Medicaid, Low Income Pools, and the Goals of Privatization

This article examines the Bush Administration\u27s attempts to transform certain supplemental payments, most notably Medicaid’s Disproportionate Share Hospital (DSH) program, into a means of subsidizing private health coverage for Medicaid expansion populations. Greater private market involvement in the state disbursement of supplemental payments such as DSH makes it more difficult to fulfill Medicaid’s original goals. It reduces the overall funds available specifically for care, provides beneficiaries with leaner benefit plans than those offered by the public system, and hinders beneficiaries from obtaining and retaining care. As such, it increases waste and inefficiency, rather than reducing them. At the same time, rather than improving access to overall medical care and provider choice, it instead prioritizes choice among private insurance products. This not only subverts the original goals of Medicaid, but also suggests a key shift in our conceptualization of what it means to access health care in the United States

On the Expansion of “Health” and “Welfare” under Medicaid

Medicaid was intended from its inception to provide financial access to health care for certain categories of impoverished Americans. While rooted in historical welfare programs, it was meant to afford the deserving poor access to the same sort of health care that other, wealthier Americans received. Yet despite this seemingly innocuous and laudable purpose, it has become a front in the political and social battles waged over the last several decades on the issues of welfare and the safety net. The latest battleground pits competing visions of Medicaid. One vision seeks to transform Medicaid from a health care program into something sharing key trappings of cash welfare programs. Despite the delinkage of Medicaid in most respects from cash welfare with the passage of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, some states sought to tie access to Medicaid benefits to adherence to particular healthy behaviors, completion ofpreventive care measures, and assumption of increased financial responsibility. This trend has increased in the post-Affordable Care Act environment. A competing vision in states seeks to include within Medicaid\u27s auspices various means of ameliorating not merely medical problems, but also socioeconomic determinants ofhealth. States taking this route are heeding data supporting the premise that, in order to better and more cheaply address the health care needs of everyone, we need to address not only financial access to health care but also environmental, economic, and social factors that can lead to bad health. I will examine these competing visions of Medicaid, and consider the extent to which the Secretary of the U.S. Department of Health and Human Services can arguably grant lawful waivers to these states for these expansions or constrictions. I will further consider the implications of these visions, and their success or failure, on Medicaid\u27s longer-term prospects, as well as on the greater health care system

Midwifery: Strategies on the Road to Universal Legalization

Multiple studies have shown that direct-entry midwifery is just as safe, if not safer than, medical care in low-risk childbirth. Most births using direct-entry midwives require fewer interventions than those attended by physicians, yet yield excellent results. The results of these studies indicate that we should return to midwifery for normal births, rather than continuing to rely primarily on medicine. This option, however, has been significantly curtailed by many state legislatures and courts, despite decades of attempts to make incursions on the traditional paradigm of hospital births attended by obstetricians. As a result, where midwifery is more readily available, it is generally available only from certified nurse-midwives, rather than from direct-entry midwives. This article considers why the numerous arguments in favor of direct-entry midwifery and against obstetrical management of most pregnancies have generally been unsuccessful, and why the medical paradigm has – at least to date – generally won the day in the legal arena. It also evaluates what will need to change in order to alter the prevailing attitudes towards birth in the United States

Federal/State Tensions in Fulfilling Medicaid’s Purpose

Medicaid has been subject to reconsiderations of the proper role of government in providing for the health and welfare of populations over recent decades. Over the last decade in particular, a number of states have transferred many functions that they once performed to private entities, including, in a number of cases, express policymaking functions. The Patient Protection and Affordable Care Act (ACA) takes some crucial steps towards readjusting the equilibrium of Medicaid. Rather than further prioritizing the market in its reforms, it gives the federal government stronger charge of Medicaid policy, refocusing the program more directly on expanding eligibility and providing secure care for beneficiaries in the process. I argue that this reprioritization is in better keeping with the purpose of Medicaid, in contradistinction to the market-driven reforms undertaken during the Bush administration and sought by some states today. It does, however, shift more power from the states to the federal government. This has raised concerns not only from states that oppose the new health reform law, but also from a number that support it. These two groups of states share a desire for greater flexibility in their Medicaid programs than the ACA permits. Yet only one of these groups should be permitted to use federal Medicaid funds to make the reforms they seek. Federal administrations need to be particularly careful, when considering whether to grant state Medicaid waiver requests, to uphold Medicaid’s purpose of giving lower-income Americans genuine access to the same health care that other Americans receive

Midwifery: Strategies on the Road to Universal Legalization

Multiple studies have shown that direct-entry midwifery is just as safe, if not safer than, medical care in low-risk childbirth. Most births using direct-entry midwives require fewer interventions than those attended by physicians, yet yield excellent results. The results of these studies indicate that we should return to midwifery for normal births, rather than continuing to rely primarily on medicine. This option, however, has been significantly curtailed by many state legislatures and courts, despite decades of attempts to make incursions on the traditional paradigm of hospital births attended by obstetricians. As a result, where midwifery is more readily available, it is generally available only from certified nurse-midwives, rather than from direct-entry midwives. This article considers why the numerous arguments in favor of direct-entry midwifery and against obstetrical management of most pregnancies have generally been unsuccessful, and why the medical paradigm has – at least to date – generally won the day in the legal arena. It also evaluates what will need to change in order to alter the prevailing attitudes towards birth in the United States

Federal/State Tensions in Fulfilling Medicaid’s Purpose

Medicaid has been subject to reconsiderations of the proper role of government in providing for the health and welfare of populations over recent decades. Over the last decade in particular, a number of states have transferred many functions that they once performed to private entities, including, in a number of cases, express policymaking functions. The Patient Protection and Affordable Care Act (ACA) takes some crucial steps towards readjusting the equilibrium of Medicaid. Rather than further prioritizing the market in its reforms, it gives the federal government stronger charge of Medicaid policy, refocusing the program more directly on expanding eligibility and providing secure care for beneficiaries in the process. I argue that this reprioritization is in better keeping with the purpose of Medicaid, in contradistinction to the market-driven reforms undertaken during the Bush administration and sought by some states today. It does, however, shift more power from the states to the federal government. This has raised concerns not only from states that oppose the new health reform law, but also from a number that support it. These two groups of states share a desire for greater flexibility in their Medicaid programs than the ACA permits. Yet only one of these groups should be permitted to use federal Medicaid funds to make the reforms they seek. Federal administrations need to be particularly careful, when considering whether to grant state Medicaid waiver requests, to uphold Medicaid’s purpose of giving lower-income Americans genuine access to the same health care that other Americans receive

On the Expansion of “Health” and “Welfare” under Medicaid

Medicaid was intended from its inception to provide financial access to health care for certain categories of impoverished Americans. While rooted in historical welfare programs, it was meant to afford the deserving poor access to the same sort of health care that other, wealthier Americans received. Yet despite this seemingly innocuous and laudable purpose, it has become a front in the political and social battles waged over the last several decades on the issues of welfare and the safety net. The latest battleground pits competing visions of Medicaid. One vision seeks to transform Medicaid from a health care program into something sharing key trappings of cash welfare programs. Despite the delinkage of Medicaid in most respects from cash welfare with the passage of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, some states sought to tie access to Medicaid benefits to adherence to particular healthy behaviors, completion ofpreventive care measures, and assumption of increased financial responsibility. This trend has increased in the post-Affordable Care Act environment. A competing vision in states seeks to include within Medicaid\u27s auspices various means of ameliorating not merely medical problems, but also socioeconomic determinants ofhealth. States taking this route are heeding data supporting the premise that, in order to better and more cheaply address the health care needs of everyone, we need to address not only financial access to health care but also environmental, economic, and social factors that can lead to bad health. I will examine these competing visions of Medicaid, and consider the extent to which the Secretary of the U.S. Department of Health and Human Services can arguably grant lawful waivers to these states for these expansions or constrictions. I will further consider the implications of these visions, and their success or failure, on Medicaid\u27s longer-term prospects, as well as on the greater health care system

Aligning Incentives in Accountable Care Organizations: The Role of Medical Malpractice Reform

The Patient Protection and Affordable Care Act (ACA) encourages physicians, hospitals, and other health care providers to deliver better coordinated, high-quality care through the institution of the Medicare Shared Savings Program. Many physicians and other providers moved quickly after the ACA was enacted to enter into arrangements that would allow them to take advantage of the MSSP and similar programs sponsored by private insurers that likely would — and did — arrive on the MSSP’s heels. Yet despite the initial enthusiasm, it is by no means clear that ACOs will succeed, whether individually or in the greater goal of changing our health care delivery system. To be successful, ACOs will require a substantial amount of coordination and participant buy-in to a particular practice ethos. How does one convince skeptical and independent-minded physicians to follow guidelines and metrics set forth by ACOs — guidelines and metrics that are devised in part to reduce the volume of certain types of services provided, and hence also potentially lowering physicians’ financial returns? How does one do this, in particular, when physicians not only may be making less money as a result of following these guidelines and metrics, but will also retain full liability for negligent outcomes? If ACOs are to succeed more broadly, it may be important for state legislatures to address medical malpractice to reflect the changes currently underway in our health care system. The question is how to do this while also facilitating better integration of care delivery and, ideally, sufficiently improving the practice of medicine such that a critical mass of physicians will support and participate in the proposed changes. The answer may best be given by an idea last entertained during the heyday of managed care: enterprise liability. As the name suggests, enterprise liability would make a health care entity, such as a hospital or an ACO, financially liable for acts of negligence, rather than or possibly in addition to the individual providers staffing it or otherwise providing services under its auspices. Given the consolidation in the health care market, the increasing movement toward employment of physicians by hospitals, health insurers, and other entities, the incentives that the ACA gives for various forms of integrated care that meet or exceed quality benchmarks, and the persistence of the problems of our traditional means of addressing medical malpractice, this article discusses enterprise liability and argues that the time may be ripe to revisit enterprise liability as a means of rationally revamping our medical liability system