Taking Stock of Three Major Health Reform Laws on Their Birthdays

We need to reform the health reform law. It’s a notion invoked by critics of last year’s health care overhaul — who have called for minor changes to outright repeal — and even President Obama.

But the concept is less a marker of politicians’ flexibility, and more accepted legislative wisdom. Reforms almost always build on previous reforms, especially when it comes to health law. After all, one generation’s dream realized is the next generation’s fiscal reality.

We’ve already seen this week how Congress’ latest continuing resolution changes aspects of the Patient Protection and Affordable Care Act. Both parties’ fiscal year 2012 budget proposals have opened up another conversation about revamping Medicare and Medicaid.

Of course, some health reforms merely tweak around the edges. But three laws — the 1986 Emergency Medical Treatment and Active Labor Act, the 2006 Massachusetts’ health expansion and last year’s health overhaul — bear closer examination this week. Why? Namely, each was a bold, substantive reform that laid the groundwork for the next one. Meanwhile, each is a celebrating a major anniversary — and there’s no better time to reflect than a milestone birthday.

Twenty-Five Years Ago: EMTALA Obligates Care for Poor

Signed into law on April 7, 1986 — as a four-page provision in the larger Consolidated Omnibus Budget Reconciliation Act — EMTALA not only shifted health policy, but transformed how the nation treated its poorest residents.

Essentially, the rule obligates hospitals to stabilize emergency patients regardless of ability to pay and is intended to curb “patient dumping,” where providers transfer patients because of financial, not medical reasons.

In a sweeping piece for Hospitals & Health Networks, Emily Friedman notes that EMTALA was largely driven by “horror stories” about low-income patients who suffered or died as a result of patient dumping. Congress also feared that new pressures on hospitals to contain costs under the 1983 Prospective Payment System would force them to skimp on care to the poor; a third factor was the waning authority of the 1946 Hill-Burton Act, which had required many hospitals to treat low-income uninsured patients.

Friedman also argues that EMTALA was the “law that changed everything.” Emergency care today, and health care more broadly, has been shaped by health providers’ legal responsibility to the sickest patients.

Yet EMTALA was the original “unfunded mandate,” Friedman notes. The law led into concerns that health providers were losing too much by treating patients who couldn’t pay — and helped prompt states to explore their own solutions.

Five Years Ago: Massachusetts Shows Comprehensive Reforms Are Possible

For example, when Massachusetts Gov. Mitt Romney (R) signed  An Act Providing Access to Affordable, Quality, Accountable Health Care on April 12, 2006, the Bay State became the nation’s first to pass a mandatory health insurance law. Under the rule, uninsured state residents were required to purchase health insurance through the private market or face penalties on their state income tax forms. Massachusetts also expanded access to coverage through its new Commonwealth Health Insurance Connector Authority and subsidies for low-income residents.

Today, Massachusetts boasts an enviably low uninsured rate, and 84% of surveyed residents say they are satisfied with the state’s health coverage law. But the reform has yet to rein in the state’s soaring health costs, as health insurance is as expensive in Massachusetts as nearly any state in the nation. Significant access issues persist, too: 31% of residents have had a health care provider reject their insurance plan and 23% were turned away by a doctor who had no capacity.

Earlier this year, Democratic Gov. Deval Patrick announced his own reform to the reforms — dubbed “health reform 2.0” by some — including provisions to encourage accountable care organizations, scrutinize health insurance rates and revamp medical malpractice rules.

We’ll surely hear more about Massachusetts’ 2006 plan and its ongoing struggles as Romney runs for higher office and even his GOP rivals attack the law. But politics aside, the law significantly altered the health policy landscape. Massachusetts’ reforms drew widespread attention from politicians in other states, who said they were “inspired by [its] bipartisan nature,” the Wall Street Journal reported. Numerous observers explored whether the model could be exported to California.

More consequential, the law refocused national efforts for major health reform that largely evaporated with President Clinton’s failed 1994 plan.

Last Year: PPACA Adapts Many Massachusetts Reforms on National Level

As covered extensively, the Massachusetts plan informed last year’s legislation, with the overhaul eventually including a similar mandate, health insurance exchange model and subsidies for low-income patients.

That close relationship means that states are looking to the Massachusetts model for insight into implementing PPACA. For example, Jon Kingsdale — independent consultant and former executive director of Massachusetts’ Health Connector — last year spoke with California Healthline on how the Golden State can prepare for the launch of its own health insurance exchange.

The shadow of EMTALA also hangs over PPACA. By mandating near-universal health coverage, last year’s overhaul further advanced the argument that all U.S. residents should have access to health care, regardless of ability to pay. Meanwhile, hospital associations ultimately lobbied for the overhaul — despite likely pressure on their business model — in hopes of curbing the mounting bad debt from treating low-income patients.

Deep Relationship Between Health Laws

Arguably, each health law was made possible only because of the major reforms that preceded it. (In EMTALA’s case, lawmakers were operating within the constraints of the original Medicare and Hill-Burton laws.) And each reframed the so-called “Overton Window,” or the idea of what was possible in public policy circles.

Yet some have argued that the previous law made the next one moot — that because EMTALA exists to provide “universal coverage,” there was no real need for Massachusetts to expand insurance, according to former CBO director Douglas Holtz-Eakin. Romney has stressed that Massachusetts’ reforms shouldn’t have been mandated nationally, but are a model for state-by-state innovation; if elected president, he’d immediately issue an executive order that exempts every governor from implementing PPACA.

Others have warned that each law foreshadowed troubling, unintended consequences of subsequent legislation. Some critics of Democrats’ health reforms point to Massachusetts’ spiraling health costs, strained capacity and political battles over insurance hikes as a troubling canary in the coal mine for PPACA.

What is clear is that as laws mature from fresh reform to accepted reality, politicians’ positions can shift in concert. Take Medicare. Liberals fought for the reform; conservatives subsequently vowed to defend it. Perhaps tomorrow’s Republicans will one day champion ‘ObamaCare’ with the same zeal as today’s GOP works to attack it.

California Healthline will keep the spotlight on the latest reforms — and watch for the next batch of changes — in upcoming issues. Meanwhile, here’s what’s making news around the nation.

On the Hill

  • On Wednesday, the House will vote on a bill (HR 1217) that would eliminate a provision in the federal health reform law that provides $15 billion in mandatory funds for preventive care and public health services. The bill’s sponsor, Rep. Joe Pitts (R-Pa.), said in a committee hearing last week that the funding should be discretionary rather than mandatory. Republicans have characterized the money as a “slush fund” for the HHS secretary to use without congressional oversight. Democrats say the funding is key to promoting state- and community-based wellness programs, supporting preventive research, promoting smoking cessation, and reducing obesity, heart disease, cancer and other health issues (Sonmez, “2chambers,” Washington Post, 4/11).
  • Last week, the House Energy and Commerce Committee advanced five bills that would block funding for several provisions of the federal health reform law. Three of the bills (HR 1213, HR 1214 and HR 1217) would repeal mandatory health reform funding for state-based insurance exchanges, school-based health center construction and the Prevention and Public Health Fund, respectively. The two remaining bills (HR 1215 and HR 1216) would change the appropriations status for state sex education programs and certain medical education programs (Attias, CQ Today, 4/5).

In the Courts

  • On Monday, Missouri Attorney General Chris Koster (D) filed an amicus brief in federal appeals court agreeing with plaintiffs in the multistate lawsuit that the federal health reform law’s individual mandate is unconstitutional. However, Koster argued that the rest of the law should remain as is. Koster — a former Republican state legislator — faced pressure from Missouri’s GOP-led Legislature to join the multistate lawsuit, but instead chose to file the “friend of the court” brief on behalf of the state. Last year, Missouri voters approved a state referendum rejecting the individual mandate and state Lt. Gov. Peter Kinder (R) filed a lawsuit in federal court to block the overhaul (Sulzberger/Sack, New York Times, 4/11).
  • In related news, a group of Democratic lawmakers — led by Senate Majority Leader Harry Reid (D-Nev.) and House Minority Leader Nancy Pelosi (D-Calif.) — recently filed an amicus brief supporting the administration’s appeal of U.S. District Court Judge Roger Vinson‘s ruling that the reform law’s individual mandate is unconstitutional (Norman, CQ Today, 4/11). In addition, a coalition of six health care groups — the American Hospital Association, the Association of American Medical Colleges, the Catholic Health Association, the Federation of American Hospitals, the National Association of Children’s Hospitals and the National Association of Public Hospitals and Health Systems — also filed an amicus brief in support of the administration’s defense of the individual mandate (Carlson, Modern Healthcare, 4/11).
  • Last week, the National Chamber Litigation Center — the law center for the U.S. Chamber of Commerce — filed an appeals brief in a Virginia lawsuit against the federal health reform law, arguing that the entire overhaul should be declared invalid if the individual mandate is found unconstitutional. In December 2010, U.S. District Court Judge Henry Hudson ruled that only the law’s individual mandate is unconstitutional. In the brief, NCLC argued that Hudson’s “approach to the issue of severability is unprecedented and fundamentally flawed” and that the law’s consumer protections have a “strong dependence” on the mandate (Norman, CQ HealthBeat, 4/5).

Rolling Out the Reform Law

  • The Department of Justice is ramping up efforts against hospitals and insurers it believes might be blocking competitors illegally. Policy experts recently have expressed concern over the effects of consolidation among hospitals, insurers and physician groups. In May 2010, DOJ’s antitrust chief Christine Varney promised an aggressive approach to challenging health care mergers and any contracts used to block rivals from competing. The increased enforcement comes as the federal health reform law encourages providers to form accountable care organizations. However, federal antitrust authorities are expected to plan a more flexible response for ACOs (Appleby, Kaiser Health News/Washington Post, 4/5).
  • Lawmakers and other government officials have been using stories of individual U.S. residents to support their arguments in the debate over the federal health reform law. For example, the White House’s website includes a clickable map of video testimonials from all 50 states that asks viewers to attest to the benefits of the federal health reform law. Democrats in some cases have sought the help of advocacy group Families USA, which keeps a database of such stories relating to the U.S. health care system (Aizenman, Washington Post, 4/11).
  • As states develop health care exchanges under the federal health reform law, those who oppose abortion rights are pushing lawmakers to restrict private health insurance coverage of abortion care. Last week, Virginia became the eighth state to pass a law to ban abortion coverage in private plans sold through the exchanges. Arizona, Idaho, Louisiana, Mississippi, Missouri, Tennessee and Utah also have passed laws banning abortion coverage by private health plans in the exchanges. Nancy Northup, president of the Center for Reproductive Rights, said 28 states were considering or had already passed similar laws (Tavernise, New York Times, 4/9).

In the States

  • On Tuesday, Massachusetts Democratic Party leaders threw a party — complete with balloons, speeches and cake — to mark the fifth anniversary of the state’s universal health reform law and honor former Gov. Mitt Romney (R), who signed the law. According to the Boston Globe, the party is intended to embarrass Romney, who has been criticizing the federal health reform law, which was modeled after the Massachusetts law. Meanwhile, Democrats in New Hampshire — the lead-off presidential primary state — also are planning to present Romney with cake and a birthday card (Johnson, Boston Globe, 4/8).
  • Oklahoma State Senate President Pro Tem Brian Bingman (R) recently said the state Senate will not consider legislation to create a state-based health insurance exchange — which is mandated under the federal health reform law — because the state is in the midst of a legal challenge against the law. The bill, which has been endorsed by Gov. Mary Fallin (R), would establish the legal basis for using a $54 million federal grant to create the exchange (Hoberock/Greene, Tulsa World, 4/1).
  • Last week, Montana Gov. Brian Schweitzer (D) vetoed a bill (SB 176) that would have restricted health plans offered by the state health insurance exchange from covering abortion services. Schweitzer said the measure violates the state’s constitutional guarantee of the right to privacy and access to reproductive health care. The House and Senate each need a two-thirds vote to overturn a governor’s veto. Experts say the Republican-run House may have enough votes to overturn the veto, but it could be difficult to get enough votes in the Senate, where the bill passed 27-22 in February (AP/NECN, 4/4).

Related Topics

Insurance Road to Reform The Health Law