . . . . . . . . 218 Key Issues Going Forward . . . . . . . . . . . . . . . . . . . . . . . . 219

Congressional Activity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220 Insurance Plan Premium Rates . . . . . . . . . . . . . . . . . . . . 222 ACA Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225

Chapter 11 Government Health Insurance Programs: Medicaid, CHIP, and Medicare . . . . . . . . . . . . . . . . 231

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232 Medicaid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233

Program Administration . . . . . . . . . . . . . . . . . . . . . . . . . . . 233 Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234 Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238 Amount, Duration, and Scope,

and Reasonableness Requirements . . . . . . . . . . . . . 241 Medicaid Spending . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242 Medicaid Financing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243 Medicaid Provider Reimbursement . . . . . . . . . . . . . . . . 244 Medicaid Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247 The Future of Medicaid . . . . . . . . . . . . . . . . . . . . . . . . . . . . 248

Children’s Health Insurance Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . 248

CHIP Structure and Financing . . . . . . . . . . . . . . . . . . . . . 249 CHIP Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 250 CHIP Benefits and Beneficiary Safeguards . . . . . . . . . . 251 CHIP and Private Insurance Coverage . . . . . . . . . . . . . . 252 CHIP Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252 The Future of CHIP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252

Medicare . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253 Medicare Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253 Medicare Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255 Medicare Spending . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258 Medicare Financing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258 Medicare Provider Reimbursement . . . . . . . . . . . . . . . . 262 The Future of Medicare . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265

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Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265

Endnotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268

Chapter 12 Healthcare Quality Policy and Law . . . . . . . . . . . . . . . . . . . . 271

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 271 Quality Control Through Licensure

and Accreditation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 272 Medical Errors as a Public

Health Concern . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273 Promoting Healthcare Quality Through the

Standard of Care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 275 The Origins of the Standard of Care . . . . . . . . . . . . . . . . 275 The Evolution of the Standard of Care . . . . . . . . . . . . . 276

Tort Liability of Hospitals, Insurers, and MCOs . . . . 278 Hospital Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278 Insurer Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279 Managed Care Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . 280

Federal Preemption of State Liability Laws Under ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281

Overview of ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281 ERISA Preemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282 The Intersection of ERISA Preemption

and Managed Care Professional Medical Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 283

Measuring and Incentivizing Healthcare Quality . . . 284 Quality Measure Development . . . . . . . . . . . . . . . . . . . . 286 Quality Measurement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286 Public Reporting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286 Value-Based Purchasing . . . . . . . . . . . . . . . . . . . . . . . . . . . 287 National Quality Strategy . . . . . . . . . . . . . . . . . . . . . . . . . . 288 Private Payer Efforts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 289 Role of Health Information Technology . . . . . . . . . . . . 289

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290

Endnotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291

Chapter 13 Public Health Preparedness Policy . . . . . . . . . . . . . . . . . . . . . . 293

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 293 Defining Public Health Preparedness . . . . . . . . . . . . . 294

Threats to Public Health . . . . . . . . . . . . . . . . . . . . . . . . . 295 CBRN Threats . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295 Naturally Occurring Disease Threats . . . . . . . . . . . . . . . 299 Natural Disasters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300 Man-Made Environmental Disasters . . . . . . . . . . . . . . . 303

Public Health Preparedness Policy . . . . . . . . . . . . . . . 303 Federal Response Agencies and Offices . . . . . . . . . . . 303 Preparedness Statutes, Regulations,

and Policy Guidance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 305 Presidential Directives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 307 International Agreements . . . . . . . . . . . . . . . . . . . . . . . . . 308

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311

PART III Basic Skills in Health Policy Analysis 315

CHAPTER 14 The Art of Structuring and Writing a Health Policy Analysis . . . . . . . . . . . . . . . . . . . . 317

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317 Policy Analysis Overview . . . . . . . . . . . . . . . . . . . . . . . . . 317

Client-Oriented Advice . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317 Informed Advice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 318 Public Policy Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 318 Providing Options and a

Recommendation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 318 Your Client’s Power and Values . . . . . . . . . . . . . . . . . . . . 318 Multiple Purposes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319

Structuring a Policy Analysis . . . . . . . . . . . . . . . . . . . . . 319 Problem Identification . . . . . . . . . . . . . . . . . . . . . . . . . . . . 320 The Background Section . . . . . . . . . . . . . . . . . . . . . . . . . . 322 The Landscape Section . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323 The Options Section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 326 The Recommendation Section . . . . . . . . . . . . . . . . . . . . 330

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 330 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 330

Glossary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 331 Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 337

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Prologue The fourth edition of Essentials of Health Policy and Law is a textbook that describes and analyzes the trans- formations taking place across the healthcare delivery and public health systems in the United States. Build- ing on the core content and engaging style of earlier editions, this edition is by necessity influenced by the shifts (both proposed and actual) occurring as a result of the 2016 election cycle, including of course the ways in which the Patient Protection and Affordable Care Act (commonly known as the ACA) is being inter- preted and implemented.

Professors Sara Wilensky and Joel Teitelbaum are both experienced in analyzing and communicating about the ACA and many other aspects of health pol- icy and law, and this edition benefits from their exper- tise. Beyond the issue of national and state health reform, Essentials of Health Policy and Law, Fourth Edition takes a broad approach to the study of health policy and law and provides a coherent framework for grappling with important healthcare, public health, and bioethical issues in the United States.

Health policies and laws are an inescapable and critical component of our everyday lives. The acces- sibility, cost, and quality of health care; the country’s preparedness for natural and human-caused disasters; the safety of the food, water, and medications we con- sume; the right to make individual decisions about one’s own health and well-being; and scores of other important issues are at the heart of health policy and law, and in turn at the heart of individual and commu- nity health and well-being. Health policies and laws have a strong and lasting effect on the quality of our lives as individuals and on our safety and health as a nation.

Professors Wilensky and Teitelbaum do a mar- velous job of succinctly describing not only the nation’s policy- and law-making machinery and the always-evolving healthcare and public health sys- tems, but also the ways in which policy and law affect health care and public health, and vice versa. They have a unique ability to make complex issues accessi- ble to various readers, including those without a back- ground in health care or public health. Their training as policy analysts and lawyers shines through as they

systematically describe and analyze the complex field of health policy and law and provide vivid examples to help make sense of it all.

Equally apparent is their wealth of experience teaching health policy and law at both the undergrad- uate and graduate levels. Between them, they have designed and taught many different health policy and/ or law courses, supplemented the content of health policy and law by integrating writing and analytic skills into their courses, designed and directed a bach- elor of science degree program in public health, and received teaching awards for their efforts. Readers of this textbook are the beneficiaries of their experience, enthusiasm, and commitment, as you will see in the pages that follow.

Essentials of Health Policy and Law, Fourth Edition stands on its own as a text. Even so, the accompanying Essential Readings in Health Policy and Law provides abundant illustrations of the development, influence, and consequences of health policies and laws. The carefully selected articles, legal opinions, and public policy documents in the supplemental reader allow students to delve deeper into the topics and issues explored in this book.

I am pleased that Essentials of Health Policy and Law is a part of the Essential Public Health series. From the earliest stages of the series’ development, Professors Wilensky and Teitelbaum have played a central role. They have closely coordinated efforts with other series authors to ensure that the series provides a comprehensive approach with only intended overlap. This is well illustrated by the numerous additions and revisions that have taken place with the publication of this Fourth Edition, a description of which can be found in the Preface.

I am confident that you will enjoy reading and greatly benefit from Essentials of Health Policy and Law. Whether you are studying public health, public policy, healthcare administration, or a field within the clinical health professions, this textbook is a key com- ponent of your education.

—Richard Riegelman, MD, MPH, PhD Editor, Essential Public Health Series

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About the Editor Richard K. Riegelman, MD, MPH, PhD, is professor of epidemiology-biostatistics, medicine, and health policy, and founding dean of the George Washington University Milken Institute School of Public Health in Washington, DC. He has taken a lead role in developing the Educated Citizen and Public Health initiative, which has brought together arts and sci- ences and public health education associations to

implement the Health and Medicine Division of the National Academies’ recommendation that “all undergraduates should have access to education in public health.” Dr. Riegelman also led the develop- ment of the George Washington University’s under- graduate major and minor and currently teaches Public Health 101 and Epidemiology 101 to under- graduate students.

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Preface

In the context of health care and public health, the dozen years since the first edition of this textbook was published can be summed up in a well-worn phrase: change is the only constant. The first edition of Essentials of Health Policy and Law did not even include mention of the Patient Protection and Afford- able Care Act—commonly known as the Affordable Care Act or ACA—because it was still 3 years from passage. Now hailed as the most important set of changes to health insurance since the 1965 enactment of Medicare and Medicaid, the ACA was signed into law by President Barack Obama in March of 2010. Since that time, the ACA itself has been on quite a journey, given the policy shifts and legal challenges it has undergone in a relatively short time. Broadly speaking, the ACA represents two landmark achieve- ments in health policy: major reform of the private health insurance market and, relatedly, a redistribu- tion of resources to groups and individuals who, by virtue of indigence and/or illness, have historically been excluded from the health insurance market and/ or healthcare system. Additionally, the law includes dozens of other important reforms and programs unrelated to insurance. For example, more efficient and higher-quality health care, population health, healthcare access, long-term care, the health work- force, health disparities, community health centers, healthcare fraud and abuse, comparative effectiveness research, health information technology, and more all receive attention by the ACA. Indeed, it is fair to say that a fully implemented ACA would move the nation toward a more affordable, equitable, and stable insur- ance system, not only for the millions of individuals who have and are expected to gain insurance, but also for the tens of millions of people who no longer face the threat of a loss or lapse of coverage.

▸ Implementation of the ACA Yet, full implementation of the ACA is still just a goal, as many federal and state policymakers and a substantial bloc of the voting public continue their efforts to undermine—if not totally destroy—the law. To understand these efforts, readers must understand

that many ACA reforms required a reordering of the relationships that lie at the heart of the nation’s healthcare and public systems. Individuals, providers, insurers, employers, governments, and others were forced to alter once-normative behaviors in response to the policy and legal decisions underpinning the law. These types of major policy and legal shifts— such as, in the case of the ACA, the creation of the “individual insurance mandate,” new prohibitions that prevent private insurers from using discrimina- tory enrollment practices, the creation of new health insurance “exchanges,” and the expansion of Medicaid eligibility standards—are basically destined to create backlash, given the very nature of how people respond to change and the vast amounts of money that, for some industries, are at stake. Add to this the fact that (as described more fully in Chapter 10) the ACA bill that eventually became law passed in Congress by the slimmest of margins after months of rancorous debate, and fully half the states in the United States actively opposed the ACA’s implementation after its passage. Even now, at the time of this writing, more than 8 years since the ACA became law, courts across the country have ACA-related cases on their dockets, the Trump administration has made a habit of slowing or reversing dozens of Obama-era ACA policy deci- sions, and the ACA continues to be used as a cudgel on the campaign trail. Needless to say, the outcomes of these lawsuits and policy debates will no doubt be discussed in both the national media and in the health policy and law courses in which you register, and they will be devoted space in the pages of this book in future editions.

▸ Other Changes in the Health Care and Public Health Landscape

Of course, the ACA is not the only significant shift in the healthcare/public health landscape since the first edition of this book. Just as that edition did not mention the ACA (for obvious reasons), neither did

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it include the term “social determinants of health,” which is a growing focus of healthcare and public health systems nationwide and now has an entire chapter in this book to show for it. Furthermore, the 2007 edition included just a single reference to pub- lic health emergency preparedness, a topic that also is now rewarded with its own chapter. Back in 2005, when the first outline of the first draft of this book took shape, health informatics and health information technology were, relatively speaking, fringe topics in courses on medical care and public health. Not so today. And finally, of course, the country experienced a mainly unanticipated election at the very top of the ticket in 2016, a result that injected many new poli- cies and legal interpretations into an already complex, costly, and oftentimes inequitable web of healthcare services and public health protections.

▸ Shifts in Public Health Education

Important shifts in public health education have taken place since 2007, as well. One particular change that is relevant to this textbook (and the entire Essentials of Public Health series) is the effort undertaken by the Association of American Colleges and Univer- sities (AAC&U) and the Association of Schools and Programs of Public Health (ASPPH) to develop the Educated Citizen and Public Health Initiative. This initiative seeks to integrate public health perspectives into a comprehensive liberal education framework and to develop and organize publications, presentations, and resources to help faculty develop public health curricula in the nation’s colleges and universities. As a result, public health perspectives generally, and health policy and law specifically, are increasingly being inte- grated into courses as diverse as political science, his- tory, sociology, public policy, and a range of courses that prepare students for the health professions. We are proud that this textbook has played a role in shaping (and supplying) the market for health policy and law education as part of a liberal education framework, and we aim with this Fourth Edition to make the mate- rial as accessible to these diverse audiences as possible.

▸ Addressing Health Policy Challenges

On the topic of health system complexity, we offer four factors for your consideration as you delve into the

chapters that follow. First, like most challenging public policy problems, pressing health policy questions simul- taneously implicate politics, law, ethics, and social mores, all of which come with their own set of competing inter- ests and advocates. Second, health policy debates often involve deeply personal matters pertaining to one’s qual- ity—or very definition—of life, philosophical questions about whether health care should be a market commod- ity or a social good, or profound questions about how to appropriately balance population welfare with closely guarded individual freedoms and liberties. Third, it is often not abundantly clear how to begin tackling a par- ticular health policy problem. For example, is it one best handled by the medical care system, the public health system, or both? Which level of government—federal or state—has the authority or ability to take action? Should the problem be handled legislatively or through regu- latory channels? The final ingredient that makes health policy problems such a complex stew is the rapid devel- opments often experienced in the areas of healthcare research, medical technology, and public health threats. Generally speaking, this kind of rapid evolution is a con- founding problem for the usually slow-moving Ameri- can policy- and law-making machinery.

Furthermore, the range of topics fairly included under the banner of “health policy and law” is breath- taking. For example, what effect is healthcare spend- ing having on national and state economies? How should finite financial resources be allocated between health care and public health? How can we ensure that the trust funds established to account for Medi- care’s income and disbursements remain solvent in the future as an enormous group of baby boomers becomes eligible for program benefits? What kind of return (in terms of quality of individual care and the overall health of the population) should we expect from the staggering amount of money we collectively spend on health? Should individuals have a legal enti- tlement to health insurance? How should we attack extant health disparities based on race, ethnicity, and socioeconomic status? What policies will best pro- tect the privacy of personal health information in an increasingly electronic medical system? Can advanced information technology systems improve the quality of individual and population health? Should the right to have an abortion continue to be protected under the federal Constitution? Should physician assistance in dying be promoted as a laudable social value? Will mapping the human genome lead to discrimination based on underlying health status? How prepared is the country for natural and man-made catastrophes, like pandemic influenza or bioterrorism attacks? What effect will chronic diseases, such as diabetes and

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obesity-related conditions, have on healthcare deliv- ery and financing? How should we harness advancing scientific findings for the benefit of the public’s health?

As seen from even this partial list of questions, the breadth of issues encountered in the study of health policy and law is virtually limitless, and we do not grapple with all of the preceding questions in this book. We do, however, introduce you to many of the policies and laws that give rise to them, provide an intellectual framework for thinking about how to address them going forward, and direct you to additional relevant readings. Given the prominent role played by policy and law in the health of all Americans, and the fact that the Health and Medicine Division of the National Academies recommends that students of public health and other interdisciplinary subjects (for example, public policy or medicine) receive health policy and law training, the aim of this book is to help you under- stand the broad context of American health policy and law, the essential issues impacting and flowing out of the healthcare and public health systems, and how health policies and laws are influenced and for- mulated. Broadly speaking, the goal of health policy is to promote and protect the health of individuals and of populations bound by common circumstances. Because the legal system provides the formal struc- ture through which public policy—including health policy—is debated, effected, and interpreted, law is an indispensable component of the study of health pol- icy. Indeed, law is inherent to the expression of public policy: major changes to policies often demand the creation, amendment, or rescission of laws. As such, students studying policy must learn about policymak- ing and the law, legal process, and legal concepts.

▸ About the Fourth Edition As a result of the changes just described and also in response to comments we received from users of pre- vious editions of the textbook, this edition of Essen- tials of Health Policy and Law has undergone updates to many chapters, including revised and expanded content; updated figures, tables, timelines, and discus- sion questions; and updated references and readings.

Part I Part I of this textbook includes five preparatory chap- ters. Chapter 1 describes the influential role of policy and law in health care and public health and intro- duces various conceptual frameworks through which the study of health policy and law can take place. The

chapter also illustrates why it is important to include policy and law in the study of health care and public health. However, an advanced exploration of health policy and law in individual and population health necessitates both a basic and practical comprehension of policy and law in general—including the policymak- ing process and the workings of the legal system—and an understanding of the nation’s rather fragmented healthcare and public health systems. Thus, Chapter 2 discusses both the meaning of policy and the policy- making process, including the basic functions, struc- tures, and powers of the legislative and executive branches of government and the respective roles of the federal and state governments in policymaking. Chapter 3 then describes the meaning and sources of law and several key features of the American legal sys- tem, including the separation of powers doctrine, fed- eralism, the role of courts, and due process. Chapter 4 provides an overview of the healthcare system, includ- ing basic information on healthcare finance, access, and quality, and examples of how the U.S. system dif- fers from those in other developed nations. Part I closes with an overview, in Chapter  5, of the public health system, including its evolution and core functions.

Part II Part II offers several chapters focusing on key sub- stantive health policy and law issues. Chapter 6 exam- ines the ways in which the law creates, protects, and restricts individual rights in the contexts of health care and public health, including a discussion of laws (such as Medicaid and Medicare) that aim to level the play- ing field where access to health care is concerned. The chapter also introduces the “no- duty-to-treat” princi- ple, which holds that there is no general legal duty on the part of healthcare providers to render care and that rests at the heart of the legal framework pertaining to healthcare rights and duties. Chapter 7 describes how social factors play a critical role in the attainment (or not) of individual and population health, discusses the ways in which law can both exacerbate and ameliorate negative social determinants of health, and introduces readers to the concept of medical-legal partnership. Chapters 8 and 9 cover the fundamentals of health insurance and health economics, respectively, and set up a subsequent thematic discussion in Chapters 10 and 11. Specifically, Chapter 8 describes the function of risk and uncertainty in health insurance, defines the basic elements of health insurance, discusses import- ant health policy issues relating to health insurance, and more; Chapter 9 explains why it is important for health policymakers to be familiar with basic economic

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concepts; the basic tenets of supply, demand, and mar- kets; and the way in which health insurance affects economic conditions.

The focus of Chapter 10 is on health reform, including the ACA. The chapter discusses the reasons why for decades the United States failed to achieve national health reform prior to the ACA, how and why the ACA passed given this history, and what the ACA aims to achieve. Chapter 11 explains how federal and state policymakers have created health insurance programs for individuals and populations who oth- erwise might go without health insurance coverage. The basic structure, administration, financing, and eligibility rules of the three main U.S. public health insurance programs—Medicaid, the Children’s Health Insurance Program, and Medicare—are discussed, as are key health policy questions relating to each pro- gram. Chapter 12 reflects on several important pol- icy and legal aspects of healthcare quality, including the advent of provider licensure and accreditation of health facilities (both of which represent quality con- trol through regulation), the evolution of the stan- dard of care, tort liability for healthcare providers and insurers, preventable medical errors, and, with the ACA as the focal point, efforts to improve healthcare quality through quality improvement and provider incentive programs. Part II concludes with a chapter on public health preparedness policy, including dis- cussions about how to define preparedness, the types of public health threats faced by the United States, policy responses to these threats, and an assessment of where the country stands in terms of preparedness.

Part III The textbook concludes in Part III by teaching the basic skills of health policy analysis. The substance

of health policy can be understood only as the prod- uct of an infinite number of policy choices regarding whether and how to intervene in many types of health policy problems. As such, Chapter 14 explains how to structure and write a short health policy analy- sis, which is a tool frequently used by policy analysts when they assess policy options and discuss rationales for their health policy recommendations.

▸ New to this Edition This Fourth Edition addresses the many changes related to health reform; the health care system; the ACA’s effect on Medicaid, Medicare, and CHIP; as well as health care quality and private payer reform efforts.

The chapter on Public Health Preparedness Policy has been significantly revised, reflecting an increased focus on natural disasters, controlling infectious dis- eases, and military emergencies.

The chapter on writing a policy analysis has been updated with new detailed examples.

For instructors, we offer thoroughly updated PowerPoint lecture slides for classroom use, as well as an updated Test Bank for each chapter.

The resources in the accompanying Navigate  2 Advantage platform have also been thoroughly updated. These are available for either independent student study or for use in an instructor-led, online course. These materials include an interactive eBook with personalization tools such as highlighting, book- marking, notes, and end-of-chapter quizzes to assess learning. Also included are Slides in PowerPoint for- mat, an interactive glossary, practice quizzes, and more. These materials are available by redeeming the code found on the card inside this book.

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Acknowledgments We are grateful to the many people who generously contributed their guidance, assistance, and encour- agement to us during the writing of this book. At the top of the list is Dr. Richard Riegelman, founding dean of the Milken Institute School of Public Health at the George Washington University (GW) and Professor of Epidemiology and Biostatistics, Medicine, and Health Policy. The Essential Public Health series was his brainchild, and his stewardship of the project as Series Editor made our involvement in it both enriching and enjoyable. We are indebted to him for his guidance and confidence.

We single out one other colleague for special thanks. Sara Rosenbaum, the Harold and Jane Hirsh Professor of Health Law and Policy and a past chair of GW’s Department of Health Policy and Management, has been a wonderful mentor, colleague, and friend for decades. We are indebted to her for supporting our initial decision to undertake the writing of this textbook.

During the writing of the various editions of this book, we have been blessed by the help of several

stellar research assistants. The First Edition could not have been completed without V. Nelligan Coogan, Mara B. McDermott, Sarah E. Mutinsky, Dana E. Thomas, and Ramona Whittington; Brittany Plavchak and Julia Roumm were essential to the completion of the Second Edition; Jacob Alexander’s assistance was key to the Third Edition; and Joanna Theiss was instru- mental in updating the current edition. To all of them we send our deep appreciation for their research assis- tance and steady supply of good cheer.

Our gratitude extends also to Mike Brown, pub- lisher for Jones & Bartlett Learning, for his guidance and encouragement, and to his staff, for their patience and technical expertise.

Finally, we wish to thank those closest to us. Sara gives special thanks to Trish Manha—her wife, cheerleader, reviewer, and constant supporter—and to Sophia, and William, who make life fun, surprising, and ever-changing. Joel sends special thanks to his family: Laura Hoffman, Jared Teitelbaum, and Layna Teitelbaum, his favorite people and unending sources of joy and laughter.

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About the Authors Sara Wilensky, JD, PhD, is special services faculty for undergraduate education in the Department of Health Policy and Management at the Milken Institute School of Public Health at the George Washington University (GW) in Washington, DC. She is also the director of the Undergraduate Program in Public Health.

Dr. Wilensky has taught a health policy analysis course and health systems overview course required of all students in the Master of Public Health–Health Policy degree program, as well as the health policy course required of all undergraduate students major- ing in public health. She has been the principal inves- tigator or co-principal investigator on numerous health policy research projects relating to a variety of topics, such as Medicaid coverage, access and financ- ing, community health centers, childhood obesity, HIV preventive services, financing of public hospitals, and data sharing barriers and opportunities between public health and Medicaid agencies.

As director of the Undergraduate Program in Public Health, Dr. Wilensky is responsible for the day- to-day management of the program, including imple- mentation of the dual BS/MPH program. In addition, she is responsible for faculty oversight, course schedul- ing, new course development, and student satisfaction.

Dr. Wilensky is involved with several GW service activities: she has taught a service learning in pub- lic health course in the undergraduate program; she has been heavily involved in making GW’s Writing in the Disciplines program part of the undergradu- ate major in public health; and she is the advisor to students receiving a master in public policy or a mas- ter in public administration with a focus on health policy from GW’s School of Public Policy and Public Administration.

Prior to joining GW, Dr. Wilensky was a law clerk for federal Judge Harvey Bartle III in the Eastern Dis- trict of Pennsylvania and worked as an associate at the law firm of Cutler and Stanfield, LLP, in Denver, Colorado.

Joel Teitelbaum, JD, LLM, is associate professor, director of the Hirsh Health Law and Policy Program,

and co-director of the National Center for Medical-Legal Partnership at the George Washington University Milken Institute School of Public Health in Washington, DC. He also carries a faculty appoint- ment in the GW School of Law, and for 11  years served as vice chair for academic affairs in the School of Public Health’s Department of Health Policy and Management, a role in which he provided oversight of the Department’s graduate degree programs, cur- riculum development, and faculty and student sup- port services. As director of the Hirsh Health Law and Policy Program, he oversees a program designed to foster an interdisciplinary approach to the study of health law, health policy, health care, and public health through educational and research opportuni- ties for law students, health professions students, and practicing lawyers. In his role at the National Center for Medical-Legal Partnership, he helps direct national efforts to embed civil legal services into healthcare delivery as a way of ameliorating social determinants that negatively affect individual and population health.

Professor Teitelbaum has taught law, graduate, or undergraduate courses on healthcare law, healthcare civil rights, public health law, minority health policy, and long-term care law and policy. In 2009 he became the first member of the School of Public Health fac- ulty to receive the University-wide Bender Teaching Award. He is also a member of the GW Academy of Distinguished Teachers and a Fellow in the Universi- ty’s Cross-Disciplinary Cooperative; he has received the School’s Excellence in Teaching Award and was an inaugural member of the School’s Academy of Master Teachers; he was inducted in 2007 into the ASPPH/ Pfizer Public Health Academy of Distinguished Teachers; and he has been named one of the “Stars” of undergraduate teaching at GW by an undergrad- uate leadership group. He is regularly invited to lec- ture at top universities and at national conferences and meetings.

In addition to Essentials of Health Policy and Law, Professor Teitelbaum is co-author of Essentials of Health Justice (2019), also published by Jones & Bartlett Learning. He has authored or co-authored

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dozens of peer-reviewed articles and reports in addi- tion to many book chapters, policy briefs, and blogs on civil rights issues in health care, health reform and its implementation, medical-legal partnership, insurance law and policy, and behavioral healthcare quality, and he has directed many health law and pol- icy research projects. In 2000, he was co-recipient of The Robert Wood Johnson Foundation Investigator Award in Health Policy Research, which he used to explore the creation of a new framework for applying Title VI of the 1964 Civil Rights Act to the modern healthcare system.

In 2016, during President Obama’s second term, Professor Teitelbaum was named to the U.S. Depart- ment of Health and Human Services Secretary’s

Advisory Committee on National Health Promotion and Disease Prevention Objectives for 2030 (i.e., Healthy People 2030, the national agenda aimed at improving the health of all Americans over a 10-year span). He also serves as Special Advisor to the Ameri- can Bar Association’s Commission on Veterans’ Legal Services and as a member of the Board of Advisors of PREPARE, a national advanced care planning organization.

Professor Teitelbaum is a member of Delta Omega, the national honor society recognizing excellence in the field of public health; the American Constitution Society for Law and Policy; the American Society of Law, Medicine, and Ethics; and the Society for Amer- ican Law Teachers.

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Contributors ▸ Chapter 5: Public Health

Institutions and Systems Richard Riegelman, MD, PhD, MPH The George Washington University Washington, DC

▸ Chapter 13: Public Health Preparedness Policy

Rebecca Katz, PhD, and Claire Standley, PhD Georgetown University Washington, DC

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1

PART I

Setting the Stage: An Overview of Health Policy and Law Part I of this textbook includes five contextual chapters aimed at preparing you for the substantive health policy and law discussions in Chapters 6–13 and for the skills-based discussion of policy analysis in Chapter 14. Chapter 1 describes generally the role of policy and law in health care and public health and introduces conceptual frameworks for studying health policy and law. Chapter 2 describes the meaning of policy and also the pol- icymaking process itself. Chapter 3 provides an overview of the meaning and sources of law and of several important features of the legal system. Part I closes with overviews of the U.S. healthcare system (Chapter 4) and public health system (Chapter 5).

 

 

 

CHAPTER 1

Understanding the Role of and Conceptualizing Health Policy and Law

LEARNING OBJECTIVES

By the end of this chapter you will be able to:

■ Describe generally the important role played by policy and law in the health of individuals and populations ■ Describe three ways to conceptualize health policy and law

▸ Introduction

In this chapter, we introduce the role played by pol-icy and law in the health of individuals and popula-tions and describe various conceptual frameworks with which you can approach the study of health pol- icy and law. In the chapters that follow, we build on this introduction to provide clarity in areas of health policy and law that are neither readily discernable— even to those who use and work in the healthcare and public health systems—nor easily reshaped by those who make, apply, and interpret policy and law.

The goals of this chapter are to describe why it is important to include policy and law in the study of health care and public health and how you might con- ceptualize health policy and law when undertaking your studies. To achieve these goals, we first briefly discuss the vast influence of policy and law in health

care and public health. You will have a much better feel for how far policy and law reach into these areas as you proceed through this text, but we dedicate a few pages here to get you started. We then describe three ways to conceptualize health policy and law which, as you will discover, are interwoven, with no one frame- work dominating the discussion.

▸ Role of Policy and Law in Health Care and Public Health

The forceful influence of policy and law on the health and well-being of individuals and populations is unde- niable. Policy and law have always been fundamental in shaping the behaviors of individuals and industries, the practice of health care, and the environments in which people live and work. They have also been

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vital in achieving both everyday and landmark public health improvements.

For example, centuries-old legal principles have, since this country’s inception, provided the bedrock on which healthcare quality laws are built, and today the healthcare industry is regulated in many differ- ent ways. Indeed, federal and state policy and law shape virtually all aspects of the healthcare system, from structure and organization, to service delivery, to financing, to administrative and judicial oversight. Whether pertaining to the accreditation and certifica- tion of individual or institutional healthcare providers, requirements to provide care under certain circum- stances, the creation of public insurance programs, the regulation of private insurance systems, or any other number of issues, policy and law drive the healthcare system to a degree unknown by most people.

In fact, professional digests that survey and report on the subjects of health policy and law typically include in their pages information on topics like the advertis- ing and marketing of health services and products, the impact of health expenditures on federal and state budgets, antitrust concerns, healthcare contracting, employment issues, patents, taxation, healthcare dis- crimination and disparities, consumer protection, bioterrorism, health insurance, prescription drug regulation, physician-assisted suicide, biotechnology, human subject research, patient privacy and confi- dentiality, organ availability and donation, and more. Choices made by policymakers and decisions handed down through the judicial system influence how we approach, experience, analyze, and research all of these and other specific aspects of the healthcare system. Once you have read the next four preparatory chap- ters—one on policy and the policymaking process, one on law and the legal system, and one each covering the structure and organization of the healthcare and pub- lic health systems—and begin to digest the substantive chapters that follow them, the full force of policy and law in shaping the individual healthcare system will unfold. For now, simply keep in the back of your mind the fact that policy and law heavily influence the way in which overall health and well-being are achieved (or not), health care is accessed, medicine is practiced, treatments are paid for, and much more.

The role of policy and law in public health is no less important than in individual health care, but their influence in the field of public health is frequently less visible and articulated. In fact, policy and law have long played a seminal role in everyday public health activi- ties. Think, for example, of food establishment inspec- tions, occupational safety standards, policies related to health services for persons with chronic health

conditions such as diabetes, and policies and laws affecting the extent to which public health agencies are able to gauge whether individuals in a community suffer from certain health conditions. Similarly, policy and law have been key in many historic public health accomplishments such as water and air purification, reduction in the spread of communicable diseases through compulsory immunization laws, reduction in the number of automobile-related deaths through seat belt and consumer safety laws, and several other achievements.a Public health professionals and stu- dents quickly learn to appreciate that combating pub- lic health threats requires both vigorous policymaking and adequate legal powers.

Additionally, in recent years, enhanced fears about bioterrorism and newly emerging infectious diseases have increased the public’s belief that policy and law are important tools in creating an environment in which people can achieve optimal health and safety.

Of course, policies and laws do not always cut in favor of what many people believe to be in the best interests of public health and welfare. A policy or law might, for example, favor the economic interests of a private, for-profit company over the personal interests of residents of the community in which the company is located.b Such situations occur because one main focus of public health policy and law is on locating the appropriate balance between public regulation of private individuals and corporations and the ability of those same parties to exercise rights that allow them to function free of overly intrusive government interven- tion. Achieving this balance is not easy for policymak- ers, as stakeholders disagree on things like the extent to which car makers should alter their operations to reduce environmentally harmful vehicle emissions, or the degree to which companies should be limited in advertising cigarettes, or whether gun manufacturers should be held liable in cases where injuries or killings result from the negligent use of their products.

How do policymakers and the legal system reach a (hopefully) satisfactory balance of public health and private rights? The competing interests at the heart of public health are mainly addressed through two types of policies and laws: those that define the functions and powers of public health agencies and those that aim to directly protect and promote health.c State- level poli- cymakers and public health officials create these types of policies and laws through what are known as their police powers. These powers represent the inherent authority of state and local governments to regulate individuals and private business in the name of public health promotion and protection. The importance of police powers cannot be overstated; it is fair to say that

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they are the most critical aspect of the sovereignty that states retained at the founding of the country, when the colonies agreed to a governmental structure con- sisting of a strong national government. Furthermore, the reach of police powers should not be underesti- mated: they give government officials the authority— in the name of public health and welfare—to coerce private parties to act (or refrain from acting) in certain ways. However, states do not necessarily need to exer- cise their police powers in order to affect or engage in public health–related policymaking. Because the public’s health is impacted by many social, economic, and environmental factors, public health agencies also conduct policy-relevant research, disseminate infor- mation aimed at helping people engage in healthy behaviors, and establish collaborative relationships with healthcare providers and purchasers and with other government policymaking agencies.

Federal policy and law also play a role in public health. Although the word health does not appear in the U.S. Constitution, the document confers powers on the federal government—to tax and spend, for example— that allow it to engage in public health promotion and disease prevention activities. For example, the power to tax (or establish exemptions from taxation) allows Congress to incentivize healthy behaviors, as witnessed by the heavy taxes levied on packages of cigarettes; the power to spend enables Congress to establish executive branch public health agencies and to allocate public- health–specific funds to states and localities.

▸ Conceptualizing Health Policy and Law

You have just read about the importance of taking pol- icy and law into account when studying health care and public health. The next step is to begin thinking about how you might conceptually approach the study of health policy and law.

There are multiple ways to conceptualize the many important topics that fall under the umbrella of health policy and law. We introduce three conceptual frame- works in this section: one premised on the broad top- ical domains of health policy and law, one based on prevailing historical factors, and one focused on the individuals and entities impacted by a particular pol- icy or legal determination (BOX 1-1).

We draw on these frameworks to various degrees in this text. For example, the topical domain approach of Framework 1 is on display in the sections about individual rights in health care and public health and healthcare quality policy and law. Framework 2’s focus

on historical perspectives is highlighted in the chapters on health reform and government health insurance programs. Finally, Framework 3, which approaches the study of health policy and law from the perspec- tives of key stakeholders, is discussed in the policy and policymaking process section and also in the chapter dedicated to the social determinants of health. We turn now to a description of each framework.

The Three Broad Topical Domains of Health Policy and Law One way to conceptualize health policy and law is as consisting of three large topical domains. One domain is reserved for policy and law concerns in the area of health care, another for issues arising in the public health arena, and the last for controversies in the field of bioethics. As you contemplate these topical domains, bear in mind that they are not individual silos whose contents never spill over into the others. Indeed, spill- age of one domain’s contents into another domain is common (and, as noted, is one reason why fixing health policy problems can be terribly complicated). We briefly touch on each domain.

Conceptualizing Health Policy and Law 5

BOX 1-1 Three Conceptual Frameworks for Studying Health Policy and Law

Framework 1. Study based on the broad topical domains of:

a. Health care b. Public health c. Bioethics

Framework 2. Study based on historically dominant social, political, and economic perspectives:

a. Professional autonomy b. Social contract c. Free market

Framework 3. Study based on the perspectives of key stakeholders:

a. Individuals b. The public c. Healthcare professionals d. Federal and state governments e. Managed care and traditional insurance

companies f. Employers g. Healthcare industries (e.g., the pharmaceutical

industry) h. The research community i. Interest groups j. Others

 

 

Healthcare Policy and Law In the most general sense, this domain is concerned with an individual’s access to care (e.g., What poli- cies and laws impact an individual’s ability to access needed care?), the quality of the care the person receives (e.g., Is it appropriate, cost-effective, and non- negligent?), and how the person’s care will be financed (e.g., Is the person insured?). However, “access,” “qual- ity,” and “financing” are themselves rather large sub- domains, with their own sets of complex policy and legal issues; in fact, it is common for students to take semester-long policy and/or law courses focused on just one of these subdomains.

Public Health Policy and Law The second large topical domain is that of public health policy and law. A central focus here is on why and how the government regulates private individuals and cor- porations in the name of protecting the health, safety, and welfare of the general public. Imagine, for example, that the federal government is considering a blanket policy decision to vaccinate individuals across the coun- try against the deadly smallpox disease, believing that the decision is in the best interests of national security. Would this decision be desirable from a national policy perspective? Would it be legal? If the program’s desir- ability and legality are not immediately clear, how would you go about analyzing and assessing them? These are the kinds of questions with which public health policy and law practitioners and scholars grapple.

Bioethics Finally, there is the bioethics domain to health policy and law. Strictly speaking, the term bioethics is used to describe ethical issues raised in the context of med- ical practice or biomedical research. More compre- hensively, bioethics can be thought of as the point at which public policy, law, individual morals, societal values, and medicine intersect. The bioethics domain houses some of the most explosive questions in health policy, including the morality and legality of abortion, conflicting values around the meaning of death and the rights of individuals nearing the end of life, and the policy and legal consequences of mapping the human genetic code.

Social, Political, and Economic Historical Context Dividing the substance of health policy and law into broad topical categories is only one way to conceptual- ize them. A second way to consider health policy and

law is in historical terms, based on the social, polit- ical, and economic views that dominate a particular era.d Considered this way, health policy and law have been influenced over time by three perspectives, all of which are technically active at any given time, but each of which has eclipsed the others during specific peri- ods in terms of political, policy, and legal outcomes. These perspectives are termed professional autonomy, social contract, and free market.e

Professional Autonomy Perspective The first perspective, grounded in the notion that the medical profession should have the authority to regu- late itself, held sway from approximately 1880 to 1960, making it the most dominant of the three perspectives in terms of both the length of time it held favored sta- tus and its effect in the actual shaping of health policy and law. This model is premised on the idea that phy- sicians’ scientific expertise in medical matters should translate into legal authority to oversee essentially all aspects of delivering health care to individuals; in other words, according to proponents of the physi- cian autonomy model, legal oversight of the practice of medicine should be delegated to the medical pro- fession itself. During the period that this perspective remained dominant, policy- and lawmakers were gen- erally willing to allow physicians to control the terms and amount of payments for rendered healthcare services, the standards under which medical licenses would be granted, the types of patients they would treat, the type and amount of information to disclose to patients, and the determination as to whether their colleagues in the medical profession were negligent in the treatment of their patients.

Social Contract Perspective The second perspective that informs a historical con- ceptualization of health policy and law is that of the “modestly egalitarian social contract” (Rosenblatt, Law, & Rosenbaum, 1997, p. 2; the authors write that the American social contract lags behind those of other developed countries, and thus use the phrase “modestly egalitarian” in describing it). This paradigm overshadowed its competitors, and thus guided poli- cymaking, from roughly 1960 to 1980, a time notable in U.S. history for social progressiveness, civil rights, and racial inclusion. At the center of this perspective is the belief that complete physician autonomy over the delivery and financing of health care is poten- tially dangerous in terms of patient care and health- care expenditures, and that public policy and law can and sometimes should enforce a “social contract”

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at the expense of physician control. Put differently, this perspective sees physicians as just one of several stakeholders (including but not limited to patients, employers, and society more broadly) that lay claim to important rights and interests in the operation of the healthcare system. Health policies and laws borne of the social contract era centered on enhancing access to health care (e.g., through the Examination and Treatment for Emergency Medical Conditions and Women in Labor Act), creating new health insurance programs (Medicare and Medicaid were established in 1965), and passing antidiscrimination laws (one of the specific purposes of Title VI of the federal 1964 Civil Rights Act was wiping out healthcare discrimination based on race).

Free Market Perspective The final historical perspective—grounded in the twin notions of the freedom of the marketplace and of mar- ket competition—became dominant in the 1990s and continues with force today (though one could argue that the Affordable Care Act evidences a curbing of the free market perspective and an elevation, again, of the social contract perspective). It contends that the mar- kets for healthcare services and for health insurance operate best in a deregulated environment, and that commercial competition and consumer empower- ment will lead to the most efficient healthcare system. Regardless of the validity of this claim, this perspective argues that the physician autonomy model is falsely premised on the idea of scientific expertise, when in fact most healthcare services deemed “necessary” by physicians have never been subjected to rigorous sci- entific validation (think of the typical treatments for the common cold or a broken leg). It further argues that even the modest version of the social contract theory that heavily influenced health policy and law during the civil rights generation is overly regulatory. Furthermore, market competition proponents claim that both other models are potentially inflationary: in the first case, self-interest will lead autonomous physi- cians to drive up the cost of their services, and in the second instance, public insurance programs like Medi- care would lead individuals to seek unnecessary care.

To tie a couple of these historical perspectives together and examine (albeit in somewhat oversim- plified fashion) how evolving social and economic mores have influenced health policy and law, consider the example of Medicaid, the joint federal–state health insurance program for low-income individuals. In 1965, Medicaid was born out of the prevailing societal mood that it was an important role of government to expand legal rights for the poor and needy. Its creation

exemplified a social contract perspective, which in the context of health promotes the view that individuals and society as a whole are important stakeholders in the healthcare and public health systems. Medicaid entitled eligible individuals to a set of benefits that, according to courts during the era under consider- ation, was the type of legal entitlement that could be enforced by beneficiaries when they believed their rights under the program were infringed.

These societal expectations and legal rights and protections withstood early challenges during the 1970s, as the costs associated with providing services under Medicaid resulted in state efforts to roll back program benefits. Then, in the 1980s, Medicaid costs soared higher, as eligibility reforms nearly doubled the program’s enrollment and some providers (e.g., com- munity health centers) were given higher payments for the Medicaid services they provided. Still, the social contract perspective held firm, and the program retained its essential egalitarian features.

As noted, however, the gravitational pull of the social contract theory weakened as the 1980s drew to a close. This, coupled with the fact that Medicaid spending continued to increase in the 1990s, led to an increase in the number of calls to terminate pro- gram members’ legal entitlement to benefits.f Also in the 1990s, federal and state policymakers dramatically increased the role of private managed care companies in both Medicaid and Medicare, an example of the trend toward free market principles.

Key Stakeholders A third way to conceptualize health policy and law issues is in terms of the stakeholders whose interests are impacted by certain policy choices or by the pas- sage or interpretation of a law. For example, imag- ine that in the context of interpreting a state statute regulating physician licensing, your state’s highest court ruled that it was permissible for a physician to not treat a patient who was in urgent need of care, even though the doctor had been serving as the patient’s family physician. What stakeholders could be impacted by this result? Certainly the patient, as well as other patients whose treatment may be colored by the court’s decision. Obviously the doctor and other doctors practicing in the same state could be impacted by the court’s conclusion. What about the state legis- lature? Perhaps it unintentionally drafted the licensing statute in ambiguous fashion, which led the court to determine that the law conferred no legal responsibil- ity on the physician to respond to a member of a fam- ily that was part of the doctor’s patient load. Or maybe the legislature is implicated in another way—maybe

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it drafted the law with such clarity that no other out- come was likely to result, but the citizenry of the state was outraged because its elected officials have created public policy out of step with constituents’ values. Note how this last example draws in the perspective of another key stakeholder—the broader public.

Of course, patients, healthcare providers, gov- ernments, and the public are not the only key stake- holders in important matters of health policy and law. Managed care and traditional insurance companies, employers, private healthcare industries, the research community, interest groups, and others all may have a strong interest in various policies or laws under debate.

▸ Conclusion The preceding descriptions of the roles played by policy and law in the health of individuals and populations, and of the ways to conceptualize health policy and law, were cursory by design. But what we hope is apparent to you at this early stage is the fact that the study of policy and law is essential to the study of both health care and public health. Consider the short list of major problems with the U.S. health system as described in a book edited and written by a group of leading scholars: the coverage and financing of health care, healthcare quality, health disparities, and threats to population health (Mechanic, Rogut, Colby, & Knickman, 2005, p. 10). All of the responses and fixes to these prob- lems—and to many other healthcare- and public health–related concerns—will invariably and neces- sarily involve creative policymaking and rigorous legal reform (and indeed, the Affordable Care Act, about which you will read in various sections, addressed each of these topics to one degree or another). This fact is neither surprising nor undesirable: policy and law have long been used to effect positive social change, and neither the healthcare nor public health field is immune to it. Thus, going forward, there is little rea- son to expect that policy and law will not be two of the primary drivers of health-related reform.

Policy and legal considerations are not relevant only in the context of major healthcare and public health transformations, however—they are critical to the daily functioning of the health system, and to the health and safety of individuals and communities across a range of everyday life events. Think about pregnancy and childbirth, for example. There are approximately 11,000 births each day in this coun- try, and thus society views pregnancy and childbirth as more or less normal and unremarkable events. In fact, the process of becoming pregnant, accessing and

receiving high-quality prenatal health care, and expe- riencing a successful delivery is crucial not only to the physical, mental, and emotional health and well-being of individuals and families, but to the long-term eco- nomic and social health of the nation. It also implicates a dizzying number of interesting and important policy questions. Consider the following:

■ Should there be a legal right to health care in the context of pregnancy, and, if so, should that right begin at the point of planning to get pregnant, at the moment of conception, at the point of labor, or at some other point?

■ Regardless of legal rights to care, how should the nation finance the cost of pregnancy care? Should individuals and families be expected to save enough money to pay out-of-pocket for what is a predictable event? Should the government help subsidize the cost of prenatal care? If so, in what way? Should care be subsidized at the same rate for everyone, or should subsidy levels be based on financial need?

■ Regarding the quality of care, what is known about the type of obstetrical care women should receive, and how do we know they are getting that care? Given the importance of this type of care, what policy steps are taken to ensure that the care is sound? What should the law’s response be when a newborn or pregnant woman is harmed through an act of negligence? When should clinician errors be considered preventable and their commission thus tied to a public policy response? And what should the response be?

■ What should the legal and social response be to prospective parents who act in ways risky to the health of a fetus? Should there be no societal response because the prospective parents’ actions are purely a matter of individual right? Does it depend on what the actions are?

■ Is it important to track pregnancy and birth rates through public health surveillance systems? Why or why not? If it is an important function, should the data tracking be made compulsory or voluntary?

■ How well does the public health system control known risks to pregnancies, both in communities and in the workplace?

■ Finally, who should answer these questions? The federal government? States? Individuals? Should courts play a role in answering some or all of them, and, if so, which ones? Whose interests are implicated in each question, and how do these stakeholders affect the policymaking process?

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There are scores of topics—pregnancy and child- birth among them, as you can see—that implicate a range of complex health policy questions, and these are the types of questions this text prepares you to ask and address. Before you turn your attention to the essential principles, components, and issues of health policy and law, however, you must understand something about policy and law generally, and about the organization and purposes of the healthcare and public health systems. The next two chapters provide a grounding in policy and law and supply the basic information needed to study policy and law in a health context. In those chapters, we define policy and law, discuss the political and legal systems, introduce the administrative agencies and functions at the heart of the government’s role in health care and public health, and more. With this information at your disposal, you will be better equipped to think through some of the threshold questions common to many policy debates, including the following questions: Which sector— public, private, or not-for-profit (or some combina- tion of them)—should respond to the policy problem? If government responds, at what level— federal or state—should the problem be addressed? What branch of government is best suited to address, or is more attuned to, the policy issue? When the government takes the lead in responding to a policy concern, what is the appropriate role of the private and not-for-profit sectors in also attacking the problem? What legal bar- riers might there be to the type of policy change being contemplated? Once you have the knowledge to crit- ically assess these types of questions, you will be able to focus more specifically on how the healthcare and public health systems operate in the United States, and on the application of policy and law to critical issues in health care and public health.

References Mechanic, D., Rogut, L. B., Colby D. C., & Knickman, J. R.

(Eds.). (2005). Policy challenges in modern health care. New Brunswick, NY: Rutgers University Press.

Rosenblatt, R. E., Law, S. A., & Rosenbaum, S. (1997). Law and the American health care system. Westbury, CT: The Foundation Press.

▸ Endnotes a. See, for example, Parmet W. E. (2006). Intro-

duction: The interdependency of law and pub- lic health. In R. A. Goodman, R. E. Hoffman, W. Lopez, G. W. Matthews, M. A. Rothstein, & K. L. Foster (Eds.), Law in public health practice

(2nd  ed., pp. xxvii–xxvii). Oxford, England: Oxford University Press.

b. For a nonfictional and utterly engrossing exam- ple of the ways in which law and legal process might stand in the way of effective public health regulation, we recommend Harr, J. (1995). A civil action. New York, NY: Vintage Books.

c. See, for example, Gostin, L. O., Thompson, F. E., & Grad, F. P. (2006). The law and the public’s health: The foundations. In R. A. Goodman, R. E. Hoffman, W. Lopez, G. W. Matthews, M. A. Rothstein, & K. L. Foster (Eds.), Law in public health practice (2nd ed., pp. 25–44). Oxford, England: Oxford University Press.

d. The particular historical framework described here was developed to apply to health care rather than to public health. We do not mean to imply, however, that it is impossible to consider public health from a historical, or evolutionary, vantage point. In fact, it is fair to say that public health practice may have just entered its third histori- cal phase. Throughout the 1800s and most of the 1900s, protection of the public’s health occurred mainly through direct regulation of private behavior. In the latter stages of the 20th cen- tury, strict reliance on regulation gave way to an approach that combined regulation with chronic disease management and public health promo- tion, an approach that necessitated a more active collaboration between public health agencies and healthcare providers and purchasers. Now, it appears that public health professionals are adding to this revised practice model another strategic initiative: building collaborative rela- tionships with policymaking agencies whose responsibilities are not directly related to public health—for example, agencies whose primary fields are housing, transportation, or agriculture.

e. The discussion of these perspectives is guided by Rosenblatt, R. E., Law, S. A., & Rosenbaum, S. (1997). Law and the American health care sys- tem (pp. 24–35). Westbury, CT: The Foundation Press; Rosenblatt, R. E. (2004). The four ages of health law. Health Matrix: Journal of Law- Medicine, 14(1), 155–196.

f. By 2005, proponents of weakening Medicaid- enrolled persons’ entitlement to program ben- efits had made significant strides: Congress passed a law called the Deficit Reduction Act that, among other things, granted states the ability to redefine the benefits and services to which Medicaid beneficiaries are entitled.

Endnotes 9

 

 

 

CHAPTER 2

Policy and the Policymaking Process

LEARNING OBJECTIVES

By the end of this chapter you will be able to:

■ Describe the concepts of policy and policymaking ■ Describe the basic function, structure, and powers of the legislative branch of government ■ Describe the basic function, structure, and powers of the executive branch of government ■ Explain the role of federal and state governments in the policymaking process ■ Explain the role of interest groups in the policymaking process

▸ Introduction

The first steps for any student of health policy are to understand what policy is generally and to learn about the policymaking process. It is vital to consider policy questions in the particular context in which they arise, both in terms of the gen- eral politics of the issue and the values and powers of the policymaker. As you will discover, there is no sin- gle definition of policy. Even so, this chapter arms you with the information needed to know what issues to consider when thinking about a public policy prob- lem, how to account for a variety of competing policy views, and what policy options are possible given the political process in the United States.

The chapter first defines what policy is and then moves to a discussion of the policymaking process by examining the roles and powers of two of the politi- cal branches of government—the legislative and exec- utive branches. As part of this discussion, we intro-

duce you to federal and state agencies that make up the healthcare and public health bureaucracy. We conclude with a discussion about the roles of interest groups in policymaking and the influence they wield in the policymaking process.

▸ Defining Policy In this section we consider various aspects of what we mean by the term policy. Before delving into the policy- making process, we identify which issues fall within the realm of a public policy decision and, generally, what kinds of decisions might be made by policymakers.

Identifying Public Problems Scholars have defined policy in many different ways. Consider a few of them:

■ Authoritative decisions made in the legislative, exec- utive, or judicial branches of government that are

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intended to direct or influence the actions, behav- iors, and decisions of others (Longest, 2016, p. 10).

■ A course of action adopted and pursued by a gov- ernment, party, statesman, or other individual or organization (Subcommittee on Health and Envi- ronment, 1976, p. 124).

■ Authoritative decisions and guidelines that direct human behavior toward specific goals either in the private or the public sector (Hanley, 1999, p. 125).

The differences in these definitions raise several important issues. The first question to consider is whether private actors make policy or whether poli- cymaking is an activity for the government only. The first definition refers only to governmental policy- makers, the second definition allows for both public and private policymakers, and the third definition is unclear on this issue. Of course, the government is a key player in any policy field, and it is certainly true that decisions by government entities represent public policy. However, in this text we also focus on private actors who make policy, such as commercial insurance companies, private employers, influential individuals, and others who can all be part of health policy. For example, when a major health insurance company decides to cover obesity prevention mea- sures, or when the Bill and Melinda Gates Founda- tion provides grants to develop crops that are high in essential vitamins and minerals to improve the nutri- tion of people in developing countries, they are mak- ing health policy decisions.

Regardless of whether the policymaker is a public or private figure, it is necessary that the decision being made is an authoritative decision. These are decisions made by an individual or group with the power to implement the decision, and there are a variety of lev- els where these kinds of decisions can take place. For example, within government, authoritative decisions may be made by the president, cabinet officials, agency heads, members of Congress, governors, state legisla- tures, public health commissioners, and many others.

But all decisions by public and private individuals or entities are not necessarily policy decisions. The key issue to determining whether a “decision” represents a “policy” is whether the question at hand is an indi- vidual concern or a public policy problem. A public policy problem goes beyond the individual sphere and affects the greater community. Whereas an indi- vidual might decide to take advantage of employer- sponsored health insurance, a public policy question is whether all employers should be required to offer health insurance to their employees. Whereas an indi- vidual might decide to purchase a generic (as opposed to a brand name) drug to save money, a public policy

question is whether patients should be induced to buy less expensive generic drugs. When deciding whether something is a public policy decision, the focus is not only on who is making a decision, but also on what kind of decision is being made.

Furthermore, just because a problem is identified as a public policy problem does not necessarily mean the only solution involves government intervention. For example, consider the problem of an influenza vaccine shortage. Although there are government- oriented solutions to this problem, such as expanding public research and development or creating pro- duction incentives (through tax cuts or subsidies) to encourage private manufacturers to produce more vaccine, other solutions may rely solely on private actors. Private companies may decide to invest in the research and development of new ways to produce vaccines, or to build new plants to increase produc- tion capacity, because they believe they can make a profit in the long run. Just as private individuals and entities can make policy decisions for their own ben- efit, they can also play a central role in solving public policy problems. A lengthier discussion about options for solving public policy problems and arguments for and against government intervention is found in a review of health economics.

Structuring Policy Options Considered broadly, there are different ways to approach public policy problems. For example, some policy options are voluntary, whereas others are man- datory. It is important to recognize that authoritative decisions do not always require others to act or refrain from acting in a certain way. Some of the most import- ant and effective policies are those that provide incen- tives to others to change their behavior. Indeed, the power of persuasion is very important to public offi- cials, particularly those working for the federal gov- ernment, which is limited in its ability to force states and individuals to take certain actions. This limitation stems from the fact that the 10th Amendment of the U.S. Constitution limits Congress and the executive branch to specific powers and reserves all other pow- ers for the states. However, members of the federal government may use their enumerated powers, such as those to tax and spend, to persuade states and oth- ers to act in desired ways.

For example, the Constitution does not give the legislative or executive branches the power to protect the public’s health, meaning that the area is primarily within the purview of states to regulate. As a result, Congress and the president cannot require states to create emergency preparedness plans. Yet, Congress

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may provide incentives to states to do so by offering them federal money in return for state preparedness plans that meet certain criteria established by the fed- eral government.

In addition, it is important to remember that inaction can also be a policy decision. Deciding to do nothing may be a decision to keep a prior decision in place or not to engage in a new issue. For exam- ple, a governor could decide against trying to change a restrictive abortion law, or a state legislature could choose not to pass a law expanding the allowable scope of practice for nurse practitioners. Both of these inactions result in important policy decisions that will affect the choices and opportunities available to indi- viduals, advocacy organizations, and others.

This brief discussion about policy has raised sev- eral important issues to consider when identifying policy options. The next section provides a detailed discussion of the policymaking process, providing you with the background knowledge necessary to identify and understand the roles and powers of various poli- cymakers.

▸ Public Policymaking Structure and Process

The public policymaking structure refers to the vari- ous branches of government and the individuals and entities within each branch that play a role in making and implementing policy decisions. In this section, we review the structure, powers, and constituency of these branches, with a focus on the U.S. House of Rep- resentatives, the U.S. Senate, and various commissions and agencies that assist Congress, the president, White House staff, and federal executive branch administra- tive agencies. In addition to reviewing the policymak- ing structure, we discuss the processes used by these various individuals and entities for making public pol- icy decisions.

State-Level Policymaking The federal government does not have a monopoly on policymaking. Indeed, important policy decisions are regularly made at the state level as well, espe- cially in the healthcare arena. However, because state governments are similar to the federal government in many ways, the policymaking duties and powers pre- sented in the following discussion can often be applied to a state-level analysis. At the same time, there is a significant amount of variation in how states structure their legislative and executive branches, agencies, and offices, and it is not possible to review the differences

that exist among all 50 states. Accordingly, after a brief discussion of state-level policymaking, this chapter focuses primarily on the federal policymaking struc- ture and process.

Like the federal government, each state has three branches of government. State legislatures pass laws, appropriate money within the state, and conduct over- sight of state programs and agencies. States also have their own judiciary with trial and appellate courts. The governor is the head of the state executive branch and can set policy, appoint cabinet members, and use state administrative agencies to issue regulations that implement state laws. Although there are limits to a state’s power to regulate healthcare issues, state regula- tion is an extremely important aspect of health policy. Just a few examples of the healthcare matters states can regulate include provider licensing, accreditation, some aspects of health insurance, and most public health concerns.

While state governments share these general characteristics, it is important to realize that all state governments are not exactly alike. The governor has more power in some states than in others, agencies are combined in different ways among the states, state legislatures may meet annually or biannually, state leg- islators may be full-time or part-time employees, and so on. Because these differences exist, it is essential for policy analysts to understand the specific structure of the state in which their client resides.

Furthermore, there are important differences between the federal government and the states. Unlike the federal government, almost all states are required to have a balanced budget, and most states cannot borrow money for operating expenses. These rules mean that states must act to raise revenue or cut programs if they project that their budget will be in deficit by the end of the fiscal year. In addition, in 2010, 30 states had at least one tax and expenditure limit rule that restricted the growth of government revenues or spending to a fixed numerical target, sometimes using changes in population level or the inflation rate as guideposts. Further, 15 states require a legislative supermajority or voter approval to raise taxes (a supermajority means that more than a simple majority—over 50%—is required; for example, a two- thirds majority vote could be required) (Waisanen, 2010). As a result, state officials may be more likely than federal officials to make the difficult choice to either limit programs or cut resources from one pro- gram to fund another.

As is evident from this brief discussion, state-level policymaking is both a rich area for discussion and a difficult area to make generalizations about because each state is unique. Having highlighted some of the

Public Policymaking Structure and Process 13

 

 

key differences and similarities among the states and between the state and the federal governments, we now turn to the legislative and executive branches of the federal government.

The Federal Legislative Branch Article I of the U.S. Constitution makes Congress the lawmaking body of the federal government by granting it “All legislative Powers” and the right to enact “ necessary and proper laws” to effect its prerog- atives (U.S. Const. art. I, § 1; U.S. Const. art. I, § 8). Congressional responsibilities are fulfilled by the two chambers of Congress, the Senate and the House of Representatives (“the House”). The Constitution grants specific powers to Congress, including but not limited to the power to levy taxes, collect revenue, pay debts, provide for the general welfare, regulate interstate and foreign commerce, establish federal courts inferior to the Supreme Court, and declare war (U.S. Const. art. I, § 1). The Senate has the specific power to ratify treaties and confirm nominations of public officials.

The Senate consists of 2 elected officials from each state, for a total of 100 senators.a Each senator is elected in a statewide vote for a 6-year term, whereas representatives in the House sit for 2-year terms. Due to the lengthy term of its members, the Senate is con- sidered less volatile and more concerned with long- term issues than the House. A senator must be at least 30 years old, a U.S. citizen for at least 9 years, and a resident of the state he or she is seeking to represent (U.S. Const. art. I, § 3).

The House includes 435 members allocated pro- portionally based on the population of the 50 states, with each state guaranteed at least 1 representative.b For example, in 2018, California was allotted 53 rep- resentatives, while Vermont had only 1. Due to the proportionality rule, members from larger states dominate the House and often hold leadership posi- tions. Members of the House are elected by voters in congressional districts and serve 2-year terms. They must be at least 25 years old, a U.S. citizen for at least 7 years, and a resident of the state where the election takes place (U.S. Const. art. I, § 2).

Leadership Positions Leadership roles in Congress are determined by polit- ical party affiliation, with the party in the majority gaining many advantages. The vice president of the United States is also the president of the Senate and presides over its proceedings. In the vice president’s absence, which is common given the other obliga- tions of the office, the president pro tempore, a mostly

ceremonial position, presides over the Senate. In most cases the vice president is not a major player in Senate voting, but with the power to break a tie vote, the vice president wields an important power. The Speaker of the House (“Speaker”) presides over that chamber and has the authority to prioritize and schedule bills, refer bills to committees, and name members of joint and conference committees. Other than the vice presi- dent’s senatorial role, leadership positions in Congress are not elected by the voters, but determined by the members from the party who have been elected to Congress. Other key Congressional leadership posi- tions include the following:

■ Senate majority leader: Speaks on behalf of the majority party, schedules floor action and bills, works on committees, directs strategy, and tries to keep the party united.

■ House majority leader: Works with the Speaker to direct party strategy and set the legislative schedule.

■ House and senate minority leaders: Speak on behalf of the minority party, direct strategy, and try to maintain party unity; as members of the minority, they do not have the legislative duties of the majority leader/Speaker.

■ House and senate majority and minority whips: Track important legislation, mobilize members to support leadership positions, keep a count of how party members are planning to vote, and generally assist their leaders in managing their party’s legis- lative priorities.

Committees Committees have been referred to as the “workhorses” of Congress; they are where many key decisions are made and legislative drafting takes place. Given the vast array of issues that Congress contends with in any given legislative session, it is impossible for every member to develop expertise on every issue. Although members vote on bills that cover a wide range of issues, members often concentrate on the areas relevant to the committees on which they serve.

Committees have a variety of important roles, including drafting and amending legislation; educat- ing members on key issues; shepherding the commit- tee’s legislation on the floor when it goes before a vote by all the members of one chamber; working with the president, his administration, and lobbyists to gain support for a bill; holding hearings; and conducting oversight of executive branch departments, agencies, commissions, and programs within their purview. Committee members often gain expertise in the areas

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covered by their committees, and other members often rely on their advice when making voting decisions.

Standing committees are generally permanent com- mittees with specified duties and powers. There are 20 standing committees in the House and 16 in the Senate. House committees tend to be larger than those in the Senate, with about 40 members per committee. Some committees have authorization jurisdiction, allowing them to create programs and agencies. Other commit- tees have appropriation authority, meaning they are responsible for funding various programs and agen- cies. Standing committees also have oversight authority, meaning they monitor how programs are run and funds are spent. Each chamber of Congress has established specific oversight committees for some programs and issues that cut across committee jurisdiction, as well as committees that review the efficiency and economy of government actions (Heitshusen, 2018).

Not surprisingly, some of the most powerful and popular committees are those that deal with appropri- ating money. These include the following:

■ House Ways and Means and Senate Finance committees: These committees have jurisdiction

over legislation concerning taxes, tariffs, and other revenue-generating measures, and over entitle- ment programs such as Medicare and Social Secu- rity. The Constitution requires all taxation and appropriations bills to originate in the House, and House rules require all tax bills to go through the Ways and Means committee.

■ House and Senate Appropriations committees: These committees have responsibility for writing federal spending bills.

■ House and Senate Budget committees: These committees are tasked with creating the overall budget plan that helps guide tax and appropria- tion committee work.

■ House Rules committee: This committee has jurisdiction over the rules and order of business in the House, including rules for the floor debates, amendments, and voting procedures. Unlike in the Senate, all House bills must go to the House Rules committee before reaching the House floor for a vote by all representatives.

TABLE 2-1 identifies the key health committees and subcommittees and their health-related jurisdictions.

Committee/Subcommittee Health-Related Jurisdiction

Senate Finance Committee

■ Subcommittee on Health Care  ■ Department of Health and Human Services • Centers for Medicare and Medicaid Services (includes

Children’s Health Insurance Program [CHIP]) • Administration for Children and Families

■ Department of the Treasury • Group health plans under the Employee Retirement

Income Security Act (ERISA)

Senate Appropriations Committee

■ Subcommittee on Labor, Health, Human Services, Education, and Related Agencies

■ Department of Health and Human Services • All areas except Food and Drug Administration, Indian

Health, and construction activities

■ Subcommittee on Agriculture, Rural Development, Food and Drug Administration, and Related Agencies

■ U.S. Agricultural Department (except Forest Service) • Includes child nutrition programs; food safety and

inspections; nutrition program administration; special supplemental nutrition program for Women, Infants, Children (WIC); Supplemental Nutrition Assistance Program (SNAP)

■ Food and Drug Administration

(continues)

TABLE 2-1 Key Health Committees and Subcommittees

Public Policymaking Structure and Process 15

 

 

Committee/Subcommittee Health-Related Jurisdiction

■ Subcommittee on Interior, Environment, and Related Agencies

■ Department of Health and Human Services • Indian Health Services • Agency for Toxic Substances and Disease Registry

Senate Health, Education, Labor, and Pensions Committee

■ Subcommittee on Children and Families ■ Subcommittee on Primary Health and

Retirement Security

■ Occupational safety and health, public health, Health Resources Services Act, substance abuse and mental health, oral health, healthcare disparities, ERISA

Senate Committee on Agriculture, Nutrition, and Forestry

■ Subcommittee on Nutrition, Specialty Crops, and Agricultural Research

■ Food from fresh waters; SNAP; human nutrition; inspection of livestock, meat, and agricultural products; pests and pesticides; school nutrition programs; other matters related to food, nutrition, and hunger

Senate Committee on Environment and Public Works

■ Subcommittee on Clean Air and Nuclear Safety ■ Air pollution, environmental policy, research and development, noise pollution, water pollution, nonmilitary control of nuclear energy, solid waste disposal and recycling

House Committee on Ways and Means

■ Subcommittee on Health ■ Programs providing payments for health care, health delivery systems, and health research

■ Social Security Act ■ Maternal and Child Health Block Grant ■ Medicare ■ Medicaid ■ Peer review of utilization and quality control of healthcare

organizations ■ Tax credit and deduction provisions of the Internal Revenue

Service relating to health insurance premiums and healthcare costs

■ Subcommittee on Human Resources ■ Social Security Act • Public assistance provisions • Supplemental Security Income provisions • Mental health grants to states

House Committee on Appropriations

■ Subcommittee on Labor, Health and Human Services, Education, and Related Agencies

■ Department of Health and Human Services • Administration for Children and Families • Administration for Community Living • Agency for Healthcare Research and Quality • Centers for Disease Control and Prevention • Centers for Medicare and Medicaid Services

TABLE 2-1 Key Health Committees and Subcommittees

16 Chapter 2 Policy and the Policymaking Process

(continued)

 

 

• Health Resources Services Administration • National Institutes of Health • Substance Abuse and Mental Health Services • Federal Mine Safety and Health Review Commission • Medicaid and CHIP Payment and Access Commission • Medicare Payment Advisory Committee • National Council on Disability • Occupational Safety and Health Review Commission • Social Security Administration

■ Subcommittee on Agriculture, Rural Development, Food and Drug Administration, and Related Agencies

■ Food and Drug Administration ■ Department of Agriculture (except Forestry)

■ Subcommittee on Energy, Water Development, and Related Agencies

■ Department of Energy • National Nuclear Strategy Administration • Federal Energy Regulatory Commission

■ Department of Interior ■ Bureau of Reclamation ■ Defense Nuclear Facilities Safety Board ■ Nuclear Regulatory Commission

■ Subcommittee on Interior, Environment, and Related Agencies

■ Department of Interior ■ Environmental Protection Agency ■ Indian Health Service ■ National Institute of Environmental Health Sciences ■ Chemical Safety and Hazards Investigation Board

House Committee on Agriculture

■ Subcommittee on Nutrition ■ Nutrition programs, including SNAP

■ Subcommittee on Biotechnology, Horticulture, and Research

■ Policies and statutes relating to horticulture, bees, organic agriculture, pest and disease management, bioterrorism, biotechnology

■ Subcommittee on Livestock and Foreign Agriculture

■ Policies and statutes relating to inspections of livestock, dairy, poultry, and seafood; aquaculture; animal welfare

Congressional Commissions and Staff Agencies Although the committee system helps members of Congress focus on particular areas, members often need assistance with in-depth research and policy analysis. Commissions and staff agencies provide members with information they might not otherwise have the time to gather and analyze. There are too many commissions and agencies to list here, but a few key ones include the following:

■ Congressional Budget Office: An agency that provides Congress with cost estimates of bills and federal mandates to state and local governments,

as well as forecasts economic trends and spending levels.

■ Government Accountability Office: An indepen- dent, nonpartisan agency that studies how federal tax dollars are spent and advises Congress and executive agencies about more efficient and effec- tive ways to use federal resources.

■ Congressional Research Service: The public pol- icy research service that conducts nonpartisan, objective research on legislative issues.

■ Medicare Payment Advisory Commission: An independent federal commission that gives Congress advice on issues relating to the Medicare program, including payment, access to care, and quality of care.

Public Policymaking Structure and Process 17

 

 

How Laws Are Made One way that members of Congress indicate their pol- icy preferences is by passing laws that embody their values and the values of their constituents. This is a lengthy process, with many steps along the way that could derail a bill (FIGURE 2-1).

Before a committee considers a bill, it must be introduced by a member of Congress. Once this occurs, the Speaker refers the bill to one or more committees in

the House, and the majority leader does the same in the Senate. The bill may die in committee if there is not suf- ficient support for it, although there are rarely invoked procedures that allow a bill to be reported to the full chamber even without committee approval. While the bill is in committee, members may hold hearings on it or “mark up” the bill by changing or deleting language in the proposed bill or by adding amendments to it. If a majority of the committee members approves a bill, it

FIGURE 2-1 How a Bill Becomes a Law

18 Chapter 2 Policy and the Policymaking Process

Representative introduces bill in the House

Senator introduces bill in the Senate

Bill is read in the House and assigned to a committee by the

Speaker

Bill is read in the Senate and assigned to a committee by the

majority leader

Bill leaves committee, is scheduled for floor

consideration and debate, may be amended

Bill leaves committee, is scheduled for floor

consideration and debate, may be amended

House passes bill Senate passes bill

Bill is sent to Senate Bill is sent to House

A conference committee is created to resolve differences if both chambers do not pass an identical bill

Identical bill is passed by both House and Senate OR one branch agrees to the other branch’s version OR bill is amended and both branches vote again and pass amended version

Bill is presented to the President, who has four options

Option 1: President signs bill into law

Option 2: During congressional

session, bill becomes law after 10 days without presidential signature

Option 3: When not in session, bill

does not become law without presidential

signature

Option 4: President vetoes bill.

Two-thirds vote in House and Senate can override veto

 

 

goes to the full chamber (House or Senate, depending on where the bill originated).

The full House or Senate then debates the mer- its of the bill and puts it to a vote. If a majority does not support the bill, it dies on the chamber floor. If a majority supports the bill, it is sent to the other cham- ber for consideration. The second chamber may pass the exact same bill or a different version of the bill. If the second chamber does not pass any version of the bill, it dies on the chamber floor and no version of the bill moves forward. If the second chamber passes an identical bill, it goes directly to the president for consideration.

If there are differences in the bills passed by the House and Senate, the two chambers must reach a con- sensus through an exchange of amendments for the bill to have a chance of becoming law. Consensus building is facilitated by a “conference committee” made up of members from both chambers. If the committee can- not reach a consensus, the bill dies. If the committee reaches a consensus, the bill is sent back to each cham- ber for a vote on the new version of the bill. If either chamber does not approve it, the bill dies at that point. If both the House and the Senate pass the new version, it is sent to the president for consideration.

The president may choose to sign the bill into law, or the president may choose to veto the bill. If the president chooses not to sign the bill while Congress is in session, the bill becomes law after 10 days; if Congress is not in session and the bill goes unsigned, the bill dies (this is referred to as a “pocket veto”). If the president vetoes the bill, Congress may over- ride the veto with approval of a two-thirds majority in each chamber.

Congressional Budget and Appropriations Process Although the budget and appropriations process may sound dry, it is about much more than numbers and charts. If you take a close look at budget documents, they include narratives that discuss why certain pro- grams are being funded and what the government hopes to achieve by doing so. In many ways, this process is a key policy tool for members of Congress and the pres- ident; they are able to show which programs and issues have their support through their funding decisions.

Given both the amount of money involved in running the United States ($4 trillion in 2017) and the various jurisdictions of congressional commit- tees, it is not surprising that the federal budget pro- cess is fairly complex. The Congressional Budget and Impoundment Control Act of 1974 (“Budget Act”) and subsequent amendments were passed by

Congress to create a process that brings together the numerous committees involved in crafting an over- all budget plan. The budget process works in concert with the appropriations process, which involves con- gressional passage of bills from each of the appropria- tions committees to distribute the funds provided for in the overall budget (House Committee on the Bud- get Majority Caucus, 2001; Senate Committee on the Budget, 1998).

The president is required to submit a budget pro- posal to Congress by the first Monday in February. This proposal is the administration’s request; it is not binding on Congress. Each chamber then passes a budget resolution, identifying how the chamber would spend federal money delineated by different catego- ries of spending (e.g., defense, agriculture, transpor- tation). Members from each chamber then meet to develop a single conference report reflecting a consen- sus agreement on the overall budget. Congress then passes a concurrent budget resolution, which is binding upon the House and Senate as a blueprint for revenue collection and spending. However, it is not a law and the president is not bound by the budget resolution.

Over the 6 weeks subsequent to the passage of the concurrent budget resolution, the House and Sen- ate budget committees hold hearings to discuss the budget, and other committees review the budget as it pertains to their jurisdiction. The latter committees provide the budget committees with their “views and estimates” of appropriate spending and/or revenue levels for the upcoming year. In addition, the Con- gressional Budget Office provides the budget commit- tees with its budget and economic outlook reports and provides the budget and appropriations committees with its analysis of the president’s proposal.

In March, the House and Senate budget commit- tees each craft a budget plan during public meetings known as “markups.” When the markups are com- plete, each committee sends a budget resolution to its respective chamber. The budget resolution contains a budget total, spending breakdown, reconciliation instructions, budget enforcement mechanisms, and statements of budget policy. Budget totals are pro- vided as aggregates and as committee allocations.

The federal budget includes two types of spending: discretionary and mandatory. Discretionary spending refers to money that is set aside for programs that must be funded annually in order to continue. If the programs are not funded by Congress, they will not receive federal dollars to continue their operations. For example, the Head Start program, which provides early childhood education services, is a discretionary program that relies on annual appropriations. Manda- tory spending refers to spending on entitlement and

Public Policymaking Structure and Process 19

 

 

other programs that must be funded as a matter of law. For example, the Medicaid program is an entitlement that provides health insurance to eligible low-income individuals. The authorizing legislation (the law that created the program) for Medicaid includes eligibility rules and benefits. Because Medicaid is an entitlement program, Congress must provide enough money so the Medicaid agency can meet the obligations found in the authorizing legislation.

The appropriations committees write bills to cover discretionary spending. These committees make their decisions based on the amount of funds available and any reconciliation instructions, which direct the appropriate authorizing committee to make changes in the law for mandatory spending programs to meet budgetary goals. Appropriations bills and reconcilia- tion instructions must be signed by the president to become law.

Members of the House and Senate have the opportunity to make changes to the work of the bud- get committees. Once the House and Senate pass their own versions of the budget resolution, they establish a conference committee to resolve any differences. Once the differences are resolved, each full chamber votes on the compromise budget.

Congress often does not meet Budget Act dead- lines (shown in TABLE 2-2). If the appropriations bills are not passed by every October 1—the beginning of the fiscal year—Congress may pass a continuing resolution that allows the government to continue to spend money. If Congress does not pass a continuing resolution or if the president vetoes it, all nonessential activities of federal agencies must stop until additional funds are provided.

Constituents of Legislative Branch With the wide array of issues they take on, members of Congress may have an equally wide array of constitu- ents to be concerned about when making policy deci- sions. Clearly, members are concerned about pleasing the voters who elect them. Even though there may be a variety of policy views to consider, members often prioritize their home constituents. In addition to court- ing their home-state voters, members often try to court independents or voters from the opposing party in their home state to strengthen their appeal. High approval ratings deter challengers from trying to take an incum- bent’s congressional seat and allow members of Con- gress more leeway to pursue their goals and policies.

TABLE 2-2 Federal Budget Process Timeline

First Monday in February President submits budget proposal to Congress.

March House completes its budget resolution.

April Senate completes its budget resolution.

April 15 House and Senate complete concurrent budget resolution.

May Authorizing committees develop reconciliation language when necessary and report legislation to budget committees. House and Senate develop conference report on reconciliation, which is voted on by each chamber.

June 10 House concludes reporting annual House appropriations bills.

June 15 If necessary, Congress completes reconciliation legislation.

June 30 House completes its appropriations bills.

September 30 Senate completes its appropriations bills. House and Senate complete appropriations conference reports and vote separately on the final bills.

October 1 Fiscal year begins.

Modified from House Committee on the Budget Majority Caucus, Basics of the Budget Process, 107th Cong. Briefing Paper, 2001.

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Although concern for their home-state base may be their first priority, representatives and senators often need to be concerned about supporting their party’s position on issues. Today, elected federal politicians are usually affiliated with the Democratic or Republi- can Party, and voters may be influenced by the party’s stance on issues. Also, if the balance of power between the two parties is close in Congress, the parties usually cannot afford to have members defect from their par- ty’s positions. Members’ concern regarding keeping their party strong is magnified if they hold leadership positions in Congress or are considering running for national office.

Finally, the views of the president may be import- ant for members to consider, depending on whether the member and the president share the same party, the particular issue involved, and the president’s pop- ularity. Members who are in the same party as the sitting president have incentive to help the president remain popular because they will likely advance many of the same policies. In addition, presidents are often prodigious fundraisers and campaigners who may be able to assist members during election season. Even when members disagree with the president, the presi- dent’s power to affect their influence in Congress may be a deterrent to opposing the president. Of course, if the president is exceedingly popular, it is difficult for members of either party to oppose presidential policy goals.

The Federal Executive Branch Article II of the U.S. Constitution establishes the executive branch and vests executive power in the most well-known member of the branch, the presi- dent (U.S. Const. art. II, § 1). Of course, the president does not act alone in running the executive branch. Presidents rely on Executive Office agencies and staff such as the Council of Economic Advisors and Office of Management and Budget, as well as policy development offices such as the National Security Council and Domestic Policy Council (see BOX 2-1 for a description of one such office). In addition, there are 15 cabinet departments led by individuals selected by the president (subject to Senate confir- mation) and additional non– cabinet-level agencies, all of which are responsible for, among other duties, interpreting and implementing the laws passed by Congress. All of these advisors identify issues to be addressed and formulate policy options for the pres- ident to consider. In theory, all of these parts of the executive branch work in furtherance of the goals set by the president.

The Presidency The president is the head of the federal executive branch. As powerful as that may sound, the coun- try’s founders created three distinct branches of gov- ernment and limited the president’s power in order to ensure that no single individual gained too much control over the nation. As you will see, in some ways the president is very powerful, and in other ways his power is quite limited.

Although there have been third-party candidates for president in the past, generally speaking the United States operates with a two-party system, with the Dem- ocratic and Republican parties as the major parties. Each party selects a candidate for president who rep- resents the party in the election. Presidents (and their vice presidents) are elected through a nationwide vote to serve a 4-year term. An individual is limited to serv- ing two 4-year terms as president, which may or may not be consecutive (U.S. Const. amend. XXII, §  1).c To be eligible for election, candidates must be at least 35 years old, a natural-born citizen of the United States, and a resident of the country for at least 14 years.

Presidents have many roles. As the unofficial Chief of State, the president is seen as the symbol of the country and its citizens (H.R. Doc. No. 106–216, 2000, p. 40). As the official Chief Executive Officer, the president man- ages the cabinet and executive branch. The president also holds the position of Commander in Chief of the Armed Forces, and as such is the top-ranking military official in the country. The U.S. Constitution vests the president

BOX 2-1 Office of Management and Budget

The Office of Management and Budget (OMB) reports directly to the president and plays an important role in policy decisions. OMB is responsible for preparing the presidential budget proposal, which includes reviewing agency requests, coordinating agency requests with presidential priorities, working with Congress to draft appropriation and authorization bills, and working with agencies to make budget cuts when needed. In addition to these budgetary functions, OMB provides an estimate of the cost of regulations, approves agency requests to collect information, plays a role in coordinating domestic policy, and may act as a political intermediary on behalf of the president. OMB also has an oversight and evaluation function over select federal agencies as a result of the Government Performance and Results Act, which requires agencies to set performance goals and have their performance evaluated.

Public Policymaking Structure and Process 21

 

 

with other powers, such as the ability to appoint judges to the federal courts, sign treaties with foreign nations, and appoint ambassadors as liaisons to other countries. These powers are all subject to the advice and consent of the Senate (H.R. Doc. No. 106–216, 2000, p. 41).

Agenda Setting. A key tool of the presidency is the ability to put issues on the national agenda and offer a recommended course of action: “Framing agendas is what the presidency is all about” (Davidson, 1984, p. 371). Presidents help set the national agenda because of the role of the president as the country’s leader and the amount of media attention given to presiden- tial actions, decisions, and policy recommendations. Unlike many other politicians or interest groups, the president does not have to work hard to receive media coverage. Whether it is the annual State of the Union address, release of the president’s budget proposal, a major speech, a press conference, a photo shoot with a foreign leader, or the release of a report, the president’s message is continually publicized. In addition, the president’s message can be delivered by the vice pres- ident, cabinet officers, and party leaders in Congress.

The notion of appealing directly to the country’s citizens to focus on a particular issue and to influence legislative debates is referred to as “going public.” In going public, presidents try to use support from the American people to gain the attention of Congress and sway votes on policy decisions. Because mem- bers of Congress are highly concerned about pleasing their constituency to improve their chance for reelec- tion, “the president seeks the aid of a third party—the public—to force other politicians to accept his prefer- ences” (Kernell, 1997, p. 3).

Sometimes it may be advantageous for the pres- ident to place an item on the policy agenda in a less public manner. For example, if a policy is controver- sial with the general public or if members of the pres- ident’s party disagree with a proposal, it may be more effective to promote a policy behind the scenes. The president, either directly or through intermediaries, can carefully let members of Congress know which policies are favored. Using combinations of prom- ises of favors and threats to members’ interests, the president may be able to influence the outcome of pol- icy debates in Congress even without going public.

In addition to deciding whether to approach Con- gress publicly or behind the scenes, the president must choose whether to present a preferred policy decision with more or less detail. A policy can be presented broadly through principles or general guidelines, or specifically through proposed legislation that is pre- sented to Congress. Each method for conveying the president’s goals has pros and cons. If a policy choice is

presented in a broad manner, Congress may interpret the policy in a way that the president dislikes. How- ever, if the president presents Congress with a specific proposal or draft legislation, Congressional members may view the president as infringing upon their role as the legislative body and resist working with him.

Whether presidents are successful in placing pol- icy issues on the national agenda and having them resolved in accordance with their preferences depends in part on how much “political capital” a president has available. Political capital is defined as the strength of the president’s popularity and of his party, in Congress and in other contexts. Members of Congress are more likely to support a popular president who has the abil- ity to mobilize the public’s support, improve members’ standing by association with the president and the president’s party, and raise money for their campaigns.

Even the most popular president cannot always dictate what issues are on the national agenda, how- ever. Events and decisions outside the president’s control often influence what topics most concern the nation. The terrorist attacks of September 11, 2001, the subsequent anthrax scare, and the subway and bus bombings in London and Madrid all served to place combating terrorism at the top of the policy and politi- cal agenda during the George W. Bush administration. Concerns about an avian flu epidemic and numerous food recalls put public health and food safety issues on the national agenda. The devastation wrought by the BP oil spill in the Gulf of Mexico made improved responses to environmental disasters a high priority for a short time. Thus, even the most popular presi- dents must be responsive to national and international events that may be beyond their control.

Presidential Powers. As noted earlier, if Congress passes legislation the president dislikes, he has the power to veto it, thereby rejecting the bill. However, the president does not have to actually use the veto to shape policy. The president may be able to persuade Congress to change a piece of legislation simply by threatening to veto it, especially if it is a law that is expected to pass by only a slim majority. In general, vetoes are used infrequently, with presidents vetoing only 3% of all legislation since George Washington was president (H.R. Doc. No. 106–216, p. 43).

Presidents also have the power to issue executive orders. These are legally binding orders that the presi- dent gives to federal administrative agencies under the control of the Executive Office. In general, these orders are used to direct federal agencies and their officials in how they implement specific laws. Executive orders are controversial because under our system of government, Congress, not the executive, is tasked with making

22 Chapter 2 Policy and the Policymaking Process

 

 

laws. In addition, significant policy decisions can be accomplished by using executive orders. For example, an executive order was used by President Truman to integrate the armed forces, by President Eisenhower to desegregate schools, by President Clinton to desig- nate 1.7 million acres in southern Utah as a national monument, and by President George W. Bush to create the federal Office of Homeland Security (which subse- quently became a cabinet-level department when Con- gress established it through legislation). As is discussed in the Health Reform in the United States chapter, Pres- ident Trump issued several executive orders intended to undermine the Affordable Care Act after Congress was unable to pass a bill to repeal and replace it.

If Congress believes an executive order is contrary to congressional intent, it has two avenues of recourse. It can amend the law at issue to clarify its intent and effectively stamp out the executive order that is now clearly contrary to the law. (Bear in mind that because the president may veto any bill, in effect it takes a two- thirds majority of Congress to override an executive order.) As an alternative, Congress may challenge the executive order in court, claiming that the president’s actions exceed his constitutional powers.

Constituents of the Executive Branch. From this description of the presidency, it is evident that pres- idents have several layers of constituents to consider when making policy choices. Certainly, the president represents every citizen and the country as a whole

as the only nationally elected official (along with the vice president) in the nation. However, the president is also a representative of a particular political party and therefore must consider the views of that party when making policies. The party’s views may be evi- dent from the party platform, policies supported by party leadership in Congress, and voters who identify themselves as party members. In  addition, the pres- ident must keep in mind the foreign policy duties of the office. Depending on the issue, it may be import- ant for the president to take into account the views of other nations or international organizations, such as the United Nations or the World Health Organization.

How does the president decide which policies to pursue? Presidents are driven by multiple goals. They want “their policies to be adopted, they want the poli- cies they put in place to last, and they want to feel they helped solve the problems facing the country” (Weis- sert & Weissert, 2002, p. 82). In addition, presidents often speak of wanting to leave a legacy or ensure their place in history when they leave office.

Given the vast array of constituents that presidents must consider, the president’s policy decision-making process involves several layers. As shown in FIGURE 2-2, presidents consult their agency staff to identify prob- lems, decide which problems are priorities, determine what solutions are available to address those problems, and choose the policy option that is the preferred course of action. In addition, the president’s staff inter- acts with members of Congress and other political

FIGURE 2-2 Executive Agency Policymaking Source: Courtesy of Jeff Levi, Professor of Health Policy, George Washington University.

Public Policymaking Structure and Process 23

Should this be on the agenda?

Agency Staff

What are the options?

Is there a problem?

What is recommended to decision-maker?

Congress

Media

White House

CONSUMERS, CITIZENS, & CONSTITUENCY GROUPS

Political Players

 

 

players to gauge their support for or opposition to various policies. Of course, how the media portrays both the problems and the potential solutions can be an important ingredient in whether politicians and the general public support the president’s initiatives.

In addition, which policies presidents choose to promote may depend in part on when policy decisions are made. First-term presidents must satisfy their con- stituents if they hope to be reelected. Although all presidents want to see their favored policies imple- mented throughout their time in office, second-term presidents may be more willing to support more con- troversial goals because they cannot run for reelection. Yet, second-term presidents may also be constrained by the desire to keep their party in power, even though another individual will hold the presidential office.

Administrative Agencies When studying the structure of our government, it is common to review Congress, the presidency, and the court system. Administrative agencies, however, are often overlooked despite the power they wield over the way our country is run.

Structurally, almost all administrative agencies are part of the executive branch and, thus, are under the power and control of the president. Practically, administrative agencies often work out of the public’s eye to implement the laws passed by Congress and the executive orders signed by the president.

Federal agencies fall into two main categories: executive department agencies and independent agencies. Executive department agencies are under the direct control of the president, and department heads serve at the pleasure of the president. These departments include the 15 cabinet-level departments and their subunits; some of the more well-known executive departments are the Department of Health and Human Services, the Department of Education, the Treasury Department, the Department of State, the Department of Defense, and the Department of Homeland Security. Independent agency heads are appointed by the president and confirmed by the Sen- ate. They serve a fixed term and may be removed only “for cause,” meaning there must be a legitimate rea- son to fire them. Examples of independent agencies include the Securities and Exchange Commission, the U.S. Postal Service, and the National Labor Rela- tions Board.

Overall, the president fills approximately 4,000 federal jobs (Yoder, 2016). In general, these political appointees have short tenures, lasting an average of 2 years (Weissert & Weissert, 2002, p. 161). When the

administration changes hands after an election, new appointees are usually selected to run the agencies. The daily operations of agencies are run by career civil ser- vants, public employees who do not necessarily come and go with each administration but who often remain at an agency for years, gaining expertise and institu- tional knowledge about the agencies in which they work. Frequently, there may be tension between the goals of the political appointee and those of the career bureaucrat, who may have the advantage of familiar- ity with members of Congress and who knows that the political appointee is likely to be replaced in a few years.

Administrative agencies can be created by statute, internal department reorganization, or presidential directive (H.R. Doc. No. 106-216, 2000, p. 50). How- ever they are initially created, agencies must have statutory authority in order to receive appropriations from Congress and act with the force of law. This stat- utory authority, or enabling statute, outlines the agen- cy’s responsibilities and powers.

Agency Powers. By necessity, statutes are usually written broadly. Congress does not have the time or expertise to include every detail about how a new pro- gram should operate or how a new department will be structured. It is up to the executive branch agency to fill in the details, and it does so by issuing policy state- ments, developing rules, and promulgating regulations.

The Affordable Care Act (ACA) is a classic example. Although the statute itself is lengthy (over 2,400 pages), the regulations needed to implement the law have been even more extensive—with some estimates putting the total page number at 20,000. To give just one example for now (a detailed dis- cussion of the ACA occurs in the Health Reform in the United States chapter), the ACA includes a list of essential health benefits that must be provided by health insurance plans offered in state exchanges. The statute outlines numerous such services, includ- ing mental health services, maternity and newborn care services, prevention and wellness services, and chronic disease management services. Even with this level of detail, many unanswered questions remain regarding which services must be covered. Do mental health services include inpatient and outpatient ser- vices? Do prevention and wellness services include contraceptive coverage? Does chronic disease man- agement include all chronic disease management models? These (and many other) questions must be answered through regulations. The ACA includes numerous provisions that require the relevant agen- cies to issue detailed regulations necessary to imple- menting the law.

24 Chapter 2 Policy and the Policymaking Process

 

 

In addition, agencies must follow the require- ments set forth in the Administrative Procedure Act of 1946 (APA). The APA contains detailed require- ments compelling agencies to issue a notice of their intent to issue a new rule or change an existing rule, and provide for and respond to public comments on the proposed rule. Some agencies are also required to hold hearings and develop rules based on the evi- dence presented in those hearings (Weissert & Weis- sert, 2002, p. 172). It is important to know that the APA creates procedural standards that require an agency to follow a particular process when promul- gating regulations, but that the APA does not relate to the substance of the regulations. As long as an agency follows the necessary notice and comment require- ments of the APA, it has wide latitude to issue rules within its scope of power, even if many of the public comments opposed the proposed rules. If an agency does not follow the APA requirements, interested parties may sue the agency in court to force compli- ance with the law.

Constituents of Agencies. Agency heads, because they are not elected, do not have constituents in the same way that the president and members of Con- gress do. In theory, as members of the executive branch, agency heads should be concerned only with the wishes of the president. In reality, however, that is not always the case. Some presidents have firmer con- trol of their departments than others. If the president gives the departments and agencies broad discretion

to make policy decisions, the agencies may have few policy constraints. Practically, however, agency heads want their operation to run smoothly, which includes having a good working relationship with the individ- uals or entities regulated by that agency. If an agency antagonizes the people or groups being regulated, they might reach out to their congressional representa- tives to try to change or limit the agency’s personnel or authority. In addition, because Congress appropri- ates funds to and maintains oversight of many agen- cies, agency heads are well served by taking Congress’s interests into account.

TABLE 2-3 summarizes the general public poli- cymaking machinery. We next turn our attention to the specific parts of the government bureaucracy that operate in the health arena.

▸ The Health Bureaucracy The Federal Government Although several federal agencies have healthcare- related responsibilities, three significant health agen- cies include the Department of Health and Human Services (HHS), the Department of Defense (DoD), and the Department of Veterans Affairs (VA). HHS houses many of the major public health insurance programs and health services that provide care, infor- mation, and more to millions of U.S. residents; the DoD and VA operate health insurance programs spe- cifically for military personnel and their families.

TABLE 2-3 Summary of Public Policymaking Entities

Congress President Administrative Agencies

Main function Legislative body Chief executive of the country Implement statutes through rule making

Main tools/ powers

Support/oppose/pass legislation Appropriations Oversight

Agenda setting Persuasion Propose solutions Budget proposals Executive orders Sign legislation into law

Create regulations Provide information

Constituents Voters in state or district Voters in nation if in leadership role or have national aspirations Party President

Nation (all voters) Public who voted for the president Party Other nations International organizations

President Congress Individuals and entities regulated or served by the agency

The Health Bureaucracy 25

 

 

Department of Health and Human Services HHS includes hundreds of programs that cover activ- ities as varied as medical and social science research, preschool education services, substance abuse and pre- vention services, and health insurance programs, just to name a few. As shown in FIGURE 2-3, the department

has 11 operating divisions. The main purpose of each agency is described in TABLE 2-4.

Each operating division has numerous bureaus or divisions that operate health programs. For example, the HIV/AIDS Bureau (HAB) is one of five bureaus in the Health Resources and Services Administration. The HIV/AIDs Bureau implements the Ryan White CARE Act of 1990, which provides health care to

FIGURE 2-3 Department of Health and Human Services Organizational Chart Source: Reproduced from: the U.S. Department of Health and Human Services. HHS Organizational Chart. Retrieved from https://www.hhs.gov/about/agencies/orgchart/index.html#

26 Chapter 2 Policy and the Policymaking Process

Secretary Deputy Secretary

Chief of Staff

The Executive Secretariat (ES)

Office of Health Reform (OHR)

Office of the Secretary

Office of the Assistant Secretary for Administration (ASA)

Administration for Children and Families (ACF)

Administration for Community Living (ACL)

Agency for Healthcare Research and Quality (AHRQ)

Agency for Toxic Substances and Disease Registry (ATSDR)

Centers for Disease Control and Prevention (CDC)*

Centers for Medicare & Medicaid Services (CMS)

Food and Drug Administration (FDA)*

Health Resources and Services Administration (HRSA)*

Indian Health Service (IHS)*

National Institutes of Health (NIH)*

Substance Abuse and Mental Health Services Administration (SAMHSA)*

Office of the Assistant Secretary for Financial Resources (ASFR)

Office of the Assistant Secretary for Health (OASH)

Office of the Assistant Secretary for Legislation (ASL)

Office of the Assistant Secretary for Planning and Evaluation (ASPE)

Office of the Assistant Secretary for Preparedness and Response (ASPR)*

Office of the Assistant Secretary for Public Affairs (ASPA)

Center for Faith-Based and Neighborhood Partnerships (CFBNP)

Office for Civil Rights (OCR)

Departmental Appeals Board (DAB)

Office of the General Counsel (OGC)

Office of Global Affairs (OGA)*

Office of Inspector General (OIG)

Office of Medicare Hearings and Appeals (OMHA)

Office of the National Coordinator for Health Information Technology (ONC)

*denotes the components of the Public Health Service

Operating Divisions

Office of Intergovenmental and External Affairs (IEA)

 

 

TABLE 2-4 Department of Health and Human Services Agencies

Agency Main Purpose of Agency

Administration for Children and Families (ACF)

To promote economic and social well-being of families, children, individuals, and communities through educational and supportive programs

Administration for Community Living (ACL)

To increase access to community support and resources for older adults and people with disabilities

Agency for Healthcare Research and Quality (AHRQ)

To produce evidence to make health care safer, high quality, more accessible, and affordable, and to work with HHS and other partners to make sure the evidence is understood and used

Agency for Toxic Substances and Disease Registry (ATSDR)

To prevent exposure to toxic substances and reduce the adverse health effects associated with such exposure

Centers for Disease Control and Prevention (CDC)

To protect the nation’s health by providing leadership in the prevention and control of diseases and other preventable conditions, and to respond the public health emergencies

Center for Medicare and Medicaid Services (CMS)

To provide oversight of Medicare, the federal portions of Medicaid and CHIP, and the Health Insurance Marketplace, and to engage in quality assurance activities

Food and Drug Administration (FDA) To assure the safety of human and veterinary drugs, biological products, and medical devices, and to ensure the safety and security of the nation’s food supply and products that emit radiation

Health Resources and Services Administration (HRSA)

To provide health care to populations that are geographically isolated, or economically or medically vulnerable

Indian Health Services (IHS) To provide American Indians and Alaska Natives with comprehensive health services

National Institutes of Health (NIH) To support and conduct biomedical and behavioral research, to train promising young researchers, and to promote collecting and sharing knowledge

Substance Abuse and Mental Health Services Administration (SAMHSA)

To improve access to and reduce barriers to high-quality, effective programs for individuals who suffer from addictive or mental disorders, and for their families and communities

Department of Health and Human Services (2015). Source: Department of Health and Human Services. (2015). HHS agencies and offices. Retrieved from https://www.hhs.gov/about/agencies/hhs-agencies-and-offices/index.html

individuals with HIV and AIDS. Similarly, the Food and Drug Administration has several offices or cen- ters; the one whose job is perhaps best known to the general public is the Center for Drug Evaluation and Research, which is responsible for testing and approv- ing new drugs before they can be sold to the public. These are just two examples of the many subagency units that perform vital functions in our federal healthcare bureaucracy.

HHS also includes numerous offices that assist the Secretary of HHS in running the department. The Office of the Assistant Secretary of Health (OASH) is the principal advisor to the HHS secretary on pub- lic health matters. Through the Office of the Surgeon General, OASH oversees the U.S. Public Health Service (PHS), the Commissioned Corps (health profession- als used for both emergency responses and as health promoters), and the Office of Disease Prevention and

The Health Bureaucracy 27

 

 

Health Promotion. The PHS employs both commis- sioned corps members and civilians to run its public health programs.

Nine of the offices and agencies within HHS are part of the PHS. In addition, the PHS employees also work in the Bureau of Prisons, U.S. Coast Guard, National Oceanic and Atmospheric Administration, Environmental Protection Agency (EPA), Division of Immigration Health Services, and U.S. Marshal Ser- vices. HHS also has divisions concerned with planning and evaluation, legislation, administration and man- agement, budget and finance, program support, pub- lic affairs, and global health affairs. Offices concerned with the legality and efficiency of the department’s activities include those of the General Counsel and Inspector General, and the Office of Civil Rights.

As a result of the focus on preventing terrorism, HHS includes an Assistant Secretary for Prepared- ness and Response. This individual is the principal advisor to the Secretary of HHS on matters relating to bioterrorism and other public health emergencies and helps coordinate efforts in these areas at all levels of government. Other federal departments also have a role in public health emergency preparedness. The Department of Homeland Security (DHS), which includes the Federal Emergency Management Agency (FEMA), is tasked with preparing for and coordinat- ing the federal response to emergencies, whether due to natural or human-made disasters. The CDC houses the Strategic National Stockpile of emergency phar- maceutical supplies. Other agencies, such as the EPA, DoD, and VA, play significant roles in emergency pre- paredness and response.

Department of Veterans Affairs and Department of Defense Any veteran who does not receive a dishonorable dis- charge is potentially eligible for healthcare services through the Veterans Health Administration (VHA). The VHA is the largest healthcare delivery system in the country, with hundreds of medical centers, nurs- ing homes, and outpatient clinics that serve over 9 million patients each year (Department of Veterans Affairs, n.d.).

VHA-sponsored health plans offer a wide array of preventive, ambulatory, and hospital services as well as medications and medical and surgical supplies. VHA providers are organized into integrated networks aimed at providing cost-effective services based on local need. There are no premiums (monthly payments) for the plan, but veterans have to make co-payments (a charge per visit) unless they are exempt based on disability or income level. Unlike most healthcare plans, the VHA

system is completely portable, meaning veterans can access VHA facilities anywhere in the country.

Veterans who wish to receive care through the VHA must enroll in the program. Because the VHA receives an annual appropriation from Congress, it may not have sufficient funds to pay for all of the care demanded by eligible veterans. For that reason, the VHA uses a priority system to ensure that veterans who are low-income or have service-related disabili- ties can be enrolled into a plan. Other veterans may have to wait to be enrolled if there are insufficient funds. In addition, priority in accessing care is given to enrolled veterans who need care for service-related disabilities or have a sufficiently severe service-related disability and need care for any health concern. Veter- ans not in a priority group may have to wait to see an appropriate provider once they are enrolled.

Although veterans may receive care through the VHA, they are not required to do so. If eligible, they may choose to obtain services through other public or private healthcare programs or health insurance plans. They may also choose to receive some ser- vices through the VHA and others from non-VHA programs or plans. As a result of scandals pertain- ing to excessive wait times and falsified patient logs, Congress passed several bills to improve the medical care veterans receive. For example, the bipartisan VA Mission Act of 2018 is intended to streamline various VA programs that allow veterans to access care in the private sector and improve payment systems for pro- viders (Rein, 2018).

The VHA does not provide coverage to veterans’ family members, but the DoD does through its TRI- CARE program. TRICARE provides healthcare ser- vices to current and retired military personnel and their families. TRICARE offers a variety of plans with various eligibility requirements and costs to the patient.

State and Local Governments As discussed earlier, the Constitution gives states primary responsibility for protecting the public’s health. States have health-related agencies that deal with health financing, aging, behavioral health, environmental health, children and family services, veterans, facility licensing and standards, provider credentialing, and more. Although all states have agencies that generally cover the same functions, their structure, responsibilities, and lines of author- ity vary greatly.

With the variation among state agencies, it is not surprising that there are significant differences across the states in terms of their approach to public health and health services needs. All states have agencies to

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run their Medicaid and CHIP programs, as well as other state-specific health services programs. Local health departments (LHDs) carry out the public health functions of the state. Most commonly, LHDs are formed by, managed by, and report to a local gov- ernment, such as a county commission or local board of health. This structure provides LHDs with signif- icant latitude to interpret and implement state stat- utes. In some states, the state and local governments jointly oversee the LHD. LHDs may provide services directly or, as is increasingly common, may contract or provide support to others who perform the ser- vices. The services provided by LHDs vary consid- erably, though there is an emphasis on addressing communicable diseases, environmental health, and children’s health issues. LHDs often provide services such as immunizations; infectious disease investi- gations, epidemiology, and surveillance; food safety and inspections; nutrition services; and environ- mental health services. Some also provide diabetes care, glaucoma screening, substance abuse treatment, mental health services, and more (Turnock, 2016, pp. 235–239). (A more detailed discussion of various public health agencies is found in the Public Health Institutions and Systems chapter.)

Interest Groups Before leaving the discussion of policy, the policy- making process, and the health bureaucracy, we must say a few words about interest groups. Interest group is a general term used for a wide variety of organi- zations that are created around a particular issue or population and have the goal of influencing policy and educating others about their views and concerns (Weissert & Weissert, 2002, p. 117). Interest groups are different from most of the other stakeholders that have been discussed because interest groups do not have the power to make policy. Although members of the executive and legislative branches of govern- ment have a key role in determining which policies are adopted, interest groups have the limited, but still significant, role of trying to influence the decisions of policymakers.

There are many types of interest groups, includ- ing trade associations, think tanks, advocacy groups, and lobbying firms. A few examples include the Phar- maceutical Research and Manufacturers of America (n.d), whose mission is to “conduct effective advocacy for public policies that encourage discovery of import- ant new medicines for patients by pharmaceutical and biotechnology research companies” (Our Mission section, para. 1); America’s Essential Hospitals (n.d), which “champions excellence in health care for all,

regardless of social or economic circumstance, and advances the work of hospitals and health systems committed to ensuring access to care and optimal health for America’s most vulnerable people” (Mission and Service section, para. 2); the Center on Budget and Policy Priorities (n.d.), which conducts nonpar- tisan research and pursues “federal and state policies designed both to reduce poverty and inequality and to restore fiscal responsibility in equitable and effec- tive ways” (About the Center section, para. 1); and the Heritage Foundation (n.d.), which strives to “formu- late and promote conservative public policies based on the principles of free enterprise, limited govern- ment, individual freedom, traditional American val- ues, and a strong national defense” (About Heritage section, para. 1).

Just as members of Congress do not have the time or ability to become experts in every issue that comes before them, the same is true for the average citizen. Many people do not have the time and ability to learn about all of the issues that are important to them, develop proposals, rally public support for their positions, monitor current activity, lobby to add or remove issues from the agenda, and reach out to pol- iticians who make policy decisions. Instead, interest groups take on those duties: “Their job is to make the case for their constituents before government, plying the halls of Congress, the executive branch, the courts, and the offices of other interest groups to provide a linkage between citizens and government” (Weissert & Weissert, 2002, p. 119)

Interest Group Powers Interest groups do not have the power to pass laws. However, they can influence policy in a variety of ways throughout the policymaking process. For example, recall all the steps it takes for a bill to become a law. Anywhere along that continuum is an opportunity for interest groups to make their case. The first step for interest groups is often to commission research that they use to support their position. This can be most important in the early stages of policy development, when politicians might have an open mind about var- ious proposals (Weissert & Weissert, 2002, p. 131). However, it does not matter how much information a group has if it is not able to gain access to the deci- sion makers. Even a few minutes with a politician may be a few more minutes than the opposition has to make its case directly to a decision maker (Weissert & Weissert, 2002, p. 131). Finally, interest groups need to develop a persuasive argument, a way to frame the issue that convinces politicians to agree with their view of a policy matter.

The Health Bureaucracy 29

 

 

Interest groups have a variety of tools at their dis- posal when developing strategies for lobbying. They may initiate a grassroots campaign, asking their members to contact their representatives with a particular message. Because interest group members are the voters with the power to reelect public officials, strong grassroots cam- paigns can be quite effective. Or, they may try a grass- tops strategy and harness the influence of community leaders and other prominent individuals (Weissert & Weissert, 2002, p. 1319), or, they may join with other interest groups to create coalitions and strengthen their influence through numbers. Interest groups may start a media campaign to align public sentiment with their goals. Of course, providing candidates with money, often through political action committees, is a time-honored way to try to influence the outcome of policy debates.

Whatever methodology they use, interest groups are an important part of the policymaking process. According to Lindbloom (1980), interest groups are an “indispensable” (p. 85) part of making policy deci- sions. They provide a way to give a voice to their mem- bers, who may not otherwise feel able to participate effectively in the policymaking process.

▸ Conclusion This journey through the policymaking process in the United States was intended to provide you with an understanding of policy and a context for your discus- sions and analysis of health policy issues. It is vital that you become familiar with both the nature of policy and the institutions that make and influence policy. As you have seen, the definition of policy is subject to much debate, yet it is necessary to define what policy means before attempting to engage in policy analysis. We have also walked through the specific duties and powers of the executive and legislative branches of the federal government and included key points about state-level policymaking as well. Finally, all policy students must be aware of and understand the influ- ence of interest groups. They have and use numerous opportunities to influence the policymaking process, and their strength and concerns must be accounted for when analyzing policy issues. As you move further into health policy study, use the information provided in this overview to help you think about and frame your own policy positions.

References Administrative Procedure Act of 1946, 5 U.S.C. § 500 (2018). America’s Essential Hospitals. (n.d.). Mission and service. Retrieved

from https://essentialhospitals.org/about-americas-essential -hospitals/mission-driven-and-ready-to-serve/

Center on Budget and Policy Priorities. (n.d.). About the center. Retrieved from https://www.cbpp.org/about/mission -history

Davidson, R. H. (1984). The presidency and the Congress. In M. Nelson (Ed.), The presidency and the political system (p. 371). Washington, DC: Congressional Quarterly Press.

Department of Veterans Affairs. (n.d.). Veterans Health Administration. Retrieved from https://www.va.gov/health /aboutVHA.asp

Hanley, B. E. (1999). Policy development and analysis. In J. K. Leavitt, D. J. Mason, & M. W. Chaffee (Eds.), Policy and politics in nursing and health care (3rd ed., pp. 125–138). Philadelphia, PA: W. B. Saunders.

Heitshusen, V. (2018). Introduction to the legislative process in the U.S. Congress (CRS Report No. R24843). Retrieved from https://fas.org/sgp/crs/misc/R42843.pdf

Heritage Foundation. (n.d.). About Heritage. Retrieved from https://www.heritage.org/about-heritage/mission

House Committee on the Budget Majority Caucus. (2001). Basics of the budget process. Washington, DC: U.S. Government Printing Office.

H.R. Doc. No. 106-216, at 40–50 (2000). Kernell, S. (1997). Going public: New strategies of presidential

leadership (3rd ed.). Washington, DC: CQ Press. Lindbloom, C. (1980). The policy-making process. Englewood

Cliffs, NJ: Prentice-Hall.

Longest, B. B., Jr. (2016). Health policymaking in the United States (6th ed.). Chicago, IL: Health Administration Press.

Pharmaceutical Research and Manufacturers of America. (n.d.). Our mission. Retrieved from https://www.phrma.org/about /our-mission

Rein, L. (2018, May 23). Congress sends massive veterans bill to Trump, opening door to more private care. The Washington Post. Retrieved from https://www.washingtonpost.com/politics /congress-sends-massive-veterans-bill-to-trump-opening -door-to-more-private-health-care/2018/05/23/48e91220 -5e a8-11e8-a4a4-c070ef53f315_stor y.ht m l?nore dire c t =on&utm_term=.6661a7a87de9

Ryan White Comprehensive AIDS Resources Emergency Act of 1990, 42 U.S.C. § 300ff (2000).

Senate Committee on the Budget. (1998). The congressional budget process: An explanation. Washington, DC: U.S. Government Printing Office.

Subcommittee on Health and Environment of the Committee on Interstate Commerce, U.S. House of Representatives. (1976). A discursive dictionary of health care. Washington, DC: U.S. Government Printing Office.

Turnock, B. J. (2016). Public health: What it is and how it works (6th ed.). Burlington, MA: Jones and Bartlett Learning.

Waisanen, B. (2010). State tax and expenditure limits. Retrieved from http://www.ncsl.org/research/fiscal-policy/state-tax-and -expenditure-limits-2010.aspx

Weissert, C. S., & Weissert, W. G. (2002). Governing health: The politics of health policy (2nd ed.). Baltimore, MD: Johns Hopkins University Press.

U.S. Const. amend. XXII, § 1.

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U.S. Const. art. I, § 1. U.S. Const. art. I, § 2. U.S. Const. art. I, § 3. U.S. Const. art. I, § 8. U.S. Const. art. II, § 1.

Yoder, E. (2016, November 9). Trump and the federal workforce: Five key issues. The Washington Post. Retrieved from https:// w w w. w a s h i n g t onp o s t . c om / n e w s / p ow e r p o s t / w p / 2 0 1 6 /11/09/trump-and-the-federal-workforce-five-key-issues/? noredirect=on&utm_term=.4e8c427f5046

▸ Endnotes a. Under Article 1 of the Constitution, Congress

has jurisdiction over the District of Columbia. Both the Senate and the House have commit- tees that oversee some governmental functions of the District. The District elects two “shadow senators” who are allowed to lobby Congress on issues but who do not have voting rights. In terms of representation, this places the District in a position similar to other political bodies admin- istered by the United States, such as Puerto Rico, the U.S. Virgin Islands, and American Samoa. The District’s shadow senators (and a shadow representative in the House) were created by the citizens of the District in anticipation of the passage of the 1978 District of Columbia Voting Rights amendment to the U.S. Constitution,

which would have granted the District the same voting rights as the states. The amendment never passed, but the District government has main- tained the shadow positions nonetheless.

b. In addition to the 435 representatives, Puerto Rico has a resident commissioner, and the District of Columbia, Guam, the U.S. Virgin Islands, and American Samoa each has a del- egate who is allowed to sponsor legislation and vote in committees, but may not vote on the House floor. The citizens of the District of Columbia also elect a nonvoting shadow repre- sentative.

c. In circumstances where the president serves 2 years or less of the term of another president, that president may hold office for 10 years.

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CHAPTER 3

Law and the Legal System LEARNING OBJECTIVES

By the end of this chapter you will be able to:

■ Describe the role of law in everyday life ■ Define the term “law” ■ Identify the various sources of law ■ Describe key features of the legal system

“It is perfectly proper to regard and study the law simply as a great anthropological document.”

—Former U.S. Supreme Court Justice Oliver Wendell Holmes (1899, p. 444).

▸ Introduction

The importance and complexity of law and the legal system in the United States cannot be overstated. Law’s importance stems from its primary purpose: to function as the main tool with which we organize ourselves as an advanced, demo- cratic society. The complexity of law and the legal pro- cess is a function of the multiple sources of law that may apply to any one of the millions of actions and interactions that occur daily in society, the division of legal authority between the federal and state govern- ments and among the branches within them, the lan- guage the law and its players use to express themselves, and more. For all its complexity, however, there is also an undeniable pervasiveness and openness when it comes to law. We are not left to wonder where it comes from or how it is made. Generally speaking, we are privy to lawmakers’ rationales for the laws they write and to judges’ reasoning for their legal opinions, just

as we are generally privy to the process by which law is made, and once made, laws are not hidden from us; to the contrary, they are discussed in the media and catalogued in books and online services available for public consumption. (Indeed, one is expected to know what the law is, since its violation can have potentially severe consequences.) If you want to know more about law than the average person, you can study it formally in law and other schools, or you can consult with one of the million or so lawyers in practice today. In other words, although law is complicated, it is equally acces- sible in a way that may not be clear at first blush.

Furthermore, beyond the law’s sheer pervasive- ness lies another simplicity: as the quotation at the outset of this chapter implies, the study of law is in essence the study of human beings, particularly their evolving customs, beliefs, and value systems. Because law is the key tool with which we regulate social behav- ior, it stands to reason that it also reflects our foremost values and normative standards. Indeed, law “takes an

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understanding, a norm, an attitude, and hardens it into muscle and bone” (Friedman, 2002, p. 29); however, this is subject to change, for as our society evolves, so too does our law. A relevant example of legal evolu- tion can be seen in the updating of state public health laws, which before the tragic events of September 11, 2001, and the subsequent anthrax scare had not been updated in most states for over a century. Soon after the 2001 attacks, however, many states, concerned about new risks to the public’s health, reviewed and overhauled these laws (Ziskin & Harris, 2007).

This chapter begins by briefly considering the role law plays in everyday life, and then turns to defin- ing law and describing its multiple sources. It then discusses several key features of the legal system, including the separation of powers among branches of government, federalism (i.e., the separate sovereignty and authority of the federal and state governments), the role of courts, due process, and more.

For some, reading this chapter may bring to mind a course you have taken or a book you have read on civics or government. In this case, the chapter should serve as a helpful refresher. For those of you new to the study of law, consider the following pages a condensed but important introduction to one of the most criti- cal and influential aspects of the society in which you live. In either event, this chapter is designed to better position you to understand the law’s application to the specific fields of health care and public health and to digest the health policy and legal concepts discussed in this textbook.

▸ The Role of Law The law reaches into nearly every corner of American life. Its impact is inescapable from the moment you wake up to the time you go back to sleep at night (and perhaps beyond, if your community has a curfew or other means of controlling activity and noise after dark). Have you ever stopped to think about the regu- lations pertaining to the flammability of the mattress you sleep on, or the safety of the water you shower with, cook with, and drink? How about the consumer protection laws regulating the quality of the food you eat throughout the day, and the quality of the estab- lishments that serve it? Then there are the laws per- taining to the safety of the cars, buses, and subways you travel in each day, and the traffic laws that control their movement. You encounter laws daily pertaining to the environment, property ownership, the work- place, civil rights, copyright, energy, banking, and much more. And these are just the laws implicated by the relatively mundane actions of day-to-day life.

Steering into activities that are not as common—say, international travel, or adoption, or being admitted to a hospital—you encounter the law swiftly and notice- ably. If you need final proof of the ubiquitous nature of law, pick up today’s newspaper and count how many stories have some sort of legal angle to them. Then do it tomorrow and the next day. What you will almost certainly find is that a great majority of the stories concern law or legal process.

The law’s pervasive nature is no surprise, given the important societal role we assign to it—namely, to serve as the tool with which we govern our relation- ships with one another, our government, and society at large. A society as sprawling and complex as ours needs formal, enforceable rules of law to provide a measure of control (for example, the need to regulate entities or actions that are potentially dangerous or invidious—a polluting power plant, or acts of discrimination based on race or gender). Furthermore, many people believe that law should be used not just to organize and con- trol the society in which we live, but to achieve a more just society; in other words, according to this view, the country’s key organizing principle should not simply be grounded in law, but rather grounded in a legal sys- tem designed to affirmatively produce outcomes based on fairness, justice, and equality (Smith, 1991).

The main way the law governs the many kinds of relationships in society is to recognize and establish enforceable legal rights and responsibilities that guide those relationships, and to create the institutions nec- essary to define and enforce them. Take constitutional law, for example. Constitutions are charters establish- ing governments and delineating certain individual and governmental rights and obligations. However, constitutional provisions are triggered only when one party to a relationship works for or on behalf of the gov- ernment, whether federal or state. Thus, constitutional law governs the relationship between individuals and their government—not, for example, the relationship between two private parties, even when one party’s actions are clearly discriminatory or wrongful. Thus, it takes affirmative action by a governmental actor to trigger constitutional protections. So, although it would be a violation of a public school student’s First Amendment right to be forced by his principal to pray in class, forced prayer in private schools passes consti- tutional muster.

A legal right (constitutional or otherwise) denotes a power or privilege that has been guaranteed to an individual under the law, not merely something that is claimed as an interest or something that is a matter of governmental discretion. Conceptually, legal rights derive from the fact that the government sometimes creates what are called individual “property rights”—a

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generic term referring to an entitlement to personal or real property—for specified groups of persons (Reich, 1964). Importantly, legal rights also presup- pose that their enforcement can be achieved through public institutions, including state and federal courts, because a person’s ability to secure a remedy when a legal right is denied, reduced, or terminated goes to the very heart of what it means to be “entitled” to some- thing. Indeed, whether particular healthcare benefits rise to the level of being a legal “right” and whether the healthcare right can be enforced in court are two of the most fundamental legal questions in the area of healthcare law. For example, the federal Medicare program for the aged and disabled confers on eligible individuals not only the right to healthcare services, but also the ability to enforce their right to benefits when program violations occur.

▸ The Definition and Sources of Law

Defining “Law” Although many legal scholars agree on the general function of law in society, there is far less consensus on how to define “the law.” As with many legal terms, there are several plausible interpretations of what is meant by the law, and thus there is no single way to correctly define it. For example, Black’s Law Dictionary includes the following definitions in its primary entry:

That which is laid down, ordained, or estab- lished. A rule or method according to which phenomena or actions co-exist or follow each other. Law, in its generic sense, is a body of rules of action or conduct prescribed by con- trolling authority, and having binding legal force. That which must be obeyed and fol- lowed by citizens subject to sanctions or legal consequences is a law. (Garner, 2014, p. 884)

However, even these commonly accepted defi- nitions are not entirely satisfactory, because “a body of rules” that “must be obeyed” in the face of “sanc- tions or legal consequences” necessarily envisions a process by which the rules are created, disseminated, enforced, violated, disputed, interpreted, applied, revised, and so on. Considered in this way, “the law” essentially amounts to a “legal system”—and a system, by definition, entails regularly interacting or interde- pendent parts and subparts coming together to form a functional, unified whole. As you read this text, think of “the law” not just as words on a page (e.g., codified statutes or regulations), but as the many interacting

parts that are involved in drafting those words in the first place, and in bringing them to life once they have been enacted as laws. Note that this broad conceptu- alization of law as a system squares nicely with the primary purpose of law described previously, because there must, by necessity, be a sizeable system in place if law is going to carry out its role as the primary orga- nizing tool in society. This broad definition of law also encompasses key legal doctrines, like separation of powers and federalism, described later in this chapter.

Sources of Law Regardless of the breadth of the definition attached to the term law, at the core of the nation’s expansive legal system lies a body of enforceable written rules meant to maintain order, define the outer limits of our interactions with one another and with our govern- ments, and delineate legal rights and responsibilities. These rules derive from several sources, which collec- tively are called primary sources of law. The sources of primary legal authority include constitutions, stat- utes, regulations, and common (i.e., judge-made) law. There are also secondary sources of law, which are not laws in the technical sense, but rather are a collection of treatises, law review articles, reports, legal encyclo- pedias, and more that analyze, interpret, and critique primary laws. This section discusses each of the four types of primary sources of law.

Constitutions A constitution is a charter that both establishes a gov- ernment and delineates fundamental rights and obli- gations of that government and of individuals who fall within the territory covered by the constitution. In this country, there is a federal constitution and separate constitutions in each of the 50 states. The Constitution of the United States, completed in 1787 and subse- quently ratified in each of the original 13 states, took effect in 1789. It provided for a federal union of sov- ereign states, and a federal government divided into three branches (legislative, executive, and judicial) to operate the union. This governmental structure was not easily agreed upon. Prior to the creation of the fed- eral Constitution, the colonies of the American War of Independence first adopted, in 1777, the Articles of Confederation, which represented the first formal governing document of the United States and which were ratified in 1781. However, a defining feature of the Articles was a weak national government; fairly quickly, a movement for a stronger central govern- ment took hold, the colonies elected to throw out their original plan, and the Constitutional Convention— and with it the Constitution—was born.

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The federal Constitution is rather short and, for the most part, quite general. One explanation for this is that the framers of the Constitution viewed it as a “document for the ages” that needed to include endur- ing principles to serve a growing, evolving society that has certainly proved to be more complex than it was at the time of the Constitution’s ratification. In the words of former U.S. Supreme Court Justice Robert Jackson, the Constitution is a compilation of “majestic general- ities” that collect meaning over a span of many years (Fay v. New York, 1947).

But the fact that some of the most important con- stitutional provisions are written in broad terms leads to many thorny legal controversies, because there are many competing approaches and theories as to how courts should interpret ambiguous constitutional phrases. Broadly speaking, the leading approaches to constitutional interpretation include the “living constitution,” the “moral constitution,” “originalism,” and “strict constructionism.” The living constitu- tion model reflects a belief that the broadly written Constitution should be interpreted to reflect current moral, political, and cultural values in society, not the values that were predominant at the time of the Con- stitution’s ratification. Under this view, the meaning of the Constitution is not fixed, but instead evolves along with society. Moral constitutionalists infuse their interpretation of constitutional law with princi- ples of moral philosophy. Originalism, technically, is an umbrella term referring to a small group of con- stitutional interpretation theories, all of which share a common belief that constitutional provisions have a fixed and knowable meaning. For example, “original intent,” one well-known theory under the originalism umbrella, adheres to the position that constitutional interpretation should be consistent with the intent of the Constitution’s original drafters. Finally, strict constructionists limit their interpretation to the Con- stitution’s actual words and phrases, and decline to consider contextual factors such as shifts in societal values or the commentaries or intent of the framers. The most well-known interpretational controversy in the area of health pertains to the breadth and reach of the due process clause of the federal Constitution’s 14th Amendment, which prohibits states from depriv- ing “any person of life, liberty, or property, without due process of law” (U.S. Const. amend. XIV, § 1). This provision rests at the heart of the Supreme Court’s “right to privacy” jurisprudence, including the right to obtain an abortion. For readers interested in theories of constitutional interpretation, there is a vast body of literature at your disposal (Baker, 2004; Fallon, 1999).

One of the general principles underpinning the Constitution is that citizens should not be subjected to

arbitrary and oppressive government. Given that the Constitution was drafted on the heels of the Revolu- tionary War, this is no surprise. But one consequence of the prevailing mood of the framers toward the reach of a national government is that they drafted the Constitution with an eye toward limiting federal gov- ernment, as opposed to viewing the Constitution as a vehicle for extending benefits to the public—in other words, that “the men who wrote the Bill of Rights were not concerned that government might do too little for the people but that it might do too much to them” (Jackson v. City of Joliet, 1983). This logic helps explain why several key constitutional provisions were drafted in “negative” terms—the First Amendment prohibits government from abridging free speech, the Fourth Amendment makes unreasonable searches illegal— rather than as conferring positive rights, like a gener- alized right to receive healthcare services. At the same time, the First and Fourth Amendments, along with eight others, make up the Bill of Rights, a series of important, specifically guaranteed rights in the Con- stitution the framers believed to be inalienable.b

In addition to the federal Constitution, each state has its own constitution. All state constitutions are like the federal one in that they provide for the organiza- tional structure of the particular state’s government, and all contain some measure of a state bill of rights. Here the similarities can end, however. Although state constitutions cannot limit or take away rights con- ferred by the U.S. Constitution (or by federal statutes), some state constitutions go further than federal law in conferring rights or extending protections. For exam- ple, under current U.S. Supreme Court case law, the death penalty does not always violate the federal Con- stitution, but the Massachusetts Supreme Court has ruled that the death penalty is prohibited under the state’s constitution in every instance. Maryland’s con- stitution requires that a jury be unanimous in order to convict a person of a crime, a standard that differs from federal criminal law. Furthermore, state consti- tutions are amended much more easily and frequently than is their federal counterpart. While state constitu- tions have been amended, on average, 150 times per state (Dinan, 2018, p. 23), the language of the federal Constitution has not been dramatically altered since its inception; there have been just 27 amendments, and the 10 that make up the Bill of Rights were all added by 1791.

Statutes Statutes are laws written by legislative bodies at all levels of government (federal, state, county, city) that, generally speaking, command or prohibit something.

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It is the fact of their being legislatively created that sets them apart from other sources of law, because legislatures are understood as creating laws that are forward-looking and apply to large numbers of peo- ple. Indeed, the two hallmarks of statutes are their prospectivity and generality. These hallmarks result mainly from the fact that legislatures are in the “reg- ulation business” across an enormous array of issues, and as a result, legislators often lack both the time and the substantive expertise to regulate other than in broad fashion.

Because statutes tend to be written as broad policy statements (and because words on a page can never communicate intent with absolute accuracy), there are few statutes that are utterly unambiguous. This, coupled with the fact that our evolving society con- tinuously presents situations that may not have been foreseeable at the time a statute was written, results in the need for courts to interpret and apply general statutes to millions of specific legal cases or contro- versies. This practice is called “statutory construction.” Although it is a tenet of the separation of powers doc- trine (discussed later under Key Features of the Legal System) that legislatures represent the law-making branch of government and the judiciary’s role is to interpret law, it is commonly understood that judges and courts “make” law as well through statutory con- struction, because the continual interpretation and application of broad policy statements (i.e., statutes) can put a “gloss” on the original product, potentially altering its meaning over time.

As discussed more fully later in the section on federalism, state legislatures have greater ability than does Congress to use statutes to regulate across a broad range of issues, pursuant to states’ plenary authority under the Constitution. For instance, the number of state statutes regarding population health and safety (e.g., disease control and prevention, the creation of public health agencies, the ability of governors to classify public health emergencies) far exceeds con- gressional output on the same topic. Notwithstanding states’ broader regulatory power, however, federal stat- utes have primacy over state statutes.

Administrative Regulations The fact that statutes are written in broad generali- ties has another consequence beyond their need to be interpreted and applied in vast numbers of unique instances: specific regulations must be written to assist with the implementation of statutory directives and to promote statutes’ underlying policy goals. This is where administrative agencies of the executive branch of government come in. Because these federal and

state agencies—the U.S. Department of Health and Human Services, the U.S. Department of Labor, the California Department of Social Services, the Wiscon- sin Department of Commerce, and so on—are orga- nized and created to deal with specific policy subject matters, they have more time and expertise than Con- gress or state legislatures have to enforce statutes and promulgate regulations, rules, and orders necessary to carry out statutory prerogatives. It is important to note that assuming the process for creating the regulations was itself legal, and provided that the regulations do not stray beyond the intent of the enacted statute, reg- ulations have the full force of law.

Administrative law is crucial in the area of health policy and law.c For example, consider the Medicaid program, which functions primarily as a health insur- ance program for low-income individuals. The Medic- aid statute embodies Congress’s intentions in passing the law, including standards pertaining to program eligibility, benefits, and payments to participating healthcare providers. Yet there are literally thousands of administrative regulations and rules pertaining to Medicaid, which over the past 50 years have become the real battleground over the stability and scope of the program. In a very real sense, the Medicaid regulations passed by the federal Department of Health and Human Services and state-level agencies are what bring the program to life and give it vitality. This “operationaliz- ing” function of administrative law can be seen across a wide spectrum of important health issues, including the reporting of infectious diseases, the development of sanitation standards, and the enforcement of envi- ronmental laws (Mensah et al., 2004). In order to be lawful, regulations must be proposed and established in a way that conforms to the requirements of the federal Administrative Procedure Act of 1946 (APA), which provides procedural restrictions for agency rule making and adjudication. Compared to state admin- istrative procedure acts, which tend to be technical and detailed, the APA is broad and sweeping, thus relatively more ambiguous and open to various inter- pretations by federal courts.d Once Congress delegates rule- making authority to an executive branch agency via a statute (known as the “enabling statute”), the APA dictates how the agency must go about promulgating specific rules and regulations, unless the statute itself specifies the procedure an agency must follow. If the enabling statute dictates a formal rule-making process, the APA requires the agency to follow cumbersome procedures, and it can adopt rules only after a trial- like hearing on the proposed rule. If Congress does not specify in an enabling statute how an agency must adopt rules, the APA permits the agency to follow a more informal rule-making process. This requires the

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agency to publish the proposed rule in the Federal Reg- ister (the official daily publication for rules, proposed rules, and notices of federal agencies) and provide an opportunity for the public to comment on the pro- posed rule. The agency must take the comments under consideration (though it need not revise the proposed rule in response to them), and once it settles on a final rule, it must be published in the Code of Federal Reg- ulations (which houses permanent federal regulations under 50 separate titles representing broad areas sub- ject to federal oversight).

In delegating authority to an agency through an enabling statute, Congress must provide an “intelligi- ble principle” that the agency can (and must) follow. That said, the amount of direction and discretion given to agencies varies widely. For example, the enabling statute for the Occupational Health and Safety Admin- istration provides broad discretion by delegating the authority to create and enforce workplace safety stan- dards (Occupational Health and Safety Act of 1970). Contrast this with the Americans With Disabilities Act, which has very specific provisions and does not allow agencies much discretion when implementing and enforcing the statutory language.

In addition to the power of rule making, Congress may also delegate adjudicatory and enforcement pow- ers to administrative agencies. Adjudicatory power refers to claims of public rights, which are claims that involve private persons as one party and the govern- ment as the other party (excluding criminal cases). Congress may set up a court, known as an administra- tive court, within an agency to adjudicate these claims. Because these courts are located in the executive, rather than judicial, branch of government, they are not subject to the same rules and procedures as tradi- tional courts, although they still must provide for the rights and protections prescribed by the Bill of Rights (e.g., the right to legal counsel). Administrative hear- ings are often much less formal than judicial trials: there are no juries, and although some evidence may be gathered through witness testimony, the majority of evidence derives from written reports. Decisions by administrative law judges (known as ALJs) often do not represent the final word on the matter being adjudicated, as these decisions are subject to approval or rejection by the agency’s lead official or by a tra- ditional (judicial branch) federal court. At the same time, federal courts generally apply a deferential stan- dard of review to administrative decisions, reviewing only to see whether an agency has acted in an “arbi- trary and capricious” manner.

The third type of authority granted to agencies by Congress is that of enforcement. As this author- ity already inherently resides in the executive branch

under the federal Constitution, Congress uses its power to specify which agencies have authority to enforce certain statutes and substantive areas of law.

Once Congress grants power to agencies to pro- mulgate rules, adjudicate claims, and enforce stat- ues, its ability to constrain agency action is limited. Because agencies are located in the executive branch and thus are under the control of the president, Con- gress is limited to passing a new statute overturning the questioned agency action or investigating agency action for impropriety.

Common Law In each of the prior discussions about constitutions, statutes, and administrative regulations, we pointed out the generality and ambiguity of much of law, and the corresponding responsibility of courts to interpret and apply law to specific cases. It is via the common law—essay-like opinions written by appellate courts articulating the bases for their decisions in individual cases—that courts carry out this responsibility. Com- mon law is also referred to as case law, judge-made law, or decisional law.

Common law is central to legal systems in many countries, particularly those that were territories or colonies of England, which is how the United States came to rely on common law as part of its legal sys- tem. Both historically and in modern times, case law is premised on the traditions and customs of society, the idea being that courts could continuously (and relatively efficiently, compared to the legislative pro- cess) interpret and apply law in such a way as to match the values of a society undergoing constant evolution. At the same time, the common law is heavily influ- enced by legal precedent and the doctrine of stare decisis, which refers to the legal principle that prior case law decisions should be accorded great deference and should not be frequently overturned. The impor- tance and function of stare decisis in American law is discussed later in the section detailing the role courts play in maintaining stability in the law.

Although courts are expected to overturn their own prior decisions only in rare circumstances and lower courts can never overturn decisions by higher courts that have jurisdiction over them, legislatures can modify or even overturn common law decisions interpreting statutes and regulations. Imagine that the U.S. Supreme Court interpreted a federal civil rights statute as protecting individuals from intentional acts of race discrimination, but not from conduct that has the unintended effect of discriminating against racial minorities. If Congress disagreed with the court’s interpretation of the statute, it could effectively

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overturn the court’s decision by amending the statute to make it clear that the law was intended to prohibit intentional discrimination and presumably neutral acts that nonetheless resulted in unintended discrimi- nation. However, because the judicial branch has final authority to determine whether statutes violate the federal Constitution, Congress would be powerless to overturn a federal court decision that ruled the same civil rights statute unconstitutional.

Notice the “checks and balances” at play in this example, with one branch of government acting as a restraint on another. In the next section, we discuss the separation of powers doctrine—including checks and balances—and other key features of the legal system. But first, see TABLE 3-1, which provides a summary of the sources of law.

▸ Key Features of the Legal System

Recall the earlier description of the law as something more than just words on a page, something more than statutes and constitutional provisions. Although the

laws themselves are obviously critical, they are just one component of a complex, interacting legal system that creates the laws in the first instance and brings them to life after they hit the pages of legal code books, texts, and treatises.

All legal systems rest on unique principles, tradi- tions, and customs. This section describes a handful of the most important features and principles of the U.S. legal system, including the separation of powers doctrine, federalism, the role and structure of federal and state courts, judicial review, due process, and con- stitutional standards of review.

Separation of Powers This country’s government, both federal and state, has an underpinning structure of three independent and equally powerful branches, a fact that sets it apart from parliamentary systems of government—such as those found in Canada, Germany, the United Kingdom, and many other countries—in which the legislature appoints the executive. The legal doctrine that sup- ports the arrangement of shared governance among multiple branches is the separation of powers doctrine. This doctrine is considered one of the most important

Key Features of the Legal System 39

TABLE 3-1 Summary of the Primary Sources of American Law

Source of Law Key Points

Constitutions ■ Establish governments and delineate fundamental rights and obligations of government and individuals.

■ There is a federal constitution and separate constitutions in each state. ■ The federal constitution restrains government more than it confers individual rights;

however, the Bill of Rights specifically guarantees several important individual rights. ■ The Supreme Court has the final word on the constitutionality of laws created by the

political branches of government.

Statutes ■ Created by legislatures at all levels of government. ■ Two hallmarks: prospectivity and generality. ■ As broad policy statements, statutes are often ambiguous as applied to specific cases

or controversies, requiring courts to interpret them through the practice of statutory construction.

■ State legislatures can use statutes to regulate across a broader range of issues than can Congress; however, federal statutes have primacy over conflicting state statutes.

Regulations ■ Created by executive branch administrative agencies to implement statutes and clarify their ambiguities.

■ Play a particularly critical role in health policy and law.

Common law ■ Court opinions interpreting and applying law to specific cases. ■ Also referred to as case law, judge-made law, or decisional law. ■ Based on the traditions and customs of society, yet heavily influenced by legal precedent

and the doctrine of stare decisis.

 

 

aspects of both federal and state constitutional design. The framers of the U.S. Constitution were well aware that nothing was more likely to foster tyrannical gov- ernment than the concentration of governing powers in one person or political party. To guard against a concentration of political power, the framers did two related things: they divided governmental powers and responsibilities among separate, coequal branches, and they structured the elections of officials for the two political branches of government (legislative and executive) so that they would take place at different intervals and through different mechanisms (e.g., the president is elected through the electoral college sys- tem, whereas members of Congress are not).

Inherent in the separation of powers doctrine is the important concept of checks and balances. “Checks” refers to the ability and responsibility of one branch of government to closely monitor the actions of the other two, including when one branch grasps at an amount of power not envisioned by the Con- stitution. The “balance” at work in the separation of powers framework prevents one branch from exerting power in an area of responsibility that is the province of another branch.

The constitutional doctrine of separation of pow- ers represents, in the words of one legal scholar, an “invitation to struggle for the privilege” of governing the country (Corwin, 1957, p. 171). Alexis de Tocque- ville, a French philosopher and political theorist who studied American government in the 1830s, viewed the concept of checks and balances in much starker terms:

The president, who exercises a limited power, may err without causing great mischief in the state. Congress may decide amiss with- out destroying the union, because the elec- toral body in which the Congress originates may cause it to retract its decision by chang- ing its members. But if the Supreme Court is ever composed of imprudent or bad men, the union may be plunged into anarchy or civil war. (de Tocqueville, 1835, p. 152)

For example, a fairly common separation of powers debate between Congress and a president concerns the nation’s soaring debt and the appropri- ateness of raising the debt ceiling. Some policymak- ers (and many presidents) maintain that the president can act unilaterally to raise the debt ceiling and allow the federal government to borrow more money, while others argue that such a move is solely within the purview of Congress and beyond the scope of pres- idential power.

Throughout this text, there are health policy and law questions that distinctly highlight our government’s divided powers. For instance, how will the struggle between the executive branch and some members of Congress over implementation of the Affordable Care Act (ACA)—the former attempting to thwart imple- mentation through fiscal, policy, and legal channels, while those in Congress who supported the ACA aim to keep the ACA functioning as fully and efficiently as possible—play out? And how has the Supreme Court applied its constitutional right to privacy jurispru- dence to the matter of abortion in response to federal and state legislative enactments? As you consider these and other health policy and law questions from a sep- aration of powers angle, consider the peculiar roles of each branch of government, taking into account their duties, powers, and limitations. Through this prism, continually reflect on which governmental body is best equipped to effectively respond to health policy problems.e

Federalism: Allocation of Federal and State Legal Authority In the legal system, the powers to govern, make and apply law, and effect policy choices are not just appor- tioned among three governmental branches at both the federal and state levels; they are also divided between the federal government and the governments of the various states. This division of authority—which also plays a key role in the development of health policies and laws—is referred to as federalism. Like the separa- tion of powers doctrine, federalism derives from the U.S. Constitution.

Under the Constitution, the federal government is one of limited powers, while the states more or less retain all powers not expressly given to the federal government. In essence, this was the deal consented to by the states at the time our federal republic was formed: they agreed to surrender certain enumerated powers (like foreign affairs) to the federal government in exchange for retaining many aspects of sovereignty.

The Constitution’s 10th Amendment states that “the powers not delegated to the United States by the Constitution . . . are reserved to the States respec- tively.” For example, because the Constitution does not explicitly define the protection and promotion of the public’s health as a power of the federal govern- ment, public health powers are primarily held by the states. (In fact, compared to the federal government, the states handle the vast majority of all legal matters in this country. Consider just a sampling of typical legal affairs overseen by state government: marriages,

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divorces, and adoptions; law enforcement and crim- inal trials; schooling; driving, hunting, medical, and many other licenses; consumer protection; and much more [Adelson, 2003, pp. 481–488]. Furthermore, the vast majority of all litigation that takes place occurs in state, rather than federal, courts [Refo, 2004, p. 3].) As a result, all states regulate the area of public health through what are known as their “police powers,” which allow state and local governments to (among other things) legislate to protect the common good. Exam- ples of the kinds of laws passed under this authority include childhood immunization standards, infectious disease data collection mandates, and environmental hazard regulations. Moreover, under the 10th Amend- ment, states historically have had the power to regulate the practice of medicine and the licensing of hospitals and other healthcare institutions.

Recall, however, that the federal government also plays a role in regulating health care and public health. The national government’s enumerated powers include the ability to tax, spend, and regulate interstate commerce, all of which have been utilized in ways to improve health care and promote public health. For example, Congress has used its taxing power to increase the cost of cigarettes (in the hopes of driv- ing down the number of smokers) and to generate funds for programs such as Medicare, and congres- sional spending powers are the legal cornerstone for federal health programs like Medicaid. Furthermore, the sharing of power under the 10th Amendment notwithstanding, the Constitution’s supremacy clause declares that federal laws—the Constitution, statutes, and treaties—are the “supreme” law of the land, and thus preempt state laws that conflict with them (U.S. Const. art. VI, para. 2).

While federalism is built solidly into the nation’s political branches through separate federal and state legislatures and executives, it is also on display in the structure of U.S. courts. There are both federal and state court systems, and each has unique authority and jurisdiction: federal courts are limited to ruling only in certain kinds of cases, including those involving federal constitutional or statutory law, those in which the United States is a party to the lawsuit, and those specified by statutory law; state courts, by contrast, have jurisdiction to hear just about any case (unless explicitly precluded from doing so by federal statute), including those over which federal courts also have jurisdiction. State court jurisdiction includes cases implicating state statutory and regulatory law, the state constitution, and the U.S. Constitution.

Over the years, defining the boundaries of feder- alism (i.e., defining the federal government’s sphere

of authority and determining the scope of state sov- ereignty) has been a contentious legal and political issue. At the dawn of the country’s independence, after the colonies scrapped the Articles of Confeder- ation in favor of a stronger central government, the Supreme Court decided federalism cases with a nod toward expansive national powers (much to the dislike of some states). Two famous cases make the point. In the 1819 case of McCulloch v. Maryland, the Supreme Court enhanced the power of the U.S. government by establishing the principle that federal governmental powers are not strictly limited to those expressly pro- vided for in the Constitution. At issue in the case was whether Congress had the power to charter a national bank to help the federal government shoulder war- time debt. In 1824, the court for the first time had the opportunity to review the Constitution’s commerce clause (which grants Congress the authority to reg- ulate interstate commerce) in the case of Gibbons v. Ogden (1824), which resulted from a decision by the state of New York to grant a monopoly to a steam- boat operator for a ferry between New York and New Jersey. Again, the court ruled broadly in favor of the federal government, stating that the commerce clause reserved exclusively to Congress the power to regulate interstate navigation.

By the mid-1800s, however, this approach to defining the relative power of the federal and state gov- ernments gave way to one that was more deferential to states and more willing to balance their sovereign interests against the interests of the federal govern- ment. This approach, in turn, lost ground during the New Deal and civil rights eras, both of which were marked by an acceptance of federal authority to pro- vide social services and regulate the economy. The arrival of Ronald Reagan’s presidency in 1981 marked yet another turning point in the evolution of federal- ism. For 8 years, the Reagan administration acted to restrict national authority over the states, a process that took on even more force after the Republican Party took control of Congress in the mid-1990s. Indeed, since the early 1980s, a defining feature of federalism has been the purposeful devolution of authority and governance over social and economic policy from the federal government to state legislators and regulators.

The Role of Courts Elsewhere, we have discussed the structure and pow- ers of two of the political branches of government: the legislative and executive branches. The third branch is that of the judiciary, made up of justices, judges, mag- istrates, and other “adjudicators” in two separate court

Key Features of the Legal System 41

 

 

systems—one federal, one state. Although the fed- eral and state court systems have critically distinctive authority, they do not look very different structurally. The federal court system has three tiers, with cases proceeding from the lowest-level court (a trial court) to two separate, higher-level courts (appellate courts). Federal trial courts are called district courts, and they exist in varying numbers in each state, with the size of the state determining the actual number of “districts,” and thus the number of federal trial courts. In total, there are nearly 100 federal district courts. After a district court renders a decision, the losing party to a lawsuit is entitled to appeal the decision to a federal circuit court of appeals. There are 13 U.S. circuit courts of appeals—12 with jurisdiction over designated mul- tistate geographic regions, or “circuits,” and a court of appeals for the federal circuit (residing in Washington, DC), which has nationwide appellate jurisdiction over certain kinds of cases, such as patent and international trade disputes. For many individuals, losing a case in a federal circuit court represents the end of the line for their case, since litigants have no entitlement to have their case heard by the U.S. Supreme Court, the high- est court in the country. Although parties have a right to petition the Supreme Court to hear their case, at least four of the nine justices on the court must agree to grant the petition. Although the Supreme Court is undeniably the most important court in the country in terms of its authority, it by no means renders the most decisions. Out of approximately 8,000 petitions annually, the Supreme Court typically accepts only 70 to 80, whereas the 13 circuit courts collectively decide approximately 61,000 cases each year. This fact is more than trivial; it effectively means that in the huge majority of federal cases, lower appellate courts, and not the Supreme Court, have final say over the scope and meaning of federal law.

As mentioned, each state also has its own court system, most of which are organized like the federal system: one trial court, followed by two separate appel- late courts (generally termed “[name of state] court of appeals” and “[name of state] supreme court”). How- ever, some state systems provide for only one appellate court. State systems also tend to include courts that are “inferior” even to their general trial courts; these han- dle relatively minor disputes (think of the small claims courts frequently shown on daytime television). Fur- thermore, state trial courts are sometimes divided by specialty, so that certain courts hear cases that involve only family matters, juvenile matters, and the like.

Within the federal and state court system hier- archy, appellate courts have two powers unavailable to trial courts: reviewing lower court decisions to

determine whether there were errors of law made during the trial that necessitate a new one, and estab- lishing legal precedents that lower courts are bound to follow. But appellate courts lack trial courts’ pow- ers to actually conduct trials, including empanelling juries, hearing testimony from witnesses, reviewing evidence, and the like. Instead, appellate reviews are generally limited to the written record created at trial by the lower court.

Adjudication refers to the legal process of resolv- ing disputes. It is in the context of resolving specific legal disputes that the judiciary interprets and applies the law, and also indirectly “makes” law under its common law authority. The results of adjudication are the common law decisions described earlier. Because U.S. courts are generally not permitted to issue advi- sory opinions, courts in this country effectively only act in response to a specific “case or controversy” that is brought to them by parties to a lawsuit. (Where permitted, advisory opinions are released by courts not in response to a particular legal dispute, but in response to a request from another branch of govern- ment regarding the interpretation or permissibility of a particular law. Federal courts are bound from issu- ing advisory opinions because the Supreme Court has ruled that constitutional provisions establishing the federal courts prevent them from reviewing hypothet- ical or moot disputes. Although a couple exceptions exist, state courts are likewise prohibited from issuing advisory opinions.) This limitation essentially means that in order for a court to rule in a particular case, an individual initiating a lawsuit must assert an enforce- able legal right, a measurable violation of that right, actual damage or harm, and a court-fashioned remedy that could appropriately respond to the lawsuit.

Courts play a vital role in the legal system. This role stems in large part from their responsibility to determine what, ultimately, the Constitution means, permits, and prohibits. In discharging this responsi- bility, courts are asked to protect and enforce indi- vidual legal rights, determine whether the political branches of government have acted in a way that vio- lates the Constitution, and maintain stability in the law through the application of legal precedent. The judicial branch is viewed as uniquely able to fulfill these key responsibilities, at least at the federal level, because it is the branch of government most insu- lated (theoretically) from politics: federal judges are appointed, not elected, and granted life tenure under the Constitution to (theoretically) shield them from political influences that might otherwise interfere with their impartiality.f Most state judges, however, are now subject to popular election, either at the time

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of initial selection or subsequently, when it is deter- mined whether they will be retained as judges (Bren- nan Center for Justice, 2015).g

Enforcing Legal Rights As described earlier, two main functions of the legal system are to establish legal rights and to create insti- tutions to enforce those rights. The primary enforc- ers of individual legal rights, and those in the best position to create remedies for their violation, are the courts. For example, the federal courts (and the Supreme Court in particular) were critical to the suc- cess of the civil rights movement, during which time federal judges expansively interpreted civil rights laws and maintained close oversight of the implementa- tion of their rulings. At the same time, however, the Supreme Court has not often been at the forefront of advancing individual rights. Certainly, there have been times when the court has played an enormous role in advancing societal expectations with respect to indi- vidual equality—Brown v. Board of Education (1954) being the most obvious example—but this decision, and a few others, are actually quite anomalous, and the court has been more a follower of evolving attitudes and expectations.

Among the most important rights courts are expected to uphold and enforce is the constitutional right to due process, which protects individuals from arbitrary and unfair treatment at the hands of govern- ment. Both the 5th and 14th Amendments to the Con- stitution make clear that no person can be deprived of “life, liberty, or property, without due process of law,” with the 5th Amendment applying to the federal government and the 14th applying to the states. An important component of due process is the principle that when government establishes a legal right or enti- tlement for individuals, it may not then decide to deny the right or entitlement unfairly.

When courts consider due process claims, they are often thought of as reviewing how laws operate and why laws have been established in the first place. This results from the fact that the due process clause has been interpreted by the Supreme Court as includ- ing procedural due process (the “how”) and substan- tive due process (the “why”). Procedural due process requires that laws be enacted and applied fairly and equitably, including procedural fairness when individ- uals challenge government infringements on their life, liberty, or property. Thus, due process requirements might be triggered if a law is too vague or is applied unevenly, if government threatens to withdraw a pre- viously granted license, or if an individual’s public

benefits are withheld. For example, before a physician can lose his state-granted license to practice medicine, the state must provide the physician advance notice of the termination and a formal hearing before an impartial examiner with all the usual legal trappings (right to legal representation, right to present evidence in one’s defense, right to appeal the examiner’s deci- sion, etc.). Similarly, Medicaid beneficiaries must be given notice of, and an opportunity to challenge, ben- efit coverage denials made by a managed care com- pany participating in the Medicaid program. And the courts’ most well-known jurisprudence in the area of health-related due process rights concerns abortion, specifically whether federal and state laws impermis- sibly infringe on the right to terminate a pregnancy, which is part of the right to “liberty” under the due process clause.

But that clause has been interpreted by courts to require more than just procedural fairness when a law deprives an individual of life, liberty, or property; it also requires that government provide a sound reason for having invaded personal freedoms in the first place. This form of due process, which is termed substantive due process, serves as a proscription against arbitrary government activity. For instance, when states have been unable to adequately explain the reasoning behind statutes requiring involuntary confinement of mentally ill individuals who were not dangerous to themselves or others, courts ruled the laws unconstitutional on substantive due process grounds. Substantive due pro- cess is unquestionably more controversial than its pro- cedural counterpart, because many critics argue that the former gives courts unrestrained power to inval- idate, on constitutional grounds, government actions with which they simply disagree. In other words, some view this form of due process “as a potentially limitless warrant for judges to impose their personal values on the Constitution” (Lazarus, 1999, p. 474).

Reviewing the Actions of the Political Branches An important piece of the separation of powers puz- zle, and one that grants the courts wide authority to enforce individual legal rights in this country, is the doctrine of judicial review. Judicial review refers to the power of the courts to declare laws unconstitutional and to determine whether the actions of the legislative and executive branches of government are lawful. The theory behind judicial review is that, as the branch of government most independent of the political pro- cess, courts can pass judgment on the actions of the political branches free of partisanship.

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Judicial review has its roots in the famous 1803 case of Marbury v. Madison, in which the Supreme Court ruled that it had the power to review acts of Congress and determine their constitutionality. The facts of the case are fascinating. In 1800, Thomas Jef- ferson won the presidential election, besting incum- bent John Adams. In the final days of President Adams’s term, the Federalist-controlled Congress passed, and Adams signed into law, a statute called the Judiciary Act of 1801. Among other things, the law created several new judgeships, and the idea was to fill the new judicial posts with Federalists before Jeffer- son assumed the presidency. Among the new judicial appointments made by Adams and approved by the Senate before Jefferson took office were 42 justices of the peace, including one for William Marbury. Prior to Jefferson’s taking office, Marbury’s commission was signed by Adams and by John Marshall—who at the time was Secretary of State under Adams—but not delivered. After his inauguration, Jefferson ruled that Marbury’s commission (and those of several other Adams-appointed justices of the peace) were invalid because they had not been delivered during the Adams presidency, and therefore directed his new Secretary of State, James Madison, to withhold deliv- ery. Marbury sued to force delivery of his commission, petitioning the Supreme Court directly to issue a writ of mandamus, which is an order by a court compelling a government officer to perform his duties. Marbury was able to ask the court directly for the writ because the recently enacted Judiciary Act also authorized the Supreme Court to issue writs of mandamus.

The Supreme Court’s decision in Marbury v. Mad- isonh first established the important principle that for every violation of a legal right, there must be a corre- sponding legal remedy. With this principle in place, the court ruled that Marbury was in fact entitled to his commission and to a legal remedy for Jefferson’s decision to withhold it,

since [Marbury’s] commission was signed by the President, and sealed by the secretary of state . . . and the law creating the office, gave the officer a right to hold for five years, inde- pendent of the executive, the appointment. . . . To withhold his commission, therefore, is an act deemed by the court not warranted by law, but violative of a vested legal right.

The Marbury court then did something monu- mental: it established and justified the power of judi- cial review. This outcome flowed from the fact that Marbury had filed his legal petition directly with the Supreme Court, and the court needed to determine

whether Congress acted constitutionally in grant- ing the court power under the Judiciary Act to issue writs of mandamus as a matter of “original jurisdic- tion.” (Original jurisdiction refers to cases on which a court rules before any other court does so, contrasted with situations in which a court reviews a decision of a lower court, which is called “appellate jurisdiction.”)

It was not apparent that the mandamus com- ponent of the new Judiciary Act was constitutional because Article III of the Constitution—which estab- lished the judicial branch of the federal government, including the Supreme Court—says,

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the Supreme Court shall have original Jurisdiction. In all the other Cases [subject to Supreme Court jurisdiction], the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. (U.S. Const. art. III, § 2, clause 2)

Interpreting this clause, Chief Justice Marshall determined the court could issue a writ of manda- mus under the Constitution only as an exercise of appellate—but not original—jurisdiction, and that Congress had no power to modify the court’s original jurisdiction. As a result, the court held that the Judi- ciary Act of 1801 was in conflict with Article III, and thus unconstitutional.

Marbury represented the first time the Supreme Court exercised the power of judicial review and declared unconstitutional a law passed by Congress. Over the years, the court has exercised this power sparingly, explaining in 1867 that although it clearly had the authority to strike down congressional legis- lation repugnant to the Constitution, this “duty is one of great delicacy, and only to be performed where the repugnancy is clear, and the conflict unreconcilable” (Mayor v. Cooper, 1867).

For example, the Supreme Court invalidated few congressional acts in the first 50 years after Marbury, although the pace picked up somewhat after that, to an average of about one invalidation every 2 years. During William Rehnquist’s term as chief justice (1986–2005), however, the court ruled unconstitu- tional more than 30 laws or statutory provisions, with most of these decisions occurring between 1995 and 2005. This uptick in the court’s use of its most power- ful judicial review tool has led to a discussion about the court’s proper place in the separation of powers framework. As stated in one opinion piece,

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Declaring an act of Congress unconstitutional is the boldest thing a judge can do. That’s because Congress, as an elected legislative body representing the entire nation, makes decisions that can be presumed to possess a high degree of democratic legitimacy. (Ger- witz & Golder, 2005, p. A19)

When determining whether a statute violates the Constitution, courts necessarily take into account the subject of the regulation and Congress’s purpose in regulating. Certain kinds of laws—say, affirmative action laws, or a law that classifies people on the basis of their gender—require a greater level of governmen- tal justification and thus are held to a higher constitu- tional standard of review. In other words, these laws are scrutinized more closely by the court and thus stand a greater chance of failing the constitutionality test.

By way of example, the Supreme Court has devel- oped a tiered standard of review framework for equal protection jurisprudence. Under the Constitution’s equal protection clause, states are prohibited from denying “to any person within its jurisdiction the equal protection of the laws” (U.S. Const. amend. XIV, § 1).

The Court employs one of three standards when it reviews whether a particular law satisfies this con- stitutional mandate. The first, termed rational basis or rational relations review, is applied to everyday legis- lation pertaining to things like public safety, tax rates, and consumer protection and thus is the review stan- dard most frequently used. It is nearly impossible for a law to run afoul of this standard, because as long as the challenged statute is rationally related to any legiti- mate government purpose in passing the law, it will be upheld as constitutional.

The second standard is that of intermediate review. This is the court’s choice when the measure under review classifies individuals or groups on, for example, the basis of gender. The assumption here— and the point of the heightened review standard—is that when politicians legislate with gender (or another potentially baseless characteristic) in mind, there is a greater likelihood they are doing so for nefarious reasons. In order to pass constitutional muster under intermediate review, a statute must serve an import- ant government objective and be substantially related to that objective. A good deal of legislation reviewed under this standard is found to be unconstitutional.

Finally, the court has at its disposal in equal pro- tection lawsuits a review standard known as strict scrutiny. The court reserves this standard for laws that tread on fundamental constitutional rights (defined in part as those that are firmly established in American tradition), including an individual’s

right to be free of governmental discrimination on the basis of race. In theory, otherwise discriminatory laws that are necessary to achieve a compelling gov- ernment interest—meaning that the law in question is the least discriminatory way to meet the legisla- ture’s compelling objective—can survive this intense form of scrutiny. However, of all the equal protection claims measured against this standard, only one sur- vivor emerged—when the Supreme Court permit- ted the federal government to intern individuals of Japanese descent during World War II (Korematsu v. United States, 1944)—and this almost universally vil- ified decision was finally condemned (if not formally overruled) by the Supreme Court in 2018 (Trump v. Hawaii, 2018).i

Maintaining Stability in the Law In addition to enforcing legal rights and passing on the constitutionality of actions of the two political branches of government, courts are expected to main- tain a measure of stability, continuity, and predict- ability in the law. This expectation derives from the idea that those subject to the law should not have to contend with continuous swings in the direction law takes. In theory, the relatively nonpolitical judicial branch of government is in the best position to bring this expectation to fruition.

The way courts implement their responsibility to maintain legal stability is through application of stare decisis, a Latin legal term meaning “let it stand.” Stare decisis is a policy of the courts to stand by existing legal precedent; that is, where rules of law have been established in prior judicial decisions, these decisions should be adhered to in subsequent cases where the questions of law and fact are substantially similar to those in the original case. Stability in the law is consid- ered so important that stare decisis is usually applied, and the original judicial decision given deference, even when the original decision is subsequently deter- mined to be wrongly decided or not legally sound. This is especially true where the original decision is an old one on which society has come to rest, as opposed to a relatively young decision with few deep roots in terms of societal expectations. The role of legal precedent has been described in this way:

Legal doctrines are shaped like family trees. Each generation of decisions is derived from ones that came before as, over time, each branch of the law grows and spreads or, occa- sionally, withers and dies away. The most recent decisions almost always draw their strength by tracing back through an ancestral line,

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choosing among parents, uncles, and cousins according to the aptness of their bloodlines. Rarely, a branch of doctrine is disowned, repu- diated, and left vestigial until perhaps revived in another legal era. (Lazarus, 1999, p. 77)

At the same time, legal precedent is not com- pletely sacred, and prior decisions are sometimes reconsidered and, on occasion, overturned. For instance, changes in societal values might outweigh strict application of stare decisis, as was the case with the Supreme Court’s 1954 decision in Brown v. Board of Education to overturn the invidious idea of “sepa- rate but equal” from the court’s 1896 decision in Plessy v. Ferguson. Stare decisis is, however, generally under- stood to trump mere changes in a court’s makeup. In other words, courts are expected to remain anchored to precedential rules of law even when current indi- vidual members may not be.j Indeed, in a well-known Supreme Court case, former Justice John Marshall Harlan II wrote:

A basic change in the law upon a ground no firmer than a change in our membership invites the popular misconception that this institution is little different from the two polit- ical branches of the Government. No miscon- ception could do more lasting injury to this Court and to the system which it is our abid- ing mission to serve. (Mapp v. Ohio, 1961)

▸ Conclusion This chapter led you on a short journey through the complex world of the legal system. Along the way, you visited several of its essential elements and doc- trines: legal rights, the various types of law, separation of powers, federalism, judicial review, and more. To be sure, the trip was abbreviated and in some cases concepts were oversimplified in an effort to concisely cover a complex and expansive topic.

As you encounter myriad health policy and law topics and concepts that are complex in their own right, bearing in mind a few important details about law might help you achieve a greater measure of clar- ity. First, law’s primary purpose is to organize and control an ever-changing, ever-expanding, ever-more- complex society, and it does this in part by regulating a variety of relationships among parties with often- times competing interests (e.g., individual citizen and government; patient and physician; beneficiary and public program or private insurance company; phy- sician and managed care organization; individual and her family). This function of law helps explain why in the context of a specific relationship, one party has a legal right and the other party has a legal respon- sibility to refrain from acting in a way that infringes that legal right. It also helps explain why an individ- ual can justifiably claim a particular legal right in the context of one specific relationship, but not in others (for example, a patient who believes that he has been treated negligently might have a legitimate legal claim against the physician who provided his care, but not against the hospital where the care was provided).

A second detail worth reflecting on periodically is that law is established, enforced, interpreted, and applied by human beings, and thus one must accept that law and the legal process comprise a certain amount of imperfection. This characteristic of law helps explain why statutes and regulations are some- times difficult to understand, why laws are sometimes enforced sporadically or not at all, why reasonable jurists can disagree about the intended meaning of statutory and constitutional provisions, and why law is too often applied unevenly or inequitably.

Finally, bear in mind the fact that laws and the broader legal system are reflective of the beliefs and values of the society from which they flow. This fait accompli, perhaps more than anything else, provides an object lesson in the role of law across a wide range of subjects, including matters related to health care and public health.

References Adelson, R. G. (2003). The enumerated powers of states. Nevada

Law Journal, 3, 469–494. Administrative Procedure Act of 1946. 5 U.S.C. § 551 et seq. Baker T. E. (2004). Constitutional theory in a nutshell. William

and Mary Bill of Rights Journal, 13(1), 57–123. Brennan Center for Justice. (2015). Judicial selection: Significant

figures. Retrieved from https://www.brennancenter.org /rethinking-judicial-selection/significant-figures

Brown v. Board of Ed., 347 U.S. 483 (1954).

Corwin, E. S. (1957). The president: Office and powers, 1787–1957. New York, NY: New York University Press.

de Tocqueville, A. (1835). Democracy in America (H. Reeve, Trans.). New York, NY: Vintage Books; 1990.

Dinan, J. (2018). State constitutional policies: Governing by amendment in the United States. Chicago, IL: University of Chicago Press.

Fallon, R. H., Jr. (1999). How to choose a constitutional theory. California Law Review, 87(3), 535–579.

46 Chapter 3 Law and the Legal System

 

 

Fay v. New York, 332 U.S. 261 (1947). Friedman, L. M. (1964). Law and its language. George Washington

University Law Review, 33, 563–579. Friedman, L. M. (2002). Law in America: A short history. New

York, NY: The Modern Library. Garner, B. (2014). Black’s law dictionary (10th ed.). Eagan, MN:

Thomson West. Gewirtz, P., & Golder, C. (2005, July 6). So who are the activists?

The New York Times. Retrieved from https://www.nytimes .com/2005/07/06/opinion/so-who-are-the-activists.html

Gibbons v. Ogden, 25 U.S. (9 Wheat.) 1 (1824). Holmes, O. W. (1899). Law in science and science in law. Harvard

Law Review, 12(7), 443–463. Jackson v. City of Joliet, 715 F.2d 1203 (7th Cir. 1983). Korematsu v. United States, 323 U.S. 214 (1944). Lazarus, E. (1999). Closed chambers: The rise, fall, and future of the

modern Supreme Court. New York, NY: Penguin Books. Mapp v. Ohio, 367 U.S. 643 (1961). Marbury v. Madison, 1 Cranch (5 U.S.) 137 (1803). Mayor v. Cooper, 73 U.S. 247 (1867).

McCullough v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). Mensah, G. A., Goodman, R. A., Zaza, S., Moulton, A. D., Kocher,

P. L., Dietz, W. H., . . . Marks, J. S. (2004). Law as a tool for preventing chronic diseases: Expanding the spectrum of effective public health strategies. Preventing Chronic Disease: Public Health Research, Practice, and Policy, 1(2), 1–6.

Occupational Health and Safety Act of 1970. 29 U.S.C. § 655. Plessy v. Ferguson, 163 U.S. 537 (1896). Refo, P. L. (2004). The vanishing trial. Litigation Online, 30(2), 1–4. Reich, C. A. (1964). The new property. The Yale Law Journal, 73(5),

733–787. Smith, S. D. (1991). Reductionism in legal thought. Columbia Law

Review, 91(1), 68–109. Trump v. Hawaii, 138 S. Ct. 923 (2018). U.S. Const. amend. XIV, § 1. U.S. Const. art. III, § 2, clause 2. U.S. Const. art. VI, para. 2. Ziskin, L. Z., & Harris, D. A. (2007). State health policy for

terrorism preparedness. American Journal of Public Health, 97(9), 1583–1588.

▸ Endnotes The language of the law is ever-changing as the courts, Congress, state legislatures, and administrative agencies continue to define, redefine and expand legal words and terms. Furthermore, many legal terms are subject to variations from state to state and again can differ under fed- eral laws. (Garner, 2014, p. iv)

b. For an overview of the Bill of Rights in a public health context, see Gostin, L. O. (2000). Public health law: Power, duty, restraint (pp. 62–65). Berkeley, CA: University of California Press.

c. For a full description of the intertwined nature of administrative and health law, see Jost, T. S. (2004). Health law and administrative law: A marriage most convenient. Saint Louis Univer- sity Law Journal, 49, 1–34.

d. For an in-depth discussion of the relationship between the APA and state administrative pro- cedures, see Bonfield, A. E. (1986). The federal APA and state administrative law. Virginia Law Review, 72(2), 297–336.

e. For a full discussion of each of the govern- ment branches’ role in health policymaking, see Gostin, L. O. (1995). The formulation of health policy by the three branches of government. In R. E. Bulger, E. M. Bobby, & H. V. Fineberg (Eds.), Society’s choices: Social and ethical deci- sion making in biomedicine (pp. 335–357). Washington, DC: National Academy Press.

a. Although the important role that language plays in law is not a topic we delve into in this chapter, it is, particularly for students new to the study of law, one worth thinking about. Words are the basic and most important tool of the law and of lawyers. Without them, how could one draft a law, legal brief, contract, or judicial opinion? Or engage in oral advocacy on behalf of a client, or conduct a negotiation? Or make one’s wishes known with respect to personal matters near the end of life? As one renowned legal scholar puts it, “law is primarily a verbal art, its skills verbal skills” (Friedman, 1964, p. 567).

Of course, one problem with the language of law is that it is full of legal jargon, making it difficult sometimes for laypeople to understand and apply to their own particular situation. For example, if government regulation is to be effec- tive, the language used to do the regulating must be understandable to those being regulated. Another problem relates to the interpretation of words and terms used in the law, because both ambiguity (where language is reasonably capa- ble of being understood in two or more ways) and vagueness (where language is not fairly capable of being understood) are common to laws, leaving those subject to them and those responsible for applying them unsure about their true meaning. Furthermore, as the preface to Black’s Law Dictionary, under the heading “A Final Word of Caution,” states:

Endnotes 47

 

 

f. However, since the 1980s, the selection (by the president) and approval (by the U.S. Senate) process for federal judges has become highly politicized. There is an extensive body of lit- erature on this topic, as evidenced by a simple Internet search.

g. The potential implications of increasingly injecting politics into the court system are very troubling, and there is likewise extensive litera- ture on this topic.

h. The decision was written, as it turned out, by Chief Justice John Marshall—the very same per- son who, as Secretary of State, signed Marbury’s

commission. Marshall was sworn in as Chief Justice of the United States just before Jefferson took office.

i. For a fuller discussion of how the equal protec- tion standards of review operate, see Lazarus, 2004, pp. 293–294.

j. This understanding is often put to the test, how- ever, as seen in the national discussion of the right to abortion that takes place each time a new U.S. Supreme Court nominee is announced whose political stripes seem to clash with the prevailing law that abortion is a constitutionally protected right.

48 Chapter 3 Law and the Legal System

 

 

CHAPTER 4

Overview of the United States Healthcare System

LEARNING OBJECTIVES

By the end of this chapter you will be able to:

■ Identify the key players who provide and finance health care in the United States ■ Identify common characteristics of the uninsured ■ Understand the effect of insurance on access to care and on health status ■ Identify barriers to accessing health care ■ Understand concerns regarding the quality of health care provided in the United States ■ Describe differences in how health care is delivered in various countries

▸ Introduction

Coordinated. Efficient. Cost-effective. Goal oriented. These are words one might use to describe a well- functioning system. Unfortu- nately, they are not words that are often used when discussing how healthcare services are delivered in the United States. Unlike most other developed nations, the United States does not have a unified healthcare system. Even with the passage of the Patient Protection and Affordable Care Act of 2010 (ACA), the first major health reform law passed in this country in nearly 50 years, the United States will continue to provide healthcare services through a patchwork of public and private insurance plans; fed- eral, state, and local governments; and institutions and individual providers who are often unconnected to one other.

The United States has never been accused of provid- ing healthcare services in an efficient or cost-effective manner. On average, this country spends over twice as much on health care per person as other developed countries (Organization for Economic Cooperation and Development [OECD], 2017, p. 133). While the U.S. healthcare system does some things well, it ranks at or near the bottom on important health outcome measures such as life expectancy, infant mortality, and adult obesity rates (OECD, 2017, pp. 47–81). Even though the federal government establishes the nation’s healthcare goals through initiatives such as Healthy People 2020, the lack of coordination within the healthcare system means that all parts of the sys- tem are not working together to achieve these goals (Office of Disease Prevention and Health Promotion, n.d.). The lack of a unified healthcare system makes it difficult to provide a straightforward overview of how

49

© Mary Terriberry/Shutterstock

 

 

healthcare services are delivered and financed. For example, the following are some of the various players in the provision and delivery of health care:

■ Educational institutions such as medical, dental, nursing, and physician assistant programs

■ Research organizations including private entities, public agencies, and nonprofit foundations

■ Private suppliers of goods and services such as hospital equipment manufacturers, home health agencies, and uniform suppliers

■ Private health insurance provided through employers, on the individual market, and through state health exchanges

■ Public health insurance programs such as Medic- aid, Medicare, and TRICARE (the Department of Defense healthcare program for members of the uniformed services and their families)

■ Individual providers such as physicians, dentists, pharmacists, and physical therapists

■ Institutional providers such as hospitals, commu- nity health centers, and skilled nursing facilities

■ Private trade associations representing providers (e.g., the American Medical Association, which represents physicians), institutions (e.g., the National Association of Community Health Cen- ters), and industries (e.g., PhRMA, which rep- resents the pharmaceutical industry)

■ Private accreditation agencies that provide quality certifications to healthcare institutions

■ Consumers of healthcare goods and services

■ Local, state, and federal government agencies that have roles in delivering care, financing care, setting health policy, developing laws and regula- tions, and conducting and funding research

In the absence of a unified system or single govern- ment program to describe, it is easiest to understand the provision of U.S. health care through the concepts of finance (How do individuals pay for health care, and how are providers reimbursed for their services?), access (How do individuals access healthcare services, and what barriers to access exist?), and quality (What is the quality of healthcare services that are provided, and what can be done to improve the quality of care?). It is also helpful to consider the health system choices made by this country against those made by other developed countries. This chapter begins with a dis- cussion of the concepts of finance, access, and quality and then turns to a comparative overview of how other countries have designed their healthcare systems.

▸ Healthcare Finance In 2016, the United States spent $3.3 trillion on aggre- gate healthcare spending, the equivalent of $10,348 per person and 17.9% of the nation’s gross domestic prod- uct (GDP) (FIGURE 4-1). This total represents a 4.3% increase over 2015 spending (Hartman, Martin, Espi- nosa, Catlin, & National Health Expenditures Accounts Team, 2018). Healthcare spending grew slowly during the Great Recession of 2007–2009 and the period

FIGURE 4-1 National Health Expenditures as a Share of Gross Domestic Product, 1987–2016

50 Chapter 4 Overview of the United States Healthcare System

Source: Reproduced from: Centers for Medicare and Medicaid Services, Office of the Actuary. (n.d.). National Health Care Spending in 2016. Retrieved from https://www.cms.gov/Research-Statistics-Data-and-Systems/Statistics-Trends-and-Reports /NationalHealthExpendData/Downloads/NHE-Presentation-Slides.pdf

10.0

P e rc

e n t o f

G D

P

Calendar Years

17.9%

19 8 7

19 8 8

19 8 9

19 9 0

19 9 1

19 9 2

19 9 3

19 9 4

19 9 5

19 9 6

19 9 7

19 9 8

19 9 9

2 0 0 0

2 0 01

2 0 0 2

2 0 0 3

2 0 0 4

2 0 0 5

2 0 0 6

2 0 0 7

2 0 0 8

2 0 0 9

2 01

0 2 01

1 2 01

2 2 01

3 2 01

4 2 01

5 2 01

6

12.0

14.0

16.0

18.0

July 1990– March 1991 recession

20.0

December 2007– June 2009 recession

March 2001– November 2001 recession

The Share of GDP Devoted to Health Expenditures Was 17.9% in 2016

 

 

shortly thereafter. The implementation of the ACA led to 19 million newly insured individuals from 2014 to 2015. This reduction in the uninsured rate combined with strong prescription drug spending (due, in large part, to increased spending on a new drug for hep- atitis C) resulted in robust spending growth in 2014 and 2015, though growth slowed in 2016. As shown in FIGURE 4-2, spending growth was due to higher medical prices and increased use of health services by newly insured individuals (Hartman et al., 2018).

National health expenditures are expected to average 5.6% growth from 2017 to 2026 and reach 19.7% of the GDP by 2026 (Cuckler et al., 2018). This growth is expected to be driven by an increase in prices for medical goods and services, and increases in Medicare and Medicaid spending due to the aging Baby Boomer population (Cuckler et  al., 2018). Put differently, come 2026, one-fifth of the nation’s econ- omy will be consumed by healthcare spending. This is nothing short of staggering. As shown in FIGURE 4-3, the largest portion of national healthcare spending in 2016 was on hospital services, followed by physician and clinical services.

Health Insurance Having health insurance reduces the risk of financial ruin when expensive health services are needed and often provides coverage for preventive services at low

or no cost. As discussed in the upcoming section on healthcare access, individuals without health insur- ance must pay for services themselves, find services provided at no cost, or go without care. While most people in the United States have health insurance, one of the main goals of the ACA is to decrease the num- ber of uninsured people.

The ACA includes a number of provisions designed to reduce the uninsured rate in this country. While these provisions, as well as the changes that have taken place since the ACA was signed into law, will be discussed in detail in the chapter on health reform, a brief overview is useful here. The ACA attempts to reduce the number of uninsured through three main strategies. First, the law includes mandates on individuals to purchase insurance and on (many) employers to provide insurance. Second, the law expands Medicaid, the federal–state program for the poor, to the poorest uninsured individuals across the country. Third, the ACA created state health insur- ance exchanges, which are aimed at individuals and small businesses that are not able to obtain affordable health insurance through other means.

When President Obama signed the ACA into law in 2010, the uninsured rate was 16.3%, or 49.9 million individuals (U.S. Census Bureau, 2011, pp. 22–23). The ACA was effective in reducing the uninsured rate; by 2016 it had dropped to 8.8%, or 28.1 million individuals (U.S. Census Bureau, 2017). A number of legal and policy developments since the

FIGURE 4-2 Factors Accounting for Growth in per Capita National Health Expenditures, Selected Calendar Years, 2004–2016

Healthcare Finance 51

6.5% 6.0% 5.5% 5.0% 4.5% 4.0% 3.5% 3.0%

0.0%

2004–2007

A n n u a l P

e rc

e n t

C h a n g e

Per Capita Health Spending Grew 3.5% in 2016

5.8%

3.0%

4.3%

5.0%

3.5%

2008–2013 2014 2015 2016

1.0% 0.5%

2.0% 1.5%

2.5%

Age and sex factors Medical prices Residual use and intensity

Notes: Medical price growth, which includes economy-wide and excess medical-specific price growth (or changes in medical-specific prices in excess of economy-wide inflation), is calculated using the chain-weighted national health expenditures (NHE) deflator for NHE. “Residual use and intensity” is calculated by removing the effects of population, age and sex factors, and price growth from the nominal expenditure level.

Source: Reproduced from: Centers for Medicare and Medicaid Services, Office of the Actuary. (n.d.). National Health Care Spending in 2016. Retrieved from https://www.cms.gov/Research-Statistics-Data-and-Systems/Statistics-Trends-and-Reports /NationalHealthExpendData/Downloads/NHE-Presentation-Slides.pdf

 

 

2016 election have reduced the ACA’s effectiveness. As a result, the Congressional Budget Office (CBO) estimates that the number of individuals younger than 65 years without insurance will increase to 35 million (13%) by 2028 (CBO, 2018). According to the CBO, one of the main reasons for this increase is the 2018 repeal of the penalty associated with the individual mandate. The elimination of this penalty is projected to increase the uninsured rate by 4 million in 2019 and another 3 million by 2021. This is a result of individ- uals choosing not to purchase health insurance while they remain in good health, do not face a penalty for going without coverage, or cannot afford the higher premiums that are expected due to the repeal of the individual mandate penalty (CBO, 2018).

As shown in FIGURE 4-4, most people in the United States are privately insured and obtain their health insurance through their employer. Employer-sponsored insurance plans may be self- funded (meaning employers set aside funds to pay for their employees’ health insurance claims instead of paying a premium to a health insurance carrier) or fully insured (meaning employers pay a premium to a private health insurance company to administer employees’ plans and pay the healthcare claims of the employees). Another significant portion of the popu- lation is publicly insured through Medicaid, the Chil- dren’s Health Insurance Program (CHIP), Medicare, the Veteran’s Administration, and the Department of Defense. Public programs are funded and run by fed- eral and/or state government agencies, depending on the program.

FIGURE 4-5 illustrates how health insurers act as an intermediary between consumers (sometimes referred to as “insureds”) and providers (which refers to both individual providers, such as physicians or nurses, and institutions, such as hospitals and community health centers). The specifics regarding eligibility for a partic- ular insurance plan, choice of plans, how much a plan costs to enroll in or use, what benefits are covered, and how much providers are reimbursed vary by plan or government program. In some circumstances, providers may accept insurance from only a single plan, but often providers will accept patients from a variety of plans.

FIGURE 4-3 The Nation’s Health Dollar, Calendar Year 2016: Where it Went

FIGURE 4-4 Healthcare Coverage in the United States, March 2016

52 Chapter 4 Overview of the United States Healthcare System

Note: “Other spending” includes dental services, other professional services, home health care, durable medical equipment, other nondurable medical products, government public health activities, and investment.

Hospital care, 32%

Physician and clinical services,

20%Nursing care facilities and continuing care

retirement communities, 5%

Prescription drugs, 10%

Government administration and net

cost of health insurance, 8%

Other health, residential, and personal care,

5%

Other spending,

20%

Source: Reproduced from: Centers for Medicare and Medicaid Services, Office of the Actuary. (n.d.). National Health Care Spending in 2016. Retrieved from https://www.cms.gov/Research-Statistics-Data-and-Systems/Statistics-Trends-and-Reports /NationalHealthExpendData/Downloads/NHE-Presentation-Slides.pdf

Employer, 153 million

(47.3%)

Medicare, 55.5 (17.2%)

Medicaid, 49 (15.2%)

Medicaid/CHIP 23.6 (7.3%)

Affordable Care Act 9.1 (2.9%)

Other 4 (1.2%)

Total U.S. population 323.2 million

Uninsured 29 (9%)

Source: Hiltzik, M. (2016, March 29). Where America gets its health coverage: Everything you wanted to know in one handy chart. L.A. Times. Retrieved June 11, 2018 from http://www.latimes.com/business/hiltzik/la-fi-hiltzik-gaba-20160329-snap-htmlstory.html

 

 

Consumers interact with health insurance com- panies or government programs by enrolling into an insurance plan by which they are accepted (in the case of private plans) or for which they are eligible (in the case of public programs), providing payments to the insurance plan for being enrolled (either directly or through a payroll deduction), choosing which pro- vider to see based on plan restrictions or incentives, and working with the plan if they have questions or complaints. Providers that agree to be part of a plan’s “network” (i.e., the group of providers who will see patients insured by the plan) are reimbursed a con- tractually agreed-upon amount from the insurance company and/or the patient for providing services covered under the plan, may accept consumers who are enrolled in the plan, may be subject to plan quali- ty-control measures, and will participate as necessary in plan appeals processes.

Direct Services Programs In addition to providing publicly funded health insurance to certain populations through programs such as Medicare and Medicaid, federal, state, and local governments also fund numerous programs that directly provide healthcare services to vul- nerable populations. Many of these programs also receive private funding and donations to support their operations. Direct service programs generally exist to fill gaps in the private healthcare delivery system. Examples of these types of programs include the following:

■ Federally qualified health centers (FQHCs): These centers are located in medically under- served areas and provide primary care services to individuals on a sliding fee scale (meaning that how much one pays for services depends on the individual’s income level). While anyone may use an FQHC, the health center patient popula- tion is made up of mostly uninsured and pub- licly insured patients. Funding for health centers usually comes from the federal and state govern- ments, and sometimes from local governments and private donations.

■ HIV/AIDS services: The Ryan White HIV/AIDS Program works with states, cities, and local organi- zations to provide services to patients with human immunodeficiency virus (HIV) or acquired immunodeficiency syndrome (AIDS) who do not have health insurance coverage or the financial resources to pay for needed care. The program is federally funded and provides grants to state agen- cies that deliver care to patients. The Ryan White program includes the state AIDS Drug Assistance Program (ADAP), which provides medications to low-income individuals with HIV. A supplemen- tary ADAP for high-need states includes federal funding and a state matching requirement. States often supplement federal funding with state- funded HIV prevention and treatment programs. Some local public health departments provide HIV testing and counseling services and help individuals access treatment. Many programs also accept private donations.

FIGURE 4-5 Insurance Company–Consumer–Provider Interaction

Healthcare Finance 53

Insurance Company

Consumer

Accepts payment Accepts rules

Sets reimbursement rates Sets quality control requirements

Enroll in plan Pays plan Questions

Appeals

Sets plan rules Covers some consumer costs

Provider

Accepts patient Provides services May accept payment

Chooses provider Receives services May pay provider

 

 

■ Family planning services: Title X of the Public Health Service Act provides federal funding for family planning services offered to women who do not qualify for Medicaid, maintains family planning centers, and establishes standards for providing family planning services (although fed- eral dollars may not be used to support abortion services except in the case of rape, incest, or dan- ger to the life of the pregnant woman). In addition, states also fund family planning services. Services provided vary by state but may include contracep- tion, cervical cancer screening, tubal sterilization, sexually transmitted disease screening, HIV test- ing, and abstinence counseling. State laws vary on the use of state funds for abortion services. Local health departments may also offer some of these services as well as help people access family planning services from private providers. Private donations provide revenue to many family plan- ning clinics.

▸ Healthcare Access Access to care refers to the ability to obtain needed health services. There are a variety of factors that can hinder access to care. Barriers may exist if individuals are underinsured and cannot afford the cost sharing required by their health insurance policy, if needed services are not covered by health insurance, if pro- viders will not take a particular insurance plan, or if providers are not available in certain geographic areas. Access problems are exacerbated by provider short- ages, especially in primary care fields (e.g., internal medicine and pediatrics). Many areas of the coun- try already experience workforce shortages, and the influx of newly insured individuals as a result of health reform will make this problem even more pronounced in the years to come.

Of course, one important factor relating to access is lack of health insurance. Individuals with- out health insurance have to pay more for compara- ble services because they do not have the advantage of sharing costs as part of a pool of consumers. Because many individuals without health insurance are low-income, they may be unable to pay for the cost of needed care, and providers are often unwill- ing to accept uninsured patients because of the risk of not being paid for their services. Some provid- ers, referred to as “safety net” providers, focus on providing care to uninsured patients, but gaining access to needed care remains a significant issue for this population.

As noted previously, many changes that took place in 2014 as part of ACA implementation are intended to reduce the number of uninsured people. Even so, it is important to understand the healthcare prob- lems faced by the uninsured due to the uncertainty surrounding the ACA’s future. Furthermore, millions would remain uninsured even with a fully imple- mented ACA. The ACA did not help almost half the uninsured in 2017 because their state did not expand Medicaid, their income was too high to allow them to obtain subsidies, or they were ineligible for insurance or assistance due to immigration restrictions (Foutz, Damico, Squires, & Garfield, 2017). Many of those who could be assisted by the ACA’s provisions also remain uninsured. A 2016 survey conducted by the Common- wealth Fund found that only about half (52%) of the uninsured knew they could look for coverage in a state marketplace, and two-thirds of uninsured adults who knew about state exchanges did not think they could find affordable coverage (Commonwealth Fund, n.d.).

The Uninsured Characteristics of the Uninsured There are many myths relating to the uninsured. It is often assumed that the uninsured do not work or simply choose not to purchase health insurance even though it is available and affordable. Although this assumption may be true in some cases, in most instances it is not. Furthermore, many people believe that all employers offer insurance or that those individuals without private insurance are always eligible for public programs. As you will see, these and other assumptions are also false.

Income Level While the poor saw significant gains in insurance coverage under the ACA, the primary reason people do not have health insurance is still financial—available coverage is simply too expensive (FIGURES 4-6 and 4-7). There was an increase of 17 mil- lion Medicaid and CHIP enrollees from September 2013 to June 2017, accounting for much of the decrease in the uninsured rate among the poor. Not surpris- ingly, between 2013 and 2016, the uninsured rate for nonelderly adults dropped more significantly in states that expanded Medicaid (9.2% decrease) than in states that did not (4.8% decrease) (Foutz et  al., 2017). In addition, another 10 million individuals received pre- mium subsidies to purchase health insurance in a state exchange. These subsidies are available to individu- als whose income is between 100% and 400% of the federal poverty level (FPL) ($20,160 to $80,640 for a family of three in 2016) (Foutz et al., 2017).

54 Chapter 4 Overview of the United States Healthcare System

 

 

Race, Ethnicity, and Immigrant Status Prior to the ACA, the uninsured rate was much higher for His- panics (30.7%) and Blacks (20.8%) than for non-His- panic Whites (11.7%) (U.S. Census Bureau, 2011, pp. 22–23). As shown in Figure 4-6 and FIGURE 4-8,

minority populations experienced significant coverage gains in the early years of the ACA, although Whites continued to have the lowest uninsured rate (U.S. Census Bureau, 2017). These differences are due to a variety of factors, such as language barriers, income level, work status, state of residence, and immigration status (Foutz et al., 2017).

In 2016, noncitizens were three times as likely to be uninsured as were citizens (Foutz et  al., 2017). Restrictive eligibility rules pertaining to immigrants in public programs make it difficult for non-natives to obtain public coverage. While legal immigrants may obtain subsidies to assist with purchasing health insurance through the state exchanges under the ACA, undocumented immigrants are not eligible for federal subsidies and are prohibited from purchasing insur- ance through an exchange, even at full cost.

Employment Status While over half (57%) of employers offered health insurance coverage in 2013, this number has declined significantly since 66% of employers provided this benefit in 1999 (Foutz et  al., 2017). Most of the decrease is due to small businesses dropping coverage. As shown in FIGURE 4-9, premium costs nearly doubled while wages and inflation grew at a much slower pace, meaning coverage became less affordable even for those employees who were offered coverage (Foutz et  al., 2017). While the ACA includes an employer mandate that requires medium and large employers

FIGURE 4-6 Percentage Point Change in Uninsured Rate Among the Nonelderly Population by Selected Characteristics, 2013–2016

FIGURE 4-7 Reasons for Being Uninsured Among Uninsured Nonelderly Adults, 2016

Healthcare Access 55

<1 00

% F

P L

10 0

to 1

99 %

F P L

≥2 00

% F

P L

W hi

te

B la

ck H

is pa

ni c

A si

an C

hi ld

re n

0– 17

N on

el de

rly

ad ul

ts 1

8– 64

Y ou

ng a

du lts

19 –2

5

0.0%

–9.5%

–3.6% –4.8%

–7.4% –7.3%

–1.4%

–8.2%

–12.8%

–11.1%–11.3%

–2.0%

–4.0%

–6.0%

–8.0%

–10.0%

–14.0%

Notes: Includes nonelderly individuals ages 0–64.

–12.0%

Poverty level Race/ethnicity Age

Source: Foutz et al., 2017, Figure 4; Kaiser Family Foundation analysis of the 2013 and 2016 National Health Interview Survey.

0

5

10

15

20

25

30

35

40

45

Share who say they are uninsured because:

Co st is

to o

hi gh

Lo st jo

b or

c ha

ng ed

em pl oy

er s

Lo st m

ed ica

id

Em pl oy

er d

oe s no

t o ffe

r o r

in el ig ib le fo

r c ov

er ag

e

Fa m

ily s ta

tu s ch

an ge

No n

ee d

fo r h

ea lth

co ve

ra ge

4 5 %

23%

12% 10% 9%

2%

Notes: Includes nonelderly adults ages 18–64. Respondents can select multiple reasons. Status change includes marital status change, death of spouse or parent, or ineligible due to age or leaving school.

Source: Kaiser Family Foundation. (n.d.). Key facts about the uninsured population. Retrieved from https://www.kff.org /uninsured/fact-sheet/key-facts-about-the-uninsured-population/

 

 

(those with over 50 full-time- equivalent employ- ees) to provide coverage, the percentage of employ- ers offering health insurance coverage, the number of employees eligible for coverage, and the take-up rate by employees choosing to purchase coverage did not change significantly after the ACA was implemented (Foutz et  al., 2017). This is not sur- prising since medium and large businesses were the most likely to offer coverage before the ACA and concerns about affordability remain the primary obstacle for individuals obtaining insurance.

As shown in FIGURE 4-10, most of the uninsured work or are in families with at least one full-time worker, and many more have part-time workers in the family. In 2017, 74% of nonelderly uninsured workers were not offered health insurance by their employer, and over 40% of uninsured workers were employed by small businesses who were not subject to the ACA’s employer mandate (Foutz et  al., 2017). Most uninsured workers are low-income and/or work in blue-collar fields such as agriculture, construction, and the service industry.

FIGURE 4-8 After 3 Years of the ACA, Uninsured Rates for Blacks, Latinos, and Whites Have Declined Significantly, but Large Numbers of Immigrant Latinos Remain Uninsured

FIGURE 4-9 Cumulative Increase in Family Premiums, Worker Contribution to Premiums, and Worker Earnings, 1999–2017

56 Chapter 4 Overview of the United States Healthcare System

0 White

P e rc

e n t A

d u lts

A g e s

19 – 6 4

U n in

su re

d

16

21

13

36

29

24

47 43

14

9

Black Latino (total)

Latino (U.S.-born)

Latino (foreign-born)

20

10

50

40

30

July-Sept. 2013

Feb.-April 2016

Source: Reproduced from Foutz et al., 2017; The Commonwealth Fund Affordable Care Act Tracking Surveys. July–September 2015 and February–April 2016.

Source: Kaiser/HRET Survey of Employer-Sponsered Health Benefits, 1999-2017; Bureau of Labor Statistics, Consumer Price Index, U.S. City Average of Annual Inflation (April to April), 1999-2017; Bureau of Labor Statistics, Seasonally Adjusted Data from the Current Employment Statistics Survey, 1999-2017 (April to April).

1999

0%

38%

38% 29%

24%

109%

113%

47%

172%

180%

270%

224%

64%

47% 38%

8%

11%

50%

100%

150%

200%

250%

300%

C u m

u la

tiv e G

ro w

th

2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Overall inflation Worker earnings

Family premiums Worker contributions

 

 

Age Because Medicaid and CHIP provide extensive coverage to low-income children and Medicare cov- ers older adults, working-age adults between 19 and 64 years are the age group most likely to be uninsured. In 2016, 98.8% of adults older than 65 years and 94.6% of children younger than 19 years were insured, com- pared to 87.9% of working-age adults (U.S. Census Bureau, 2017). Even though many young adults (ages 26–34 years) gained insurance under the ACA, 15.7% of them were still uninsured in 2016.

As young adults transition from school to the workforce, they may become ineligible for their fam- ily’s coverage for the first time, may have entry-level jobs earning too little income to afford a policy, or may work for an employer that does not offer health insurance. The ACA addresses part of this problem by requiring insurers to cover dependents (someone who relies on the primary insured for support) until age 26 years. Although some young adults do not consider health insurance a priority expense because they are relatively healthy, studies have shown that cost is the primary determinant of whether people in this age bracket obtain coverage (Institute of Medicine [IOM], 2001a, pp. 73–74). While adults 55 to 64 years of age are more likely to be insured than are younger adults, the uninsured who fall into this age group are a cause for concern because they are medically high risk and often have declining incomes (IOM, 2001a, p. 72). The disability provisions of Medicaid and Medicare and the availability of employer-based insurance keep the number of uninsured in this group relatively small, which is important because it is very expensive for individuals in this demographic to purchase individ- ual insurance policies in the private market.

Education Level Education level is also an important factor in insurance status because it is easier, for exam- ple, for college graduates to earn higher incomes and obtain jobs that provide affordable employment-based insurance as compared to less-educated individuals (IOM, 2001a, p. 74). The higher the education level, the more likely one is to be insured. In 2016, the uninsured rate was 6.8% for working adults with a bachelor’s degree, compared to 15.2% for high school graduates and 27.3% for those without a high school diploma (U.S. Census Bureau, 2017).

Geography As shown in FIGURE 4-11, residents of the South and West are more likely to be uninsured than are residents of the North and Midwest. There are vari- ations in the uninsured rate from state to state. These differences are based on numerous factors, including racial/ethnic composition, other population charac- teristics, public program eligibility, and employment rates and sectors (Kaiser Family Foundation (KFF) 2017). This trend is likely to continue, at least in the short run, with many states in the South opting not to expand Medicaid coverage under the ACA.

Uninsurance is a particular problem among the 16% of the population who live in rural areas. They are more likely to be poorer, unemployed, or employed in blue-collar jobs and are less likely to have access to employer coverage than are their urban counterparts (Newkirk & Damico, 2014). In addition, rural residents have relatively high healthcare needs—they tend to be older, poorer, and less healthy than urban residents— and there is often a provider shortage in these areas. Because many rural residents live in states that have not chosen to expand Medicaid and also have incomes

FIGURE 4-10 Characteristics of the Nonelderly Uninsured, 2016

Healthcare Access 57

100–199% FPL 25%

200–399% FPL 31%

400%+ FPL 20%

<100% FPL 24%

Total = 27.5 Million Nonelderly Uninsured

Family work status Family income (%FPL)

Race

One or more full-time workers

75%

No workers

15%11% Part-time workers White

44%

Black 15%

Hispanic 33%

Asian/Native Hawaiian or

Pacific Islander 5%

Other 3%

Notes: Includes nonelderly individuals ages 0–64. The U.S. Census Bureau’s poverty threshold for a family with two adults and one child was $19,318 in 2016. Data may not total 100% due to rounding. Persons of Hispanic origin may be of any race; all other race/ethnicity groups are non-Hispanic.

Source: Kaiser Family Foundation analysis of the March 2017 Current Population Survey, Annual Social and Economic Supplement.

 

 

too low to qualify for premium subsidies, insurance is more likely to be unaffordable for them than for urban residents (Newkirk & Damico, 2014).

The Importance of Health Insurance Coverage to Health Status Having health insurance provides tangible health ben- efits. For a variety of reasons discussed in this section,

having health insurance increases access to care and positively affects health outcomes. Conversely, the uninsured, who do not enjoy the benefits of health insurance, are more likely to experience adverse health events and a diminished health-related quality of life and are less likely to receive care in appropriate set- tings or receive the professionally accepted standard of care (Foutz et al., 2017).

Health insurance is an important factor in whether someone has a “medical home,” or consistent source of care. Having a consistent source of care is positively associated with better and timelier access to care, bet- ter chronic disease management, fewer emergency department (ED) visits, fewer lawsuits against EDs, and increased cancer screenings for women (Foutz et  al., 2017; Lambrew, DeFriese, Carey, Ricketts, & Biddle, 1996; Starfield & Shi, 2004). Unfortunately, the uninsured are much less likely to have a usual source of care than are insured individuals (FIGURE 4-12).

The uninsured are also less likely to follow treat- ment recommendations and more likely to forgo care due to concerns about cost (Foutz et  al., 2017). In addition, the uninsured are less likely to receive pre- ventive care and appropriate routine care for chronic conditions (Foutz et  al., 2017). One result of these conditions is that children without insurance are more likely to have developmental delays, often leading to difficulties in education and employment. Also, qual- ity of life may be lower for the uninsured due to their lower health status and anxiety about both monetary and medical problems.

FIGURE 4-11 Uninsured Rates Among the Nonelderly by State, 2016

Source: Reproduced from Centers for Disease Control and Prevention, MMWR 1996;45: 526–528.

58 Chapter 4 Overview of the United States Healthcare System

AK

HI

WA

ID

MT

WY

CO

ND MN

IA

MO

AR

LA

MS AL GA

FL

NJ DE MD DC

SC

NC TN

KY

INIL

WI

MI

OH

PA

WV VA

NY

ME VT

NH MA

CT RI

SD

NE

KS

OK

TX

NMAZ

UT NV

OR

CA

Notes: Includes nonelduals individuals ages 0–64.

<7% (11 states including DC)

7–12% (28 states)

>12% (12 states)

Source: Kaiser Family Foundation analysis of the March 2017 Current Population Survey, Annual Social and Economic Supplement.

BOX 4-1 Discussion Questions

From a policy perspective, are the characteristics just described interrelated, or should they be addressed separately? If you are trying to reduce the number of uninsured, do you believe the focus should be on altering insurance programs or changing the effect of having one or more of these characteristics? Whose responsibility is it to reduce the number of uninsured? Government? The private sector? Individuals?

BOX 4-2 Discussion Questions

The ACA made it a priority to reduce the number of uninsured. At what point, if any, should the government step in to provide individuals with assistance to purchase insurance coverage? Do you think such assistance should be a federal or a state responsibility?

 

 

Because the uninsured are less likely to obtain pre- ventive care or treatment for specific conditions, they have a higher mortality rate overall, have a higher in- hospital mortality rate, and are more likely to be hospi- talized for avoidable health problems (Foutz et al., 2017). Of course, without regular access to care, it is less likely that a disease will be detected early when treatment may be cheaper and more effective. For example, uninsured cancer patients are diagnosed at later stages of the dis- ease and die earlier than insured cancer patients.

Ways to Assess the Cost of Being Uninsured There are several ways to think about the costs of being uninsured. These costs include the health status costs to the uninsured individual, as discussed previously; financial cost to the uninsured individual; financial cost to state and federal governments and to private insurers; financial cost to providers; productivity costs from lost work time due to illness; costs to other pub- lic priorities that cannot be funded because of the resources spent on providing care to the uninsured; and costs to the health status and patient satisfaction of insured individuals.

The financial burden of being uninsured is sig- nificant. Although on average the uninsured spend fewer dollars on health care than the insured, those without insurance spend a greater proportion of their overall income on medical needs. Furthermore, when the uninsured receive care, it is often more expen- sive because the uninsured are not receiving care as

part of an insurance pool with leverage to negotiate lower rates from providers. In fact, the uninsured are charged rates two to four times higher than the rates paid by insurance companies or public programs (Foutz et al., 2017). The uninsured are less likely to be able to pay for healthcare needs because the average uninsured household does not have net assets and half of the uninsured living under the 200% poverty level have no savings (Foutz et al., 2017). Not surprisingly, the uninsured are much more likely to be concerned about being able to pay their medical bills than are their insured counterparts (FIGURE 4-13).

Costs of medical care provided by, but not fully reimbursed to, health professionals are referred to as uncompensated care costs. In 2013, it was estimated that uncompensated care costs surpassed $84 billion in the United States, with federal, state, and local spend- ing covering most of the tab, primarily through “dis- proportionate share” (DSH) payments to hospitals that serve many uninsured individuals and Medicaid bene- ficiaries (Foutz et al., 2017). Under the ACA, however, DSH payments are set to be reduced drastically—a $43 billion reduction between 2018 and 2025 (Foutz et  al., 2017). Although hospitals provide about 60% of all uncompensated care services and receive signif- icant government assistance, most of the uncompen- sated care provided by nonhospital physicians is not subsidized (Foutz et  al., 2017). Every dollar spent by providers, governments, and communities to cover uncompensated care costs is a dollar that is not spent on another public need. There are a variety of high- cost public health needs, such as battling infectious

FIGURE 4-12 Barriers to Health Care Among Nonelderly Adults by Insurance Status, 2016

Healthcare Access 59

0 No usual source

of care Postponed seeking

care due to cost

Note: Includes nonelderly adults ages 18–64. Includes barriers experienced in past 12 months. Respondents who said usual source of care was the emergency room were included among those not having a usual source of care. All differences between uninsured and insurance groups are statistically significant (p < 0.05).

49%

12% 12%

23%

9% 6%

20%

8%

18%

14%

6% 3%

Went without needed care due to cost

Postponed or did not get needed prescription

drug due to cost

10

5

25

30

35

40

45

50

20

15

Uninsured

Medicaid/other public

Employer/other private

Source: Foutz et al., 2017; Kaiser Family Foundation analysis of the 2016 National Health Interview Survey.

 

 

diseases like tuberculosis, engaging in emergency pre- paredness planning, and promoting healthy behaviors. Public and private funds used to cover uncompen- sated care, especially when the care is more expensive than necessary because of the lack of preventive care or early interventions, are resources that are no longer available to meet the country’s other health needs.

An additional cost associated with the uninsured is the cost of lower productivity. This cost refers to the reduced productivity in the workforce stemming from the lower health status associated with being uninsured. Productivity may be reduced when workers are absent or when they are not functioning at their highest level due to illness. In addition, several studies show that pro- viding health insurance helps employers recruit better employees and that workers with health insurance are less likely to change jobs, reducing the costs of hiring and training new employees (Families USA, 2005).

Finally, there is a “spillover” effect of uninsurance for insured individuals. In communities with high rates of uninsured, even insured individuals are less likely to have a usual source of care, schedule an office visit, be satisfied with the quality of care they receive, and obtain needed care (Gresenz & Escarce, 2011; Pauly & Pagán, 2007). This spillover occurs because providers in communities with high uninsured rates may earn less revenue relative to costs. Insured indi- viduals may suffer if subsidies are not available to pro- viders to allow for higher revenue or if government spending on subsidies for the uninsured crowd out spending on services that might benefit the insured (Pauly & Pagán, 2007). In addition, physicians in com- munities with high uninsurance rates may choose to provide fewer types of services or fewer office hours due to profitability concerns. Finally, the insured may suffer if their provider treats them the same as

uninsured patients, who may demand and receive fewer services or lower-quality services from their providers (Gresenz & Escarce, 2011).

The Underinsured While there are disagreements about how to mea- sure the underinsured, in general being underinsured means individuals do not have the financial means to cover the gap between what their insurance coverage pays for and the total cost of their medical bills. As a result, they spend a high proportion of their income on healthcare services. A July 2014 survey found that 23% (31 million) of adults ages 19 to 64 years were under- insured (Collins, Rasmussen, Beutel, & Doty, 2015). Of particular concern are the 45% of underinsured adults younger than 65 years who are on Medicare, because they were the sickest population in the survey. Ninety-one percent of them are in fair or poor health or are disabled, and they are the second-poorest popu- lation after Medicaid beneficiaries (Collins et al., 2015).

The underinsured problem is exacerbated during a recession when more individuals cannot afford to pay their deductibles and co-payments. Insurance status is clearly linked to the decision to delay care due to cost. In the 2014 survey, 57% of uninsured individuals and 44% of underinsured respondents reported avoiding care due to cost, compared to 23% of insured individ- uals (Collins et al., 2015). In addition, over half (51%) of underinsured adults indicated they had problems paying medical bills or were currently paying off med- ical debt, which is twice the rate of other insured adults who are not underinsured (Collins et al., 2015). As a result, everyone ends up paying for the underinsured. Providers attempt to shift the cost associated with the underinsured and uninsured to others who can afford

FIGURE 4-13 Problems Paying Medical Bills by Insurance Status, 2016

60 Chapter 4 Overview of the United States Healthcare System

0 Problems paying or unable to pay

medical bills

Worried about being able to pay costs for normal care

Note: Includes nonelderly adults ages 18–64. All differences between uninsured and insured groups are statistically significant (p < 0.05).

29%

14%

63%

26%

76%

44%

30% 24%

Worried about paying medical bills if get sick

Medical bills being paid off over time

20

10

50

60

70

80

40

30

Uninsured

Insured

Source: Foutz et al., 2017; Kaiser Family Foundation analysis of the 2016 National Health Interview Survey.

 

 

to pay, including the government and insured individ- uals. Institutions such as hospitals may try to negotiate higher reimbursement for their services, which leads insurers to charge higher premiums to their clients to cover the additional costs.

Insurance Coverage Limitations Even individuals with insurance coverage may face healthcare access problems due to coverage limita- tions. These limitations could include high levels of cost sharing, reimbursement and visit caps for specific services, and service exclusions. (Another problem— annual and lifetime dollar limits on coverage—was eliminated by the ACA.)

Cost Sharing A typical insurance plan includes premiums, deduct- ibles, and co-payments (the latter can also be designed as co-insurance). A premium is an annual cost, typ- ically charged monthly, for enrolling in a plan. For those with health insurance through their employer, the premium is often split between employer and employee. The average annual premium for a single coverage was $6,690 in 2017, although individuals in high-deductible plans averaged somewhat less in pre- miums ($6,024) (KFF & Health Research Educational Trust [HRET], 2017). Figure 4-9 and FIGURE 4-14 show the increase in monthly premiums over the last decade and also how much faster premiums have

FIGURE 4-14 Average Annual Premiums for Single and Family Coverage, 1999–2017

Healthcare Access 61

1 9 9 9

2 0 0 0

2 0 0 1

2 0 0 2

2 0 0 3

2 0 0 4

2 0 0 5

2 0 0 6

2 0 0 7

2 0 0 8

2 0 0 9

2 0 1 0

2 0 1 1

2 0 1 2

2 0 1 3

2 0 1 4

2 0 1 5

2 0 1 6

2 0 1 7

$0

$6,000

$8,000

$10,000

$12,000

$18,000

$20,000

$16,000

$14,000

$4,000

$2,000

$ 3 ,3

8 3 *

$ 9 ,0

6 8 *

$ 3 ,6

9 5 *

$ 9 ,9

5 0 *

$ 4 ,0

2 4 *

$ 1 0 ,8

8 0 *

$ 4 ,2

4 2 *

$ 1 1 ,4

8 0 *

$ 4

,4 7 9 *

$ 1 2 ,1

0 6 *

$ 4 ,7

0 4 *

$ 1 2 ,6

8 0 *

$ 5 ,0

4 9 *

$ 1 3 ,7

7 0 *

$ 5 ,4

2 9 *

$ 1 5 ,0

7 3 *

$ 5 ,8

8 4 *

$ 1 6 ,3

5 1 *

$ 6 ,4

3 5

$ 1

8 ,1

4 2

*

$ 6 ,6

9 0 *

$ 1

8 ,7

6 4

*

$ 6 ,2

5 1 *

$ 1 7

,5 4

5 *

$ 6 ,0

2 5

$ 1 6 ,8

3 4

*

$ 5 ,6

1 5 *

$ 1 5 ,7

4 5 *

$ 4 ,8

2 4

$ 1 3 ,3

7 5 *

$ 2 ,6

8 9 *

$ 7 ,0

6 1 *

$ 2 ,4

7 1 *

$ 6 ,4

3 8 *

$ 2 ,1

9 6

$ 5 ,7

9 1

$ 3 ,0

8 3 *

$ 8 ,0

0 3 *

Single coverage

Family coverage

*Estimate is statistically different from estimate for the previous year shown (p < 0.05).

Source: Kaiser/HRET Survey of Employer-Sponsered Health Benefits, 1999–2017.

 

 

risen relative to wages and inflation. A deductible is an amount the insured pays out-of-pocket before the insurance plan assists with the costs of health- care services. There may be an annual deductible for the plan overall or separate deductibles for different types of services covered by the plan, such as inpatient care, outpatient care, and prescription drug coverage. Co-payments refer to a specific dollar amount that patients pay when they receive services or drugs. For example, one might have a $15 co-payment to see a primary care provider for an office visit. Co-insurance refers to a percentage of service cost that patients pay when they receive services or drugs. For example, an insured might have a 20% co-insurance requirement to see a primary care provider for an office visit. If the visit cost $150, a 20% co-insurance requirement would cost $30. Co- payment and co-insurance amounts may vary depending on the service received.

Cost-sharing requirements can vary widely by plan and plan type. Some plans do not have general deductibles, and for those with general deductibles, the amount varies significantly. For example, in 2017 the average deductible for a single worker was $1,505, though deductibles vary by plan type and employer size. Preferred provider organizations (PPOs) had the lowest average deductible ($1,046), while high- deductible health plans averaged $2,304 for single workers. Coverage for single workers in small firms is

much higher ($1,594) than it is for those in large firms ($856) (KFF & HRET, 2017). A significant number of plans have deductibles of $1,000 or more (FIGURE 4-15).

Variation also exists for service-specific costs. It is rare for private plans to have separate deductibles for hospital admissions, outpatient surgery, or ED visits, but patients generally have cost-sharing arrangements for these services. For example, in private plans the average co-payment for ED visits is $180 and the aver- age co-payment for outpatient surgery is $231 (KFF & HRET, 2017). Medicare, on the other hand, charged a $1,340 deductible for the first 60 days of hospital- ization in 2018. Medicare beneficiaries do not pay a per diem for the first 60 days in a hospital, but they then pay $335 per day for the next 3 months. This fee increases for longer stays (Centers for Medicare and Medicaid Services, 2017).

Reimbursement and Visit Caps Insurance plans may limit the amount they will reim- burse for a specific service during the year, with patients responsible for costs that exceed dollar amount limits. In addition, plans may limit the number of times a patient may see a certain type of provider during the year. Visit caps vary by insurance plan. For example, a plan might limit a member to 90 physical therapy vis- its per year per injury, or to 20 visits per calendar year

FIGURE 4-15 Percentage of Covered Workers Enrolled in a Plan With a General Annual Deductible of $1,000 or More for Single Coverage, by Firm Size, 2009–2017

62 Chapter 4 Overview of the United States Healthcare System

80%

40%

30%

20%

10%

0%

50%

P e rc

e n ta

g e o

f C

o ve

re d W

o rk

e rs

60%

70%

2012 2013 2014 2016 20172015201120102009

40%

46% 50% 49%

58%* 61%

63% 65%

58%

51%

48%

51%

45%

46%

39%*

41%

32%

38%

28%

34%

26%

31%

22%*

27%*

17%

22%

13%

*Estimate is statistically different from estimate for the previous year shown (p < 0.05).

Note: These estimates include workers enrolled in HDHP/SOs and other plan types. Average general annual health plan deductibles for PPOs, POS plans, and HDHP/SOs are for in-network services.

All small �rms (3–199 Workers) ALL FIRMS

All large �rms (200 or more workers)

Source: “2017 Employer Health Benefits Survey,” 2017.

 

 

for acupuncture. Once a patient reaches these limits, the insurance plan will not cover additional visits and the patient would have to pay the entire cost of a visit out-of-pocket.

Service Exclusions Health insurance plans may also partially or fully exclude certain types of services from coverage alto- gether. For example, a plan might cover high-dose chemotherapy associated with bone marrow trans- plants for only specified organ and tissue transplants and home health services only if certain conditions are met. Examples of services not covered at all by a plan include nonrigid orthopedic or prosthetic devices such as wigs or elastic stockings, eyeglasses, hearing aids, exercise programs, assisted reproductive tech- nology, or physical exams for obtaining or continuing employment.

Coverage for abortion and family planning ser- vices is also limited in many instances. Federal funds may be used for abortion services only in cases of rape or incest or to save the life of the pregnant woman. The ACA does not include abortion services as part of its essential health benefits package, and any cov- erage of abortion services must be paid with private dollars, not with federal subsidies. As of June 2018, 11 states have enacted laws that restrict abortion cover- age in all private plans in the state, 25 states restrict abortion coverage in private plans offered through their exchange, and 21 states restrict abortion cover- age in public employee plans (Guttmacher Institute, n.d., 2018a).

Regarding contraceptive coverage, the ACA requires most health insurance plans to cover all con- traceptive methods approved by the Food and Drug Administration and related counseling services with- out cost-sharing. Federal regulations exempt religious organizations from having to provide contraceptive coverage and make an accommodation for certain other employers with religious objections to avoid pay- ing for or arranging contraceptive coverage, while still allowing employees to obtain coverage through their health insurance plan (Guttmacher Institute, 2018b). In October 2017, the Trump administration issued regulations that expand the ability of organizations to refuse to provide contraceptive coverage due to reli- gious or moral objections, but these regulations are, at the time of this writing, blocked by court rulings. Due to concerns that federal guarantees for contracep- tive coverage may be limited in the future, many states have passed laws protecting coverage. As of June 2018, 29 states require insurance plans to cover the full range of contraceptive drugs, 9 states prohibit cost-sharing

for contraceptives, and 5 states prohibit other restric- tions and delays by insurers. At the same time, 21 states exempt select employers and insurers from providing contraceptive coverage based on religious objections (Guttmacher Institute, 2018b). Given the litigation relating to contraceptive coverage requirements and exemptions/accommodations, it is not yet clear what requirements, if any, plans will have to follow regard- ing contraceptive coverage in the future.

Safety Net Providers Securing access to care can be difficult for those without comprehensive private insurance. For the uninsured, the high cost of care is often a deterrent to seeking care. For those with public coverage, it is often difficult to find a provider willing to accept their insurance due to the low reimbursement rates and administrative burdens associated with participating in these programs. For these patients and the under- insured, the “healthcare safety net” exists.

The healthcare safety net refers to providers who serve disproportionately high numbers of uninsured, underinsured, and publicly insured patients. Although there is no formal designation indicating that one is a safety net provider, the Health and Medicine Division (HMD) of the National Academy of Sciences (for- merly the Institute of Medicine [IOM]) defines the healthcare safety net as “those providers that organize and deliver a significant level of health care and other related services to uninsured, Medicaid, and other vulnerable populations” (IOM, 2000a, p. 21). “Core” safety net providers are those who serve vulnerable populations and have a policy of providing services regardless of patients’ ability to pay. Some safety net providers have a legal requirement to provide care to the underserved, while others do so as a matter of principle (IOM, 2000a, p. 21).

Who are safety net providers? It is a difficult ques- tion to answer because there is no true safety net “sys- tem.” Safety net providers can be anyone or any entity providing health care to the uninsured and other vul- nerable populations, whether community or teaching hospitals, private health professionals, school-based health clinics, or others. Those providers that fit the narrower definition of “core” safety net providers include some public and private hospitals, commu- nity health centers, family planning clinics, and public health agencies that have a mission to provide access to care for vulnerable populations. Safety net provider patient loads are mostly composed of people who are poor, on Medicaid, or uninsured, and are members of racial and ethnic minority groups. For example, in 2016, 92% of federally qualified community health

Healthcare Access 63

 

 

center (FQHC) patients had incomes at or below 200% FPL, 72% were on Medicaid or uninsured, 23% were African American, and 35% were Hispanic/ Latino (National Association of Community Health Centers [NACHC], 2018a). Of the America’s Essential Hospitals (formerly National Association of Public Hospitals and Health Systems) member hospital inpa- tient discharges, in 2016, about 46% were covered by Medicaid or uninsured, and 68% were racial or ethnic minorities (America’s Essential Hospitals, 2018).

FQHCs provide comprehensive primary medical care services, culturally sensitive care, and enabling services such as transportation, outreach, and trans- lation that make it easier for patients to access ser- vices. Many health centers also provide dental, mental health, and pharmacy services. Because health cen- ters are not focused on specialty care, public hospitals are often the sole source of specialty care for unin- sured and underserved populations (Makaroun et al., 2017). In addition, public hospitals provide traditional healthcare services, diagnostic services, outpatient pharmacies, and highly specialized trauma care, burn care, and emergency services (America’s Essential Hospitals, 2018). Although not all local government health departments provide direct care, many do. Local health departments often specialize in caring for specific populations, such as individuals with HIV or drug dependency, as compared to public hospitals and health centers, which provide a wider range of services (IOM, 2000a, pp. 63–65).

Safety net providers receive funding from a vari- ety of sources, but they often struggle financially. Medicaid is the single largest funding stream for health centers, accounting for 43% of their revenue (NACHC, 2018b). Due to low Medicaid reimburse- ment, Medicaid revenue accounts for only 80% of the cost of providing care to Medicaid patients served by health centers (NACHC, 2018a). Federal grants to health centers are intended to cover the cost of car- ing for the uninsured; however, this grant funding has not kept pace with the cost of provided care. Due to low federal reimbursement, health centers incurred a $1 billion gap in the cost of care for treating the unin- sured in 2016 (NACHC, 2018a). In addition, payment from private insurance is unreliable due to the high- cost-sharing plans held by many privately insured, low-income individuals. Furthermore, Medicare payments to health centers are capped under federal law at an amount that does not match the growth in healthcare spending.

Public hospitals face a similarly difficult eco- nomic picture. Many public hospital services are not fully reimbursed because payments made by indi- viduals or insurers do not match the cost of care. In

2016, Essential Hospitals members provided almost $5.5 billion in uncompensated care, which equals almost 14% of all the uncompensated care provided nationally (America’s Essential Hospitals, 2018). Like health centers, public hospitals receive funds to cover low- income patients, including Medicaid DSH pay- ments, state and local subsidies, and other revenues such as sales tax and tobacco settlement funds. In 2016, Essential Hospitals had an average aggregate operating margin of 4%, compared to 7.8% for all U.S. hospitals. Without DSH payments, Essential Hospitals’ aggre- gate operating margin would dip to –1.4% ( America’s Essential Hospitals, 2018). Thus, the reduction in DSH payments that occurred as part of health reform is particularly concerning for safety net hospitals.

For all the positive work accomplished by safety net providers, they cannot solve all healthcare prob- lems for vulnerable populations. Safety net patients may lack continuity of care, whether because they cannot see the same provider at each visit or because they have to go to numerous sites or through vari- ous programs to receive all the care they need. Even though safety net providers serve millions of patients every year, there are not enough providers in enough places to satisfy the need for their services. While the ACA included an infusion of funds to safety net pro- viders, they also will serve an influx of newly insured patients. Health centers received $11 billion under the ACA and increased their patient population by 10% over 2 years, to serve 24 million patients in 2015 (Rosenbaum et al., 2017). And, as noted earlier, many safety net providers are underfunded and constantly struggling to meet the complex needs of their patient population.

The problems facing the uninsured and the stress- ors on the healthcare safety net highlight the inade- quacies of the current “system” of providing health care, and many of these problems will remain even after the ACA is implemented. Given the country’s patchwork of programs and plans, decisions made in one area can significantly affect another. For example, if Medicaid reimbursement rates are cut or program eligibility is reduced, safety net providers will have a difficult time keeping their doors open while, simul- taneously, more patients will become uninsured and seek care from safety net providers. If more people choose high-deductible private insurance plans that they cannot easily afford, individuals may go without needed services or safety net providers will end up providing an increasing amount of uncompensated care. If employers decide to reduce or end coverage or increase employee cost sharing, previously insured people may fall into the ranks of the uninsured. As  a result, safety net providers and their patients

64 Chapter 4 Overview of the United States Healthcare System

 

 

are affected by many policies that are not directed at them, but still greatly impact their ability to provide or access care.

Workforce Issues Problems accessing care may also occur due to pro- vider shortages and an uneven distribution of provid- ers throughout the country. This problem affects both the uninsured and the insured alike. If a provider is not available to take you as a patient, it matters little if you have an insurance plan that would cover the cost of your care. Of course, if a provider shortage is so great that those with insurance are turned away, the unin- sured will have an even harder time accessing care.

There are a variety of estimates regarding a future healthcare workforce shortage. For example, the Asso- ciation of American Medical Colleges estimates a phy- sician shortfall between 42,600 and 121,300 by 2030 (Dall, West, Chakrabarti, Reynolds, & Iacobucci, 2018). On the other hand, if healthcare delivery approaches that rely heavily on nonphysician providers are used more often in the future, the estimates for physician shortages decline significantly. Two such models are the patient-centered medical home (PCMH), which relies on a team of providers to supply and coordinate care, and the nurse-managed health center (NMHC), which is a clinic with nurse practitioners (NPs) as the primary caregiver (Auerbach et al., 2013). One study estimated that increased use of PCMHs or NMHCs alone would reduce a primary care physician shortage from 45,000 to 35,000. Used together, the combination of approaches could cut the physician shortage in half (Auerbach et al., 2013).

One of the main concerns with the healthcare workforce is a shortage of primary care providers. It is expected that there will be between 14,800 and 49,300 fewer primary care physicians than are needed to meet demand by 2030 (Dall et al., 2018). More providers are choosing specialty care over primary care. About 30%

of physicians practice primary care today, as opposed to 70% 50 years ago (Mitra, 2016). Midlevel provider career choices have followed a similar pattern. From 1974 to 2012, the percentage of physician assistants (PAs) working in primary care declined from 70% to 34% (Dunker, Krofah, & Isasi, 2014). NPs and PAs are more likely to work in hospitals or specialty care offices than to provide services in office-based primary care (Colwill, Cultice, & Kruse, 2008). The long work hours, increased demands (particularly administra- tive demands associated with insurance companies), lack of respect, and comparatively low pay for pri- mary care providers are sending future practitioners to other fields (Castellucci, 2016). For example, one study showed that, over a lifetime, a cardiologist will make $2.7 million more than a primary care physician (Vaughn, DeVrieze, Reed, & Schulman, 2010).

While fewer graduates are turning to primary care, demand for primary care services is expected to increase in the next several years. Most of the increased demand will be due to population growth and aging, with the remaining uptick in demand based on the increase of insured individuals under the ACA (Dall et al., 2018). The U.S. population is aging, with individuals older than 65 years projected to increase from 15% in 2017 to 21% in 2030 (U.S. Cen- sus Bureau, 2018). These older patients are heavy users of healthcare services. Even though older patients made up about 12% of the population in 2008, they accounted for over 45% of all primary care office visits that year (Centers for Disease Control and Prevention [CDC], 2010). Furthermore, geriatric training is lack- ing among primary care providers. An IOM report on aging and the healthcare workforce found medical school curricula on geriatric medicine to be “inade- quate” (IOM, 2008, p. 129). Physicians agree: in a 2002 survey, only half of all responding physicians thought their colleagues could adequately treat a geriatric condition (IOM, 2008, pp. 128–129), and in a 2007 study, only 23% of medical school graduates indicated they received expert geriatric training (Association of American Medical Colleges, 2012).

In addition to provider shortages, access prob- lems may exist because providers are not distributed as needed throughout the country (FIGURES 4-16 through 4-18). In 2013, 29 states had a primary care physician shortage, with Texas and Florida expe- riencing the greatest deficits (over 1,000 full-time- equivalent [FTE] providers). By 2025, it is estimated that 37 states will have a primary care physician shortage, with 12 states experiencing a deficit of 1,000 FTE providers or more (Health Resources Services Administration [HRSA], 2016). In contrast, Massa- chusetts has a primary care physician surplus that it

BOX 4-3 Discussion Questions

Safety net providers mostly serve uninsured and publicly insured low-income patients. Many of the safety net provider features you just read about are in place to assist these patients in accessing health care. Instead of pursuing universal coverage, would it be an equally good strategy to expand the number of safety net providers? Are there reasons for both safety net providers and health insurance to exist? How does having insurance relate to accessing care?

Healthcare Access 65

 

 

expects to maintain through 2025. Similarly, primary care NP and PA shortages vary across the country. In 2013, 23 states had a primary care NP shortage, but no states are projected to have a shortfall by 2025 (HRSA, 2016). Regarding primary care PAs, 22 states

had a shortage in 2013. In 2025, 9 states are expected to have a PA shortage, while 5 states (New York, North Carolina, Texas, California, and Colorado) are projected to have a surplus of more than 1,000 FTE (HRSA, 2016).

AK

HI

WA

ID

MT

WY

CO

ND MN

IA

MO

AR

LA

MS AL GA

FL

SC

NC TN

KY

INIL

WI

MI

OH

PA

WV VA

NYSD

NE

KS

OK

TX

NMAZ

UT NV

OR

CA

*Note: Estimates in states with an RSE > 20% should be used with caution because of large sampling error.

902–4,032

4,033–7,017

7,018–13,986

13,987–26,841

26,842–94,385

RSE 20–29%*

DC

Total number

NJ DE MD

ME VT

NH MA

CT RIWY

ND

FIGURE 4-16 Number of Physicians by State, 2008–2010 Source: See Figure 2 from The US Health Workforce Chartbook, HRSA, 2013, retrieved from https://bhw.hrsa.gov/sites/default/files/bhw/nchwa/chartbookpart1.pdf

AK

HI

WA

ID

MT

WY

CO

ND MN

IA

MO

AR

LA

MS AL GA

FL

NC TN

INIL

WI

MI

OH

PA

WV VA

NYSD

NE

OK

TX

NMAZAZ

UT NV

OR

CA

*Note: Estimates in states with an RSE > 20% should be used with caution because of large sampling error. **Data are not reported at the state level, because the RSE ≥ 30%; estimate does not meet standards of reliability.

597–763

764–1,394

1,394–2,204

Not reportable**

2,205–3,649

3,650–10,198

RSE 20–29%*

DC

Total number

NJ DE MD

ME VT

NH MA

CT RI

ID

MS

WV

NE

OK

NV

KYKY KS

SCSC

KS

LA

IA

FIGURE 4-17 Number of Physician Assistants by State, 2008–2010 Source: See Figure 7 from The US Health Workforce Chartbook, HRSA, 2013, retrieved from https://bhw.hrsa.gov/sites/default/files/bhw/nchwa/chartbookpart1.pdf

66 Chapter 4 Overview of the United States Healthcare System

 

 

Rural areas are particularly susceptible to pro- vider shortages. This is an especially pressing problem because individuals who live in rural areas are more likely to be sicker, older, and poorer than their urban counterparts. Compared to urban dwellers, rural residents are more likely to lack access to a primary care physician, have higher rates of chronic diseases and teen pregnancies, and engage in more unhealthy behaviors such as smoking (National Conference of State Legislatures, 2017).

In 2017, 59% of designated Health Professional Shortage Areas were in rural areas (National Confer- ence of State Legislatures, 2017). The number of spe- cialists in rural areas is only 30 per 100,000 people, compared to 263 per 100,000 in urban areas (National Rural Health Association [NRHA], n.d.). While the gap is not as prominent for primary care physicians, they also prefer urban locations. The patient–primary care physician ratio in rural areas is 39.8 per 100,000, compared to 53.3 per 100,000 in urban areas (NRHA, n.d.). Primary care providers are vital to the health- care workforce in rural areas. While family physicians comprise only 15% of outpatient physicians in the country, they provide 42% of services in rural areas (NRHA, n.d.).

Rural areas are more likely to attract NPs and PAs than physicians, suggesting that alternative care mod- els that focus on nonphysician providers may be partic- ularly useful in addressing access issues in rural areas (Graves et  al., 2016). FQHCs have already embraced this model, hiring NPs, PAs, and nurse–midwives at a

faster rate than physicians (Proser, Bysshe, Weaver, & Yee, 2015).

Shortages also exist within the public health work- force. The public health workforce has been defined to include anyone who is providing 1 of the 10 essen- tial public health functions (discussed in the Public Health Institutions and Systems chapter), regardless of whether their employer is a government agency, not-for-profit organization, private for-profit entity, or some other type of organization (Center of Excellence, 2013). The public health workforce includes profes- sions such as public health physicians and nurses, epi- demiologists, health educators, and administrators. It is difficult to count everyone involved in the public health workforce, given the wide array of jobs and the numerous data sources needed to compile the infor- mation. In 2012, the public health field was estimated to include between 310,000 and 342,000 workers. This represents a worker-to-population ratio of 99 to 110  per 100,000 people, which is substantially lower than the earlier estimates in 1980 (220 per 100,000 people) and 2000 (158 per 100,000 people) (Center of Excellence, 2013).

The ACA contains a number of provisions, intended to address some of the more pressing healthcare and public health workforce issues, which could accomplish the following goals:

■ Increase funding for community health centers ■ Increase funding for the National Health Service

Corps, which provides scholarships and loan

AK

HI

WA

ID

MT

WY

CO

ND MN

IA

MO

AR

LA

MS AL GA

FL

SC

NC TN

KY

INIL

WI

MI

OH

PA

WV VA

NYSD

NE

KS

OK

TX

NMAZ

UT NV

OR

CA

4,296–22,260 Total number

22,261–50,861

50,842–90,663

90,664–167,476

167,477–274,722

DC

NJ DE MD

ME VT

NH MA

CT RI

FIGURE 4-18 Number of Nurse Practitioners by State, 2008–2010 Source: See Figure 21 from The US Health Workforce Chartbook, HRSA, 2013, retrieved from https://bhw.hrsa.gov/sites/default/files/bhw/nchwa/chartbookpart1.pdf

Healthcare Access 67

 

 

repayments to students who agree to become pri- mary care providers and work in medically under- served communities

■ Increase funding for PA and NP training ■ Provide new funding to establish NP-led clinics ■ Provide new funding for states to plan and imple-

ment innovative strategies to boost their primary care workforce

■ Establish a National Health Care Workforce Com- mission to coordinate federal workforce efforts and bolster data collection and analysis

■ Establish teaching health centers ■ Provide payments for primary care residencies in

community-based ambulatory care centers ■ Increase the number of Graduate Medical Educa-

tion slots available to primary providers by redis- tributing unused slots

■ Promote residency training in outpatient settings ■ Provide grants to training institutions to promote

careers in the healthcare sector ■ Increase reimbursement for primary care provid-

ers under Medicare and Medicaid

Given the uncertain political future of the ACA, it remains to be seen whether these provisions will be implemented or funded in the years to come.

▸ Healthcare Quality As noted earlier in this chapter, the United States spends more on health care than most other devel- oped countries, yet frequently the care provided does not result in good health outcomes. Researchers and policymakers have highlighted the need to improve the quality of care provided in this country. A 2003 landmark study raised many quality concerns, includ- ing findings that patients received the appropriate medical care only 55% of the time and that patients were much more likely not to receive appropriate services than to receive potentially harmful care (McGlynn, Asch, & Adams, 2003). The lack of appro- priate care was seen across medical conditions, simi- larly affecting treatments relating to preventive care, acute care, and chronic diseases (McGlynn et al., 2003, p. 2641). The degree to which patients received appro- priate care varied greatly. For example, only 10% of patients with alcohol dependence received the stan- dard of care, as opposed to 78% of those with senile cataracts (McGlynn et al., 2003, p. 2641). In addition, many adults do not receive all of the recommended preventive measures. A 2015 study found that only 8% of respondents age 35 years and older reported receiv- ing all of the recommended preventive measures,

and only 20% reported receiving most (75%) of them (Borsky et al., 2018). On the other hand, 5% reported receiving none of the recommended preventive mea- sures (Borsky et al., 2018).

Key Areas of Quality Improvement In 2001, the IOM (again, now the HMD) released Crossing the Quality Chasm: A New Health System for the 21st Century, which represented nothing less than an urgent call to redesign the healthcare system to improve the quality of care provided (IOM, 2001b). The IOM attributes our inability to provide consistent, high-quality health care to a number of factors, includ- ing the growing complexity of health care, including quickly developing technological advancements; an inability to meet rapid changes; shortcomings in safely using new technology and applying new knowledge to practice; increased longevity among the population, which carries concerns relating to treating chronic conditions in a system better designed to address epi- sodic, acute care needs; and a fragmented delivery system that lacks coordination, leading to poor use of information and gaps in care (IOM, 2001b, pp. 2–4). In its call to redesign the healthcare system to improve quality, the IOM focuses on six areas of improvement: safety, efficacy, patient-centeredness, timeliness, effi- ciency, and equity (IOM, 2001b, p. 43).

Safety In a safe healthcare system, patients should not be endangered when receiving care that is intended to help them, and healthcare workers should not be harmed by their chosen profession (IOM, 2001b, p. 44). In an earlier report, To Err Is Human, the IOM found that deaths due to medical errors in hospitals could be as high as 98,000 annually and cost up to $29 billion, over half of which is attributable to health- care costs (IOM, 2000b, pp. 1–2). A safe healthcare system also means that standards of care should not decline at different times of the day or week or when a patient is transferred from one provider to another. In addition, safety requires that patients and their fami- lies are fully informed and participate in their care to the extent they wish to do so (IOM, 2001b, p. 45).

Efficacy While scientific evidence regarding a particular treat- ment’s effectiveness is not always available, an effective healthcare system should use evidence-based treat- ments whenever possible. This effort includes avoid- ing the underuse of effective care and the overuse of

68 Chapter 4 Overview of the United States Healthcare System

 

 

ineffective care (IOM, 2001b, p. 47). Evidence-based medicine is not limited to findings from random- ized clinical trials, but may use results from a vari- ety of research designs. To promote the use of evidenced-based medicine, healthcare providers and institutions should improve their data collection and analysis capabilities so it is possible to monitor results of care provided (IOM, 2001b, p. 48).

Patient-Centeredness A patient-centered healthcare system is sensitive to the needs, values, and preferences of each patient, includes smooth transitions and close coordination among providers, provides complete information and education at a level and in a language patients can understand, involves the patient’s family and friends according to the patient’s wishes, and, to the extent possible, reduces physical discomfort experienced by patients during care (IOM, 2001b, pp. 49–50). A lan- guage or cultural barrier may be a significant hurdle to receiving high-quality and patient-centered care. In 2013, one in five Americans spoke a language other than English at home (Camarota & Zeigler, 2014). Individuals with language barriers are less likely to adhere to medication regimens, have a usual source of care, and understand their diagnosis and treat- ment, and are more likely to leave a hospital against a provider’s advice and miss follow-up appointments (Speaking Together, 2007). While use of interpreters can improve a patient’s quality of care, when friends or family members serve as interpreters, there is greater risk that the interpreter will misunderstand or omit a provider’s questions and that the patient will not dis- close embarrassing symptoms (Speaking Together, 2007). Similarly, cultural differences between pro- vider and patient can result in patients receiving less than optimal care. Cultural differences can define how healthcare information is received, whether a problem is perceived as a healthcare issue, how patients express symptoms and concerns, and what type of treatment is most appropriate. As a result, healthcare organiza- tions should ensure that patients receive care that is both linguistically and culturally appropriate (Office of Minority Health, n.d.).

Timeliness A high-quality healthcare system will provide care in a timely manner. Currently, U.S. patients experience long waits when making appointments, sitting in doctors’ offices, standing in hallways before receiving procedures, waiting for test results, seeking care at EDs, and appealing billing errors (IOM, 2001b, p. 51).

These delays can take an emotional as well as physical toll if medical problems would have been caught ear- lier with more timely care. Timeliness problems also affect providers because of difficulties in obtaining vital information and delays that result when consult- ing specialists. In addition, lengthy waits are the result of a system that is not efficient and does not respect the needs of its consumers (IOM, 2001b, p. 51).

Efficiency An efficient healthcare system makes the best use of its resources and obtains the most value per dollar spent on healthcare goods and services. The uncoor- dinated and fragmented U.S. system is wasteful when it provides low-quality care and creates higher than necessary administrative and production costs (IOM, 2001b, p. 52). As indicated previously, the high level of spending and poor outcomes relating to prevent- able conditions, the number of patients who do not receive appropriate care, and the high number of med- ical errors make it clear that the quality of healthcare services provided can be improved.

In addition, significant geographic variations in the provision of healthcare services suggest a lack of efficiency in the system; however, this is a complicated issue to understand and solve. For example, the Dart- mouth Atlas Project has studied regional variations in healthcare practices and spending for several decades. Even after controlling for level of illness and prices paid for services, researchers have found a two-fold difference in Medicare spending in the country.

Furthermore, higher spending areas are not asso- ciated with better quality of care, more patient satis- faction, better access to care, more effective care, or improved outcomes (Fisher, Goodman, Skinner, &

BOX 4-4 Discussion Questions

Unfortunately, evidence is not available to support the effectiveness or cost–benefit of every procedure or drug. How should policymakers and providers make decisions when faced with a dearth of evidence? Do you prefer a more cautious approach that does not approve procedures or drugs until evidence is available or a more aggressive approach that encourages experimentation and use of treatments that appear to be effective? What about medical care for children, who are generally excluded from clinical and research trials for ethical reasons? When, if ever, is it appropriate for insurers to cover or the government to pay for treatments that are not proven effective?

Healthcare Quality 69

 

 

Bronner, 2009). Instead, both health system capac- ity and local practice styles appear to be key factors in geographic variations in cost. An IOM report addressing this issue also found that health status, demographics, insurance plan coverage, and market factors did not explain the variation (IOM, 2013). The report highlighted the use of post-acute care and acute care services as a key concern and noted that other factors, such as patient preference and provider dis- cretion, are not included in the data analyzed. In the end, the IOM concluded, “an overall explanation for geographic variation remains elusive” (IOM, 2013). As policymakers try to improve quality of care in the United States, they will have to continue to untangle difficult questions of why some parts of the country spend more on services than others.

The nation also spends close to one-quarter of healthcare expenditures on administration, which is more than twice what the country spends on cardio- vascular disease and three times the amount it spends on cancer (Cutler, 2018). As shown in FIGURE 4-19, this high level of administrative spending dwarfs that of other countries (Bodenheimer, 2005, p. 934; Papanicolas, Woskie, & Jha, 2018). Extensive use of private insurers, who often have high administrative costs relative to public insurance programs, as well as the use of multiple insurers instead of a single-payer system, result in high administrative costs in the United States.

Equity An equitable healthcare system provides essential health benefits to all people and includes universal access to care. Equity can be considered on an indi- vidual level and on a population level (IOM, 2001b, p. 53). While the ACA should improve individual access to services by reducing the number of unin- sured, insurance alone is not sufficient to ensure access to care. The care itself still must be accessible (provid- ers are willing to accept you as a patient), affordable, and available (sufficient providers are available).

Population-level equity refers to reducing health- care disparities among subgroups. In the United States, racial and ethnic minority groups often receive lower-quality care and fewer routine preventive pro- cedures than White people. A 2003 IOM report found that African Americans were less likely than Whites to receive appropriate cardiac medication, undergo necessary artery bypass surgery, and use dialysis or receive a kidney transplant even when controlling for factors such as age, insurance status, income level, and comorbidities. Not surprisingly, African Americans also had higher mortality rates than their White coun- terparts (IOM, 2003, pp. 2–3).

These trends continue. In 2014, African Americans were still more likely than Whites to have asthma, diabetes, cardiovascular disease and AIDS. African American men have the shortest life expectancy

*Or nearest year; data from 2014 for Australia and Canada. No recent data for New Zealand (since 2007). Data reflect current spending on governance and health system and financing administration, in current prices, current PPPs. ‘OECD median’ reflects the median of 34 OECD countries.

34 89 90

123 141 206

255 272 286

787

0

100

200

300

400

500

600

700

800

900

Un ite

d St

at es

Sw itz

er la nd

Fr an

ce

G er

m an

y

Ne th

er la nd

s

Ca na

da

Au st ra

lia

Un ite

d Ki

ng do

m

Sw ed

en

No rw

ay

Dollars ($US)

OECD MEDIAN

Adjusted for Differences in Cost of Living

FIGURE 4-19 Spending on Health Insurance Administration per Capita, 2015 Source: Retrieved from https://www.commonwealthfund.org/publications/publication/2017/nov/multinational-comparisons-health-systems-data-2017

70 Chapter 4 Overview of the United States Healthcare System

 

 

(Orgera & Artiga, 2016). As compared to Whites, His- panics were more likely to be diabetic, experience peri- odontitis, be HIV positive, and be uninsured, and less likely to be screened for colorectal cancer or receive the flu vaccine as an infant (CDC, 2013). Hispanics are more likely than Whites to have asthma, liver disease, tuberculosis, and diabetes, and to die from cervical can- cer, HIV, and end-stage renal disease (Families USA, 2014). In 2016, the Agency for Healthcare Quality and Research (AHQR) found access to care was worse for African Americans on 50% of their measures and for Hispanics on 75% of their measures (AHQR, 2016).

While this country continues to struggle with health disparities, the ACA has made a positive differ- ence. From 2013 to 2015, racial disparities narrowed in terms of percentage of working adults who were uninsured, who skipped care due to cost, and who lacked a usual source of care (Hayes, Riley, Radley, & McCarthy, 2017).

Assessment of Efforts to Improve Quality The IOM has called for sweeping changes to the health- care system to address the numerous ways in which the quality of care could be improved. In 2015, the Depart- ment of Health and Human Services (HHS) issued a progress report on its Action Plan to Reduce Racial and Ethnic Health Disparities, which included a number of activities HHS had already taken and goals for future activities (HHS, 2015). While the ACA makes signifi- cant changes to the healthcare system, the law is focused more on improving access than improving quality or the delivery system. Many of the law’s quality improvement provisions are pilot programs and demonstration proj- ects that may eventually result in significant changes— or fall to the wayside once they expire.

None of the quality improvement tasks the IOM calls for will be simple to achieve, and, at times, they seem to have conflicting goals. For example, making the healthcare system patient-centered may not always result in enhanced efficiency. Furthermore, the IOM’s proposed changes would require increased resources at a time when the United States is facing record defi- cits and unsustainable healthcare spending levels. Improving the quality of the healthcare system is an enormous challenge and one that is likely to remain on the nation’s agenda for years to come.

▸ Comparative Health Systems A review of the U.S. healthcare system and a discus- sion of its flaws often leads one to ask, how do other countries deliver health care, and do they do a better

job? Because the United States spends more overall and more per person on health care comparatively speaking and yet often lags in many quality and out- come indicators, perhaps there are lessons to learn from other countries (FIGURE 4-20). While there are many problems with healthcare delivery in the United States, it is also true that each type of healthcare sys- tem has its advantages and drawbacks.

There are three types of healthcare systems often found in other countries: (1) a national health insur- ance system that is publicly financed, but in which care is provided by private practitioners (e.g., Canada); (2) a national health system that is publicly financed and where care is provided by government employees or contractors (e.g., Great Britain); and (3) a socialized insurance system that is financed through mandatory contributions by employers and employees and in which care is delivered by private practitioners (e.g., Germany) (Shi & Singh, 2019, p. 22). Of course, varia- tions exist within these types of systems in terms of the role of the central government, the presence of private insurance, the way the healthcare system is financed, and how care is administered by providers and accessed by patients. While comparing the systems in the three countries used as examples does not cover all possible permutations of how healthcare systems are designed, it provides an overview of the choices made by policymakers in different countries (TABLE 4-1).

A National Health Insurance System: Canada Canada’s healthcare system is called Medicare. Prior to establishing the Medicare program in 1966, Canada provided insurance in a manner that was similar to the U.S. method, with private plans offering coverage to many, even while millions remained uninsured. Incre- mental changes were made to the Canadian healthcare system until the Medical Care Act of 1966 established Medicare’s framework; it was later modified through the Canadian Health Act of 1984. The Canadian Health Act established five principles for health care delivery: (1) public administration, (2) comprehen- sive coverage, (3) universality, (4) portability across Canada, and (5) uniform and reasonable access to care (Johnson, Stoskopf, & Shi, 2018).

Canada’s healthcare system is largely decentralized, with Canada’s provinces and territories responsible for setting up their own delivery system. As such, Canada’s Medicare system is a collection of single-payer systems governed by the provinces and territories, with the cen- tral government taking a more limited role. The prov- inces and territories set their own policies regarding

Comparative Health Systems 71

 

 

0

2

4

6

8

10

12

14

16

18

1980 1982 1984 1986 1988 1990 1992 1994 1996 1998 2000 2002 2004 2006 2008 2010 2012 2014

P e rc

e n ta

g e

United States (16.6%)

Switzerland (11.4%)

Sweden (11.2%)

France (11.1%)

Germany (11.0%)

Netherlands (10.9%)

Canada (10.0%)

United Kingdom (9.9%)

New Zealand (9.4%)

Norway (9.3%)

Australia (9.0%)

GDP refers to gross domestic product. Data in legend are for 2014.

FIGURE 4-20 Healthcare Spending as a Percentage of Gross Domestic Product, 1980–2014 Source: Retrieved from https://www.commonwealthfund.org/chart/2017/health-care-spending-percentage-gdp-1980-2014

TABLE 4-1 Comparison of Health Systems Across Four Countries

United States Canada Great Britain Germany

System type No unified system National health insurance

National health system

Socialized health insurance

Universal coverage

Near universal if ACA fully implemented

Yes Yes Yes

Role of private insurance

Significant Supplemental to Medicare, two-thirds purchase

Minimal Minimal

Financing Private payments and tax revenue

Mostly tax revenue (federal, provincial, territorial)

All federal income tax revenue

Mandatory employer and employee contributions to national health fund

Hospital reimbursement

Varies by payer (DRGa, FFSb, capitation, per diem)

Global budget Global budget

DRGa

Physician reimbursement

Fee schedule or capitation

Negotiated fees with provinces/ territories

Salary or capitation

Negotiated fees with funds

DRGa = diagnostic-related group (payment based on bundle of services needed for diagnosis). FFSb = fee for service (payment per service rendered).

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many healthcare and other social issues, administer their own individual single-payer systems, reimburse hospitals directly or through regional health authori- ties, and negotiate physician fees schedules with pro- vincial medical associations. Provinces and territories use regional health authorities as their primary payer of healthcare services. While funding methods vary by location, regional health authorities have the abil- ity to tailor funds in a way that best serves the needs of their population. In addition to paying for care, regional health authorities also organize the delivery of care. They hire staff at most acute care facilities and contract for some ambulatory care services. General practitioners and specialists mostly work on a fee-for- service arrangement and in private practice (Allin & Rudoler, n.d.). The federal government has respon- sibility for specific health areas such as prescription drugs, public health, and health research, as well as for providing care to certain populations (e.g., veterans, indigenous peoples) (Allin & Rudoler, n.d.).

Financing for health benefits varies by benefit type. Hospital services, physician services, and public health services are financed through public taxation. Hospitals mostly operate under global budgets they negotiate with a ministry of health or regional health authority, although a few provinces are considering activity-based funding (Allin & Rudoler, n.d.). Cer- tain services, including prescription drugs, home care, and institutional care, are financed through a combi- nation of public taxation and private insurance cov- erage. Other goods and services, such as dental and vision care, over-the-counter drugs, and alternative medicines are covered only through private insurance. Approximately two-thirds of Canadians purchase pri- vate insurance, which is used to cover goods and ser- vices not provided by Medicare (Allin & Rudoler, n.d.).

Tax revenue from the provincial, territorial, and federal governments pays for 70% of total Medicare expenditures, while private insurance reimbursement accounts for 12% of costs, patient out-of-pocket pay- ments cover 14%, and various sources account for the remaining amount (Allin & Rudoler, n.d.). Healthcare spending is expected to reach C$242 billion in 2017 (Canadian Institute for Health Information [CIHI], “How much,” n.d.). Healthcare spending varies con- siderably across the country. For example, Alberta spends C$7,329 per person, compared to Yukon’s C$11,222 per-person costs (CIHI, “How does,” n.d.).

A National Health System: Great Britain Great Britain’s healthcare system was designed by Sir William Beveridge as part of a social reconstruc- tion plan after World War II. The National Health

Services Act of 1946 created the National Health Ser- vice (NHS), a centrally run healthcare system that provides universal insurance coverage to all residents of Great Britain. It was designed based on the princi- ple that the government is responsible for providing equal access to comprehensive health care that is gen- erally free at the point of service (Johnson et al., 2018, pp. 174–176).

The Health and Social Care Act of 2012 intro- duced significant changes to the NHS system. In the prior system, health care was delivered through a variety of trusts that covered services such as primary care, mental health care, acute care, and ambulance services (Johnson et al., pp. 178–179). In the new sys- tem, Primary Care Trusts were replaced with Clinical Commissioning Groups (CCGs), which are led by cli- nicians. CCGs are bodies that consist of general prac- titioners in their service area, and they are responsible for providing urgent and emergency care, elective hos- pital care, community health services that go beyond general practitioner services, maternity and newborn services, and mental health and learning disability services. The 2012 legislation also created an inde- pendent organization called NHS England to focus on improving health outcomes and quality of care. NHS England provides national leadership, supervises CCGs, allocates resources to CCGs, and commissions primary care, certain specialty care, military care, and offender care (Thorlby, Arora, & Nuffield Trust, n.d.).

The NHS is the largest publicly financed national health system in the world. The 2017–2018 budget is £124.7 billion, with only a 1.2% growth rate pro- jected from 2010 to 2021. This is far below the needed growth rate, which is expected to exceed 4% (King’s Fund, 2018). Due to this discrepancy, NHS projects a $6 billion deficit by 2021 (Thorlby et al., n.d.). NHS is using a number of cost containment strategies to address its budgetary concerns, including freezing wages, increasing use of generic drugs, reducing hos- pital payments, lowering administrative costs, and improving hospital management (Thorlby et al., n.d.).

The NHS is financed primarily through general tax revenues. It is NHS England’s responsibility to identify necessary healthcare services and Monitor’s (England’s regulatory body for health care) role to set prices for those services. While most residents receive their care through the NHS, private insurance is also available. Approximately 10.5% of residents have pri- vate health insurance, which provides the same bene- fits as the NHS but allows for reduced waiting times, more convenient care, and greater access to specialists (Johnson et al., 2018, p. 182; Thorlby et al., n.d.).

NHS services are provided by provider organiza- tions that are classified as NHS foundation trusts or

Comparative Health Systems 73

 

 

NHS trusts. NHS foundation trusts are not directed by the government and are free to make financial deci- sions based on a framework established by law and regulation. NHS trusts are directed by the government and are financially accountable to the government (Johnson et al., 2018, p. 181; Thorlby et al., n.d.). Most general practice physicians and nurses are private practitioners who work for the NHS as independent contractors, not salaried employees, while the NHS owns the hospitals and the hospital staff are salaried employees. Patients select a general practitioner in their service area, and this provider is the gateway to NHS services. Almost everyone has a registered gen- eral practitioner, and most patient contact is with this provider (Thorlby et  al., n.d.). Services are provided free of charge, except for specific services designated by law.

The Health and Social Care Act also renewed focus on public health needs. Public Health England was created in 2013 as an autonomous executive agency of the Department of Health. Its role is to protect the public’s health, reduce health disparities, promote health knowledge and information, and ensure that high-quality healthcare services are delivered to the public. In addition, local Health and Wellbeing Boards were created to improve the public’s health and reduce disparities through local government action (Public Health England, n.d.).

In 2014, NHS unveiled the Five Year Forward plan to address challenges to the healthcare system, with a focus on improving early identification of high-risk patients and exploring new payment models. Based on the plan, 50 “vanguards,” or pilot programs, have been established to test ideas such as “scaled-up primary care, enhanced health care in long-term care homes, vertically integrated hospital and community care, and networks to improve emergency care” (Thorlby et  al., n.d.). In addition, the plan includes a diabetes initiative, a commitment to 7-day workweeks by 2020, and “footprints” that bring together purchasers and providers in a local community to provide services under a consolidated budget (Thorlby et al., n.d.).

A Socialized Insurance System: Germany In 1883, Germany’s Otto von Bismarck created the first healthcare system in the world. He viewed a strong health and pension system as a way to build a superior nation, earn support from Germany’s working class, and undermine any attempts by Germany’s socialist party to gain power. The central government is respon- sible for setting health policy and regulating the Social Health Insurance System (SHIS). German healthcare

policy emphasizes solidarity, the idea that all should have equal access to health care regardless of ability to pay (Johnson et al., 2018, pp. 217–223). Germany’s legislature passed several major health reform bills in recent years. These reforms include integration of inpa- tient and ambulatory care, premium payment changes, an insurance mandate, and revised long-term care pol- icies (Johnson et al., 2018, pp. 230–31).

SHIS is composed of a collection of nonprofit regional sickness funds with a standard benefit package that includes inpatient services, outpatient services, medications, rehabilitation therapy, and dental benefits. The funds are organized around industry or geography and are responsible for man- aging healthcare services. Germans must enroll in sickness funds or obtain coverage through private insurance (Blümel & Busse, n.d.). Some populations are required to be under SHIS, including individu- als who earn less than $60,000 per year or are pen- sioners, students, unemployed, disabled, poor, or homeless. Funds may not refuse to cover these indi- viduals, and physicians may not refuse to treat them. Germans who earn more than $60,000 per year for 3 consecutive years or who are self-employed may choose to opt out of SHIS and purchase private cov- erage. Exempt citizens and individuals choosing to opt out of SHIS may purchase private substitu- tive private health insurance (PHI). In 2015, almost 9  million people—often young, wealthy workers who could secure a low-premium plan—enrolled in substitutive PHI (Blümel & Busse, n.d.).

Health care is provided in the public and private sectors. SHIS ambulatory care physicians generally work in private practice and are members of regional associations that negotiate a fee schedule with sick- ness funds. Fee schedules are also used by private insurers, but often at a higher rate than the SHIS fee schedule. Hospitals are split between public, private nonprofit, and private for-profit institutions, with the latter increasing its share of the market in recent years. Hospitals are staffed by salaried providers and reimbursed based on a diagnostic-related group methodology (Blümel & Busse, n.d.; Johnson et  al., 2018, p. 235).

Sickness funds are financed through employer and employee contributions. As of 2016, employer and employees split the 14.6% of gross wage contribution. In addition, there is a supplementary contribution based on income that is set by each sickness fund. The sickness fund contributions are pooled and then real- located to individuals based on a risk-adjusted formula that accounts for age, sex, and morbidity (Blümel & Busse, n.d.). In 2014, Germany spent $492 billion in

74 Chapter 4 Overview of the United States Healthcare System

 

 

concerns and how different residents fared within a system varied by country ( FIGURES 4-21 through 4-25).

While affordability was a key concern in the United States, Americans reported fewer access prob- lems than residents in many other countries. Of those surveyed, a third of U.S. residents went without care due to cost, as compared to 7% of respondents in England and Germany (Osborne et  al., 2016). Cost barriers to accessing dental care were a much big- ger concern for American and Canadian respon- dents than for those living in England or Germany. Low-income adults reported worse health and more cost concerns than wealthier individuals across all of the countries surveyed, with the United States hav- ing the highest rate of low-income respondents indi- cating that cost was a barrier to care. England was the only country where low-income adults did not report greater access problems due to cost (Osborne et  al., 2016). In terms of same-day or next-day appointments, Canadians (53%) and Germans (47%) reported more problems than American (42%) and British (41%) respondents (Osborne et  al., 2016). In addition, about 30% of Canadian adults and 19% of British adults reported having to wait at least 2 months for a specialty appointment, compared to less than 10% of adults in Germany and the United States. Germans obtained care through EDs at a much lower rate (11%) than residents of other countries, with Canadians (41%) and Americans (35%) reporting much higher use of emergency care.

BOX 4-5 Discussion Questions

Do you prefer one of these health systems to the others? Why or why not? Are there features that you think should be incorporated into the U.S. healthcare system? Are there reasons why certain features might be difficult to incorporate into the U.S. healthcare system?

FIGURE 4-21 Cost-Related Access Barriers in the Past Year Source: Retrieved from https://www.commonwealthfund.org/publications/surveys/2016/nov/2016-commonwealth-fund-international-health-policy-survey-adults

health expenditures, mostly through SHIS (Johnson et al., 2018, p. 234).

The Importance of Health Insurance Design Reviewing the healthcare systems of four countries— the United States, Canada, Great Britain, and Germany—shows how varied healthcare systems are around the world. Differences exist regarding the role of government, the ability to purchase private insur- ance, cost-sharing requirements, and how the sys- tem is financed. Even countries that share the same general type of system have variations based on their specific culture, politics, and needs. How a system is designed matters in terms of access to care, financing, and patient satisfaction. A 2016 survey in 11 coun- tries asked residents about their experience with their country’s healthcare system (Obsorne, Squires, Doty, Sarnak, & Schneider, 2016). What issues were primary

Comparative Health Systems 75

7 7 8 8 10

14 16 17

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*Had a medical problem but did not visit doctor; skipped medical test, treatment, or follow-up recommended by doctor; and/or did not fill prescription or skipped doses

 

 

▸ Conclusion This wide-ranging review of the U.S. healthcare sys- tem was intended to provide readers with a general sense of how health care is accessed, financed, and administered in this country. Understanding the var- ious players in the healthcare system, from providers to researchers to policymakers, is crucial to being able to participate in debates over current issues in health policy and law. While the U.S. system excels on many

fronts, it falls short in many areas relating to access, quality, and efficiency. Perhaps policymakers in this country could learn lessons from successes abroad, but the United States has a unique political environ- ment and it is clear there is no silver bullet that will solve all the problems we face. Specific health policy and law concerns will be described in much greater detail elsewhere, providing a foundation to tackle the many problems that will confront the country in the years ahead.

FIGURE 4-23 Waited 2 Months or Longer for a Specialist Appointment Source: Retrieved from https://www.commonwealthfund.org/publications/surveys/2016/nov/2016-commonwealth-fund-international-health-policy-survey-adults

FIGURE 4-22 Did Not Get Same or Next-Day Appointment Last Time You Needed Care Source: Retrieved from https://www.commonwealthfund.org/publications/surveys/2016/nov/2016-commonwealth-fund-international-health-policy-survey-adults

76 Chapter 4 Overview of the United States Healthcare System

19 22

31

41 41 42 43 44

47 50

53

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11

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FIGURE 4-24 Used the ED in the Last 2 Years Source: Retrieved from https://www.commonwealthfund.org/publications/surveys/2016/nov/2016-commonwealth-fund-international-health-policy-survey-adults

8

16 16 20

23 24 28 30 30

31

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18 14 13

22

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0

20

40

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Low income adults All other adults

P e rc

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*Indicates differences are significant at p<0.05.

Note: “Low income” defined as household income less than 50% the country median. Sample sizes are small (n<100) in the Netherlands and UK.

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FIGURE 4-25 Cost-Related Access Barriers in the Past Year, By Income Source: Retrieved from https://www.commonwealthfund.org/publications/surveys/2016/nov/2016-commonwealth-fund-international-health-policy-survey-adults

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Organization for Economic Cooperation and Development. (2017). Health at a glance 2017: OECD indicators. Retrieved from http://dx.doi.org/10.1787/health_glance-2017-en

Orgera, K., & Artiga, S. (2018). Disparities in health and health care: Five key questions and answers. Retrieved from https:// w w w.k f f.org/disp ar it ies-p olic y/issue-br ief/disp ar it ies -in-health-and-health-care-five-key-questions-and-answers/

Osborne, R., Squires, D., Doty, M. M., Sarnak, D. O., & Schneider, E. C. (2016). In new survey of eleven countries, US adults still struggle with access to and affordability of health care. Health Affairs, 35(12). doi:10.1377/hlthaff.2016.1088

Papanicolas, I., Woskie, L. R., & Jha, A. K. (2018). Health care spending in the United States and other high-income countries. New England Journal of Medicine, 319(10), 1024 –1039. doi:10.1001/jama.2018.1150

Patient Protection and Affordable Care Act of 2010, 42 U.S.C. § 18001 (2010).

Pauly, M. V., & Pagán, J. A. (2007). Spillovers and vulnerability: The case of community uninsurance. Health Affairs, 5, 1304–1314. doi:10.1377/hlthaff.26.5.1304

Proser, M., Byshhe, T., Weaver, D., & Yee, R. (2015). Community health centers at the crossroads: Growth and staffing needs. Journal of the American Academy of PAs, 28(4), 49–53. doi:10.1097/01.JAA.0000460929.99918.e6

Public Health England. (n.d.). About us. Retrieved from https://w w w.gov.u k/gover nment/organis at ions/public -health-england/about

Rosenbaum, S., Paradise, J., Markus, A., Sharac, J., Tran, C., Reynolds, D., & Shin, P. (2017). Community health centers: Recent growth and the role of the ACA. Retrieved from http:// files.kff.org/attachment/Issue-Brief-Community-Health -Centers-Recent-Growth-and-the-Role-of-the-ACA

Shi, L., & Singh, D. A. (2019). Delivering health care in America: A  systems approach (7th ed.). Burlington, MA: Jones and Bartlett Learning.

Speaking Together. (2007). Addressing language barriers in health care: What’s at stake. Retrieved from https://www .r wjf.org/content/dam/farm/rep or ts/issue_briefs/2007 /rwjf30140

Starfield, B., & Shi, L. (2004). The medical home, access to care, and insurance: A review of evidence. Pediatrics, 113, 1493– 1498. doi:10.1542/peds.113.5.S1.1493

Thorlby, R., Arora, S., & Nuffield Trust. (n.d.). The English health care system. Retrieved from https://international .commonwealthfund.org/countries/england/

U.S. Census Bureau. (2011). Income, poverty, and health insurance coverage in the United States: 2010 (Current Population Reports, P60-239). Washington, DC: U.S. Government Printing Office.

79References

 

 

U.S. Census Bureau. (2017). Health insurance coverage in the United States: 2016 (Current Population Reports, P60-260). Washington, DC: U.S. Government Printing Office.

U.S. Census Bureau. (2018). Demographic turning points for the United States: Population projections from 2020 to 2016 (Current Population Reports, P25-1144). Washington, DC: U.S. Government Printing Office.

U.S. Department of Health and Human Services. (2015). HHS action plan to reduce racial and ethnic health disparities:

Implementation progress report 2011–2014. Retrieved from https://aspe.hhs.gov/basic-report/hhs-action-plan-reduce -racia l-and-et hnic-he a lt h-disp ar it ies-implement at ion -progress-report-2011-2014

Vaughn, B. T., DeVrieze, S. R., Reed, S. D., & Schulman, K. A. (2010). Can we close the income and wealth gap between specialists and primary care physicians? Health Affairs, 29(5), 933–940. doi:10.1377/hlthaff.2009.0675

80 Chapter 4 Overview of the United States Healthcare System

 

 

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© Mary Terriberry/Shutterstock

CHAPTER 5

Public Health Institutions and Systems Richard Riegelman

LEARNING OBJECTIVES

By the end of this chapter you will be able to: ■ Identify goals of governmental public health ■ Identify the 10 essential services of public health ■ Describe basic features of local, state, and federal public health agencies in the United States ■ Identify global public health organizations and agencies and describe their basic roles ■ Identify roles in public health for federal agencies not identified as health agencies ■ Illustrate the need for collaboration by governmental public health agencies with other governmental and

nongovernmental organizations ■ Describe approaches to connecting public health and the healthcare system

▸ Introduction

The cases in BOX 5-1 all reflect the responsibilities of public health agencies at the local, federal, and global levels. While they illustrate public health working the way it is supposed to work, this is of course not always the case. Let us start by taking a look at the goals and roles of public health agencies.

▸ What Are the Goals and Roles of Governmental Public Health Agencies?

Public health is often equated with the work of gov- ernmental agencies. The role of government is only a

portion of what we mean by “public health,” but it is an important component. It is so important, in fact, that we often define the roles of other components in terms of how they relate to the work of governmental public health agencies. That is, we may refer to them as nongovernmental public health.

In 1994, the U.S. Public Health Service put forth the Public Health in America statement, which pro- vided the framework that continues to define the goals and services of governmental public health agencies (Centers for Disease Control and Prevention [CDC], 2018):

■ To prevent epidemics and the spread of disease ■ To protect against environmental hazards ■ To prevent injuries ■ To promote and encourage healthy behaviors

 

 

82 Chapter 5 Public Health Institutions and Systems

BOX 5-1 Vignette

A young man in your dormitory is diagnosed with tuberculosis. The health department works with the student health service to test everyone in the dorm, as well as in his classes, with a tuberculosis skin test. Those who are positive for the first time are advised to take a course of a medicine called INH. You ask, is this standard operating procedure?

You go to a public health meeting and learn that many of the speakers are not from public health agencies, but from the Departments of Labor, Commerce, Housing, and Education. You ask, what do these departments have to do with health?

You hear that a new childhood vaccine was developed by the National Institutes of Health (NIH), approved by the Food and Drug Administration (FDA), endorsed for federal payment by the Centers for Disease Control and Prevention (CDC), and recommended for use by the American Academy of Pediatrics. You ask, do all these agencies and organizations always work so well together?

A major flood in Asia leads to disease and starvation. Some say it is due to global warming, others to bad luck. Coordinated efforts by global health agencies, assisted by nongovernmental organizations (NGOs) and individual donors, help get the country back on its feet. You ask, what types of cooperation are needed to make all of this happen?

A local community health center identifies childhood obesity as a problem in the community. The center collects data demonstrating that the problem begins as early as elementary school. They develop a plan that includes clinical interventions at the health center and also at the elementary school. They ask the health department to help them organize an educational campaign and assist in evaluating the results. Working together, they are able to reduce the obesity rate among elementary school children by 50%. This seems like a new way to practice public health, you conclude. What type of approach is this?

Source: © maxstockphoto/ShutterStock, Inc.

■ To respond to disasters and assist communities in recovery

■ To ensure the quality and accessibility of health services

These are ambitious and complicated goals to achieve. To achieve them, it is important to further define the roles that governmental public health agen- cies themselves play and, by implication, the roles that other governmental agencies and NGOs need to play.

The Public Health in America statement built upon a 1988 report by the Institute of Medicine (IOM;

now called the Health and Medicine Division [HMD]) called The Future of Public Health. The IOM defined three core public health functions that governmental public health agencies need to perform. The concept of “core function” implies that the job cannot be del- egated to other agencies or to NGOs. It also implies that the governmental public health agencies will work together to accomplish these functions, because as a group, they are responsible for public health as a whole; that is, no one agency at the local, state, or fed- eral level is specifically or exclusively responsible for accomplishing the essential public health services.a

 

 

What Are the 10 Essential Public Health Services? 83

The core functions defined by the IOM are (1) assessment, (2) policy development, and (3) assurance (Institute of Medicine [IOM], 1988).

■ Assessment includes obtaining data that define the health of the overall population and specific groups within the population, including defining the nature of new and persisting health problems.

■ Policy development includes developing evidence- based recommendations and other analyses of options, such as health policy analysis, to guide implementation, including efforts to educate and mobilize community partnerships.

■ Assurance includes governmental public health’s oversight responsibility for ensuring that key compo- nents of an effective health system, including health care and public health, are in place even though the implementation will often be performed by others.

The three core functions, while useful in provid- ing a delineation of responsibilities and an intellectual framework for the work of governmental public health

TABLE 5-1 10 Essential Public Health Services

Essential Service Meaning of Essential Service Examples

Core function: assessment

1. Monitor health status to identify and solve community health problems

This service includes accurate diagnosis of the community’s health status; identification of threats to health and assessment of health service needs; timely collection, analysis, and publication of information on access, utilization, costs, and outcomes of personal health services; attention to the vital statistics and health status of specific groups that are at a higher risk than the total population; and collaboration to manage integrated information systems with private providers and health benefit plans.

Vital statistics Health surveys Surveillance, including reportable diseases

2. Diagnose and investigate health problems and health hazards in the community

This service includes epidemiologic identification of emerging health threats; public health laboratory capability using modern technology to conduct rapid screening and high-volume testing; active communicable disease epidemiology programs; and technical capacity for epidemiologic investigation of disease outbreaks and patterns of chronic disease and injury.

Epidemic investigations CDC–Epidemic Intelligence Service State public health laboratories

Core function: policy development

3. Inform, educate, and empower people about health issues

This service includes social marketing and media communications; providing accessible health information resources at community levels; active collaboration with personal healthcare providers to reinforce health promotion messages and programs; and joint health education programs with schools, churches, and worksites.

Health education campaigns, such as comprehensive state tobacco programs

agencies, were not tangible enough to provide a clear understanding or definition of the work of public health agencies. Thus, in addition to the goals of public health, the Public Health in America statement defined a series of 10 essential public health services that build upon the IOM’s core functions, guide day-to-day responsibilities, and provide a mechanism for evaluating whether the core functions are fulfilled. These 10 services have come to define the responsibilities of the combined local, state, and federal governmental public health system.

▸ What Are the 10 Essential Public Health Services?

TABLE 5-1 outlines the 10 essential public health ser- vices and organizes them according to which IOM core function they aim to fulfill (CDC, 2018). A description of each service is presented in column 2, and exam- ples of these essential services are listed in column 3.

(continues)

 

 

84 Chapter 5 Public Health Institutions and Systems

Essential Service Meaning of Essential Service Examples

4. Mobilize community partnerships and action to identify and solve health problems

This service includes convening and facilitating community groups and associations, including those not typically considered to be health-related, in undertaking defined preventive, screening, rehabilitation, and support programs; and skilled coalition-building to draw upon the full range of potential human and material resources in the cause of community health.

Lead control programs: testing and follow-up of children, reduction of lead exposure, educational follow-up, and addressing underlying causes

5. Develop policies and plans that support individual and community health efforts

This service requires leadership development at all levels of public health; systematic community and state-level planning for health improvement in all jurisdictions; tracking of measurable health objectives as a part of continuous quality improvement strategies; joint evaluation with the medical/healthcare system to define consistent policy regarding prevention and treatment services; and development of codes, regulations, and legislation to guide public health practice.

Newborn screening and follow-up programs for PKU and other genetic and congenital diseases

Core function: assurance

6. Enforce laws and regulations that protect health and ensure safety

This service involves full enforcement of sanitary codes, especially in the food industry; full protection of drinking water supplies; enforcement of clean air standards; timely follow-up of hazards, preventable injuries, and exposure-related diseases identified in occupational and community settings; monitoring quality of medical services (e.g., laboratory, nursing home, home health care); and timely review of new drug, biologic, and medical device applications.

Local: Fluoridation and chlorination of water State: Regulation of nursing homes Federal: FDA drug approval and food safety

7. Link people to needed personal health services and ensure the provision of health care when otherwise unavailable

This service (often referred to as “outreach” or “enabling” services) includes ensuring effective entry for socially disadvantaged people into a coordinated system of clinical care; culturally and linguistically appropriate materials and staff to ensure linkage to services for special population groups; ongoing “care management”; and transportation.

Community health centers

8. Ensure the provision of a competent public and personal healthcare workforce

This service includes education and training for personnel to meet the needs of public and personal health services; efficient processes for licensure of professionals and certification of facilities with regular verification and inspection follow-up; adoption of continuous quality improvement and lifelong learning within all licensure and certification programs; active partnerships with professional training programs to ensure community-relevant learning experiences for all students; and continuing education in management and leadership development programs for those charged with administrative/ executive roles.

Licensure of physicians, nurses, and other health professionals

TABLE 5-1 10 Essential Public Health Services (continued)

 

 

What Are the Roles of Local and State Public Health Agencies? 85

Monitor Health

Evaluate

Assure Competent Workforce

Diagnose and

Investigate

Inform, Educate, Empower

Link to / Provide

Care

Enforce Laws

Develop Policies

Mobilize Community

Partnerships

ResearchResearch

A S

S U

R A

N C

E

ASSESSM

EN T

S ys

te m M

anagem en

t

POL ICY

D EV

EL

O P M

E N

T S

FIGURE 5-1 Essential Public Health Services and Institute of Medicine’s Core Functions Source: Centers for Disease Control and Prevention. (2017). The public health system & the 10 essential public health services. Retrieved from https://www.cdc.gov/stltpublichealth/publichealthservices/essentialhealthservices.html

Governmental Public Health

Agencies

Other Government

Agencies

Local

State

Federal

Global

Healthcare Delivery System

Community and Private Organizations

FIGURE 5-2 Framework for Viewing Governmental Public Health Agencies and Their Complicated Connections

FIGURE 5-1 then combines the core functions of pub- lic health with the essential services of public health agencies so that you can see the connections.

Public health services are delivered through a complex web of local and federal agencies, as well as through increasing involvement from global organi- zations. What follows is a description of the work of public health agencies at each of these levels.

FIGURE 5-2 provides a framework to guide our review of the delivery of public health services.

It  diagrams the central role of governmental public health agencies and the complicated connections required to accomplish their responsibilities. We begin by taking a look at the structure and function of governmental public health agencies at the local/ state, federal, and global levels. We then examine the key connections with other governmental agencies, community organizations, and private organiza- tions, and finally the connections with the healthcare delivery system.

▸ What Are the Roles of Local and State Public Health Agencies?

The U.S. Constitution does not mention public health. Because public health is not a delineated federal

9. Evaluate effectiveness, accessibility, and quality of personal and population- based health services

This service calls for ongoing evaluation of health programs, based on analysis of health status and service utilization data, to assess program effectiveness and to provide information necessary for allocating resources and reshaping programs.

Development of evidence-based recommendations

All three IOM core functions

10. Research for new insights and innovative solutions to health problems

This service includes continuous linkage with appropriate institutions of higher learning and research and an internal capacity to mount timely epidemiologic and economic analyses and conduct needed health services research.

NIH, CDC, AHRQ, other federal agencies

Abbreviations: Agency for Healthcare Research and Quality = AHRQ; Centers for Disease Control and Prevention = CDC; Food and Drug Administration = FDA; National Institutes of Health = NIH; phenylketonuria = PKU.

Source: Data from Public Health in America. Essential public health services. Retrieved from http://www.cdc.gov/nphpsp/ essentialservices.html. Accessed October 26, 2015.

 

 

86 Chapter 5 Public Health Institutions and Systems

BOX 5-2 Brief History of Public Health Agencies in the United States

An understanding of the history of U.S. public health institutions requires an understanding of the response of local, state, and federal governments to public health crises and the complex interactions among these levels of government.

The colonial period in the United States saw repeated epidemics of smallpox, cholera, and yellow fever, primarily focused in the port cities. These epidemics brought fear and disruption of commerce, along with accompanying disease and death. One epidemic in 1793 in Philadelphia, which was then the nation’s capital, nearly shut down the federal government. These early public health crises brought about the first municipal boards of health, made up of respected citizens authorized to act in the community’s interest to implement quarantine, evacuation, and other public health interventions of the day. The federal government’s early role in combating epidemics led to the establishment in 1798 of what later became known as the U.S. Public Health Service.

Major changes in public health occurred in the last half of the 1800s, with the great expansion of the understanding of disease and the ability to control it through community actions. The Shattuck Commission in Massachusetts in 1850 outlined the roles of state health departments as responsible for sanitary inspections, communicable disease control, food sanitation, vital statistics, and services for infants and children. Over the next 50 years, the states gradually took the lead in developing public health institutions based on delivery of these services.

Local health departments did not exist outside of the largest cities until the 1900s. The Rockefeller Foundation stimulated and helped fund early local health departments and campaigns, in part to combat specific diseases, such as hookworm. There was no standard model for local health departments; they developed in different ways in the various states and were chronically underfunded.

The federal government played a very small role in public health throughout the 1800s and well into the 20th century. However, an occasional public health crisis stimulated federal action, often as a result of media attention. The founding of the FDA in 1906 resulted in large part from the journalistic activity known as “muckraking,” which exposed the status of food and drug safety. The early years of the 1900s set the stage for expansion of the federal government’s role in public health through the passage of the 16th Amendment to the Constitution, which authorized federal income tax as a major source of federal government funding.

The Great Depression, in general, and the Social Security Act of 1935, in particular, brought about a new era in which federal funding became a major source of financial resources for state and local public health departments and NGOs. The founding of the CDC (which at that time stood for Communicable Disease Center) in 1946 led to a national (and eventually international) leadership role for the CDC, which attempts to connect and hold together the complex local, state, and federal public health efforts and integrate them into global public health efforts.

The Johnson administration’s War on Poverty, as well as the Medicare and Medicaid programs, brought about greatly expanded funding for healthcare services and led many health departments to provide direct healthcare services, especially for those without other sources of care. The late 1980s and 1990s saw a redefinition of the roles of governmental public health, including the IOM definition of core functions and the development of the 10 essential public health services. These documents have guided the development of a broad population focus for public health and a move away from the direct provision of healthcare services by health departments.

The terrorism of September 11, 2001, and the subsequent anthrax scare moved public health institutions to the center of efforts to protect the public’s health through emergency response and disaster preparedness. The development of flexible efforts to respond to expected and unexpected hazards is now a central feature of public health institutions’ roles and funding. The success of these efforts has led to new levels of coordination of local, state, federal, and global public health agencies using state-of-the-art surveillance, laboratory technology, and communications systems.

responsibility, it is an authority retained by the states. States may retain their authority, voluntarily request or accept help from the federal government, or delegate their responsibility and/or authority to local agencies at the city, county, or other local levels.b

BOX 5-2 briefly describes the history of public health agencies in the United States. It is a complex history and has resulted in more structures than there are states—more because large cities often have their own public health systems (Turnock, 2009). In addition, the District of Columbia and several U.S.

territories have their own systems and often have the authority to make public health system decisions as if they were states.

To understand the role of local health depart- ments, it is useful to think of two models (Turnock, 2007). In the first model, which we will call the “home rule” or “local autonomy” model, authority is dele- gated from the state to the local health department. The local health department, or the local government, has a great deal of autonomy in setting its own struc- ture and function and often raising its own funding.

 

 

What Are the Roles of Federal Public Health Agencies? 87

In the second model, which we will call the “branch office” model, the local health department can be viewed as a branch office of the state agency, with little or no independent authority or funding. There are several thousand local health departments across the country. The majority of these lie somewhere in between these two extreme models; however, these models provide a framework for understanding the many varieties of department structures. Thus, when we speak of local public health, we may be speaking of a state agency with branch offices or a relatively inde- pendent local agency. Regardless of which model a state uses, many public health responsibilities of local public health departments are quite similar, and they usually have authority and responsibility for at least the following (Turnock, 2007):

■ Immunizations for those individuals not covered by the private health insurance system

■ Communicable disease surveillance and initial investigation of outbreaks

■ Communicable disease control, often including at a minimum tuberculosis and syphilis case finding and treatment

■ Inspection and licensing of restaurants ■ Environmental health surveillance ■ Coordination of public health screening pro-

grams, including newborn and lead screenings ■ Tobacco control programs ■ Public health preparedness and response to disasters

Health departments in many parts of the United States also serve as the healthcare provider for those without other sources of health care. This function is generally referred to as the healthcare safety net. In recent years, many health departments have reduced or discontinued these services, often transferring them to the healthcare system or integrating their efforts into community health centers. The concept of core functions holds that while these activities can be performed by other organizations or agencies, the public health agencies retain responsibility for ensur- ing access to and the quality of these services.

The work of local public health agencies cannot be viewed in isolation. The state health department usu- ally retains important roles even in those states where the local departments have home rule authority. These responsibilities often include collecting vital statistics, running a public health laboratory, licensing health professionals, administering nutrition programs, and regulating health facilities, such as nursing homes. In addition, drinking water regulation, administration of the state Medicaid program, and the office of the med- ical examiner may also fall under the authority of the state health department.

The 2003 IOM report The Future of the Public’s Health in the 21st Century, in conjunction with the Futures Initiative of the CDC, initiated the establish- ment of a voluntary national accreditation program for state and local health departments to advance quality and performance in health departments. Through these efforts, the Public Health Accredita- tion Board was formed, and in early 2013, the first set of health departments achieved national accred- itation. The accreditation standards and measures address each of the 10 essential public health services to evaluate health department processes and services and their outcomes (Public Health Accreditation Board, 2013).

Today, the federal government has a great deal of involvement in national and global issues of public health and often works closely with local agencies. We now turn to a discussion of the structure and role of the federal government in public health.

▸ What Are the Roles of Federal Public Health Agencies?

The federal government’s role in public health does not explicitly appear in the U.S. Constitution. It has been justified largely by that document’s Interstate Commerce clause, which provides federal government authority to regulate commerce between the states. Federal public health authority often rests on the vol- untary acceptance by the states of funding provided by the federal government. The federal government may require that states take certain actions to qualify for the funding.

The Department of Health and Human Services (HHS) is the central public health agency of the fed- eral government. It includes operating agencies, each of which reports directly to the cabinet-level secretary of HHS. TABLE 5-2 outlines most of these agencies, their roles and authority, and their basic public health structure and activities (U.S. Department of Health and Human Services, 2017).

The NIH, one of the larger agencies within HHS, is devoted to basic science research and the translation of research into clinical practice. Some of the other federal health agencies, such as the Health Resources and Services Administration, the Substance Abuse and Mental Health Services Administration, and the Indian Health Service, provide or fund individually oriented health services in addition to population- oriented preventive services. The Indian Health Ser- vice is unique because it is responsible for both public health and healthcare services for a defined population.

 

 

88 Chapter 5 Public Health Institutions and Systems

The CDC is perhaps the agency most closely iden- tified with public health at the federal level. BOX  5-3 describes its first 50 years, from 1946 to 1996, in a reprint of its official history first published in the Morbidity and Mortality Weekly Report (MMWR),

TABLE 5-2 Key Federal Health Agencies of the Department of Health and Human Services

Agency Roles/Authority Examples of Structures/Activities

Centers for Disease Control and Prevention (CDC) and the Agency for Toxic Substances and Disease Registry (ATSDR)

The CDC is the lead agency for prevention, health data, epidemic investigation, and public health measures aimed at disease control and prevention. The CDC administers the ATSDR, which works with the Environmental Protection Agency to provide guidance on health hazards of toxic exposures.

The CDC and ATSDR work extensively with state and local health departments.

The CDC’s Epidemic Intelligence Service functions domestically and internationally at the request of governments.

National Institutes of Health (NIH)

Serves as lead research agency; also funds training programs and communication of health information to the professional community and the public.

NIH comprises 17 institutes in all—the largest being the National Cancer Institute. The National Library of Medicine is part of NIH Centers, which also include the John E. Fogarty International Center for Advanced Study in the Health Sciences. NIH is the world’s largest biomedical research enterprise, with intramural research at NIH and extramural research grants throughout the world.

Food and Drug Administration (FDA)

Acts as consumer protection agency with authority for safety of foods and safety and efficacy of drugs, vaccines, and other medical and public health interventions.

Divisions of FDA are responsible for food safety, medical devices, drug efficacy, and safety pre- and post-approval.

Health Resources and Services Administration (HRSA)

Seeks to ensure equitable access to comprehensive quality health care.

HRSA funds community health centers, HIV/AIDS services, and scholarships for health professional students.

Agency for Healthcare Research and Quality (AHRQ)

Sets research agenda to improve the outcomes and quality of health care, including patient safety and access to services.

AHRQ supports U.S. Preventive Services Task Force, evidence-based medicine research, and Guidelines Clearinghouse.

Substance Abuse and Mental Health Services Administration (SAMHSA)

Works to improve quality and availability of prevention, treatment, and rehabilitation for substance abuse and mental illness.

SAMHSA provides research, data collection, and funding of local services.

Indian Health Service (IHS)

Provides direct health care and public health services to federally recognized tribes.

IHS provides services to approximately 550 federally recognized tribes in 35 states. It is the only comprehensive federal agency responsibility for health care plus public health services.

a weekly publication of the agency (CDC, 1996). Today, the CDC is a global partner in conducting research and epidemiologic investigations in addition to working closely with states to monitor and pre- vent disease through health surveillance, taking an

 

 

What Are the Roles of Federal Public Health Agencies? 89

Source: Reproduced from Centers for Disease Control and Prevention, MMWR 1996;45: 526–528.

BOX 5-3 History of the CDC

The following is reprinted as it originally appeared in 1996 in the Morbidity and Mortality Weekly Report (CDC, 1996):

The Communicable Disease Center was organized in Atlanta, Georgia, on July 1, 1946; its founder, Dr. Joseph W. Mountin, was a visionary public health leader who had high hopes for this small and comparatively insignificant branch of the Public Health Service (PHS). It occupied only one floor of the Volunteer Building on Peachtree Street and had fewer than 400 employees, most of whom were engineers and entomologists. Until the previous day, they had worked for Malaria Control in War Areas, the predecessor of CDC, which had successfully kept the southeastern states malaria-free during World War II and, for approximately 1 year, from murine typhus fever. The new institution would expand its interests to include all communicable diseases and would be the servant of the states, providing practical help whenever called.

Distinguished scientists soon filled CDC’s laboratories, and many states and foreign countries sent their public health staffs to Atlanta for training. Medical epidemiologists were scarce, and it was not until 1949 that Dr. Alexander Langmuir arrived to head the epidemiology branch. Within months, he launched the first-ever disease surveillance program, which confirmed his suspicion that malaria, on which CDC spent the largest portion of its budget, had long since disappeared. Subsequently, disease surveillance became the cornerstone on which CDC’s mission of service to the states was built and, in time, changed the practice of public health.

The outbreak of the Korean War in 1950 was the impetus for creating CDC’s Epidemic Intelligence Service (EIS). The threat of biological warfare loomed, and Dr. Langmuir, the most knowledgeable person in PHS about this then- arcane subject, saw an opportunity to train epidemiologists who would guard against ordinary threats to public health while watching out for alien germs. The first class of EIS officers arrived in Atlanta for training in 1951 and pledged to go wherever they were called for the next 2 years. These “disease detectives” quickly gained fame for “shoe-leather epidemiology,” through which they ferreted out the cause of disease outbreaks.

The survival of CDC as an institution was not at all certain in the 1950s. In 1947, Emory University gave land on Clifton Road for a headquarters, but construction did not begin for more than a decade. PHS was so intent on research and the rapid growth of the National Institutes of Health that it showed little interest in what happened in Atlanta. Congress, despite the long delay in appropriating money for new buildings, was much more receptive to CDC’s pleas for support than either PHS or the Bureau of the Budget.

Two major health crises in the mid-1950s established CDC’s credibility and ensured its survival. In 1955, when poliomyelitis appeared in children who had received the recently approved Salk vaccine, the national inoculation program was stopped. The cases were traced to contaminated vaccine from a laboratory in California; the problem was corrected, and the inoculation program, at least for first and second graders, was resumed. The resistance of these 6- and 7-year-olds to polio, compared with that of older children, proved the effectiveness of the vaccine. Two years later, surveillance was used again to trace the course of a massive influenza epidemic. From the data gathered in 1957 and subsequent years, the national guidelines for influenza vaccine were developed.

CDC grew by acquisition. When CDC joined the international malaria-eradication program and accepted responsibility for protecting the earth from moon germs and vice versa, CDC’s mission stretched overseas and into space.

CDC then played a key role in one of the greatest triumphs of public health: the eradication of smallpox. In 1962 it established a smallpox surveillance unit, and a year later tested a newly developed jet gun and vaccine in the Pacific island nation of Tonga. CDC also achieved notable success at home tracking new and mysterious disease outbreaks. In the mid- 1970s and early 1980s, it found the cause of Legionnaires disease and toxic-shock syndrome. A fatal disease, subsequently named acquired immunodeficiency syndrome (AIDS), was first mentioned in the June 5, 1981, issue of MMWR.

Although CDC succeeded more often than it failed, it did not escape criticism. For example, television and press reports about the Tuskegee study on long-term effects of untreated syphilis in black men created a storm of protest in 1972. This study had been initiated by PHS and other organizations in 1932 and was transferred to CDC in 1957. Although the effectiveness of penicillin as a therapy for syphilis had been established during the late 1940s, participants in this study remained untreated until the study was brought to public attention. CDC was also criticized because of the 1976 effort to vaccinate the U.S. population against swine flu, the infamous killer of 1918–1919. When some recipients of the vaccines developed Guillain-Barre syndrome, the campaign was stopped immediately; the epidemic never occurred.

As the scope of CDC’s activities expanded far beyond communicable diseases, its name had to be changed. In 1970 it became the Center for Disease Control and in 1981, after extensive reorganization, Center became Centers. The words “and Prevention” were added in 1992 but, by law, the well-known three-letter acronym was retained. In health emergencies, CDC means an answer to SOS calls from anywhere in the world, such as the recent one from Zaire where Ebola fever raged.

Fifty years ago, CDC’s agenda was non-controversial (hardly anyone objected to the pursuit of germs), and Atlanta was a backwater. In 1996, CDC’s programs are often tied to economic, political, and social issues, and Atlanta is as near to Washington as the tap of a keyboard.

 

 

90 Chapter 5 Public Health Institutions and Systems

action-oriented approach to disease prevention, and maintaining health statistics through the National Center for Health Statistics, which has been a part of the CDC since 1987.

The CDC’s role in connecting federal, state, and local governmental public health efforts is central to the success of the system. Approximately half of the CDC’s over $10 billion total budget is channeled to state and local health departments. A key function of the CDC is to provide national leadership and to coordinate the efforts of local/state and federal public health agencies.

To understand the local/state and federal pub- lic health system, it is important to appreciate that less than 5% of all health-related expenditures in the United States goes to governmental public health agencies, and of that, less than half goes to population-based prevention (as opposed to pro- viding safety net healthcare services to individuals). In addition, the role of governmental public health is limited by social attitudes toward government. For instance, there are constitutional limitations on the authority of public health and other government agencies to impose actions on individuals. These may limit public health agencies’ abilities to address issues ranging from tuberculosis and HIV control to responses to emergencies.

The social attitudes of Americans may also limit the authority and resources provided to public health agencies. Americans often favor individual or private efforts over governmental interventions when they believe that individuals and private organizations

are capable of success. For instance, some Americans resist active efforts in schools to provide information and access to contraceptives, while others resist the type of case-finding efforts for HIV/AIDS that have been used successfully in investigating and controlling other communicable diseases.

Today, governmental public health is a global enterprise. As a result, we now turn to a discussion of the roles of global health organizations and agencies.

▸ What Are the Roles of Global Health Organizations and Agencies?

Public health is increasingly becoming a global undertaking. Global governmental efforts have grown dramatically in recent years. The World Health Orga- nization (WHO), created in 1948, has become decid- edly more prominent in the 2000s with the increasing importance of global health issues. WHO is a part of the United Nations organizations, which also include the United Nations International Children’s Emer- gency Fund (UNICEF) and the Joint United Nations Programme on HIV/AIDS (UNAIDS).

Today, the World Bank and other multilateral financial institutions are the largest funding source for global health efforts (World Bank, 2018). National governmental aid programs, including the U.S. Agency for International Development (USAID), also play an important role in public health. TABLE 5-3 outlines the

TABLE 5-3 Global Public Health Organizations

Type of Agency Structure/Governance Role(s) Limitations

World Health Organization

United Nations Organization Seven “regional” semi- independent components (e.g., Pan American Health Organization covers North and South America)

Policy development (e.g., tobacco treaty, epidemic control policies) Coordination of services (e.g., SARS control) Vaccine development Data collection and standardization (e.g., measures of healthcare quality, measures of health status)

Limited ability to enforce global recommendations, limited funding, and complex international administration

Other UN agencies with focused agenda

UNICEF UNAIDS

Focus on childhood vaccinations Focus on AIDS

Limited agendas and limited financing

 

 

What Other Government Agencies Are Involved in Health Issues? 91

structure/governance, roles, and limitations of global public health agencies.

The complexity of local, state, federal, and global public health agencies raises the question of whether these agencies can and do work together. It should not surprise you that close collaboration, while the goal, is often difficult to achieve with so many organizations involved. Thus, it is important to ask: How can public health agencies work together?

▸ How Can Public Health Agencies Work Together?

Coordination among just local, state, and federal pub- lic health agencies has been a major challenge. Increas- ingly, coordination also requires a global aspect. Efforts toward efficient collaboration, on all levels, have a long way to go. There are signs of hope with progress in such fields as tobacco control, food safety, and the response to severe acute respiratory syndrome (SARS). BOX 5-4 discusses the dramatic events of the 2003 SARS epi- demic, providing an example of what can be done and what needs to be done to address future public health emergencies (Duffin & Sweetman, 2006).

Collaboration needs to be an everyday effort, not just a requirement for emergencies or epidemics. Let us look at the relationships and needed collaboration among governmental public health and other gov- ernmental agencies, NGOs, and the healthcare deliv- ery system.

▸ What Other Government Agencies Are Involved in Health Issues?

To address the full range of issues that affect population health, it is important to recognize the important roles that government agencies not designated as health agencies play in public health. Such agencies exist at the local/state, federal, and global levels. To illustrate the involvement of these agencies in health issues, let us begin with the roles of non-health agencies at the federal level.

A number of federal agencies serve public health functions even though they are not defined as health agencies. The roles they play are important, especially when we take the population health perspective, which includes the totality of efforts to promote and protect health and prevent disease, disability, and death.

Environmental health issues are an important part of the role of the Environmental Protection Agency. Reduc- ing injury and hazardous exposures in the workplace are key goals of the Occupational Safety and Health Admin- istration, which is part of the Department of Labor.

Protecting health as part of preparation and response to disasters and terrorism is central to the role of the Department of Homeland Security. The Depart- ment of Agriculture shares with the FDA the role of protecting the nation’s food supply. The Department of Housing and Urban Development influences the built environment and its impacts on health. The  Depart- ment of Energy plays important roles in setting

International financing organizations

The World Bank Other multilateral regional banks (e.g., InterAmerican and Asian Development Banks)

World Bank is largest international funder. Increasingly supports “human capital” projects and reform of healthcare delivery systems and population and nutrition efforts Provides funding and technical assistance, primarily as loans

Criticized for standardized approach with few local modifications

Bilateral governmental aid organizations

USAID Many other developed countries have their own organizations and contribute a higher percentage of their gross domestic product to those agencies than does the United States

Often focused on specific countries and specific types of programs (e.g., the focus on HIV/AIDS in the United States), and maternal and child health

May be tied to domestic politics and global economic, political, or military agendas

Abbreviations: AIDS = acquired immunodeficiency syndrome; HIV = human immunodeficiency virus; SARS = severe acute respiratory syndrome; UN = United Nations; UNAIDS = Joint United Nations Programme on HIV/AIDS; UNICEF = United Nations International Children’s Emergency Fund; USAID = U.S. Agency for International Development.

 

 

92 Chapter 5 Public Health Institutions and Systems

BOX 5-4 SARS and the Public Health Response

The SARS epidemic of 2003 began with little notice, most likely somewhere in the heartland of China, and then spread to other areas of Asia. The world took notice following televised reports of public health researchers who were sent to Asia to investigate the illness subsequently contracting and dying from the disease. Not an easily transmissible disease except for between those in very close contact, such as investigators, family members, and healthcare providers, the disease spread slowly but steadily through areas of China. Among those infected, the case-fatality rate was very high, especially without the benefits of modern intensive care facilities.

The disease did not respond to antibiotics and was thought to be a viral disease by its epidemiologic pattern of spread and transmission, but at first, no cause was known. The outside world soon felt the impact of the brewing epidemic when cases appeared in Hong Kong that could be traced to a traveler from mainland China. Fear spread when cases were recognized that could not be explained by close personal contact with a SARS victim.

The epidemic continued to spread, jumping thousands of miles to Toronto, Canada, where the second-greatest concentration of disease appeared. Soon, the whole world was on high alert, if not quite on the verge of panic. At least 8,000 people worldwide became sick, and nearly 10% of them died. Fortunately, progress came quite quickly. Researchers coordinated by WHO were able to put together the epidemiologic information and laboratory data and establish a presumed cause—a new form of the coronavirus never before seen in humans—leading to the rapid introduction of testing.

WHO and the CDC put forth recommendations for isolation, travel restrictions, and intensive monitoring that rapidly controlled the disease, even in the absence of an effective treatment aimed at a cure. SARS disappeared as rapidly as it emerged, especially after systematic efforts to control spread were put in place in China. Not eliminated, but no longer a worldwide threat, SARS left a lasting global impact. WHO established new approaches for reporting and responding to epidemics, which now have the widespread formal acceptance of most governments.

Once the world could step back and evaluate what happened, it was recognized that the potential burden of disease posed by the SARS epidemic had worldwide implications and raised the threat of interruption of travel and trade. Local, national, and global public health agencies collaborated quickly and effectively. Infection control recommendations made at the global level were rapidly translated into efforts to identify disease at the local level and manage individual patients in hospitals throughout the world. It is a model of communicable disease control that will be needed in the future.

groups organizing to advocate for public health causes, delivering public health services, and providing fund- ing to support public health efforts. In recent years, these efforts have been expanding globally as well.

The American Red Cross and its network of interna- tional affiliates represent a major international effort to provide public health services. The organization plays a central role in obtaining volunteers for blood donations and ensuring the safety and effectiveness of the U.S. and world supply of blood products in collaboration with the FDA. The ability of the Red Cross to obtain dona- tions, mobilize volunteers, and publicize the need for disaster assistance has allowed it to play a central role in providing lifesaving public health services.

Many private organizations provide public health education, support research, develop evidence-based recommendations, and provide other public health services. Many of these organizations are organized around specific diseases or types of disease, such as the American Cancer Association, the American Heart Association, the American Lung Association, and the March of Dimes, which today focuses on birth defects. Other private organizations focus primarily on advo- cacy for individuals with specific diseases, but these organizations also may advocate for specific public health interventions. For instance, Mothers Against Drunk Driving has had a major impact on the passage

radiation safety standards for nuclear power plants and other sources of energy.

When multiple federal agencies are involved in health-related matters, coordination and collabora- tion are required across agencies. This interaction is certainly important when it comes to food safety and disaster planning and response. It is also key for efforts to address problems that cut across agencies, such as childhood lead exposure or efforts to reduce the envi- ronmental causes of asthma.

The collaboration needed to address complex public health issues lends itself to a “health in all pol- icies” approach, which acknowledges that the variety of influences impacting population health are outside the control of the health sector. Collaborative efforts are not restricted to governmental agencies. We will now explore the roles of NGOs in public health.

▸ What Roles Do NGOs Play in Public Health?

Nongovernmental Organizations NGOs play increasingly important roles in public health in the United States and around the world. In the United States, there is a long tradition of private

 

 

93How Can Public Health Agencies Partner With Health Care?

BOX 5-5 National Vaccine Plan

In 1994, a National Vaccine Plan was developed as part of a coordinated effort to accomplish the following goals:

1. Develop new and improved vaccines. 2. Ensure the optimal safety and effectiveness of vaccines and immunizations. 3. Better educate the public and members of the health profession on the benefits and risks of immunizations.

A recent IOM report evaluated progress since 1994 on achieving these goals and made recommendations for the development of a revised National Vaccine Plan (IOM, 2008). The IOM highlighted a number of successes since 1994 in achieving each of the goals of the plan. These successes illustrate the potential for improved collaboration between public health systems and healthcare systems.

In terms of the development of new and improved vaccines since 1994, over 20 new vaccine products resulting from the collaborative efforts of the NIH, academicians, and industry researchers were approved by the FDA. Novel vaccines introduced include vaccines against pediatric pneumococcal disease, meningococcal disease, and the human papillomavirus—a cause of cervical cancer.

In terms of safety, vaccines and vaccination approaches with improved safety have been developed since 1994, including those directed against rotavirus, pertussis (whooping cough), and polio. The FDA Center for Biologics Evaluation and Research, which regulates vaccines, now has an expanded array of regulatory tools to facilitate the review and approval of safe and efficacious vaccines. The FDA and the CDC have collaborated on surveillance for and evaluation of adverse events. Efforts have also been made to increase collaboration with the Centers for Medicare and Medicaid Services, the Department of Defense, and the Department of Veterans Affairs to improve surveillance and reporting of adverse events following immunization in the adult populations these agencies serve.

In terms of better education of health professionals and the public, progress has also been made. The American Academy of Pediatrics collaborates with the CDC for its childhood immunization support. The American Medical

(continues)

and enforcement of drunk-driving laws. HIV/AIDS advocacy groups have influenced policies on confi- dentiality, funding, and public education.

Globally, NGOs increasingly play a key role in providing services and advocating for public health policies. CARE and Oxfam International are exam- ples of the types of organizations involved in global health-related crises. Physician groups, including Physicians for Social Responsibility and Doctors Without Borders, have been active in advocating for public health efforts, seeking funding for public health needs, and addressing the ethical implementation of public health programs.

New combinations of governmental and NGOs are increasingly developing to fill in the gaps. At the global level, the Global Fund to Fight AIDS, Tuber- culosis, and Malaria, which is a public–private effort, provides funding for evidence-based interventions to address these diseases. It is funded not only by govern- ments, but also by private foundations, such as the Bill and Melinda Gates Foundation.

Private foundations have long played major roles in both funding public health efforts and stimulating governmental funding. The Rockefeller Foundation’s efforts were instrumental in developing local health departments and initiating schools of public health in the United States during the early years of the 1900s. The Kellogg Foundation, the Robert Wood Johnson Foun- dation, and most recently the Gates Foundation have

all played key roles in advancing public health efforts in areas ranging from nutrition to tobacco control to the advancement of new public health technologies.

Foundation funding has been the catalyst in initi- ating new funding efforts and sustaining those that are not adequately funded by governments. They cannot be expected, however, to provide long-term support for basic public health services. Thus, additional strat- egies are required. One key strategy is to link public health efforts with the efforts of healthcare profession- als and the healthcare system.

▸ How Can Public Health Agencies Partner With Health Care to Improve the Response to Health Problems?

Clinicians and public health professionals increasingly share a common commitment to evidence-based think- ing, cost-effective delivery of services, and computerized and confidential data systems. They also increasingly share a commitment to provide quality services to the entire population and eliminate health disparities. The potential for successful collaboration between public health and health care is illustrated by the National Vac- cine Plan, which is discussed in BOX 5-5 (IOM, 2008).

 

 

94 Chapter 5 Public Health Institutions and Systems

Association cosponsors the annual National Influenza Vaccine Summit, a group that represents 100 public and private organizations interested in preventing influenza.

Despite the growing collaboration and success in vaccine development and use, new issues have appeared in recent years. Vaccines are now correctly viewed by health professionals and the broader public as having both benefits and harms. In recent years, the public has grown more concerned about the safety of vaccines, including the issue of the use of large numbers of vaccines in children. The limitations of vaccines to address problems, such as HIV/AIDS, have also been increasingly recognized. Hopefully, the continued efforts to develop and implement national vaccine plans will build upon these recent successes and address the new realities and opportunities.

BOX 5-5 National Vaccine Plan

BOX 5-6 Community-Oriented Primary Care

Community-oriented primary care (COPC) is a structured effort to expand the delivery of health services from a focus on the individual to include an additional focus on the needs of communities. Serving the needs of communities brings healthcare and public health efforts together. COPC can be seen as an effort on the part of healthcare delivery sites, such as community health centers, to reach out to their community and to governmental public health institutions.

TABLE 5-4 outlines the six steps in the COPC process and presents a question to ask when addressing each of these steps. Notice the parallels between COPC and the evidence-based approach. A series of principles underlies COPC:

■ Healthcare needs are defined by examining the community as a whole, not just those who seek care. ■ Needed healthcare services are provided to everyone within a defined population or community. ■ Preventive, curative, and rehabilitative care are integrated within a coordinated delivery system. ■ Members of the community directly participate in all stages of the COPC process.

The concept of COPC, if not the specific structure, has been widely accepted as an approach for connecting the organized delivery of primary health care with public health. It implies that public health issues can and should be addressed, when possible, at the level of the community with the involvement of healthcare providers and the community members themselves.

TABLE 5-4 The Six Sequential Steps of Community-Oriented Primary Care

Steps in the COPC Process Questions to Ask

1. Community definition

How is the community defined based on geography, institutional affiliation, or other common characteristics (e.g., use of an Internet site)?

2. Community characterization

What are the demographic and health characteristics of the community, and what are its health issues?

3. Prioritization What are the most important health issues facing the community, and how should they be prioritized based on objective data and perceived need?

4. Detailed assessment of the selected health problem

What are the most effective and efficient interventions for addressing the selected health problem based on an evidence-based assessment?

5. Intervention What strategies will be used to implement the intervention?

6. Evaluation How can the success of the intervention be evaluated?

Data from Mullan, F., & Epstein, L. (2002). Community-oriented primary care: New relevance in a changing world. American Journal of Public Health, 92(11), 1748–1755.

(continued)

 

 

95How Can Public Health Take the Lead in Mobilizing Community Partnerships?

BOX 5-7 Child Oral Health and Community-Oriented Public Health

The problem of childhood dental disease illustrates the potential for COPH. A lack of regular dental care remains a major problem for children in developed, as well as developing, countries. Oral health is often high on the agenda of parents, teachers, and even the children themselves.

The history of public health interventions in childhood oral health is a story of great hope and partial success. Public health efforts to improve oral health go back to the late 1800s and early 1900s, when toothbrushes and toothpaste were new and improved technologies. The public health campaigns of the early 1900s were very instrumental in making

(continues)

In the mid-1990s, the Medicine–Public Health Initiative was implemented to investigate better ways to connect public health with medicine, in particu- lar, and health care, in general. Connecting these two fields has not always been easy or yielded successful results. Additional structures are needed to formalize effective and efficient bonds. Models do exist and new ideas are being put forth to connect clinical care and public health. BOX 5-6 discusses one such model, called community-oriented primary care (COPC) (Gofin & Gofin, 2011).

Despite efforts in the healthcare system to reach out to the community and address public health issues (such as COPC), it remains the pri- mary responsibility of governmental public health to organize and mobilize community-based efforts. Working with NGOs and healthcare professionals and organizations is imperative to effectively and efficiently accomplish the goals of public health. But how exactly can public health agencies accomplish these goals?

▸ How Can Public Health Take the Lead in Mobilizing Community Partnerships to Identify and Solve Health Problems?

An essential service of public health is the mobiliza- tion of community partnerships and action to iden- tify and solve health problems. These efforts by public health agencies are critical to putting the pieces of the health system together to protect and promote health and prevent disability and death.

Increasingly, community members themselves are becoming active participants in addressing health and disease in their communities. One approach

to engage community members in the process is through community-based participatory research (CBPR). Through CBPR, community members are involved in all phases of the research process, con- tributing their expertise while sharing ownership and responsibility over the research, and assisting to build trust, knowledge, and skill to facilitate the research and development and implementation of interventions.

Examples of successful collaboration include state tobacco control programs that have been led by public health agencies but rely heavily on NGOs, healthcare professionals, and other governmental agencies. These efforts have substantially reduced statewide cigarette smoking rates.

Efforts to organize coordinated programs for lead control have also been met with success. Collabora- tive efforts between public health and health care have identified and treated children with elevated lead levels. Cooperation with other agencies has provided for the removal of lead paint from homes and testing and control of lead in playgrounds, water, and, most recently, toys.

It is possible to view the coordinated mobilization of public and private efforts as community-oriented public health (COPH). We can see this as a parallel to COPC. In COPC, healthcare efforts are expanded to take on additional public health roles. In COPH, public health efforts are expanded to collaborate with healthcare delivery institutions, as well as other com- munity and other governmental efforts. Child oral health, an example of COPH, is illustrated in BOX 5-7.

Developing community partnerships is a time- consuming and highly political process that requires great leadership and diplomatic skills. Central author- ity and command and control approaches are generally not effective in the complex organizational structures of the United States. New approaches and new strat- egies are needed to bring together the organizations and individuals who can get the job done.

 

 

96 Chapter 5 Public Health Institutions and Systems

BOX 5-7 Child Oral Health and Community-Oriented Public Health (continued)

toothbrushing a routine part of life in the United States. Unfortunately, the fluoridization of drinking water, despite the well-grounded evidence of its benefits, has not been so readily accepted. The American Dental Association and the American Medical Association have supported this intervention for over half a century. Resistance from those who view it as an intrusion of governmental authority, however, has prevented universal use of fluoridation in this country. After over a half century of effort, fluoridation has reached less than 66% of Americans through the water supply.

Today, new technologies, from dental sealants to more cost-effective methods for treating cavities, have again made oral health a public health priority. However, the number of dentists has not grown in recent years to keep up with the growing population. In addition, dental care for those without the resources to pay for it is often inadequate and inaccessible. Thus, a new approach is needed to bring dental care to those in need. Perhaps a new strategy using a COPH approach can make this happen.

COPH can reach beyond the institutional and geographical constraints that COPC faces when based in a community health center or other institutions serving a geographically defined population or community. COPH as a government- led effort allows a greater range of options for intervention, including those that require changes in laws, incentives, and governmental procedures. Interventions may include authorizing new types of clinicians, providing services in nontraditional settings such as schools, funding innovations to put new technologies into practice, and addressing the regulatory barriers to rapid and cost-effective delivery of services.

▸ Conclusion In summary, the chapter offered a look at the orga- nization of the public health system and the chal- lenges it faces in accomplishing its core functions

and providing its essential services. The role of public health will continue to evolve as current and emerging issues impact the health of the population.

References Centers for Disease Control and Prevention. (1996). History

of CDC. Morbidity and Mortality Weekly Report, 45(25), 526–530.

Centers for Disease Control and Prevention & Centers for State, Tribal, Local, and Territorial Support. (2018). Public health professionals gateway: The public health system and the 10 essential public health services. Retrieved from https://www.cdc.gov/stltpublichealth/publichealthservices /essentialhealthservices.html

Duffin, J., & Sweetman, A. (2006). SARS in context: Memory, history, policy. Montreal, Canada: McGill-Queen’s University Press.

Gofin, J., & Gofin, R. (2011). Essentials of global community health. Sudbury, MA: Jones and Bartlett Learning.

Institute of Medicine. (1988). The future of public health. Washington, DC: National Academies Press.

Institute of Medicine. (2008). Initial guidance for an update of the National Vaccine Plan: A letter report to the national vaccine program office. Washington, DC: National Academies Press.

Public Health Accreditation Board. (2013). Standards and measures. Retrieved from http://www.phaboard.org/accreditation-process /public-health-department-standards-and-measures

Turnock, B. J. (2007). Essentials of public health. Burlington, MA: Jones and Bartlett Learning.

Turnock, B. J. (2009). Public health: What it is and how it works (4th ed.). Burlington, MA: Jones and Bartlett Learning.

U.S. Department of Health and Human Services. (2017). HHS organizational chart. Retrieved from http://www.hhs.gov /about/orgchart

World Bank. (2018). Health. Retrieved from http://www .worldbank.org/en/topic/health

▸ Endnotes a. This does not imply that components of the

work cannot be contracted to nongovernmen- tal organizations. This activity is increasingly occurring. The concept of core function, how- ever, implies that public health agencies remain responsible for these functions even when the

day-to-day work is conducted through con- tracts with an outside organization.

b. This delegation may occur at the discretion of the state government or it may be included in the state’s constitution, providing what is called home rule authority to local jurisdictions. In general, jurisdictions with home rule author- ity exercise substantially more autonomy.

 

 

97PART I ADDENDUM: TIMELINE

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th e

la te

17

00 s

to p

ro vi

d e

m ed

ic at

io n

to th

e p

oo r;

A lm

sh ou

se s

se rv

e as

p rim

iti ve

h os

p ita

ls , p

ro vi

d in

g li

m ite

d c

ar e

to th

e in

d ig

en t;

Pu b

lic h

ea lth

fo cu

se s

on fi

g ht

in g

p la

g ue

, c ho

le ra

, a nd

sm

al lp

ox e

p id

em ic

s, of

te n

th ro

ug h

qu ar

an tin

e.

 

 

98 PART I ADDENDUM: TIMELINE

18 30

s 18

40 s

18 50

s

Po lit

ic al

P ar

ty in

P o

w er

— Fe

d er

al G

o ve

rn m

en t

Pr es

id en

t D

em oc

ra t (

18 29

–1 84

1) W

h ig

(1 84

1– 18

45 );

D em

oc ra

t ( 18

45 –1

84 9)

; W h

ig (1

84 9–

18 53

); D

em oc

ra t (

18 53

–1 86

1)

A n

d re

w J

ac ks

on (1

82 9–

18 37

); M

ar tin

V an

B ur

en

(1 83

7– 18

41 )

W ill

ia m

H en

ry H

ar ris

on (1

84 1)

; Jo

h n

T yl

er (1

84 1–

18 45

); Ja

m es

K .

Po lk

(1 84

5– 18

49 );

Z ac

h ar

y Ta

yl or

(1

84 9–

18 50

)

M ill

ar d

F ill

m or

e (1

85 0–

18 53

); Fr

an kl

in P

ie rc

e (1

85 3–

18 57

); Ja

m es

B uc

h an

an (1

85 7–

18 61

)

U .S

. H ou

se o

f Re

p re

se n

ta tiv

es Ja

ck so

n s

(1 82

9– 18

37 );

D em

oc ra

t ( 18

37 –1

84 1)

U .S

. S en

at e

A n

ti- Ja

ck so

n ia

n (1

83 3–

18 35

); Ja

ck so

n ia

n

(1 83

5– 18

37 );

D em

oc ra

t ( 18

37 –1

84 1)

W h

ig (1

84 1–

18 45

) ( 27

th –2

8t h

); D

em oc

ra t (

18 45

–1 86

1) (2

9t h

–3 6t

h )

M aj

o r

So ci

al a

n d

P o

lit ic

al

Ev en

ts In

d u

st ri

al R

ev o

lu ti

o n

(~ 17

90 –1

86 0)

a n

d in

cr ea

se d

u rb

an iz

at io

n

U .S

.– M

ex ic

an W

ar (1

84 6–

18 48

) C

ri m

ea n

W ar

(1 85

3– 18

56 )

K ey

F ed

er al

L eg

is la

ti ve

P

ro p

o sa

ls /L

aw s

an d

K ey

Le

g al

D ec

is io

n s

18 48

Im p

o rt

D ru

g A

ct : I

n iti

at es

d

ru g

re g

ul at

io n

; U .S

. C us

to m

s Se

rv ic

e is

re q

ui re

d to

e n

fo rc

e p

ur ity

s ta

n d

ar d

s fo

r i m

p or

te d

m ed

ic at

io n

s.

Im p

o rt

an t

D ev

el o

p m

en ts

in

H ea

lt h

a n

d M

ed ic

in e

18 46

F irs

t p ub

lic iz

ed u

se o

f g en

er al

an

es th

et ic

; U se

o f a

n es

th et

ic s

in cr

ea se

s th

e n

um b

er o

f s ur

g er

ie s

p er

fo rm

ed ; 1

84 7

A m

er ic

an M

ed ic

al

A ss

oc ia

tio n

(A M

A ) i

s fo

un d

ed .

St ud

ie s

b y

Ed w

in C

h ad

w ic

k in

E n

g la

n d,

L em

ue l

Sh at

tu ck

in M

as sa

ch us

et ts

, a n

d o

th er

s re

ve al

th at

ov

er cr

ow d

ed a

n d

u n

sa n

ita ry

c on

d iti

on s

b re

ed

d is

ea se

, a n

d a

d vo

ca te

e st

ab lis

h m

en t o

f l oc

al h

ea lth

b

oa rd

s; B

y th

e en

d o

f t h

e 18

00 s,

4 0

st at

es a

n d

se

ve ra

l l oc

al iti

es e

st ab

lis h

h ea

lth d

ep ar

tm en

ts .

 

 

99PART I ADDENDUM: TIMELINE

18 60

s 18

70 s

18 80

s

Po lit

ic al

P ar

ty in

Po

w er

— Fe

d er

al

G o

ve rn

m en

t

Pr es

id en

t Re

p ub

lic an

; D em

oc ra

t Re

p ub

lic an

Re p

ub lic

an (1

88 1–

18 85

); D

em oc

ra t (

18 85

–1 88

9)

A b

ra h

am L

in co

ln (1

86 1–

18 65

); A

n d

re w

J oh

n so

n

(1 86

5– 18

69 )

U ly

ss es

S . G

ra n

t ( 18

69 –1

87 7)

; Ru

th er

fo rd

B . H

ay es

(1 87

7– 18

81 )

Ja m

es A

. G ar

fie ld

(1 88

1) ; C

h es

te r A

. A rt

h ur

(1 88

1– 18

85 );

G ro

ve r C

le ve

la n

d (1

88 5–

18 89

)

U .S

. H ou

se o

f Re

p re

se n

ta tiv

es Re

p ub

lic an

(1 85

9– 18

75 )

D em

oc ra

t ( 18

75 –1

88 1)

Re p

ub lic

an (1

88 1–

18 83

); D

em oc

ra t (

18 83

–1 88

9)

U .S

. S en

at e

Re p

ub lic

an (1

86 1–

18 79

) ( 37

th –4

5t h

) D

em oc

ra t (

18 79

–1 88

1) (4

6t h

) Re

p ub

lic an

(1 88

1– 18

93 ) (

47 th

–5 2n

d )

M aj

o r

So ci

al a

n d

Po

lit ic

al E

ve n

ts In

d u

st ri

al R

ev o

lu ti

o n

(~ 17

90 –1

86 0)

a n

d

in cr

ea se

d u

rb an

iz at

io n

U .S

. C iv

il W

ar (1

86 1–

18 65

) a n

d p

os t-

w ar

ex

p an

si on

in in

te rs

ta te

c om

m er

ce U

.S .–

M ex

ic an

W ar

(1 84

6– 18

48 )

C ri

m ea

n W

ar (1

85 3–

18 56

)

K ey

F ed

er al

Le

g is

la ti

ve

P ro

p o

sa ls

/L aw

s an

d

K ey

L eg

al D

ec is

io n

s

18 62

B u

re au

o f C

h em

is tr

y (fo

re ru

n n

er o

f th

e Fo

od a

n d

D ru

g A

d m

in is

tr at

io n

[F D

A ])

is

es ta

b lis

h ed

a s

a sc

ie n

tifi c

la b

or at

or y

in th

e D

ep ar

tm en

t o f A

g ric

ul tu

re .

18 70

s M

ed ic

al P

ra ct

ic e

A ct

s: E

st ab

lis h

st

at e

re g

ul at

io n

o f p

hy si

ci an

li ce

n si

n g

; 1 87

0 M

ar in

e H

o sp

it al

S er

vi ce

is c

en tr

al iz

ed a

s a

se p

ar at

e b

ur ea

u of

th e

Tr ea

su ry

D ep

ar tm

en t;

18 78

N at

io n

al Q

u ar

an ti

n e

A ct

: G ra

n ts

th e

M ar

in e

H os

p ita

l S er

vi ce

q ua

ra n

tin e

au th

or ity

d

ue to

it s

as si

st an

ce w

ith y

el lo

w fe

ve r

ou tb

re ak

.

18 87

N at

io n

al H

yg ie

n ic

L ab

or at

or y,

p re

d ec

es so

r l ab

to

th e

N at

io n

al In

st itu

te s

of H

ea lth

, i s

es ta

b lis

h ed

in S

ta te

n

Is la

n d,

N ew

Y or

k, b

y th

e N

at io

n al

M ar

in e

H ea

lth S

er vi

ce .

Im p

o rt

an t

D ev

el o

p ­

m en

ts in

H ea

lt h

a n

d

M ed

ic in

e

18 61

F irs

t n ur

si ng

s ch

oo l i

s fo

un d

ed a

nd th

e ro

le o

f n ur

si ng

is e

st ab

lis he

d d

ur in

g th

e C

iv il

W ar

; 18

60 s

Lo ui

s Pa

st eu

r d ev

el op

s th

e g

er m

th eo

ry o

f d

is ea

se ; 1

86 5

an ti

se p

ti c

su rg

er y

is in

tr od

uc ed

b

y Jo

se p

h Li

st er

, d ec

re as

in g

d ea

th ra

te s

fr om

su

rg ic

al o

p er

at io

ns ; W

ith th

e ad

ve nt

o f l

ic en

si ng

, th

e p

ra ct

ic e

of m

ed ic

in e

b eg

in s

to b

ec om

e a

m or

e ex

cl us

iv e

re al

m .

18 77

L ou

is P

as te

ur d

is co

ve rs

th at

a n

th ra

x is

c au

se d

b y

b ac

te ria

; S ci

en tis

ts fi

n d

b

ac te

rio lo

g ic

a g

en ts

c au

si n

g tu

b er

cu lo

si s,

d

ip h

th er

ia , t

yp h

oi d,

a n

d y

el lo

w fe

ve r;

Im m

un iz

at io

n s

an d

w at

er p

ur ifi

ca tio

n

in te

rv en

tio n

s fo

llo w

re ce

n t d

is co

ve rie

s;

St at

e an

d lo

ca l h

ea lth

d ep

ar tm

en ts

c re

at e

la b

or at

or ie

s; S

ta te

s b

eg in

p as

si n

g la

w s

re q

ui rin

g d

is ea

se re

p or

tin g

a n

d e

st ab

lis h

in g

d

is ea

se re

g is

tr ie

s.

18 80

s Fi

rs t h

os p

ita ls

e st

ab lis

h ed

a n

d th

e im

p or

ta n

ce

of h

os p

ita ls

in th

e p

ro vi

si on

o f m

ed ic

al c

ar e

in cr

ea se

s;

18 82

fi rs

t m aj

or e

m p

lo ye

e- sp

on so

re d

m ut

ua l

b en

efi t a

ss oc

ia tio

n w

as c

re at

ed b

y N

or th

er n

P ac

ifi c

Ra ilw

ay , i

n cl

ud es

h ea

lth ca

re b

en efi

t; So

ci al

In su

ra n

ce

m ov

em en

t r es

ul ts

in th

e cr

ea tio

n o

f “ si

ck n

es s”

in su

ra n

ce

th ro

ug h

ou t m

an y

co un

tr ie

s in

E ur

op e;

1 89

5 X-

ra ys

d

is co

ve re

d.

 

 

100 PART I ADDENDUM: TIMELINE

18 90

s 19

00 s

Po lit

ic al

P ar

ty in

P o

w er

— Fe

d er

al

G o

ve rn

m en

t Pr

es id

en t

Re p

ub lic

an (1

88 9–

18 93

); D

em oc

ra t

(1 89

3– 18

97 );

Re p

ub lic

an (1

89 7–

19 01

) Re

p ub

lic an

/P ro

g re

ss iv

e

Be n

ja m

in H

ar ris

on (1

88 9–

18 93

); G

ro ve

r C le

ve la

n d

(1 89

3– 18

97 );

W ill

ia m

M

cK in

le y

(1 89

7– 19

01 )

Th eo

d or

e Ro

os ev

el t (

19 01

–1 90

9)

U .S

. H ou

se o

f Re

p re

se n

ta tiv

es Re

p ub

lic an

(1 88

9– 18

91 );

D em

oc ra

t ( 18

91 –1

89 5)

; R ep

ub lic

an (1

89 5–

19 11

)

U .S

. S en

at e

D em

oc ra

t ( 18

93 –1

89 5)

(5 3r

d );

Re p

ub lic

an (1

89 5–

19 13

) ( 54

th –6

2n d

) Re

p ub

lic an

M aj

o r

So ci

al a

n d

P o

lit ic

al E

ve n

ts P

ro g

re ss

iv e

Er a

(1 90

0– 19

20 ):

C h

ar ac

te riz

ed b

y p

op ul

ar s

up p

or t f

or s

oc ia

l r ef

or m

, p ar

t of

w h

ic h

in cl

ud ed

c om

p ul

so ry

h ea

lth in

su ra

n ce

; R oo

se ve

lt ca

m p

ai g

n ed

o n

a s

oc ia

l in

su ra

n ce

p la

tf or

m in

1 91

2.

K ey

F ed

er al

L eg

is la

ti ve

P ro

p o

sa ls

/ La

w s

an d

K ey

L eg

al D

ec is

io n

s 18

90 S

h er

m an

A n

ti tr

u st

A ct

: Pr

oh ib

its in

te rs

ta te

tr us

ts s

o ec

on om

ic

p ow

er w

ou ld

n ot

b e

co n

ce n

tr at

ed in

a

fe w

c or

p or

at io

n s.

H u

rl ey

v . E

d d

in g

fi el

d , 5

9 N

.E . 1

05 8

(In d.

1 90

1) : P

hy si

ci an

s ar

e un

d er

n o

d ut

y to

tr ea

t, an

d a

p hy

si ci

an is

n ot

li ab

le fo

r a rb

itr ar

ily re

fu si

n g

to re

n d

er m

ed ic

al a

ss is

ta n

ce ; 1

90 2

M ar

in e

H ea

lt h

S er

vi ce

re n

am ed

th e

P u

b lic

H ea

lt h

a n

d M

ar in

e H

o sp

it al

S er

vi ce

(P

H M

H S)

a s

its ro

le in

d is

ea se

c on

tr ol

a ct

iv iti

es e

xp an

d s;

1 90

2 B

io lo

g ic

s C

o n

tr o

l A ct

: Re

g ul

at es

s af

et y

an d

e ffe

ct iv

en es

s of

v ac

ci n

es , s

er um

s, e

tc .;

Ja co

b so

n v

. M as

sa ch

u se

tt s,

19

7 U

.S . 1

1 (1

90 5)

: S ta

te s

ta tu

te re

q ui

rin g

c om

p ul

so ry

v ac

ci n

at io

n a

g ai

n st

s m

al lp

ox is

a

co n

st itu

tio n

al e

xe rc

is e

of p

ol ic

e p

ow er

; 1 90

6 Fo

o d

a n

d D

ru g

A ct

( W

ile y

A ct

): G

iv es

re

g ul

at or

y p

ow er

to m

on ito

r f oo

d m

an uf

ac tu

rin g,

la b

el in

g, a

n d

s al

es to

F D

A p

re d

ec es

so r;

19 08

F ed

er al

E m

p lo

ye rs

L ia

b ili

ty A

ct : C

re at

es w

or ke

rs c

om p

en sa

tio n

p ro

g ra

m fo

r s el

ec t

fe d

er al

e m

p lo

ye es

.

Im p

o rt

an t

D ev

el o

p m

en ts

in H

ea lt

h

an d

M ed

ic in

e 19

01 A

M A

re or

g an

iz es

a t l

oc al

/s ta

te le

ve l a

n d

g ai

n s

st re

n g

th , b

eg in

n in

g e

ra o

f “ or

g an

iz ed

m

ed ic

in e”

a s

p hy

si ci

an s

as a

g ro

up b

ec om

e a

m or

e co

h es

iv e

an d

in cr

ea si

n g

ly p

ro fe

ss io

n al

au

th or

ity .

 

 

101PART I ADDENDUM: TIMELINE

19 10

s 19

20 s

Po lit

ic al

P ar

ty in

P o

w er

— Fe

d er

al G

o ve

rn m

en t

Pr es

id en

t Re

p ub

lic an

D em

oc ra

t Re

p ub

lic an

Re p

ub lic

an

W ill

ia m

H . T

af t (

19 09

–1 91

3) W

oo d

ro w

W ils

on (1

91 3–

19 21

) W

ar re

n G

. H ar

d in

g

(1 92

1– 19

23 )

C al

vi n

C oo

lid g

e (1

92 3–

19 29

)

U .S

. H ou

se

of R

ep re

se n

– ta

tiv es

D em

oc ra

t ( 19

11 –1

91 9)

(6 2n

d –6

5t h

) D

em oc

ra t (

19 13

–1 91

9) (6

3r d

–6 5t

h );

Re p

ub lic

an (1

91 9–

19 33

) ( 66

th –7

2n d

) Re

p ub

lic an

(1

91 9–

19 31

) (6

6t h

–7 1s

t)

Re p

ub lic

an

U .S

. S en

at e

Re p

ub lic

an D

em oc

ra t (

19 13

–1 91

9) (6

3r d

–6 5t

h );

Re p

ub lic

an (1

91 9–

19 33

) ( 66

th –7

2n d

) Re

p ub

lic an

Re p

ub lic

an

M aj

o r

So ci

al a

n d

P o

lit ic

al

Ev en

ts W

o rl

d W

ar I

(1 91

4– 19

19 ; U

n ite

d S

ta te

s en

te rs

in 1

91 7)

K ey

F ed

er al

L eg

is la

ti ve

P

ro p

o sa

ls /L

aw s

an d

K ey

L eg

al

D ec

is io

n s

19 12

C h

ild re

n ’s

B u

re au

o f H

ea lt

h e

st ab

lis h

ed in

D

ep ar

tm en

t o f C

om m

er ce

(l at

er m

ov ed

to D

ep ar

tm en

t of

L ab

or );

19 12

P u

b lic

H ea

lt h

a n

d M

ar in

e H

o sp

it al

Se

rv ic

e is

re n

am ed

th e

P u

b lic

H ea

lt h

S er

vi ce

a n

d is

au

th or

iz ed

to in

ve st

ig at

e h

um an

d is

ea se

a n

d s

an ita

tio n

; 19

14 C

la yt

o n

A n

ti tr

u st

A ct

: C la

rifi es

th e

Sh er

m an

A

n tit

ru st

A ct

a n

d in

cl ud

es a

d d

iti on

al p

ro h

ib iti

on s.

19 11

: F irs

t s ta

te w

or ke

rs c

om p

en sa

tio n

la w

e n

ac te

d ; 1

91 8

C h

am b

er la

in ­K

ah n

A ct

: Pr

ov id

es fi

rs t f

ed er

al g

ra n

ts to

s ta

te s

fo r p

ub lic

h ea

lth s

er vi

ce s;

1 92

1 Sw

ee t

A ct

: E st

ab lis

h es

th

e Ve

te ra

n s

A d

m in

is tr

at io

n ; 1

92 2

Sh ep

h er

d ­T

o w

n er

A ct

: P ro

vi d

es g

ra n

ts fo

r t h

e C

h ild

re n’

s Bu

re au

a n

d s

ta te

m at

er n

al a

n d

c h

ild h

ea lth

p ro

g ra

m s,

a n

d is

th e

fir st

d ire

ct fe

d er

al fu

n d

in g

of

h ea

lth s

er vi

ce s

fo r i

n d

iv id

ua ls

.

Im p

o rt

an t

D ev

el o

p m

en ts

in

H ea

lt h

a n

d M

ed ic

in e

19 10

F le

xn er

R ep

or t o

n M

ed ic

al E

d uc

at io

n c

re at

es

m ed

ic al

s ch

oo l s

ta n

d ar

d s;

“s ic

kn es

s” in

su ra

n ce

es

ta b

lis h

ed b

y Br

ita in

in 1

91 1

an d

R us

si a

in 1

91 2;

So

ci al

is t a

n d

P ro

g re

ss iv

e p

ar tie

s in

th e

U n

ite d

S ta

te s

su p

p or

t s im

ila r “

si ck

n es

s” in

su ra

n ce

.

19 13

A m

er ic

an C

o lle

g e

o f S

u rg

eo n

s (A

C S)

is fo

un d

ed ; 1

91 8

A C

S b

eg in

s ac

cr ed

ita tio

n

of h

os p

ita ls

; 1 91

8– 19

19 p

an d

em ic

fl u

k ill

s ov

er 6

00 ,0

00 p

eo p

le in

th e

U n

ite d

S ta

te s;

1 92

0 A

M A

p as

se s

re so

lu tio

n a

g ai

n st

c om

p ul

so ry

h ea

lth in

su ra

n ce

; A M

A o

p p

os iti

on c

om b

in ed

w

ith e

n tr

y in

to W

or ld

W ar

I (a

n d

th e

an ti-

G er

m an

s en

tim en

ts a

ro us

ed ),

un d

er m

in es

s up

p or

t fo

r n at

io n

al h

ea lth

re fo

rm a

n d

g ov

er n

m en

t i n

su ra

n ce

; 1 92

9 B

lu e

C ro

ss e

st ab

lis h

ed it

s fir

st

h os

p ita

l i n

su ra

n ce

p la

n a

t B ay

lo r U

n iv

er si

ty ; C

h ro

n ic

il ln

es se

s b

eg in

to re

p la

ce in

fe ct

io us

d

is ea

se s

as m

os t s

ig n

ifi ca

n t h

ea lth

th re

at ; W

ith in

n ov

at io

n s

in m

ed ic

al c

ar e,

h ea

lth ca

re c

os ts

b

eg in

to ri

se .

 

 

102 PART I ADDENDUM: TIMELINE

19 30

s 19

40 s

Po lit

ic al

P ar

ty in

Po

w er

— Fe

d er

al

G o

ve rn

m en

t

Pr es

id en

t Re

p ub

lic an

D em

oc ra

t

H er

b er

t H oo

ve r (

19 29

–1 93

3) Fr

an kl

in D

. R oo

se ve

lt (1

93 3–

19 45

)

U .S

. H ou

se o

f Re

p re

se n

ta tiv

es D

em oc

ra t (

19 31

–1 94

7) (7

2n d

–7 9t

h )

D em

oc ra

t

U .S

. S en

at e

D em

oc ra

t ( 19

33 –1

94 7)

(7 3r

d –7

9t h

) D

em oc

ra t

M aj

o r

So ci

al a

n d

Po

lit ic

al E

ve n

ts G

re at

D ep

re ss

io n

(1 92

9 th

ro ug

h 1

93 0s

); N

ew D

ea l (

19 33

–1 93

9) W

o rl

d W

ar II

(1 93

9– 19

45 ),

Pe ar

l H ar

b or

1 94

1)

K ey

F ed

er al

Le

g is

la ti

ve

P ro

p o

sa ls

/L aw

s an

d

K ey

L eg

al D

ec is

io n

s

19 30

N at

io n

al In

st it

u te

s o

f H ea

lt h

e st

ab lis

h ed

; 1 93

3 Fe

d er

al

Em er

g en

cy R

el ie

f A d

m in

is tr

at io

n p

ro vi

d es

li m

ite d

m ed

ic al

s er

vi ce

s fo

r t h

e m

ed ic

al ly

in d

ig en

t; 19

35 S

o ci

al S

ec u

ri ty

A ct

: P ro

vi d

es fe

d er

al

g ra

n t-

in -a

id fu

n d

in g

fo r s

ta te

s to

c re

at e

an d

m ai

n ta

in p

ub lic

h ea

lth s

er vi

ce s

an d

tr ai

n in

g, e

xp an

d s

re sp

on si

b ili

tie s

fo r t

h e

C h

ild re

n’ s

H ea

lth B

ur ea

u,

an d

e st

ab lis

h es

A id

to F

am ili

es w

ith D

ep en

d en

t C h

ild re

n (A

FD C

) w el

fa re

p

ro g

ra m

; 1 93

5 W

o rk

s P

ro je

ct A

d m

in is

tr at

io n

is c

re at

ed , i

n cl

ud in

g

p ro

je ct

s to

b ui

ld a

n d

im p

ro ve

h os

p ita

ls ; 1

93 8

Fo o

d , D

ru g

a n

d C

o sm

et ic

A

ct : E

xp an

d s

re g

ul at

or y

sc op

e of

F D

A to

re q

ui re

p re

m ar

ke t a

p p

ro va

l ( in

re

sp on

se to

d ea

th s

fr om

a n

u n

te st

ed p

ro d

uc t)

; 1 93

9 Pu

b lic

H ea

lth S

er vi

ce

is tr

an sf

er re

d fr

om th

e Tr

ea su

ry D

ep ar

tm en

t t o

th e

n ew

F ed

er al

S ec

ur ity

A

g en

cy .

19 41

M an

h am

A ct

: F un

d s

w ar

tim e

em er

g en

cy b

ui ld

in g

o f h

os p

ita ls

; 1 94

2 N

at io

n al

W ar

L ab

o r

B o

ar d

ru le

s th

at th

e p

ro vi

si on

o f b

en efi

ts , i

n cl

ud in

g

h ea

lth in

su ra

n ce

, d oe

s n

ot v

io la

te w

ag e

fr ee

ze ; 1

94 4

P u

b lic

H ea

lt h

S er

vi ce

A

ct : C

on so

lid at

es th

e la

w s

re la

te d

to th

e fu

n ct

io n

s of

th e

PH S;

1 94

6 H

ill ­

B u

rt o

n A

ct : F

un d

s h

os p

ita l c

on st

ru ct

io n

to im

p ro

ve a

cc es

s to

h os

p ita

l-b as

ed

m ed

ic al

c ar

e; 1

94 6

Th e

C o

m m

u n

ic ab

le D

is ea

se C

en te

r (C

D C

) o p

en s

as p

ar t

of th

e Pu

b lic

H ea

lth S

er vi

ce ; 1

94 9

Tr um

an ’s

n at

io n

al h

ea lth

in su

ra n

ce p

ro p

os al

is

d ef

ea te

d.

Im p

o rt

an t

D ev

el o

p m

en ts

in

H ea

lt h

a n

d

M ed

ic in

e

Th e

G re

at D

ep re

ss io

n th

re at

en s

fin an

ci al

s ec

ur ity

o f p

hy si

ci an

s, h

os p

ita ls

, an

d in

d iv

id ua

ls ; C

om m

er ci

al in

su ra

n ce

in d

us tr

y ris

es in

th e

ab se

n ce

o f

g ov

er n

m en

t- sp

on so

re d

in su

ra n

ce p

la n

s; In

th e

la te

1 93

0s th

e Bl

ue C

ro ss

(h

os p

ita l s

er vi

ce s)

a n

d B

lu e

Sh ie

ld (p

hy si

ci an

s er

vi ce

s) h

ea lth

in su

ra n

ce p

la n

cr

ea te

d ; P

re p

ai d

g ro

up h

ea lth

p la

n s/

m ed

ic al

c oo

p er

at iv

es g

ai n

p op

ul ar

ity

w ith

s om

e p

ro vi

d er

s an

d c

on su

m er

s, b

ut a

re o

p p

os ed

b y

A M

A .

(1 93

2– 19

72 ) T

u sk

eg ee

S yp

h ili

s St

u d

y

19 45

N ob

el P

riz e

in M

ed ic

in e

aw ar

d ed

fo r d

ev el

op m

en t o

f p en

ic ill

in tr

ea tm

en t

fo r h

um an

s, w

h ic

h is

u se

d e

xt en

si ve

ly in

th e

w ar

; 1 94

5 Ka

is er

P er

m an

en te

, a

la rg

e p

re p

ai d,

in te

g ra

te d

h ea

lth p

la n

is o

p en

ed to

th e

p ub

lic ; 1

94 6

th e

Em er

so n

Re

p or

t r el

ea se

d p

ro p

os in

g o

ve ra

ll p

la n

fo r p

ub lic

h ea

lth in

th e

U n

ite d

S ta

te s;

19

48 A

M A

o p

p os

es T

ru m

an ’s

p la

n fo

r n at

io n

al h

ea lth

in su

ra n

ce a

n d

s en

tim en

ts

ag ai

n st

n at

io n

al h

ea lth

re fo

rm a

ls o

fu el

ed b

y th

e C

ol d

W ar

; E m

p lo

ye r-

b as

ed

h ea

lth in

su ra

n ce

g ro

w s

ra p

id ly

w ith

n o

n at

io n

al h

ea lth

in su

ra n

ce p

ro g

ra m

a n

d

as e

m p

lo ye

rs c

om p

et e

fo r a

s h

or t s

up p

ly o

f e m

p lo

ye es

d ue

to th

e w

ar a

n d

b

ec au

se h

ea lth

b en

efi ts

a re

e xe

m p

te d

fr om

th e

w ag

e fr

ee ze

; A ft

er W

W II,

la b

or

un io

n s

g ai

n ed

th e

rig h

t t o

b ar

g ai

n c

ol le

ct iv

el y,

le ad

in g

to a

n ot

h er

e xp

an si

on in

em

p lo

ye e

h ea

lth p

la n

s; C

om m

er ci

al in

su ra

n ce

h as

ta ke

n o

ve r 4

0% o

f t h

e m

ar ke

t fr

om B

lu e

C ro

ss .

 

 

103PART I ADDENDUM: TIMELINE

19 50

s 19

60 s

Po lit

ic al

P ar

ty in

Po

w er

— Fe

d er

al

G o

ve rn

m en

t

Pr es

id en

t D

em oc

ra t

Re p

ub lic

an D

em oc

ra t

D em

oc ra

t

H ar

ry S

. T ru

m an

(1 94

5– 19

53 )

D w

ig h

t D . E

is en

h ow

er (1

95 3–

19 61

) Jo

h n

F . K

en n

ed y

(1 96

1– 19

63 )

Ly n

d on

B . J

oh n

so n

(1 96

3– 19

69 )

U .S

. H ou

se

of R

ep re

se n

– ta

tiv es

Re p

ub lic

an (1

94 7–

19 49

) ( 80

th );

D em

oc ra

t ( 19

49 –1

95 3)

(8 1s

t– 82

d )

Re p

ub lic

an (1

95 2–

19 55

) ( 83

rd );

D em

oc ra

t ( 19

55 –1

99 4)

(8 4t

h –1

03 rd

) D

em oc

ra t

D em

oc ra

t

U .S

. S en

at e

Re p

ub lic

an (1

94 7–

19 49

) (8

0t h

); D

em oc

ra t (

19 49

–1 95

3)

(8 1s

t– 82

n d

)

Re p

ub lic

an (1

95 3–

19 55

) ( 83

rd );

D em

oc ra

t ( 19

55 –1

98 1)

(8 4t

h –9

6t h

) D

em oc

ra t

D em

oc ra

t

M aj

o r

So ci

al

an d

P o

lit ic

al

Ev en

ts

C ol

d W

ar id

eo lo

g y

an d

M cC

ar th

yi sm

(1 95

0– 19

54 );

K o

re an

W ar

(1 95

0– 19

53 )

Ec on

om ic

d ow

n tu

rn

K ey

F ed

er al

Le

g is

la ti

ve

P ro

p o

sa ls

/L aw

s an

d K

ey L

eg al

D

ec is

io n

s

19 53

D ep

ar tm

en t

o f H

ea lt

h , E

d u

ca ti

o n

, a n

d W

el fa

re (H

EW ) i

s cr

ea te

d

fr om

th e

Fe d

er al

S ec

ur ity

A g

en cy

, a n

d th

e Pu

b lic

H ea

lth S

er vi

ce is

tr an

sf er

re d

to

H EW

; 1 95

4 In

te rn

al R

ev en

ue S

er vi

ce d

ec la

re s

th at

e m

p lo

ye rs

c an

p ay

h

ea lth

in su

ra n

ce p

re m

iu m

s fo

r t h

ei r e

m p

lo ye

es w

ith p

re -t

ax d

ol la

rs ; B

ro w

n

v. B

o a

rd o

f E d

u ca

ti o

n , 3

47 U

.S . 4

83 (1

95 4)

: R ac

ia l s

eg re

g at

io n

in p

ub lic

ed

uc at

io n

v io

la te

s th

e Eq

ua l P

ro te

ct io

n C

la us

e of

1 4t

h A

m en

d m

en t;

19 56

D

ep en

d en

ts M

ed ic

al C

ar e

A ct

: C re

at es

g ov

er n

m en

t m ed

ic al

c ar

e p

ro g

ra m

fo

r m ili

ta ry

a n

d d

ep en

d en

ts o

ut si

d e

th e

Ve te

ra n

s A

ff ai

rs s

ys te

m ; 1

95 6

So ci

al

Se cu

ri ty

A ct

is a

m en

d ed

to p

ro vi

d e

So ci

al S

ec ur

ity D

is ab

ili ty

In su

ra n

ce .

19 62

A

m en

d m

en ts

t o

Fo

o d

, D ru

g a

n d

C

o sm

et ic

A ct

s re

q ui

re th

at n

ew

d ru

g s

b e

“e ffe

ct iv

e. ”

19 60

K er

r­ M

ill s

p ro

g ra

m p

ro vi

d es

fe d

er al

fu n

d in

g th

ro ug

h

ve n

d or

p ay

m en

ts to

s ta

te s

fo r m

ed ic

al ly

in d

ig en

t e ld

er ly

; Si

m p

ki n

s v.

M o

se s

H . C

o n

e M

em o

ri al

H o

sp it

al , 3

23 F

.2 d

9 59

(4

th C

ir. 1

96 3)

: R ac

ia l s

eg re

g at

io n

in p

riv at

e h

os p

ita ls

re ce

iv in

g

fe d

er al

H ill

-B ur

to n

fu n

d s

vi ol

at es

th e

Eq ua

l P ro

te ct

io n

C la

us e

of th

e 14

th A

m en

d m

en t;

19 64

: C iv

il R

ig h

ts A

ct p

as se

d ;

19 65

M ed

ic ar

e an

d M

ed ic

ai d

p ro

g ra

m s

cr ea

te d

th ro

ug h

So

ci al

S ec

ur ity

A m

en d

m en

ts ; G

ri sw

o ld

v . C

o n

n ec

ti cu

t, 3

81

U .S

. 4 79

(1 96

5) : T

h e

C on

st itu

tio n

p ro

te ct

s a

rig h

t t o

p riv

ac y,

st

at e

la w

fo rb

id d

in g

th e

us e

of c

on tr

ac ep

tiv es

o r p

ro vi

si on

of

th em

to m

ar rie

d c

ou p

le s

vi ol

at es

a c

on st

itu tio

n al

ri g

h t t

o m

ar ita

l p riv

ac y;

1 96

6 C

iv ili

an H

ea lt

h a

n d

M ed

ic al

P ro

g ra

m

fo r

th e

U n

if o

rm ed

S er

vi ce

s (C

H A

M PU

S) c

re at

ed .

Im p

o rt

an t

D ev

el o

p m

en ts

in

H ea

lt h

a n

d

M ed

ic in

e

19 51

J o

in t C

o m

m is

si o

n o

n A

cc re

d it

at io

n o

f H o

sp it

al s

(J C

A H

) i s

cr ea

te d

to

p ro

vi de

v ol

un ta

ry a

cc re

di ta

tio n;

1 95

3 Sa

lk c

re at

es p

ol io

v ac

ci ne

; 1 95

4 fir

st

or ga

n tr

an sp

la nt

is p

er fo

rm ed

; C on

tin ue

d pr

og re

ss io

n in

m ed

ic al

s ci

en ce

a nd

te

ch no

lo gy

le ad

s to

in cr

ea se

d co

st s;

Po lit

ic al

fo cu

s tu

rn s

to K

or ea

n W

ar a

nd a

w ay

fro

m m

ed ic

al c

ar e

re fo

rm .

19 65

: M ed

ic ar

e an

d M

ed ic

ai d

c re

at ed

; 1 96

7 fir

st h

um an

h ea

rt tr

an sp

la n

t.

 

 

104 PART I ADDENDUM: TIMELINE

19 70

s 19

80 s

Po lit

ic al

P ar

ty

in P

o w

er —

Fe d

er al

G

o ve

rn m

en t

Pr es

id en

t Re

p ub

lic an

Re p

ub lic

an D

em oc

ra t

Re p

ub lic

an

Ri ch

ar d

M . N

ix on

(1

96 9–

19 74

) G

er al

d R

. F or

d (1

97 4–

19 77

) Ji

m m

y C

ar te

r (1

97 7–

19 81

) Ro

n al

d R

ea g

an (1

98 1–

19 89

)

U .S

. H ou

se o

f Re

p re

se n

ta tiv

es D

em oc

ra t

D em

oc ra

t D

em oc

ra t

D em

oc ra

t

U .S

. S en

at e

D em

oc ra

t D

em oc

ra t

D em

oc ra

t Re

p ub

lic an

(1 98

1– 19

87 ) (

97 th

–9 9t

h );

D em

oc ra

t (1

98 7–

19 95

) ( 10

0t h

–1 03

rd )

M aj

o r

So ci

al

an d

P o

lit ic

al

Ev en

ts

19 89

“N ew

F ed

er al

is m

” o f t

h e

Re ag

an a

d m

in is

tr at

io n

; Be

rli n

W al

l f al

ls

K ey

F ed

er al

Le

g is

la ti

ve

P ro

p o

sa ls

/ La

w s

an d

K ey

Le

g al

D ec

is io

n s

Pr es

id en

t N ix

on ’s

p ro

p os

ed c

om p

re h

en si

ve h

ea lth

in su

ra n

ce p

la n

fa ils

; 19

71 p

ro p

os ed

H ea

lth S

ec ur

ity A

ct fr

om S

en at

or E

d w

ar d

K en

n ed

y (D

-M A

) f ai

ls ; 1

97 0

C om

m un

ic ab

le D

is ea

se C

en te

r i s

re n

am ed

th e

C en

te rs

fo r

D is

ea se

C o

n tr

o l;

19 72

S o

ci al

S ec

u ri

ty A

m en

d m

en ts

ex

te n

d M

ed ic

ar e

el ig

ib ili

ty a

n d

c re

at e

Su p

p le

m en

ta l S

ec ur

ity In

co m

e (S

SI ) p

ro g

ra m

; C a

n te

rb u

ry v

. S p

en ce

, 4 64

F .2

d 7

72 (D

.C . C

ir. 1

97 2)

: Es

ta b

lis h

ed m

od er

n la

w o

f i n

fo rm

ed c

on se

n t b

as ed

o n

a re

as on

ab le

p

at ie

n t s

ta n

d ar

d ; R

o e

v. W

ad e,

4 10

U .S

. 1 13

(1 97

3) : C

on st

itu tio

n al

ri g

h t

to p

riv ac

y en

co m

p as

se s

a w

om an

’s d

ec is

io n

to te

rm in

at e

h er

p re

g n

an cy

; 19

73 H

ea lt

h M

ai n

te n

an ce

O rg

an iz

at io

n A

ct : S

up p

or ts

g ro

w th

o f

h ea

lth m

ai n

te n

an ce

o rg

an iz

at io

n s;

1 97

4 Em

p lo

ym en

t R

et ir

em en

t In

co m

e Se

cu ri

ty A

ct (E

R IS

A ) p

as se

d ; 1

97 7

H ea

lt h

C ar

e Fi

n an

ci n

g

A d

m in

is tr

at io

n (H

C FA

) i s

cr ea

te d

to a

d m

in is

te r t

h e

M ed

ic ar

e an

d

M ed

ic ai

d p

ro g

ra m

s.

19 79

C ar

te r

in tr

od uc

es a

N

at io

n al

H ea

lth P

la n

to

C on

g re

ss ; 1

97 9

D ep

ar tm

en t

o f

H ea

lt h

a n

d H

u m

an

Se rv

ic es

(H H

S)

is c

re at

ed fr

om a

re

or g

an iz

ed H

EW .

19 83

M ed

ic ar

e im

p le

m en

ts p

ro sp

ec tiv

e p

ay m

en t s

ys te

m

fo r r

ei m

b ur

si n

g h

os p

ita ls

; 1 98

6 Em

er g

en cy

M ed

ic al

Tr

ea tm

en t

an d

A ct

iv e

La b

o r

A ct

(E M

TA LA

): E

n su

re s

ac ce

ss to

e m

er g

en cy

s er

vi ce

s in

M ed

ic ar

e- p

ar tic

ip at

in g

h

os p

ita ls

re g

ar d

le ss

o f a

b ili

ty to

p ay

; 1 98

6 H

ea lt

h

C ar

e Q

u al

it y

Im p

ro ve

m en

t A

ct : C

re at

es th

e N

at io

n al

Pr

ac tit

io n

er D

at ab

an k;

1 98

6 C

o n

so lid

at ed

O m

n ib

u s

B u

d g

et R

ec o

n ci

lia ti

o n

A ct

(C O

B R

A ):

In cl

ud es

h

ea lth

b en

efi t p

ro vi

si on

s th

at e

st ab

lis h

c on

tin ua

tio n

of

e m

p lo

ye r-

sp on

so re

d g

ro up

h ea

lth c

ov er

ag e;

1 98

9 M

ed ic

ar e

C at

as tr

o p

h ic

C o

ve ra

g e

A ct

o f 1

98 8:

In

cl ud

es o

ut p

at ie

n t p

re sc

rip tio

n d

ru g

b en

efi t a

n d

o th

er

ch an

g es

in M

ed ic

ar e

(r ep

ea le

d  1

98 9)

.

Im p

o rt

an t

D ev

el o

p m

en ts

in

H ea

lt h

a n

d

M ed

ic in

e

H ea

lth ca

re c

os ts

c on

tin ue

to ri

se d

ra m

at ic

al ly

, d ue

to a

d va

nc es

in m

ed ic

al te

ch no

lo g

y, h

ig h-

te ch

ho

sp ita

l c ar

e, th

e ne

w p

oo l o

f p ay

in g

p at

ie nt

s fro

m M

ed ic

ai d

a nd

M ed

ic ar

e, in

cr ea

se d

u til

iz at

io n

of

se rv

ic es

, a nd

in cr

ea se

d p

hy si

ci an

s p

ec ia

liz at

io n;

1 97

2 co

m p

ut ed

to m

og ra

p hy

(C T

) s ca

n fir

st u

se d

; 19

78 fi

rs t b

ab y

co nc

ei ve

d th

ro ug

h in

v itr

o fe

rt ili

za tio

n is

b or

n.

19 80

W or

ld H

ea lth

A ss

em b

ly d

ec la

re s

sm al

lp ox

er

ad ic

at ed

; 1 98

1 Sc

ie n

tis ts

id en

tif y

A ID

S; 1

98 7

th e

Jo in

t C

om m

is si

on o

n A

cc re

d ita

tio n

o f H

os p

ita ls

c h

an g

es n

am e

to th

e Jo

in t C

om m

is si

on o

n A

cc re

d ita

tio n

o f H

ea lth

ca re

O

rg an

iz at

io n

s (J

C A

H O

); Sh

ift a

w ay

fr om

tr ad

iti on

al fe

e- fo

r- se

rv ic

e in

su ra

n ce

p la

n s

an d

to w

ar d

m an

ag ed

c ar

e.