June 21, 2012
Critics have painted a negative picture of the new Plan as reducing choice by forcing individuals to purchase insurance.
However, it may realistically be argued that the individual mandate ultimately results in expanding choice by making sure that all individuals have insurance coverage so that they may then have increased freedom to select from among payers and providers.
The failure to present this perspective to the public represents a major failure of Plan implementation.
Similarly, the new Health Exchanges expand the choices for insurance and assure more value for insurance purchases—a case also not made to the public.
Our current system operates a market. Payers may choose to cover certain provider services and not others, contributing to options in insurance, and when insurance does not pay for a service, private payment is an important alternative.
As required by statute, even individuals with Medicare or Medicaid coverage have “freedom of choice” to select providers (within a broad range of types of services and from participating providers). Medicare Advantage may thus be seen as another choice, and thus welcomed by individuals who are eligible for Medicare.
However, health care is not a typical “market.”
Individuals often hand over control of many decisions and service choices to their doctors or other providers.
For this reason, the public has accepted a degree of regulatory intrusion into the Health Care System that is not seen in other markets, while still putting a high value on personal choice.
Many regulatory functions have been accepted for the Health Care System, but more visible and more restrictive regulatory actions always have the potential for public backlash.
It is helpful to assess the new Health Plan from this perspective. On the downside, the Plan sets forth a variety of mandates and controls that “feel confining” and have been cast as reducing individual choice.
However, with appropriate analysis, it may be effectively argued that the total combined effect of the entire Plan would actually be to expand choices by allowing more access to payers and providers, with more value assured for options, and by improving the quality of the available services from which selections may be made.
Thus, it may be argued, with some strength, that the new Health Plan improves the functioning of the market for individuals.
However, this case has not been made.
Implementation of the Health Plan has been characterized by an inadequate consideration of the features of the U.S. Health Care System, flawed benefit-to-cost evaluations of the features of the Plan, and total failure to communicate to the public the positive impact that the Plan can have on the type of health care market that is valued by the public.
A detailed analysis of the new Health Plan may be found in a recent book (Legal Practice Implications of the New U.S. National Health Care Plan, 2011-2012 Edition, by Mitchell and Mitchell, published by Thomson Reuters/WESTLAW). Supplementary discussions by the authors regarding implementation of the Plan are also available through subsequent blogs (at www.westlawinsider.com) and a Thomson Reuters podcast (at www.legalcurrent.com).