New Healthcare Laws and Effects on Administrative Laws Essay

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Administrative Law & Health Reform

The entire discussion regarding health care reform in the United States is greatly influenced by ethical and policy considerations. The field of health care is vast and complicated and is even hard to define. The debate ranges from what should be the mission of health care in America; to what should be its function; and what services should be available (Fein, 2003). Adding to the debate is what role the government should play in providing and paying for health care. Finding answers to these questions is not easy and has been the source of considerable acrimony.

One of the seminal issues in health care is where does personal responsibility end and public responsibility begin? (Steinbrook, 2006)There can be no doubt that everyone has a duty to maintain his or her own health but at some point it becomes incumbent on society to absorb some of this cost. Preventive medicine in the short-term has been demonstrated to minimize long-term costs. Individuals can do a great deal to safeguard their own health, particularly if they have the financial means to do so. Each person can also behave in a manner that promotes health by eating healthy foods, staying fit physically, refrain from smoking and heavy drinking, and avoiding the use of illicit drugs. Unfortunately, there are things that affect health that are outside the control of the individual. Acting alone, individuals cannot achieve environmental protection, hygiene and sanitation, clean air and surface water, uncontaminated food and drinking water, safe roads and transportation vehicles, and the control of infectious disease. Each of these concerns, and many similar ones, is achievable only by organized and sustained community cooperation.

Regardless of how concentrated and well organized health care initiatives may be in a community there is no way of guaranteeing complete physical and mental well-being. There will always be a risk of injury and disease in a population that is beyond the ability of the individual, the community, or the government to avoid. In order to minimize these risks it is necessary that the efforts of everyone involved be coordinated as much as possible while still affording the individual the opportunity of maintaining some autonomy in making decisions relative to his or her health care maintenance and concerns.

The debate over the recent passage of the Affordable Care Act exemplifies the debate that has been ongoing for years in America regarding health care. The fact that the debate has continued in earnest subsequent to the passage and enactment of the Act explains how pervasive the issue is. The intent of the Obama Administration was to enact legislation that addressed the various problems that American society faced regarding the delivery of health care but the problem persists. It was hoped that the new legislation would begin to hold insurance companies accountable, lower costs, guarantee choice of providers, and enhance the overall quality of health care for all Americans.

The Affordable Care Act establishes a new competitive private health insurance market regulated through state agencies that gives millions of Americans access to affordable health care coverage. It places restrictions on premium costs and makes it more difficult for insurance companies to deny cover to applicants. It disallows insurance companies to deny coverage to those with pre-existing conditions.

All of these new provisions and guarantees supplied by the Affordable Care Act sound wonderful in principal but as anyone who has been associated with Government programs knows: what is intended is not necessarily what ultimately occurs. The drafters of the legislation sought to ensure that the new system and structures that they created to expand coverage would not also add unwarranted administrative complexity (Manchikanti, 2011). One of the problems that have contributed to the present problems plaguing the health care industry is its complexity and the last thing that was needed was to add more administrative hurdles (Foster, 2010). Toward this end the Affordable Care Act specifically included provisions that were intended to lessen the administrative problems that presently plague the system particularly those that involve the interaction between the state Medicaid and CHIP programs.

Regulatory control of health care in America has been a problem for some time. Many critics of the health care system have argued that the most serious problem facing the system is the method used to regulate it. These individuals argue the present regulatory system fails to provide any evidence that it improves the quality of care, provides cost-effective benefits to the public, or is a rational method of monitoring health care delivery. With the enactment of the Affordable Care Act there is the hope that there will be significant reforms in the health insurance system by providing access to those who have previously lacked coverage but there is also hope that the administration of that health care will also be reformed. The health care regulatory system has been in severe need of reform for a long time and there is the hope that the Affordable Care Act will help initiate this change.

Regulatory reform is necessary for a variety of reasons. First, the current system of regulatory control is unmanageable and full of duplication. Many argue that it fails to achieve the goals that said regulation was intended to achieve. Second, with health reform on the horizon, there is significant concern that without changes in regulatory control and oversight any potential health care reforms will also fail. Conversely, there is the fear that the changes in health care may also add an additional layer of regulation and a new set of regulations that will further burden the delivery of health care. Finally, due to the rapid changes that are inherent in health care, there is a significant need for a regulatory system that is equally changeable. Presently, the regulatory system is not keeping pace with the health care changes.

Physicians and hospital administrators argue that the regulatory barriers are impeding their ability to deliver health care and that, as a result, both patients and providers are being penalized. Most of the regulations and laws covering the area of health care are written in complicated and confusing language that is difficult for lay persons to understand and that is too often subject to different interpretations and, therefore, the system works slowly and creates costly administrative procedures. When you add in the fact that compliance is applied both on the state and federal levels and accreditation is required by a plethora of agencies and other entities and one begins to understand why the system is viewed, by many, as being broken.

Viewing the situation from the outside looking in it is easy to understand why the health care system is considered to be in such trouble. Providers are placed in the position of having to continue to reduce costs while continuing to deliver high quality care. Meanwhile they are also forced to operate in a regulatory environment that they do not understand.

One example of the problems that medical providers face in regard to the regulatory system is the Office of the Inspector General's attitude toward the practice of gainsharing. Gainsharing is a little known, but popular, system where physicians and other medical care providers share in the profits of cost reducing measures that are used by hospitals and other medical care institutions. The Inspector General's office, however, has argued repeatedly that such measures raise serious concerns about the quality of care and reduce the incentive for innovation. As a result, the Inspector General has ruled that such procedure violated the fraud and abuse laws. On the opposite side, the Internal Revenue Service and the Department of Justice, specifically, the Federal Trade Commission, have both encouraged such practices and suggested that they encourage integration and risk-sharing arrangements between physicians and other members of the health care system. The Inspector General has, over time, relaxed its position on this issue but the opposing stances taken by two different administrative law divisions of the Federal Government indicates the dilemma that every physician and medical provider is forced to face every day. The goal of the Inspector General was to reduce fraud and abuse in the health care system but, in the process, the agency may have actually been impeding the development of the market.

The great fear of some analysts in regard to the implementation of the Affordable Care Act is the bureaucracy and regulation that will result in order for the new system of health care to operate effectively. As has already been noted, the existing bureaucratic system has been blamed for the spiraling cost of health care and if the new system created by the Affordable Care Act is going to result in more bureaucracy skeptics argue how has the system been improved?

Take, for example, the reality that in order for the Government to implement the Affordable Care Act the Department of Health and Human Services and its various agencies must now generate regulations that define what qualifies as a "qualified health plan" under the Act. They must explain…[continue]

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