Kiser, William S.

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Case Western Reserve University School of Law

Health Matrix: The Journal of Law-MedicineVolume 1 | Issue 21991Commentary by: William S. KiserWilliam S. KiserFollow this and additional works at: https://scholarlycommons.law.case.edu/healthmatrixPart of the Health Law and Policy CommonsThis Symposium is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law ScholarlyCommons. It has been accepted for inclusion in Health Matrix: The Journal of Law-Medicine by an authorized administrator of Case Western ReserveUniversity School of Law Scholarly Commons.Recommended CitationWilliam S. Kiser, Commentary by: William S. Kiser, 1 Health Matrix 201 (1991)Available at: https://scholarlycommons.law.case.edu/healthmatrix/vol1/iss2/8COMMENTARY: THE OREGONMEDICAID PROGRAM:IS IT JUST?William S. Kiser, M.D.tINTRODUCTIONACCESS TO AFFORDABLE health care has become an issue ofgreat national concern with nearly one-fourth of all Americanseither underinsured, uninsured or uninsurable at the present time.Federal initiatives have failed to provide universal medical cover-age. As the problem reaches crisis proportions individual stateshave responded with their proposals to meet pressing health needsof their citizens.The State of Oregon attracted national attention in 1989 byadopting innovative legislation (S.B. 27) which would mandate auniform health benefit package and prepaid managed care for allpersons with incomes below the federal poverty level. A unique fea-ture of the plan is a process for ranking services by efficacy and cost.The budget of the program would be balanced by cutting serviceswith the lowest scores if required by financial constraints.Mehlman, in an eloquent analysis, has considered the legal im-plications of the Oregon Plan and has questioned the validity of theconcept from a public policy viewpoint.HEALTH CARE RIGHTS UNDER THE LAWMehlman states at the outset that there appears to be no impedi-ments to implementation of the Oregon Medicaid Program undereither state or federal constitutional law.' The Supreme Court ofthe United States has ruled that health care is not a fundamentalright of American citizenship. The government is not obligated toprovide health care services for those who are unable to pay for it.t Chairman of the National Advisory Council on Health Policy, Research and Evalu-ation to the newly established Agency on Health Care Policy and Research of the PublicHealth Service.1. Mehlman, The Oregon Medicaid Program: Is It Just?, I HEALTH MATRIX: CAsE W.R-s. J. L. MED. 175 (1991).HEALTH MATRIXFurthermore, the Court has declared that denial of payment doesnot discriminate against the poor as a class in terms of equal protec-tion under the law. Consequently, the Oregon proposal whichcould deny some medically necessary services to current Medicaidrecipients to allow for coverage of all low income individuals wouldnot violate the constitutional rights of those who may be deniedsome previously enjoyed services.THE MEDICAID WAIVER ISSUEOn the other hand, a looming, perhaps insurmountable legalhurdle facing Oregon legislators is the need to obtain waivers fromfederal statutes which govern the Medicaid Program. Regulatorylaws specify the medically necessary services to which the "categor-ically" eligible are entitled. Proponents of the Oregon Programhave downplayed the fact that ADC mothers and children are theonly persons who would be directly affected by the proposed ration-ing process. The aged and disabled Medicaid recipients are ex-cluded from the priority setting process. Segregation of recipients islikely to generate intense political opposition within Congress,which in 1989 mandated expanded benefits for all pregnant womenand children from families with incomes which fall below federalpoverty level.In recent weeks Senator Albert Gore (D. Tenn) has challengedthe fairness of the Oregon proposal because of perceived discrimina-tion against the most vulnerable of economically disadvantaged citi-zens. In addition he has questioned the level of commitment ofOregon to efficient management and financial support of the State'sMedicaid effort in general. He has pointed to the fact that Oregonwas highest among 50 states in administrative costs and ranked 46among states in lowest per capita contribution of tax dollars in sup-port of the program. Such criticism by a powerful congressionalleader does not bode well for Oregon in its quest for Medicaidwaivers.Although the Secretary of Health and Human Services couldwaive the mandated provisions to "further the objectives of theMedicaid Program" it seems likely that he would prefer that Con-gress make the decision in view of mounting political concerns as tocertain features of the proposal. Without waivers of the Medicaidregulations the Oregon Plan cannot be implemented - certainlynot in 1991 as intended.[Vol. 1:201COMMENTARY- IS IT JUST?OTHER LEGAL CONSIDERATIONSMehlman has raised the disconcerting possibility that Medicaidrecipients may be required to forfeit certain civil rights under com-mon law with implementation of S.B. 27. The new plan would givelegal immunity to health providers who were unable to provide"reasonable health care" to Medicaid recipients because necessarymedical services were unavailable for financial reasons. The pro-vider would be obligated to advise the recipient that the treatmentprescribed was not the preferred method but was the only availableoption imposed by the rationing process. The legislation appears tointroduce a "legal morality" into the doctor-patient relationshipwhich could compromise the traditional professional obligation ofthe doctor to his patient. The response of the Oregon medical com-munity to this ethical dilemma has not been heard. Furthermore,what legal redress does a patient have under this proposal in theevent of a therapeutic misadventure? Can the State of Oregon besued for medical malpractice?A MATTER OF PUBLIC POLICYMehlman has concluded that the Oregon Proposal is not pri-marily a legal issue - rather that it should be judged on its merit asa social program in terms of equity and societal benefit. He hasquestioned the appropriateness of basing the plan upon a utilitarianphilosophy of resource allocation - of providing the greatest goodfor the largest number - because of a concern for possible infringe-ments upon certain basic rights of the individual. The fact is thatcitizens of Oregon have had similar concerns as to individual needsand rights versus values of society in general and have engaged inpublic debate of these issues since 1982.Oregon Health Decisions, a citizens group concerned with themedically uninsured have conducted public meetings throughoutthe state for the last six years. From these deliberations came a setof 15 Principles of Health Care Allocation which has served as aguideline for the Oregon Medicaid Priority Setting Project. It is thebelief of the citizens group that society is responsible for allocationof public funds to support essential services and that they and thelegislators are accountable for any adverse consequences of ration-ing health care to low income groups. Although there has beenpublic involvement in the evolution of the prioritization concept thequestion must be raised as to what role was played in the process bylow income citizens. Was there the opportunity for their values and1991]HEALTH MATRIXpreferences to be heard? Or, as feared by Mehlman, were decisionsmade on their behalf by the more affluent without adequate partici-pation by those who will be affected by the law?A MATTER OF FUNDINGWhile Mehlman does not express a specific preference, the toneof his thesis is that overall the resources available to society shouldbe equally and equitably distributed to all persons and that the poorshould not be required to accept the burden of greater deprivationthan those who are more economically privileged. This is the verybasis of social equity. In truth, our society is always rationing itsbenefits, and to some extent, allowing the marketplace to govern theacquisition of additional benefits. We, in fact, practice a "statisticalmorality" whether we admit it or not. For example, by allocating aspecific amount of money for the provision of such universally ac-knowledged needs as childhood immunization, highway safety, en-vironmental protection, to name just a few, we are clearlycondemning some people to illness or death in comparison withwhat would be the case if we allocated much greater amounts ofmoney. For example, just last month the Center for Disease Con-trol reported that 40 children had died of measles because of inade-quate funding of the immunization program. A major flaw in theOregon Plan is the expressed unwillingness on the part of the legis-lature to raise more revenue through taxes to pay for the extendedprogram. The burden is placed upon the recipients of care insteadof being shared by all segments of society. However, public visibil-ity of the allocation process may be the stimulus for eventual raisingof funds through tax mechanisms to cover necessary services.CONCLUSIONIt will require major systemic changes within the states and thenation to arrive at greater affordability and equity in health care.Programs such as the Oregon Program must be looked upon as in-terim measures, as trials and demonstrations, which eventually willlead to a more effective system of universal coverage for the popula-tion of America. It may be that Congress will allow Oregon to im-plement its proposal as an experiment in social engineering withinspecific guidelines which would protect the rights of all individualcitizens. The answer to this possibility may be forthcoming laterthis year.[Vol. 1:201

Commentary by:  William S. Kiser

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Commentary by: William S. Kiser

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