Diagnosis for Democracy
Insights into the State of Our Union
A Blog by Rob Tenery, MD


February 10, 2011: Individual Mandate: The Deeper Issues

By Rob Tenery, MD on February 10, 2011

A federal judge in Florida recently ruled that the Patient Protection and Affordable Care Act of 2010 (PPACA) was unconstitutional because it required Americans to ‘obtain’ heath care insurance coverage by 2014 or face a penalty. His decision was based on the legal challenge filed by 26 states on the constitutionally of the new law. He also stated in his ruling that the individual mandate was “inextricably bound” to the other provisions of the law because there was no exclusionary clause in the original legislation. His argument was that the “insurance requirement exceeded the regulatory powers granted to Congress under the Commerce Clause of the Constitution.” He went on to say, “If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain.” (1)

The opposing argument, supporting the current administration’s position, and put forward by the Justice Department, was “that a choice not to obtain health insurance was itself an active decision that, taken in the aggregate, shifted the cost of caring for the uninsured to hospitals, governments and privately insured individuals.” (1)

With four court rulings, now evenly divided on the constitutionality of the insurance mandate clause of the PPACA, it seems certain that the final decision will rest with the Supreme Court. The hypothetical example included below demonstrates that a better understanding of the concepts of need and availability might bring more clarity to the ongoing debate concerning coverage and income.

Taylor "Rex" Spires sold the restaurant chain he started to a conglomerate out of Chicago for a considerable amount of money just over ten years ago. Since then he had been able to get in eighteen holes with three of his buddies on weekends and every Tuesday morning. That was until last fall, when he developed juandice. Although he was eighty-four on his last birthday, until now he had never looked or felt his age. The report from his physician was not good. It seems the two double, Dewar’s straight up, every evening starting at six, and the one, sometimes two, bottles of Merlot he shared with his wife over dinner had taken their toll. He was in end-stage cirrhosis. Giving up alcohol, adding food supplements and careful attention to his diet were his only hope of putting off the inevitable. Rex had brought up the possibility of a liver transplant, hoping his donations to the medical school over on Harry Hines Boulevard, might give him a leg up. A week went by before he was officially informed that his place on the transplant list put him at or near the bottom. Although he had not been officially rejected, Rex knew his hopes of a second chance were slim to none.

With the ongoing recession, Latisha Winters had been lucky to get the job with LabCor a little over two months ago. A high school drop out, she still lived with her parents. Her boy friend had brought up the subject of a future wedding once or twice. After several weeks of increasing malaise, she got the bad news when her lab reports revealed a marked increase in her liver enzymes. She was diagnosed with acute infectious hepatitis, probably contracted though exposure to contaminated material at work. Three months of intensive therapy failed to stem the increasing ravages of her disease and, even though her health insurance was not yet in effect, she was added to the transplant list as her only hope. She would apply for workmen’s' compensation. Even her doctor did not know if she would be eligible.

Rex Spires died in his sleep last Tuesday, leaving his golfing buddies looking to complete their foursome. The Highland Park Methodist Church was full to over-flowing with mourners paying tribute to a life well spent.

Laticia Winters, released from the hospital just three weeks ago following her transplant surgery, announced her engagement to a small group of friends at El Fenix.



Testing the constitutionality of mandated health care coverage begs the more basic issue that is still not totally resolved in this country. Is access to health care a right or a privilege?

The PPACA has made the issue individual responsibility to the community versus community obligation to the individual. In the balance is ‘free choice’ versus ‘public good.’ To resolve these fundamental differences, a better understanding of the obligations of access to health care depends on how this country views the human right to defend one’s self against the maladies of disease and injury.

A right would be a benefit granted to all individuals in a given society, such as protection from bodily harm by an outside source that is beyond one’s control. The responsibility for obtaining and paying for this protection is shouldered by all members of that society and supplied by the military forces, fire and police personnel. One could use this argument to support the concept that all individuals are entitled to good health and freedom from disease as a basic right. Unfortunately, the costs and limitations of resources make this concept unachievable.

Health care as a privilege would introduce the concept of option. Just being a member of a particular society would not automatically entitle one to the benefit of health care.

For a compassionate society, the answer seems to fall somewhere in between. The right to relief from pain and suffering seems universally accepted and would be limited only by the availability of resources. Benefits over and above this fall into the category of privileges.

In 1986, Congress enacted the Emergency Medical Treatment & Labor Act (EMTALA) to ensure public access to emergency services regardless of ability. Section 1867 of the Social Security Act imposes specific obligations on Medicare-participating hospitals that offer emergency services to provide a medical screening examination when a request is made for examination or treatment for an emergency medical condition (EMC), including active labor, regardless of an individual’s ability to pay. Hospitals are then required to provide stabilizing treatment for patients with EMCs. If a hospital is unable to stabilize a patient within its capability, or if the patient requests, an appropriate transfer should be implemented. (2)



All integrated societies offer some form care to its participants. This country's overflowing, emergency rooms and subsidized, outpatient clinics serve as testament that patients who are sick or injured are deserving of care to relieve their pain and suffering at the very least. These benefits, along with certain preventative measures such as selective immunizations, can be lumped into a basic benefits package, and by most, considered a right of our citizens. The rest would be considered as benefits to be utilized based on the measurable criteria of funding, availability, need and likelihood of benefit.

In an attempt to justify the enormous expenditures directed toward the care of patients in this country, the ethical arguments of ‘collective protection’ and ‘fair opportunity’ have been espoused. These principles, however, could just as easily be applied to larger segments of the population in a financially constrained system, thus justifying rationing on a case-by-case basis. (3)





Under ‘collective protection’ patients are entitled to protection from general threats that are beyond their control, which includes a basic level of health care. It is not necessarily just for their own protection, but also to avoid harm to a larger segment of society whom they might contact. ‘Fair opportunity’ does afford individuals the right to develop their skills and pursue goals without undue interference from others, but only if those rights don’t compromise others. (3)

This dilemma is not new to the American public. The need for prioritization in organ transplantation has existed since the technology was first successfully performed on December 23, 1954 (4). Sometimes the decision is made depending on which patient is the most critical and the availability of the needed organ. Sometimes it is based on age--- the younger deriving the greatest benefit over the longest time. In the most critical situations, the patient's financial status has little to do with the decision. With widespread limited resources, an expanding population (especially in the older sector) and growing funding constraints, the concept of allocation has now spread into most other areas of health care delivery.

Although many are reluctant to discuss the subject, there are two levels of heath care. With advances in technology, that disparity becomes even more apparent. Even in countries that claim nationalized health care, those in power generally fare better than those they govern. Maybe it’s just more personal attention by the providers of health care services. Maybe it’s purchasing care in the 'private sector' as in England or packing one's bags and paying for care in another country, such as with the oil-rich nations of the Middle East and Canada, when they migrate to the United States.

Keeping up the façade that all health care must be equal has a negative impact on the system. As long as the resources are available, is it just to deny patients better care if they are willing and able to pay for it? The concept discourages innovation. It also encourages the so-called privileged to seek care elsewhere and shifts funds out of the system. A loftier goal is to insure that everyone have access to a basic level of affordable health care services. That is where countries that offer universal health care have it up on the United States. The difference being that the level of care offered to the masses in most other parts of the world is either substandard or much harder to access.

There are two basic concepts that must be addressed. They are funding and allocation. Until 1929, when insurance for health care was first introduced, all funding for health care services came from the patients themselves or went uncollected. Today, the broader concept of percentage of Gross Domestic Product (GDP) addresses both these issues on a larger scale---intimating that an increase in the GDP automatically equates to better health care in those criteria such as longer life expectancy and lower infant mortality. Decreases in these numbers supposedly can be used to route out inefficiencies in the system. Unfortunately, other factors such as population make-up and density come into play. More important, the concept of using the percentage of the GDP also assigns a dollar value to a human life and changes the argument from a right or a privilege to one of cost/benefit ratio.

Even in the face of the growing complexity, as brought to the forefront by the debate over the constitutionality of the PPACA, we are drawn back to the fundamental principle upon which this profession was founded--humaneness---the showing of compassion and consideration for our fellow man, regardless of the law. Utopian dreams are what raise societies to a higher level. However, it is the cold, hard face of reality that determines which part of those dreams come to fruition.

REFERENCES:

1. http://www.nytimes.com/2011/02/01/us/01ruling.html

2. http://www.cms.gov/emtala/

3.Tenery RM. Our New Health Care System May Not Be Fair. American Medical News, November 4, 1996.

4. Merrill JP, Murray JE, Harrison JH, Guild WR. Successful homotransplantation of the human kidney between identical twins. JAMA. 1956; 160(4):277-282.




Leave a Comment


Share on Twitter Print


 






Additional Blog Posts

President Trump Trumps Obama(care)

Does Kaepernick Have a Point?

If Not Trump, It Would Have Been Ted Cruz…or even Jeb Bush

Take a Knee, Draw the Penalty

Crossing the Aisle on Healthcare Reform is the Only Option

The Conservative Movement's Last Chance

Political Correctness is Airbrushing Our History Away

Picking Your President Blindfolded

It Took Harvey to Bring Us Together

A Republicrat Fairy Tale

Where Does the Congress Go from Here?

The Stench from the Swamp is Getting Worse

Jorge Ramos Might Take a Lesson from His Native Mexico

The 'People' Deserve 'Their Day in Court'

Which Party is 'Wagging the Dog'

The Goldwater Rule Could Come Back to Haunt Trump's Critics

The Deep State--- Possibly Watergate on Steroids

The Republicans Don't Know Whether to Duck or Fall in Line

Insurrection at 1600 Pennsylvania Avenue

Many 'Ivory Towers' Have Become Bastions of Indoctrination

Should Sicker Patients Pay More for Health Care?

It's Not Only Black Lives That Matter

The Democrats Might Want to Move to the Right

It Could Be That We Are in For a Long Four Years

Warren Buffet Might Have the Answer to Health Care Reform

You Have to Give up the Kool-aid to Find the Truth

Bashing Trump has been Personal from the Beginning

Gorsuch May Come Back to Bite the Democrats on the Butt

The Mayors Seem to Forget They are Not Rulers of Their Own Fiefdoms

The Republicans Just Couldn't Get Their Act Together

The Alarming Reach by the Federal Courts

Maybe I'm Becoming One of Those Conspiracy Nuts

Maybe It's Time to Let California Go

The Land of Opportunity. But for Whom, and at What Cost?

No More Mr. Nice Guy

The Health Care Debts We Must Prevent

When Social Disobedience Becomes a Habit

Don't Forget the Foundations of Health Care Delivery

The Difficulties in Providing Health Care Coverage to the Uninsured

The Underlying Concerns of Health Care Reformation

How Managed Care Threatens the Doctor/Patient Relationship

As the Feds Cover More, They Pay Doctors Less

How Third Party Payers Took Over

How Liability Concerns Shape Health Care Delivery

'Marketing' is Medicine's Double-Edged Sword

The Changing Role of the Health Care Professional

Is Medical Care a Right or a Privilege?

Clinton's Loss Was Just the Tip of the Iceberg

Maybe the KGB is in on It Too

A Relook at the Draft

Will President Trump Determine Hillary Clinton's Fate?

Our Illegal Immigrants Could Tip the Presidential Election

Stopping this Country's Descent into Mediocracy

Advice from Churchill and Lincoln

Trump's Gettysburg Address Should Serve as the Template

I Might Not Invite Trump Over for Dinner, but I'll Still vote for Him

When the Dust Settles

Economic Globalism May Be Setting Us Up for the Big Fall

Stripping the Presidential Candidates Down to Their Bare Bones

Is Donald Trump Racist?

The Democrats May Need Joe Biden Yet

Colin Kaepernick: A Poor Big Rich Kid?

How the Government Subsidies Will 'Break Our Bank'

It's Impossible That Hillary Doesn't Know

Are Gold Star Families Being Used to Pimp for the Political Parties?

If the Republicans Abolished Slavery, Why Do Most Blacks Vote Democratic?

Are the Police Racial Profiling?

Trying to Understand the Black Perspective

Will Obama Ever Get Beyond His Color?

A Takeover Without a Shot Being Fired

The Main Reason to Vote for Trump is Hillary Clinton

Two Black Men Who Had a Chance to Change the World

How the Opponents of Voter ID are Gaming the System

If Trump Wins It Will Be a Miracle...

Their Chance to Move Up has to Start by K1

If Obamacare Comes Off the Track

Political Correctness is Taking Over

The Real 'Donkey' in the Room That's Not Closing Our Borders

Should Our President 'Tighten His Belt'?

The Drug Epidemic is Symptomatic of Much Bigger Problems

Trump May Be a Visionary, but Is That Enough?

It's Not the Voters, Stupid. It's the Party!

There Will be Others after Bernie Sanders

Are 'Black Lives' Being Taken for a Ride?

Taking a Closer Look at John Kasich

Critiquing Ted Cruz

Who Will End Up Taking the Blame?

Dump Trump? Not So Fast!

I Don't Like Donald Trump, But ---

Maybe It's Time to Lighten Up on George W. Bush

Have the Clintons Permanently Tarnished the White House?

'Chasing the Ponytail'

The Silent Majority Had Better Speak Up

It Should Be about Who Has the Right to Vote

A New 'Centrist' Party--- It Could Happen

How Much Money Does This Country Really Owe?

Truth or Dare: Is Trump's Campaign for Real?

It Happened Without a Shot Being Fired

Is Uncle Sam the Refugees' Bogeyman?

Another Trudeau Takes Over in Canada

Are We Crazy? The Junior Varsity Is for Real

Capping Congressional Shenanigans

When Will the Senate Democrats Stop Cowing to Harry Reid?

The 'Hunger Games' Debate

October 26, 2015 : Why Not Just Tell the Truth?

October 19, 2015: One Election Away from a Possible Constitutional Convention

October 12, 2015: Sanctuary Cities Could Be Our Downfall

October 6, 2015: Is Donald Trump Presidential?

September 30, 2015: Facing the Real Threat of Terrorism

September 14, 2015: Have the Clintons Used Up Their Nine Lives?

September 8, 2015: Because of Trump, the Mongrel Dog Might Catch a Break

September 1, 2015: Is This Just Wag the Dog?

August 27, 2015: Where Are They Going To Get The Money?

August 10, 2015: Pushing for a National Police Force

August 3, 2015: The Only Solution to Illegal Immigration

July 27, 2015: What's So Great About Bernie Sanders?

July 20, 2015: Trying to Save the Middle East from Itself

July 13, 2015: What Difference Does It Make?

July 6, 2015: Maybe We Can Learn from the Lessons of ISIS

June 30, 2015: It's Time to Put the Confederate Flag to Rest

June 15, 2015: The President Has Already Decided on Global Warming for Us

June 8, 2015: This Century's Berlin Wall

June 2, 2015: Groveling for the Truth at the Trough

May 27, 2015: Would Our Forefathers Find Fault with Obama's Vision for America?

May 12, 2015: Do They Remind Us of the Thénardiers?

April 28, 2015: Why Politics and Religion Don't Mix

April 17, 2015: What It Takes to Have a 'Good' Marriage

April 13, 2015: We Live in One Big Infomercial

March 30, 2015: Our 'Kick It Down the Road' Generation

March 10, 2015: What Can President Obama Learn from Neville Chamberlin?

February 25, 2015: Are We Going to Look the Other Way, Again?

February 10, 2015: The Fall of the "American Empire"?

January 8, 2015: Physicians Desperately Need an American Medical Association

December 12, 2014: Doctors for Hire

November 24, 2014: Boondoggle?

November 3, 2014: 'Working for the Man'

October 10, 2014: Should Our "Squatters" Get a Free Ride?

September 10, 2014: The Crisis of Truth in the White House

August 11, 2014: A 'Fox' in the IRS's Henhouse

July 10, 2014: Houston: We Have Had a Problem!

June 10, 2014: The 'Perfect Storm' at the Veterans Administration

May 12, 2014: Border Boondoggle

April 30, 2014: The Reverend Jessie Jackson and Geronimo

April 21, 2014: The Surgeon General--- Where’s the Beef?

April 8, 2014: Complacency, Acceptance Then Dependency--- A Master Plan?

March 10, 2014: Does Bedside Manner Matter Anymore?

February 10, 2014: Outcome Measurements Could Be a Two-Edged Sword

January 10, 2014: It Always Seems to Boil Down to Politics

December 10, 2013: The End of the Shift or the Next Patient

November 11, 2013: Have We Given Up On Meaningful Dialogue?

October 11, 2013: Is This All Just About Obamacare?

September 10, 2013: Even the Lexicographers Have Noticed the Change

August 8, 2013: Where Did Physicians First Go Wrong?

July 10, 2013: It's Only a Matter of Time...

June 10, 2013: Maybe I Should Have Been a Veterinarian?

May 9, 2013: The Intangibles--- Why Paying Paying for Performance Won't Work

April 10, 2013: The Money Has to Come from Somewhere

March 11, 2013: Is Doing the Right Thing Passé?

February 11, 2013: What Would Hippocrates Do?

January 10, 2013: The Physicians' Vanishing Covenant

December 3, 2012: Where Is The Outrage?

November 19, 2012: Why Don't You Get In Line With Me?

October 29, 2012: Obamacare Has 'Thrown Our Seniors Under the Bus'

October 10, 2012: "I Don't Like Spinach"

September 10, 2012: The Widgets in Our Waiting Rooms

August 27, 2012: Once the Dust Settles

August 10, 2012: Same Song, Final Verse?

July 23, 2012: President Obama 1, President Clinton 0

July 10, 2012: Chief Justice Roberts' Decision Might Just Be a Stroke of Genius

June 11, 2012: The 1.5% Penalty

May 10, 2012: Groundhog Day---Our Boring Problems?

April 10, 2012: The Three Little 'Doctors'

March 9, 2012: Looking the Other Way

February 10, 2012: Mumble, Grumble, then Tumble

January 10, 2012: Thinking About Getting Out of Medicare? Think Again

December 12, 2011: Is Walmartcare the Answer?

November 10, 2011: Have Physicians Lost Their 'Shared Vision'?

October 10, 2011: Opt-In Versus Opt-Out: Petty or Important?

September 9, 2011: Whatever Happened to the 'Whole' Story?

August 10, 2011: Maybe This Wasn't George W. Bush's Recession?

July 11, 2011: Shotgun Medicine

June 10, 2011: Medicine's 'Tipping Point': What's Next?

May 10, 2011: Have Physicians Sold Their Souls?

April 11, 2011: Turf Battles, but on Whose Turf?

March 10, 2011: Death Panels: Probably Not------A Trojan Horse: Maybe

February 10, 2011: Individual Mandate: The Deeper Issues

January 10, 2011: What if There Were No AMA?

December 10, 2010: Birthright Citizenship: The Silent Costs

November 11, 2010: The State of the Medical Profession

Brown Books Digital