One of the most basic of human rights is the right to good health care. In recent years we have come to understand that health care is not merely a technical problem for medical specialists. It is a vital concern for all who help shape the economic, social, and political processes of our communities and nations.
Government Health Programs
The state and federal governments have been involved to some degree in health care delivery for a long time. Medicare and Medicaid are not health care service programs; they are a means of reimbursing private sector health care delivery programs for services rendered. Nor are they universal or comprehensive programs; both stipulate specifically which individuals are eligible for coverage, which services are reimbursable, and what portion of the bill will be paid.
Medicare provides hospitalization and medical insurance for per sons aged sixty-five and over who are entitled to Social Security or Rail Road Retirement benefits, as well as those receiving Social Security disability benefits for two years or more.' In addition, the small number of elderly who do not qualify for Social Security can buy into the Medicare system. Unlike Medicaid, eligibility for Medicare has nothing to do with financial need.
Medicare is divided into two parts: Part A, hospital Insurance, is financed by payroll tax deductions collected under the Social Security system, and covers hospital, extended care, home heath, and hospital outpatient diagnostic services. Part B, Supplemental Medical Insurance, covers physicians' and home health services, outpatient therapy, and a number of related services. Participation in Part B is voluntary; anyone eligible for Part A may enroll in Part B by paying a monthly premium, Access, Discrimination, and the Right to Health Care which is matched by the federal government.' Part H pays participants 80 percent of "allowable" expenses after a yearly deductible, but the participants themselves must pay any charges above this amount.
Since Medicare is solely a federal program, it is theoretically uniform throughout the United States. But the actual handling of claims is per formed by private insurers, such as Blue Cross/Blue Shield, which contract with the federal government to serve as "fiscal intermediaries," and these insurers make the initial determination as to whether a particular service is reimbursable. Health care providers wishing to participate in the Medicare program must file with the secretary of Health and Human Services an agreement to comply with the fiscal, accounting, administrative, and coverage provisions of the law ,'" and then nominate an intermediary as fiscal representative.
Medicare has not generated much legal controversy during its several years of existence. For the individual provider the only decision that need be made is whether or not to participate directly in the Medicare program by accepting "assignment," that is, by agreeing to handle Medicare billing and accept the allowable charge as payment in full.
Physicians also have the option of billing a Medicare-eligible patient directly without limitation on the fee (the patient is then reimbursed by Medicare for whatever portion of the bill the program will cover). Hospitals and nursing homes may also refuse to accept Medicare as payment-in-full for services rendered, but Medicare will not reimburse patients for any services received at those institutions.
Medicare differs from Medicare in several key respects. It is operated jointly by the federal and state governments, so the details of the program differ from state to state. Eligibility for Medicaid is based on income and other factors, and is considerably more complicated and controversial than the eligibility determination for Medicare.
Funding for Medicaid comes primarily from general revenues, rather than from an insurance "transfer." And payment to providers is more restrictive (and quite often slower) than for Medicare, prompting many providers to opt out of the system.
Medicaid has been described as a "sleeper" that burgeoned into a massive health program. According to Wing, it "was actually conceived in a hurried congressional compromise. While the controversy over Medicare had been waged for several years and its details tediously debated, the Medicaid program was almost thoughtlessly appended to the Medicare bill, and (Congress, ironically, gave it relatively little consideration."''' In addition, the program suffered from the onset from the fact that it was framed as a welfare program rather than a health program.
States can choose whether or not to participate in Medicaid, but since the federal government contributes 50 to 80 percent of the cost (de pending upon the state's per capita income) all states have opted in. In return for its fiscal contribution, Congress has established various guidelines that the states must abide by. But within these guidelines the states have considerable flexibility to decide who shall be eligible for Medicaid, the types and levels of services to be covered under it, and the levels of reimbursement for health care providers.
Because the program is aimed at the poor, eligibility for Medicaid is linked to eligibility for welfare, although only 59 percent of those who meet the federal government's definition of poverty qualify for Medic aid. The Medicaid law requires that all participating states include in the program the "categorically needy"-that is, persons who fall into certain categories defined by characteristics other than income alone, namely families covered by aid to families with dependent children programs (AFC?), as well as aged, blind, and disabled persons receiving Supple Mental Security Income? In addition, states may include individuals who would meet the "categorically needy" definition except for some particular factor, such as residence in a nursing home or failure to meet
APDC school attendance requirements.
The Medicaid benefit structure is as complex as its eligibility requirements. All participating states must cover inpatient hospital care, outpatient hospital and rural health clinic services, physician services, family planning, laboratory and X-ray, care in a skilled nursing facility, home health care for individuals twenty-one and older, early and periodic screening, diagnosis, and treatment for those under twenty-one, and transportation for medical needs. However, states can set their own limits on the "amount, scope, and duration" of these services; for example, the number of hospital days paid for per year or per admission, or the number of physician visits covered. States may, if they choose, include additional benefits, for which they may impose deductibles and copayments, such as drugs, dental services, eyeglasses, intermediate-care facility services, inpatient psychiatric care for the elderly and the young, emergency hospital services, private duty nursing, clinic services, physical therapy, prosthetic devices, and other services. Obviously, these options result in a wide variation in coverage from state to state.
Except in an emergency, Medicaid recipients must receive care from a provider who has been certified as eligible to receive Medicaid pay benefits, and neither institutions nor practitioners can charge a Medicaid patient any fee in addition to the Medicaid payment. Medicaid allows the states to choose between the "usual and customary fee" standard of Medicare and an indemnity schedule set at significantly lower levels. And although private fiscal intermediaries are allowed under Medicaid, most states have chosen to handle claims payments through their own bureaucracies. Delayed and/or low reimbursement, along with often nightmarish bureaucracy, have intentionally or not-served to save the Medicaid program money by discouraging providers from participating, and thereby making it less likely that eligible recipients will receive needed care.'
Despite the vast amounts spent on Medicare and Medicaid, governmental health benefits still show large gaps in eligibility and coverage. Three factors are primarily responsible for these gaps. One is that, despite the rhetoric. Second, the states have sought to relieve the burden of escalating Medicaid costs by controlling the number of Medicaid beneficiaries (a) by not establishing a medically needy program, (b) by not increasing medically needy income levels, and (c) by erecting administrative barriers to participation, the third major factor responsible for gaps in Medicare and Medicaid is discrimination, particularly racial discrimination.
Because the Medicaid program is an exercise in cooperative federalism, participating states retain broad discretion to shape and alter their coverage plans, subject only to vague federal requirements of reasonableness.
A Right to Health
However, there are individuals and medical needs not covered by any of the programs outlined above. Is society obligated to provide comprehensive health care for everyone? Can there be said to be such a thing as a "right to health?"
The equal protection concept has been held to mean that individuals similarly situated must be similarly treated by government, and that laws cannot be applied one way to one group of people and another way to a different group of people unless there is a rational reason for doing so. Thus, government cannot say that people with white skins are entitled to drivers' licenses while people with black skins are not, because the differentiation bears no reasonable relationship to the law involved.
Still another effort to extend and broaden federally sponsored health care services has focused on the due process clauses of the Fifth and Fourteenth Amendments. At one time, government social welfare benefits were viewed as privileges that government could bestow or withhold at will, and potential beneficiaries were not considered to have any legal claim regarding the way beneficiary decisions were made.
A ruling that such statutory entitlements as Medicaid must be viewed as a property right is vastly important in the U.S. legal system, which affords property such mutual respect. But it should be emphasized that the protection involved is limited to individual due-process rights, such as notice and hearings. Efforts to assure prior hearings when governmental agencies are acting in a policymaking capacity have not been successful.
Common law support for a general right to medical care is also limited, except in emergency situations. Some courts have held that hospitals with emergency rooms risk legal liability if they turn away the emergencies. '' Similarly, once treatment is undertaken by a hospital or physician, the patient cannot be abandoned.''"' But neither of these rules covers a right to medical care in the absence of an emergency.
Since both the federal and state governments are already heavily involved in health care through entitlement programs, licensure requirements, tax exemptions, and the like, advocates of increased public responsibility for the health care of the disadvantaged look to expansion of existing statutory governmental health roles. Thus, whenever a health-related statute is enacted, there is a rush of maneuvering, politicking, and legal challenge over its interpretation and implementation.
When all is said and done, therefore, any claims to a legal right to health care are limited. Those who advocate such rights may well have to look toward measures that help prevent illness, rather than those that assure medical care, a trend consistent with the generally growing emphasis on health education, improved nutrition, immunization, screening and detection, accident prevention, environmental and occupational safety, and other aspects of health preservation.
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