Health reform and public health: Will good policies but bad politics combine to produce bad policy?

University of Pennsylvania Law Review

Volumn 159, Issue 6, 2011, Pages 2061-2081

  Pollack, Harold ^a,b  

^a Department of Social Service Administration ^*  (United States)

^b The University of Chicago   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 79960156123     PISSN: 00419907     EISSN: 19428537     Source Type: Journal    
DOI: None     Document Type: Article

References (67)

1. See Harold A. Pollack, Prevention and Public Health, 36 J. HEALTH POL. POL'Y & LAW (forthcoming 2011) (manuscript at 1) (on file with author) (describing improvements that PPACA makes to the U.S. public health system).
2. I do not address some other ways PPACA improves public health infrastructure, such as investments in the medical workforce and Federally Qualified Health Centers. For a discussion of these issues, see Lawrence O. Gostin et al., Restoring Health to Health Reform: Integrating Medicine and Public Health to Advance the Population's Well-Being, 159 U. PA. L. REV. 1777 (2011).
3. See Carl Hulse, Taking Control, G.O.P. Overhauls Rules in House, N.Y. TIMES, Jan. 6, 2011, at A1 ("Jubilant Republicans took control of the House on [January 5, 2011] and installed Representative John A. Boehner of Ohio as the new speaker ... .").
4. See Kevin Sack, Second Judge Deals Blow to Health Care Law, N.Y. TIMES, Feb. 1, 2011, at A1 (noting that twenty-six states joined a suit challenging PPACA, six of which joined after the Republican party took control of those states' governments).
5. See Henry J. Aaron & Robert D. Reischauer, The War Isn't Over, 362 NEW ENG. J. MED. 1259, 1260-61 (2010) (detailing anticipated difficulties in implementing PPACA, such as information exchanges between state and federal agencies).
6. See, e.g., Harold A. Pollack, The Ride of a Lifetime, NEW REPUBLIC (Mar. 23, 2010, 4:53 PM), http://www.tnr.com/blog/the-treatment/the-ride-lifetime (commenting on my experience working for health reform).
7. See, e.g., Jonathan Cohn, You Thought Passing Health Reform Was Hard? Try Repealing It, NEW REPUBLIC (Dec. 2, 2010, 11:46 AM), http://www.tnr.com/blog/ jonathan-cohn/79584/repeal-health-reform-difficult-1099 (describing the immense difficulty of repealing provisions of the statute).
8. Paul Starr, The Next Health-Reform Campaign, AM. PROSPECT, Sept. 2010, at A3, A5-A6 (outlining PPACA's vulnerability to political obstacles to implementation).
9. See Paula M. Lantz et al., Health Policy Approaches to Population Health: The Limits of Medicalization, 26 HEALTH AFF. 1253, 1256 (2007) (noting that health policy usually focuses on expanding access to personal medical services to the exclusion of expanding access to other services that affect an individual's health).
10. For example, Senator John McCain's 2008 campaign platform supported creating public health infrastructure, such as smoking-cessation programs. See Straight Talk on Health System Reform, JOHN MCCAIN 2008 (Oct. 17, 2007), http://replay.web.archive.org/20081219070603/ http://www.johnmccain.com/content/ default.aspx?guid=8475c713-a5 41-4b97-a2aa-800e35da37bb (accessed by entering the McCain campaign's website address in the Internet Archive index).
11. Dana P. Goldman & Darius N. Lakdawalla, Can the ACA Improve Population Health?, ECONOMISTS' VOICE, no. 5, art. 4, 2010, at 1, 1-2, http://www.bepress.com/ev/vol7/iss5/art4.
12. See ROBERT F. SCHOENI ET AL., MAKING AMERICANS HEALTHIER: SOCIAL AND ECONOMIC POLICY AS HEALTH POLICY 3-23 (2008) (considering the general health effects of social economic policy); Lantz, supra note 14, at 1254 (describing the need to incorporate social policy into health policy considerations).
13. See, e.g., Emmett B. Keeler et al., How Free Care Reduced Hypertension in the Health Insurance Experiment, 254 JAMA 1926, 1926 (1985) (finding that hypertensives with free care had more visits with their physicians, which led to higher rates of diagnoses).
14. JOSEPH P. NEWHOUSE & THE INS. EXPERIMENT GROUP, FREE FOR ALL? LESSONS FROM THE RAND HEALTH INSURANCE EXPERIMENT 204 (1993).
15. See Robert H. Brook et al., Does Free Care Improve Adults' Health? Results from a Randomized Controlled Trial, 309 NEW ENG. J. MED. 1426, 1429-33 (1983) (finding that free care benefits those with "specific conditions," such as hypertension, and is likely to lower their mortality risk).
16. See, e.g., Joseph D. Freeman et al., The Causal Effect of Health Insurance on Utilization and Outcomes in Adults: A Systematic Review of U.S. Studies, 46 MED. CARE 1023, 1030 (2008) (summarizing studies indicating that insurance is associated with decreased mortality rates).
17. See E.B. Keeler et al., Effects of Cost Sharing on Physiological Health, Health Practices, and Worry, 6 HEALTH SERVICES RES. 279, 302-303 (1987) (finding that increased access to free care does little to create better health habits).
18. J. Michael McWilliams et al., Health Insurance Coverage and Mortality Among the Near-Elderly, 23 HEALTH AFF. 223, 228 exhibit 2 (2004) (reporting a three to five percent difference in mortality rates).
19. See, e.g., J. Michael McWilliams, Health Consequences of Uninsurance among Adults in the United States: Recent Evidence and Implications, 87 MILBANK Q. 443, 470 (2009);
20. J. Michael McWilliams et al., Health of Previously Uninsured Adults After Acquiring Medicare Coverage, 298 JAMA 2886, 2892 (2007);
21. J. Michael McWilliams et al., Impact of Medicare Coverage on Basic Clinical Services for Previously Uninsured Adults, 290 JAMA 757, 761 (2003) [hereinafter McWilliams et al., Impact of Medicare Coverage];
22. J. Michael McWilliams et al., Use of Health Services by Previously Uninsured Medicare Beneficiaries, 357 NEW ENG. J. MED. 143, 149-50 (2007).
23. J. Michael McWilliams et al., Differences in Control of Cardiovascular Disease and Diabetes by Race, Ethnicity, and Education: U.S. Trends from 1999 to 2006 and Effects of Medicare Coverage, 150 ANNALS INTERNAL MED. 505, 512 fig.3 (2009).
24. McWilliams et al., Impact of Medicare Coverage supra note 30, at 761 tbl.2.
25. See ERIC M. PATASHNIK, REFORMS AT RISK: WHAT HAPPENS AFTER MAJOR POLICY CHANGES ARE ENACTED 163-67 (2008) (discussing institutional change as a mechanism for sustained policy reform).
26. See INST. OF MED., PUBLIC FINANCING AND DELIVERY OF HIV/AIDS CARE: SECURING THE LEGACY OF RYAN WHITE 109-17 (2001) (describing barriers to eligibility and the special programs that provide coverage).
27. KAISER COMM'N ON MEDICAID & THE UNINSURED, KAISER FAMILY FOUND., OPTIMIZING MEDICAID ENROLLMENT: PERSPECTIVES ON STRENGTHENING MEDICAID'S REACH UNDER HEALTH CARE REFORM 3 (2010), available at http://www.kff.org/healthreform/ upload/8068.pdf.
28. See, e.g., Harold Pollack, Progress on HIV, but Will It Last?, NEW REPUBLIC (July 16, 2010, 12:00 AM), http://www.tnr.com/blog/jonathan-cohn/76312/ progress-hiv-will-it-last (noting that PPACA will have an enormous impact on long-standing federal programs, many of which will need to be modified as a result).
29. See Harold Pollack, Rehab: America's Drug Policies Just Got a Whole Lot Better, NEW REPUBLIC (May 14, 2010, 12:00 AM), http://www.tnr.com/article/ politics/rehab (discussing federally funded addiction-treatment services affected by PPACA).
30. PPACA sec. 1001, § 2713, 42 U.S.C.A. § 300gg-13 (West Supp. 1A 2010); see also Timothy Jost, Implementing Health Reform: Preventive Services, HEALTH AFF. BLOG (July 15, 2010, 11:48 AM), http://healthaffairs.org/blog/2010/ 07/15/implementing-health-reform-preventive-services (summarizing some of the requirements of section 1001).
31. See Eric M. Patashnik & Alan S. Gerber, Problem Solving in a Polarized Age: Comparative Effectiveness Research and the Politicization of Evidence-Based Medicine, THE FORUM no. 1, art. 3, 2010, at 7, 7, n.1, http://www.bepress.com/forum/vol8/iss1/art3 ("The Obama Administration responded to the public outcry ... by promising that government insurance programs would continue to cover mammograms for women starting at age 40.").
32. See U.S. Preventive Services Task Force Recommendations, HEALTHCARE.GOV, http://www.healthcare.gov/center/regulations/prevention/taskforce.html (last visited Mar. 15, 2011) (listing various types of preventive actions and the populations that would benefit the most from them).
33. PPACA § 4002, 42 U.S.C.A. § 300u-11; see also Public Health Provisions of the Patient Protection and Affordable Care Act, PUB. HEALTH L. NETWORK, http://www.publichealthlawnetwork.org/wp-content/uploads/ACA-chart- formatted-FINAL2.pdf (last visited Mar. 15, 2011) (noting that PPACA section 4001 establishes the Prevention and Public Health Fund).
34. PUB. HEALTH L. NETWORK, supra note 46.
35. See Georges Benjamin & Larry Cohen, The Prevention and Public Health Fund: Good for Our Health, Good for Small Business, KAISER HEALTH NEWS (Sep. 13, 2010), http://www.kaiserhealthnews.org/Columns/2010/September/ 091310benjamincohen.aspx (describing the benefits likely to result from the Fund's screening programs).
36. See Michael C. Fiore, A Clinical Practice Guideline for Treating Tobacco Use and Dependence: A US Public Health Service Report, 283 JAMA 3244, 3244 (2000) (providing an "evidence-based, updated guideline" with "specific recommendations regarding brief and intensive tobacco cessation interventions").
37. See John Cawley, The Cost-Effectiveness of Programs to Prevent or Reduce Obesity: The State of the Literature and a Future Research Agenda, 161 ARCHIVES PEDIATRICS & ADOLESCENT MED. 611, 612 (2007) ("[T]he research literature [regarding obesity] is still at the earlier stage of determining whether specific interventions work at all.").
38. Mark A. Peterson, It Was a Different Time: Obama and the Unique Opportunity for Health Care Reform, 36 J. HEALTH POL. POL'Y & L. 429, 435-36 (forthcoming June 2011) (describing the strategic choices leading led to PPACA's successful passage).
39. See Henry J. Aaron, The Midterm Elections - High Stakes for Health Policy, 363 NEW ENG. J. MED. 1685, 1687 (2010) ("Since most major provisions of the [PP]ACA do not take effect until January 1, 2014, delaying tactics might eventually enable repeal.").
40. See, e.g., Julie Appleby, Groups Vie for a Piece of Health Law's $15 Billion Prevention Fund, KAISER HEALTH NEWS May 7, 2010), http://www.kaiserhealthnews.org/Stories/2010/May/08/prevention-money-fight- health-reform-law.aspx ("Eighty-five percent of health departments surveyed by association[s] of health officials say they have reduced services since July 2008, often because of state budget shortfalls.").
41. See LHD Budget Cuts and Job Losses, NACCHO, http://www.naccho.org/topics/ infrastructure/lhdbudget/index.cfm (last visited Mar. 15, 2011) (reporting that roughly 29,000 local health jobs were lost from January 2008 to December 2010).
42. See Harold Pollack, Forget About Boehner. Try Republican Governors, NEW REPUBLIC (Oct. 29, 2010, 12:00 AM), http://www.tnr.com/blog/jonathan-cohn/78760/ health-care-obama-congress-republican-governors (noting that some governors have expressed concerns about how to finance PPACA's mandated programs and arguing that those governors may provide valuable political support for the Act in return for financial aid for those programs).
43. Sarah Kliff, Doc Fix New Weapon vs. Health Reform, POLITICO (Dec. 5, 2010, 5:09 PM), http://www.politico.com/news/stories/1210/45976.html.
44. See Harold Pollack, For THIS Congress Might Defund Public Health?, NEW REPUBLIC (Sept. 12, 2010, 8:31 PM), http://www.tnr.com/blog/jonathan-cohn/77604/ republicans-tax-evasion (describing Senator Johanns's proposal to eliminate the Prevention and Public Health Fund in order to fund a tax measure).
45. Darren Wheelock & Doug Hartmann, Midnight Basketball and the 1994 Crime Bill Debates: The Operation of a Racial Code, 48 SOC. Q. 315, 316 (2007) (describing interest-group agitation that led to the evisceration of the Violent Crime Control and Law Enforcement Act of 1994).
46. See Nancy Folbre, Sex and the Stimulus, N.Y. TIMES ECONOMIX BLOG (Feb. 5, 2009, 4:16 PM), http://economix.blogs.nytimes.com/2009/02/05/sex-and-the- stimulus (describing opposition from many quarters to a family planning funding element in a stimulus package).
47. See SALLY SATEL, PC, M.D.: HOW POLITICAL CORRECTNESS IS CORRUPTING MEDICINE 17 (2001) (arguing that public health has moved away from finding scientific means for disease prevention towards social justice advocacy).
48. See supra note 67 and accompanying text; see also Ezra Klein, Senate Fails Small-Business Owners on 1099 Reform, WASH. POST BLOG (Sept. 14, 2010, 1:26 PM), http://voices.washingtonpost.com/ezra-klein/2010/09/the-senate-fails- small-business.html (noting the failure of Senator Johanns's proposal).
49. See, e.g., Bob Graboyes, 1099 Collation Calamity, NFIB HEALTHCARE BULL. (Nat'l Fed'n of Indep. Bus., Nashville, Tenn), Aug. 10, 2010, at 11 (arguing forcefully that PPACA would "drown[] small business under an ocean of IRS Form 1099s").
50. The 1099 Stonewall, WALL ST. J. ONLINE (Sept. 20, 2010), http://online.wsj.com/article/SB10001424052748703904304575498071550034964.html (opining that "Democrats slammed the door on a bipartisan attempt to repeal" the 1099 reporting requirement).
51. See, e.g., Harold A. Pollack, High-Risk Pools for the Sick and Uninsured Under Health Reform: Too Little and Thus Too Late, 26 J. GEN. INTERNAL MED. 91, 91-92 (2011).
52. Eric M. Patashnik & Julian E. Zelizer, When Policy Does Not Remake Politics: The Limits of Policy Feedback 5 (2009) (unpublished manuscript), available at http://ssrn.com/abstract=1449996.
53. David Brooks, Opinion, Buckle Up for Round 2, N.Y. TIMES, Jan. 7, 2011, at A19.
54. See Letter from Douglas W. Elmendorf, Dir., Cong. Budget Office, to George Miller, Chairman, House Comm. on Educ. & Labor, at 1 (Nov. 25, 2009), at 1, available at http://www.cbo.gov/ftpdocs/107xx/doc10769/CLASS-Additional- Information-Miller-letter.pdf ("For both the House and Senate versions of CLASS, the Congressional Budget Office (CBO) estimates that the cash flows under the new program would generate budgetary savings (that is, a reduction in net federal outlays) for the 2010-2019 period and for the 10 years following ... .").
55. See Memorandum from Richard S. Foster, Chief Actuary, Ctr. for Medicare & Medicaid Servs., at 2 (Apr. 22, 2010), available at https://www.cms.gov/ ActuarialStudies/Downloads/PPACA-2010-04-22.pdf (finding that the CLASS program will generate net losses every year from 2010-2019, for a total of $37.8 billion).
56. See DEP'T OF HEALTH & HUMAN SERVS., HEALTHY PEOPLE 2010: MIDCOURSE REVIEW (2010), at 27-7, available at http://www.healthypeople.gov/2010/Data/ midcourse/ (describing the successes of Michigan, New Jersey, and Rhode Island in using excise taxes to combat smoking).
57. See 2009-2010 Proposed State Legislation for Tobacco Tax Increases, NAT'L CONF. ON STATE LEGIS., http://www.ncsl.org/default.aspx?tabid=13862 (last visited Mar. 15, 2011) (listing various states' expected revenues from tobacco taxes and how those revenues will be distributed across various levels of state government).
58. Federal and State Cigarette Excise Taxes - United States, 1995-2009, 58 MORBIDITY & MORTALITY WKLY. REP. 524, 524 (2009).
59. NAT'L CONF. ON STATE LEGIS., supra note 87.
60. Curiously, the same trend has not applied to alcohol taxes. The real value of excise taxes on beer and spirits has markedly declined since the 1950s, despite strong evidence that such taxes are below the levels required for drinkers to internalize fully the economic costs of alcohol-related harm. See PHILIP J. COOK, PAYING THE TAB: THE ECONOMICS OF ALCOHOL POLICY 165 (2007) ("[L]ooking back fifty years from 2005, the federal excise tax on liquor (adjusted for inflation) was 5.7 times as high, and the excise tax on beer 3.6 times as high.").
61. See U.S. Preventive Servs. Task Force, Screening and Behavioral Counseling Interventions in Primary Care to Reduce Alcohol Misuse: Recommendation Statement, 140 ANNALS INTERNAL MED. 554, 554 (2004).
62. U.S. Preventive Servs. Task Force, Screening for Breast Cancer: U.S. Preventive Services Task Force Recommendation Statement, 151 ANNALS INTERNAL MED. 716, 716 (2009).
63. MAX BAUCUS, CALL TO ACTION: HEALTH REFORM 2009, at 14 (2008).
64. Id. at 22; see also STACY BERG DALE & JAMES M. VERDIER, COMMONWEALTH FUND, ELIMINATION OF MEDICARE'S WAITING PERIOD FOR SERIOUSLY DISABLED ADULTS: IMPACT ON COVERAGE AND COSTS 1 (2003), available at http://www.commonwealthfund. org/usr-doc/660-Dale-elimination.pdf (estimating that disabled individuals' two-year waiting period affected about 1.26 million people as of January 2002).
65. Robert J. Blendon et al., Americans' Conflicting Views About the Public Health System, and How to Shore Up Support, 29 HEALTH AFF. 2033, 2038 (2010) (noting that to continue to provide support for health care, Americans will want to see examples of successful programs).
66. GREENBERG QUINLA, ROSNER RESEARCH & PUB. OPINION STRATEGIES, AMERICAN PUBLIC SUPPORTS INVESTMENT IN PREVENTION AS PART OF HEALTH CARE REFORM: SOLID MAJORITIES FAVOR TRUST FOR AMERICA'S HEALTH'S PROPOSALS 2 (2009), available at http://www.greenbergresearch.com/index.php?ID=2416.
67. See Sarah E. Gollust et al., The Polarizing Effect of News Media Messages About the Social Determinants of Health, 99 AM. J. PUB. HEALTH 2160, 2165 (2009) (finding that Republicans' and Democrats' opinions on health care can diverge even when exposed to neutral social determinants messages).