New Healthcare Laws and Effects on Administrative Laws

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 what cares constitutes "essential health benefits" and they must develop a new web site where consumers can discover what a particular physician's performance might be and must develop privacy standards so that the newly mandated sharing of patient information between practitioners does not violate patient privacy protections. On the state level there are similar problems. States must create new insurance exchanges that offer consumers a choice of insurance plans, establish common rules regarding the offering and pricing of insurance, and provide information to assist consumers in understanding the options available to them. States must also establish high risk pools that provide a safety net for the medically uninsurable population. These safety nets will ensure that these individuals are able to procure private health care insurance that is both unrestricted and offered at a reasonable premium rate. Finally, the states must be prepared to handle the increased numbers that will result due to the near universal availability of health coverage. With all these new requirements it is easy to see why there are such serious concerns regarding a huge increase in administrative laws and agencies necessary to regulate the new requirements?

The litigation regarding the Affordable Care Act began almost as soon as it was enacted. Twenty-six different states have filed suit challenging the constitutionality of the Act. The decisions on such issue have been split and the U.S. Supreme Court has already agreed to hear arguments relative to its constitutionality. The outcome of this review is unknown but assuming that the constitutionality is upheld it will not be the end of the discussion or the debate. The natural result of such a ruling will be the creation of volumes of regulatory rules by the various governmental agencies that will be required to oversee the proper operation of the new Act. Interestingly, the Act contains little or no language that will provide the courts with any indication as to the intent of the drafters. The Act was prepared in rapid fashion and, as a result, there is a strong likelihood that a variety of loopholes exist which will require additional court involvement and review.

The area of administrative law is one that most individuals have little or no contact but as governmental regulation has increased the importance of the administrative law field has increased as well. Proceedings in administrative courts are considerably different than those in typical courts. Most courts are based upon the adversarial system where both sides to an issue present evidence to the judge or jury in an attempt to persuade said individual or group of their version of the facts. The administrative law procedure may or may not be adversarial but in most cases it is not. Most administrative decision making is made outside the courtroom through semi-formal hearing procedures.

The Affordable Care Act, despite what have been promised to be concentrated efforts to the contrary, will undoubtedly add considerably to the load of the Government administrative agencies that will administer the program. The enactment of the Affordable Care Act will require an entirely new bureaucracy within the United States Government and within the various state governments as well in order to administer the application of the new legislation and to oversee its operation. Even a cursory view of the Act reveals that the Department of Health and Human Services has been entrusted with a remarkable responsibility and that, as outgrowth of this responsibility, it will be necessary that several new agencies will need to be created. Each of these new agencies will have new administrative rules and regulations. These new rules and regulations will be subject to interpretation and enforcement and require decision making by administrative agencies. This eventuality is one of the biggest arguments raised in opposition to the passage of the Affordable Care Act: the increased growth in government.

The recent passage of the State of New Jersey's Healthcare/Pension reform measures covering public employees within that state provides a remarkable contrast to the enactment of the Affordable Care Act by the U.S. Congress (Pew Center, 2010). The New Jersey legislation marks a retreat from the expanding role of government and their administrative agencies. The New Jersey bill provides for cut-backs in pension contributions to its state employees and for a reduction in the percentage of health care premiums paid by the state for its employees as well. The bill also attempts to curtail the collective bargaining rights of the state's employees.

Like the Affordable Care Act, the New Jersey legislation is subject to much controversy. State employees obviously are disturbed by the fact that their benefits are being restricted and that they are now expected to contribute far more heavily toward their retirement and health benefits and that, through the loss of their collective bargaining rights, they have affectively lost their ability to battle back against the government's policies. On the other hand, there are a great many of individuals in the State of New Jersey who view the passage of the new legislation in a very favorable light. These individuals view government has having grown too big and too expensive and see this legislation as a way of not only limiting the power and authority of the government but also as a way of cutting back considerably on costs.

The actions taken by the New Jersey legislature and the state's Governor have not been done in isolation. It is one of several attempts by state governments throughout the country to take similar steps to limit the authority of governments and to curtail costs. Similar efforts have been exercised in Ohio, Wisconsin, Indiana, and Michigan with mixed results but there is no doubt that these efforts are indicative of a strong concern among segments of society that government and government organizations are too powerful and expensive to maintain.

As a public policy matter, there is likely little argument that everyone should have access to health care. Few in society would argue that only those that can afford it should be able to maintain their health or that the poor should be left to their devices when attempting to remain healthy. Not everyone agrees, however, with the proposition that the government should be responsible for ensuring the health of its citizens or that the government should be burdened with the cost of providing health care. The advent of the Affordable Care Act is not the U.S. Government's first step forward into the health care field. The U.S. Government has been involved in health care since it first passed public health legislation and has remained so. The Affordable Care Act is just another step in this evolution.