McKinney, Louise W.

English

Case Western Reserve University School of Law

Health Matrix: The Journal of Law-MedicineVolume 12 | Issue 12002SYMPOSIUM: BARRIERS TO ACCESS TOHEALTH CARE -- Introduction: Are the WallsTumbling Down? Hardly. Are the Sands Shifing?Surely.Louise W. McKinneyFollow 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 CitationLouise W. McKinney, SYMPOSIUM: BARRIERS TO ACCESS TO HEALTH CARE -- Introduction: Are the Walls Tumbling Down?Hardly. Are the Sands Shifing? Surely., 12 Health Matrix 1 (2002)Available at: https://scholarlycommons.law.case.edu/healthmatrix/vol12/iss1/3SYMPOSIUMBARRIERS TO ACCESS TO HEALTHCAREINTRODUCTION: ARE THE WALLS TUMBLINGDOWN? HARDLY. ARE THE SANDS SHIFTING?SURELY.EVERYONE HAS THE RIGHT to a standard of liv-ing adequate for the health and well-being of himselfand of his family, including food, clothing, housing andmedical care and necessary social services, and the rightto security in the event of unemployment, sickness, dis-ability, widowhood, old age or other lack of livelihoodin circumstances beyond his control.'The United States has not yet recognized the right to an ade-quate health-supporting standard of living or the right tomedical care or "to security in the event of ... disability," asdescribed in the 1948 United Nations Universal Declaration ofHuman Rights.2 Nor has the U.S. met the United Nations stan-dard in terms of health and disability.The articles in this Symposium describe some of the barriersto people gaining health care access. The issue would have to bea multi-volume treatise if it tried to identify and analyze all ofthe obstacles to health care in the United States. The authors inthis issue are practitioners (legal and medical), community ac-tivists and law professors. Some fit into two or three of thecategories. They all have experience with the issues they de-HUMAN RIGHTS: A COMPILATION OF INTERNATIONAL INSTRUMENTS at 3Art.25, U.N. Doe. ST/HR/i/Rev. 1, U.N. Sales No. E.78.XIV.2 (3d ed. 1978) (em-phasis added).2IaHEALTH MATRIXscribe. Because of their experiences, they bring perspectivesthat are fresh. They describe ongoing processes. They describethe current state of the law and anticipated directions for thelaw."The Law Is All Over."All of the barriers to health care are described in a legalcontext. The reason is obvious. As a client in Austin Sarat'sstudy observed: "The law is all over." 3 And the law is everchanging.Laws passed by federal and state legislatures are addressedspecifically to the provision of health care. They set up criteriafor eligibility for access to some health care and the extent ofservices that may or must be provided. They prescribe the con-ditions under which services may be available and the financesfor providing health care in some circumstances. Other moregeneral laws-designed to regulate the economy, credit, andbankruptcy-impact on people's choices and ability to obtainhealth care.Courts have been asked to interpret statutes. They have or-dered remedies that are often far-reaching. Some have occa-sionally determined that they have no role in interpreting or en-forcing law such as the Medicaid statute. In addition, the law iswith us as governmental and non-governmental agencies andorganizations strive to develop systems to make health careavailable.Financial Barriers: MedicaidThe articles in this Symposium address various barriers-and means to avoid the barriers-to access to health care. Wecan all describe one major barrier. It is financial. If one does nothave health insurance, one is much less likely to obtain healthcare. Moreover, the likelihood of receiving adequate and medi-cally necessary health care is extremely low-unless one is fi-nancially independent.Medicaid was established in 1965 to provide access tohealth care for some poor people in families with children or forthose who are disabled or aged. It has provided great assistance3 Austin Sarat, ".... The Law Is All Over". Power, Resistance and the LegalConsciousness of the Welfare Poor, 2 YALE J.L. & HuMAN. 343, 343 (1990).[Vol. 12:1INTRODUCTIONbut has, as Jane Perkins's article describes, left serious gaps.Welfare reform, community and faith based services, and otherchanges over the past decade have caused changes in the waysthat social services (including health care) happen.One of the unfortunate results of cutting families off cashassistance has been the erroneous and illegal termination ofpeople on Medicaid rolls. Welfare reform "de-linked" Medicaidfrom cash assistance. People lost cash assistance because theyobtained jobs that replaced the grants or because they weresanctioned for failing to follow the new rules. Most jobs failedto bring families out of poverty and generally did not providemedical insurance benefits. Whether people lost cash benefitsbecause of sanctions or because they obtained jobs, many ofthem lost Medicaid improperly.When they lost cash benefits, minimal as they may havebeen, families also often lost Medicaid, the publicly financedhealth care for poor families. In Ohio, for example, 160,000people were improperly cut off Medicaid, often when they werecut off cash assistance. The State agreed to reinstate those peo-ple who requested reinstatement. Legal services programsacross the state worked to assist the reinstatement process. Stu-dents at Case Western Reserve University Law School mobi-lized to provide assistance during the reinstatement process,publicizing the restoration by the State and providing a phonehotline and walk-in service almost forty hours a week for tenweeks. They hoped to assist at least some of those who werewrongfully terminated-25,000 in the county where the lawschool is located. They spoke to some, helped some to reapply,and distributed application forms and information to other so-cial service agencies. Unfortunately, only a small fraction ofthose whom the State identified as improperly terminated werereinstated after nine months of work by the advocates. Smallerrors can cause big changes and harms.The result is that the more things change, the more thingsremain the same. There are still many, many people who arepoor or "medically indigent." Many of them are not eligible forpublicly subsidized health insurance. Many of those who areeligible are not receiving publicly subsidized health insurance.Many of those who are receiving Medicaid are not receiving theservices that Medicaid is supposed to be providing. Many peo-ple are still trying to expand access to health care to poor andmedically indigent people by improving the scope and imple-20021HEALTH MATRIXmentation of Medicaid and other health insurance. And othersare looking to contract the availability of Medicaid by limitingthe people who are eligible, decreasing the services providedand increasing the cost of the insurance and services.Financial Barriers: Medical DebtPeople who are not financially eligible for full coverage bypublicly financed health insurance have serious barriers tohealth care. Trey Daly, Lisa Oblak, Robert Seifer and KimberlyShellenberger describe many of the problems that people withmedical debt have. A high percentage of personal bankruptciesare related to medical debt. It is certainly not sufficient to saythat health care is a commodity that you decide whether youneed and that you forego if you cannot pay for it. Certainly theimpact of medical debt for uninsured or under-insured people isthat they think twice before they try to get medically necessarycare again. Consequently, their health status suffers.Unique Barriers for People With DisabilitiesPeople with mental disabilities have unique barriers to ob-taining appropriate medical treatment for their disabilities. JoanO'Sullivan and Breck Borcherding describe the difficulties inobtaining treatment, particularly in Maryland. Before givingtreatment for a mental disorder, the provider must obtain in-formed consent. State law forbids surrogate decisionmakers.But how is an untreated person with a mental disorder able togive informed consent? And how do you decide to continuetreatment when there is no evidence that there ever was in-formed consent? And how do you decide to stop treatment,knowing that stopping medication may have disastrous effects?Why is the law as it is? What protections are intended and nec-essary? What changes to the law should be made?The Americans with Disabilities Act protects people withdisabilities. Olmstead v. L.C.4 is a 1999 groundbreaking Su-preme Court decision that basically requires that people withdisabilities receive health services in the community when pos-sible. The previous public spending for people with disabilitiesis being realigned to include many more community-based ser-vices. The courts have lowered a barrier to less restrictive set-4 527 U.S. 581 (1999).[Vol. 12:1INTRODUCTIONtings for health care treatment of people with disabilities. Thestates are taking seriously the statute-based court mandates. Ac-cess to appropriate health services is increasing -with the en-forcement of the ADA through the courts, according to the arti-cle by Sara Rosenbaum, Joel Teitelbaum and Alexandra Stew-art. The process of change continues.Waiting lists for community services are also being chal-lenged. Margaret Feltz describes court challenges to Medicaidwaiting lists and their context with Olmstead litigation. Litiga-tion has provided, at the least, a catalyst for change. It has alsoshaped the priorities for changes. As a two-edged sword, it canbring attention to important barriers to service. It can also man-date the use of state funds to the value of some and possibledetriment of others.The Courts: Access or BarrierThe courts are being asked to enforce the federal require-ments of the scope of Medicaid. Erwin Chemerinsky's articleexplains why the federal courts can and must continue to re-quire the States to provide the services that Medicaid mandates.The issue has become complicated by various views of federal-ism. The history of a recent federal district court case, WestsideMothers v. Haveman,5 puts the issue in perspective-contrasting the history of courts enforcing Medicaid with thecurrent development of the limits on the federal courts and Con-gress. The Westside Mothers case was filed in Michigan, withthe plaintiffs asking the court to require the state agency thatadministers Medicaid to provide early periodic screening, diag-nosis and treatment for young children as Federal Medicaid lawmandates. The trial court decided for various reasons that itcould not enforce congressional mandates of particular kinds ofservices against the State of Michigan. Erwin Chemerinsky andJane Perkins have both crafted briefs that are with the SixthCircuit Court of Appeals.The outcome, if it supports the trial court, may have pro-found effects on the coverage that Medicaid provides if Stateschoose not to comply with the federal standards. It would alsooverturn decades of availability of court redress for poor people.5 133 F. Supp. 2d 549 (E.D. Mich. 2001).2002]HEALTH MATRIXOn the other hand, the courts have been open to requiringhealth and habilitation services in the least restrictive environ-ment feasible and as promptly as possible, as noted in other ar-ticles by Rosenbaum, Teitelbaum and Stewart and by Feltz.These court decisions have continued the tradition of recogniz-ing-implicitly or explicitly-that a right without a remedy isno right.Change Is InevitableChanges are happening. As Perkins' article explains, morepeople are eligible for Medicaid. Some Medicaid services mayno longer be mandated. "Mandates" may no longer be enforce-able. Finances still affect health care decisions and health carecosts still affect financial decisions of low-income people, asDaly and colleagues point out. Other publicly financed servicesare expanding and becoming more appropriate.States are trying to combine publicly financed and em-ployer-based health insurance to fill some of the gaps, accord-ing to Louise Trubek. Trubek's article discusses reform, usinginitiatives such as Wisconsin's BagderCare program as an ex-ample. Medical services are not now but may become moreavailable, while preserving protections against inappropriate ornonconsensual treatment, as described by O'Sullivan andBorcherding. The courts have historically enforced Medicaidrequirements against the states, as shown by Feltz; a change inthat history may be an aberration or a trend, as examined byChemerinsky. And as discussed by Rosenbaum and colleagues,the courts are enforcing the ADA to increase access to healthservices in the community.The authors raise cutting-edge issues. Barriers to healthcare are everywhere for people with low income and with dis-abilities. The law is also everywhere. It can work for thesepopulations or against them. The changes continue. The U.N.human right is still unrealized, but that can change too.Louise W. McKinneytt Professor of Law, Case Western Reserve University Law School; B.A.,Heidelberg College, Tiffin, Ohio; J.D., Case Western Reserve University LawSchool.[Vol. 12:1

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