PPACA and Public Health: Creating a Framework to Focus on Prevention and Wellness and Improve the Public's Health

Journal of Law, Medicine and Ethics

Volumn 39, Issue 3, 2011, Pages 366-379

  Majette, Gwendolyn Roberts ^a  

^a MARSHALL UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

CONFERENCE PAPER; HEALTH CARE POLICY; HEALTH PROMOTION; HUMAN; LEGAL ASPECT; MANAGEMENT; ORGANIZATION AND MANAGEMENT; POLITICS; PUBLIC HEALTH; UNITED STATES;

HEALTH CARE REFORM; HEALTH PROMOTION; HUMANS; PATIENT PROTECTION AND AFFORDABLE CARE ACT; POLICY MAKING; POLITICS; PUBLIC HEALTH; UNITED STATES;

EID: 80051994859     PISSN: 10731105     EISSN: 1748720X     Source Type: Journal    
DOI: 10.1111/j.1748-720X.2011.00606.x     Document Type: Conference Paper

References (79)

1. Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 573 (2010) (hereinafter cited at PPACA).
2. The author was a Fellow with Senator Debbie Stabenow, a member of the Health Subcommittee of the Senate Finance Committee.
3. See also Institute of Medicine, Committee for the Study of the Future of Public Health, The Future of Public Health (Washington, D.C. National Academies of Science, 1988): at 19, available at <> (last visited July 13, 2011).
4. In 2009 the total health expenditures amounted to $2.5 trillion and in 2008, $2.4 trillion. Centers for Medicare and Medicaid Services, National Health Expenditure Data, available at <> (last visited June 21, 2011).
5. Organisation for Economic Co-operation and Development (OECD), Health at a Glance 2007: OECD Indicators, 2007.
6. K. Davis, C. Schoen, and K. Stremikis, The Commonwealth Fund, Mirror, Mirror on the Wall - How the Performance of the U.S. Health Care System Compares Internationally 2010 Update, June 2010, at 16, available at <> (last visited July 7, 2011); E. Nolte and C. M. McKee, "Measuring the Health of Nations: Updating an Earlier Analysis, "Health Affairs 27, no. 1 (2008): 58-71.
7. The public health system is the "intersectoral system that comprises the government public-health agencies and various partners, including communities, the health care delivery system, employers and business, the media, and academia." Institute of Medicine, Committee on Public Health Strategies to Improve Health, For the Public's Health: The Role of Measurement in Action and Accountability (Washington, D.C. National Academies Press, 2011): at 1, available at <> (last visited July 12, 2011) (hereinafter cited as IOM Measurement); Institute of Medicine, Committee on Assuring the Health of the Public in the 21st Century, The Future of the Public's Health in the 21st Century (Washington, D.C.: National Academies Press, 2003): at 2, available at <> (last visited July 12, 2011) (hereinafter cited as IOM 21st Century). An important responsibility of the governmental public health agencies is to promulgate laws and policies that regulate risks to the health and safety of the population. L. O. Gostin, Public Health Law: Power, Duty, Restraint (Berkeley: University of California Press, 2008): at 149. Some important federal public health agencies include the Department of Health and Human Services (and the departments therein, CDC, CMS, FDA, NIH) and the Department of Homeland Security (especially the Federal Emergency Management Administration). Id., at 157. The administrative agencies and the regulations and policies they develop are an important component of public health law. Public health law is defined as "the study of legal powers and duties of the state, in collaboration with its partners to ensure the conditions for people to be healthy, and of the limitations on the power of the state to constrain individual rights."Id., at 4.
8. See IOM 21st Century, supra note 7, at 8-10; P. D. Jacobson and L. O. Gostin, "Restoring Health in Health Care Reform, "JAMA 304, no. 1 (2010): 85-86.
9. R. Saver, "Where's the Public Health, "Concurring Opinions, available at <> (last visited June 21, 2011); see discussion infra Part III (B)(1) (testimony of Dr. Richard Besser, Acting Director of the Centers for Disease Control and Prevention).
10. See IOM 21st Century, supra note 7, at 9.
11. See IOM Measurement, supra note 7, at 4.
12. "The governmental public health infrastructure was [deficient] because of political neglect and political pressure and public opinion that [often] overrode evidence." See IOM 21st Century, supra note 7, at 3.
13. The report actually titles these items "areas of action and change." There is a separate section of the report entitled "Findings and Recommendations, "which contains 34 more specific items. See IOM 21st Century, supra note 7, at 3, 4-17.
14. The need for development of a system of accountability for governmental and non-governmental actors that are responsible for and impact population health was reiterated in the IOM's 2010 report. See IOM Measurement, supra note 7, at 9-10.
15. See IOM 21st Century, supra note 7, at 4.
16. See IOM Measurement, supra note 7, at 2.
17. See Barton, Miller, and Mercer, Handout, November 12, 2008.
18. J. Levi, Trust for America's Health, Handout, October 8, 2008. Trust for America's Health is a "nonpartisan, nonprofit organization dedicated to saving lives by protecting the health of every community and working to make disease prevention a national priority."Id., at 1. Trust for America's Health, Prevention for a Healthier America: Investments in Disease Prevention Yield Significant Savings, Stronger Communities, July 2008. The presentation was based upon a report jointly prepared by Trust for America's Health, the New York Academy of Medicine, the Prevention Institute, the Urban Institute, the California Endowment, and the Robert Woods Johnson Foundation. The report noted that a $10 per person per year investment in "proven community-based prevention programs to increase physical activity and good nutrition and prevent smoking and other tobacco use" would save $16 billion annually within 5 years.
19. This bill was first introduced in 2004. Healthy Lifestyles and Prevention America Act, S. 2558, 108th Cong. (2004); 150 Cong. Rec. S704701 (daily ed. June 18, 2004) (statement of Sen. Harkin). The titles of the bill convey that vision. In 2007, title I created a federal task force on childhood obesity; title II focused on creating healthier kids and schools; title III included initiatives creating healthier communities and workplaces; title IV focused on responsible marketing and consumer awareness; title V provided reimbursement and coverage of preventive services; title VI created the Healthy Lifestyles and Prevention America Trust Fund; and title V focused on research. Healthy Lifestyles and Prevention America Act, S. 1342, 110th Cong. (2007).
20. Healthy Workforce Act of 2007, S. 1753, 110th Cong. (2007).
21. Healthy Workforce Act of 2007, S. 1753, 110th Cong. (2007). For a detailed analysis of the benefits of corporate wellness programs, recent legislative and presidential initiatives targeted to encourage their use, and recommendations on how to expand their use as part of health care reform to include integrative medicine, see G. R. Majette, "Healthcare Reform & the Missing Voice of Complementary and Alternative Medicine, "Houston Journal of Health Law & Policy 10, no. 1 (2009): 35-61, at 51-61.
22. 21st Century Wellness Trust Act, S. 3674, 110th Cong. (2008) (hereinafter cited as 21st Century Wellness Trust Act). This bill was based upon a 2006 paper authored by Jeanne M. Lambrew and John D. Podesta entitled, "Promoting Prevention and Preempting Costs." J. M. Lambrew and J. D. Podesta, Center for American Progress, Promoting Prevention and Preempting Costs: A New Wellness Trust for the United States, October 5, 2006.
23. M. Baucus, Senate Finance Committee, Call to Action Health Reform 2009, November 12, 2008 (hereinafter cited as Baucus Call to Action), available at <> (last visited July 12, 2011).
24. The benefit package would be based upon recommendations by the "U.S. Preventive Services Task Force, the Advisory Committee on Immunization Practices, National Institution for Health, Centers for Disease Control and Prevention, and the Institute of Medicine." See Baucus Call to Action, supra note 28, at 30.
25. See Baucus Call to Action, supra note 28, at 30.
26. Because of his 2008 diagnosis with a malignant brain tumor, Senator Kennedy asked Senator Christopher Dodd, who was another HELP committee member, to be his Chief Deputy for health care reform. Senator Kennedy was a long-time advocate for comprehensive health care reform. E. M. Kennedy, "'The Cause of My Life, ' Inside the Fight for Universal Health Care, "Newsweek, July 18, 2009, available at <> (last visited July 12, 2011). Senator Kennedy was also a major player in securing most of the significant health care legislation enacted during his tenure of 46 years in the United States Senate. Id. It was no different during the most recent push for health care reform. Accordingly, Senator Kennedy and his staff were instrumental in securing the prevention, wellness, and public health provisions in the Senate health care reform proposals. Senators Ted Kennedy, Chris Dodd, and Tom Harkin, and their staffs ("team prevention") worked together to organize stakeholder meetings, draft language, and hold hearings.
27. T. Harkin, "Op-Ed Contributor: Shifting America from Sick Care to Genuine Wellness, "Yahoo! News, available at <> (last visited June 21, 2011); 155 Cong. Rec. S10389-01 (daily ed. Oct. 14, 2009) (statement of Sen. Harkin).
28. On May 5, 2011, a search was conducted in the ProQuest Congressional database for health care reform hearings from 2008-2010 before the Ways and Means Committee of the House of Representatives, the Committee on Energy and Commerce, the House Education and Labor Committee, the Senate Committee on Health Education Labor and Pensions, and the Health Subcommittee of the Senate Finance Committee. Reports by Democratic leadership report many more hearings on congressional reform: House of Representative (1979 bipartisan hearings and mark-ups"), Senate Finance Committee (53 hearings), and Senate HELP Committee ("47 bipartisan hearings"). Offices of Democratic Leadership, Democrats Carry Out Open, Transparent Health Reform Debate, March 19, 2010.
29. Prevention and Public Health: The Key to Transforming our Sickcare System: Hearing Before the Sen. Comm. on Health, Education, Labor and Pensions, 110th Cong. (2008) (hereinafter cited as Prevention Hearing) (witnesses Donald Wright, Principal Deputy Assistant Secretary for Health, U.S. Department of Health and Human Services; Jeffrey Levi, Executive Director, Trust for America's Health; and Kenneth E. Thorpe, Professor and Chair at the Rollins School of Public Health at Emory University).
30. See Prevention Hearing, supra note 40, at 5.
31. With respect to exercise and nutrition, the Department has created a Physical Activity Guideline for Americans and Dietary Guideline for Americans. With respect to clinical prevention and community prevention, the U.S. Preventive Services Task Force and the Task Force on Community Prevention working with the Agency for Healthcare Research and Quality develop recommendations for clinical prevention services and community preventive services. Id., at 6-7, 9. Recently, the CDC, AHRQ, and the National Business Group on Health collaborated in publishing a "Purchasers Guide to Clinical Preventive Services" to move the evidence of clinical prevention into benefit coverage design. Id., at 8.
32. He discussed the activities of the CDC, NIH, FDA, CMS, Substance Abuse and Mental Services Administration (SAMSA), and Health Resources Services Administration (HRSA).
33. He also discussed other public health problems. First, he noted that the public health workforce needs to be strengthened. Second he noted that public health programs should be based on evidence and focus on quality. Third, he reiterated the need for the health care system to be designed to respond to public health emergencies. See Prevention Hearing, supra note 40, at 1 (written testimony of Jeffrey Levi, Executive Director Trust for America's Health).
34. See Prevention Hearing, supra note 40, at 2 (written testimony of Kenneth E. Thorpe, Professor and Chair at the Rollins School of Public Health at Emory University).
35. See Majette, supra note 22, at note 80; Examining Principles of Integrative Health, Focusing on A Path to Healthcare Reform: Hearing Before the Sen. Comm. on Health, Education, Labor, and Pensions, 111th Cong. 387 (2009); Integrative Care: A Pathway to a Healthier Nation: Hearing before the Sen. Comm. on Health, Education, Labor, and Pensions, 111th Cong. 387 (2009) (hereinafter cited as Integrative Health Hearing). Integrative medicine takes the most effective treatments from conventional, complementary, or alternative medicine and makes them available to patients for a comprehensive and individualized treatment plan. Integrative Care: A Pathway to a Healthier Nation: Hearing Before the Sen. Comm. on Health, Education, Labor, and Pensions, 111th Cong. 387 (2009) (testimony of Sister Charlotte Rose, Practitioner and Professor Emeritus, Tai Sophia Institute); D. L. Katz and A. Ali, Preventive Medicine, Integrative Medicine & the Health of the Public, February 2009, at 6 (report commissioned for the IOM Summit on Integrative Medicine and the Health of the Public, February 2009); Majette, supra note 22, at 41.
36. See Integrative Health Hearing, supra note 60 (testimony of Cathy Baase, Global Director of Health Services, Dow Chemical Company).
37. Sen. Comm. on Health, Education, Labor & Pensions, In Historic Vote, HELP Committee Approves the Affordable Health Choices Act, July 15, 2009 (on file with author).
38. Affordable Health Choices Act, 111th Cong. (2009) (bill draft on HELP website (labeled BAI09153.xml0) (on file with the author).
39. M. Baucus, Chairman's Mark America's Healthy Futures Act of 2009, September 16, 2009 (on file with the author).
40. Chairman's Mark, Subtitle A - Medicare, at 69-70.
41. Chairman's Mark, Subtitle B - Medicaid, at 72-73.
42. See discussion in Part II.
43. Making Health Care Work for American Families: The Role of Public Health: Hearing Before the H. Comm. on Energy and Commerce, 111th Cong. (2009), at 3 (written testimony of Richard E. Besser, Acting Director for the Centers for Disease Control & Prevention, U.S. Department of Health and Human Services) (hereinafter cited as Making Health Care Work Hearing).
44. See Making Health Care Work Hearing, supra note 73, at 10 (written testimony of Richard E. Besser, Acting Director for the Centers for Disease Control & Prevention, US. Department of Health and Human Services). For immunizations, a $300 million investment was made; for health care-associated infections, a $50 million investment was made to help states with this initiative; and $650 million was invested in evidence-based clinical and community interventions to reduce chronic diseases. Id., at 9-10.
45. Making Health Care Work Hearing, supra note 73, at 1 (testimony of Jonathan E. Fielding, Director and Health Office of the Task Force on Community Preventive Services (TFCPS) and Chair of the Secretary's Advisory Committee on National Health Promotion and Disease Prevention Objectives for 2020). Population health is delivered to a group or community. In contrast clinical care is delivered to one patient at a time. Id., at 2.
46. The work of the Community Prevention Guide began in 1996 "under the auspices of the CDC." The Task force has conducted over 200 reviews. Id., at 3. The Community Prevention Guide links to the Guide to Clinical Preventive Services by explaining how to better deliver the recommended clinical service to the target population effectively and efficiently. The Community Prevention Guide can for example "assess the effectiveness of ... media education, ... patient reminders, professional reminders, use of financial incentives, and the organization and structure of care."Id., at 4. The target audience for the guide is organizations that "deliver population-based services like employers, schools, governmental public health agencies, health care systems, medical groups, community organizations, and policy makers."Id., at 3.
47. See Making Health Care Work Hearing, supra note 66, at 5 (written testimony of Jonathan E. Fielding, Director and Health Office of the Task Force on Community Preventive Services [TFCPS] and Chair of the Secretary's Advisory Committee on National Health Promotion and Disease Prevention Objectives for 2020).
48. See discussion in Part III.A.2.
49. See Making Health Care Work Hearing, supra note 73, at 4 (testimony of David Satcher, 16th U.S. Surgeon Gen., and Director of the Satcher Health Leadership Institute at More-house School of Medicine, citing Volume 1 of Healthy People 2010); G. R. Wilensky and D. S. Satcher, "Don't Forget about the Social Determinants of Health, "Health Affairs Web Exclusive (January 1, 2009): w194-w198, at 198.
50. Health Reform in the 21st Century: A Conversation with Health and Human Services Secretary Kathleen Sebelius: Hearing Before the H. Comm. on Ways and Means, 111th Cong. (2009) (written testimony of Kathleen Sebelius, Secretary of the U.S. Department of Health and Human Services).
51. H.R. 3200, 111th Cong. (2009). H.R. 3200 was a comprehensive health care reform bill that served as the precursor to H.R. 3962 which ultimately passed in the House of Representatives on November 7, 2009.
52. H. Rep. No. 111-299 at 699-700 (2009).
53. H.R. 3200, 111th Cong. Sess. 1 (2009). The other subchapter is (6) Subtitle F - Core Public Health Infrastructure. Subtitle D - Prevention and Wellness Research directs the CDC and NIH to take into consideration the national strategy on prevention, recommendations of the Task Forces on Clinical and Community Prevention in awarding research grants and to support research on prevention and wellness. It also provides funding to the CDC to support research on community preventive service. Subtitle E creates a grant program at the CDC to fund evidence-based community prevention and wellness and requires that 50% of the funds be used to implement services to reduce disparities. Subtitle F creates a grant program at the CDC to improve core public health infrastructure and provides additional funds for the CDC to address unmet and emerging public health needs.
54. Professors Peter D. Jacobson and Lawrence O. Gostin, two leading public health law experts, noted that PPACA makes public health a national priority and innovates with respect to prevention and wellness. See Jacobson and Gostin, supra note 8. For an analysis of some of PPACA's prevention and wellness provisions from a leading preventive medicine physician, Miriam Alexander, see C. M. Preston and M. Alexander, "Prevention in the United States Affordable Care Act, "Journal of Preventive Medicine and Public Health 43, no. 6 (2010): 455-458.
55. Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 573 (2010) (hereinafter cited at PPACA), at §§ 4101, 4104, 4103, 4107, and 4108.
56. Exec. Order No. 13544 of June 10, 2010, 75 Fed. Reg. 33983 (June 16, 2010).
57. The members include the Secretaries of Health and Human Services, Agriculture, Education, Transportation, Labor, and Homeland Security, the Chairman of the Federal Trade Commission, the Administrator of the Environmental Protection Agency, the Director of the Office of National Drug Control Policy, the Director of the Domestic Policy Council, the Assistant Secretary for Indian Affairs, and the Chairman of the Corporation for National and Community Service. See PPACA, supra note 109, at § 4001 ©.
58. Creation of the strategy is a participatory process. The strategy must be created with the input of "relevant stakeholders." See PPACA, supra note 109, at § 4001 (d)(2).
59. There are five categories of interventions: (1) creation of evidenced-based policy; (2) implementation of procedures that cause system change within organizations; (3) creation of social and physical environments that support healthy living; (4) use of communications and the media to raise health awareness; and (5) the design and delivery of programs in settings where they will get the most use. National Prevention, Health Promotion and Public Health Council, 2010 Annual Status Report, July 1, 2010, at 9 (hereinafter cited as 2010 Annual Status Report).
60. See PPACA, supra note 109, at § 4001 (g).
61. The five leading causes of death in the United States are (1) heart disease, (2) cancers, (3) stroke, (4) chronic lower respiratory disease, and (5) unintentional injuries. Some of the core underlying causes of these deaths include tobacco use, poor nutrition, physical inactivity, and underage and excessive alcohol use. See 2010 Annual Status Report, supra note 116, at 6-8.
62. The report acknowledges the "vast inequities" in the health system and notes that "specific action and metrics" should be used to "monitor and eliminate disparities" related to "race/ethnicity, age, sex, gender, sexual orientation, geography, socioeconomic status, and disability status."Id., at 4.
63. See PPACA, supra note 109, at § 4001 (g); Exec. Order No. 13544 of June 10, 2010, 75 Fed. Reg. 33983 (June 16, 2010).
64. National Prevention, Health Promotion, and Public Health Council, Draft Framework National Prevention Strategy, April 4, 2011 at 1 (hereinafter cited as Draft Prevention Strategy Framework).
65. The broader priority is called "Cross-Cutting Priorities." Cross-cutting priorities include healthy environments, prevention and public health capacity, and clinical preventive services. See Draft Prevention Strategy Framework, supra note 123, at 3.
66. See PPACA, supra note 109, at § 4001 (d)(3).
67. The Advisory Group is appointed by the President. The group must be a diverse group of health care professionals with expertise in "worksite health promotion, community services, Preventive medicine, health coaching, public health education, geriatrics, and rehabilitation medicine." See PPACA, supra note 109, at § 4001 (f). On January 26, 2011, President Obama appointed 11 members to the council, and on April 8, 2011, he appointed two additional members. On April 11, Surgeon General Dr. Regina M. Benjamin appointed Dr. Jeffrey Levi as Chair of the advisory council. See HHS website, available at <> (last visited June 21, 2011).
68. See PPACA, supra note 109, at § 4001 (f)(3).
69. The continued availability of the full amount of the appropriation is theoretically at risk. Three attempts have been made in the House of Representatives to defund the prevention fund. The Johanns amendment would have drastically cut the fund. This amendment was defeated in September 2010. Johanns Amendment, section 4273 (a). The current and ongoing attack is through the Pitts proposal. This proposal would eliminate all mandatory funding in PPACA. Setting Fiscal Priorities in Health Care Funding: Hearing Before the H. Comm. on Energy and Commerce, 112th Cong. (2011) (March 7, 2011 Internal Memorandum of the Majority Staff to the Subcommittee on Health). On April 13, the House of Representatives passed H.R. 1217 which would repeal the Prevention and Public Health Fund. The White House expressed opposition to the bill and continued support for the fund. The measure is also unlikely to pass in the democratically controlled Senate. "House Repeals Affordable Care Act's Prevention and Public Health Fund, "Health Lawyers Weekly, vol. IX, no. 15 (April 15, 2011).
70. See PPACA, supra note 109, at § 4002 (a).
71. PPACA merely authorizes the Prevention Council to make recommendations and submit reports to the President and Congress. See discussion in Parts V.A; see PPACA, supra note 109, at §§ 4001, 4002.
72. There is a debate about whether investments in prevention will produce cost savings. Many of the witnesses that testified at the hearings discussed in this paper asserted that there will be cost savings: Dr. Jeffrey Levi with Trust for America's Health, Professor Kenneth Thorpe from the School of Public Health at Emory, Dr. Richard Besser, the Acting Director of the CDC, and Dr. Wayne Jonas, President of Samueli. Professor Goetzel and Thorpe wrote articles showing a financial benefit to prevention. R. Z. Goetzel, "The Wrong Debate: Prevention or Treatment Services to Save Money?: Instead of Debating Whether or Not Prevention or Treatment Saves Money, We Should Determine the Most Cost-Effective Ways to Improve Population Health, "Health Affairs 28, no. 1 (2009): 37-41. K. E. Thorpe, "The Rise in Health Care Spending and What to Do about It, "Health Affairs 24, no. 6 (2005): 1436-1445. Economics professor Louise Russell provides an analysis of reasons why prevention might not produce cost savings. L. B. Russell, "Preventing Chronic Disease: An Important Investment, but Don't Count on Cost Savings; An Overwhelming Percentage of Preventive Interventions Add More to Medical Costs Than They Save, "Health Affairs 24, no. 1 (2009): 42-47.
73. U.N. Economic and Social Council, Committee on Economic, Social, and Cultural Rights, Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights, General Comment No. 14 ¶ 43 (f), 53 U.N. Doc. E/C.12/2000/4 (August 11, 2000) (hereinafter cited as Committee on Economic, Social, and Cultural Rights). The United States does not have an international obligation to protect the right to health because it has not ratified the most seminal treaty on the right to health, the International Covenant on Economic, Social, and Cultural Rights. International Covenant on Economic, Social, and Cultural Rights, at art. 12 (entered into force January 3, 1976). For a more in-depth analysis of how the Patient Protection Affordable Care Act creates a framework to protect the right to health, see G. R. Majette, "Coherency within the Patient Protection and Affordable Care Act (PPACA): A Framework to Create a Health Care System that Protects the Human Right to Health" (unpublished manuscript on file with the author).
74. U.N. Economic and Social Council, Committee on Economic, Social, and Cultural Rights, Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights, General Comment No. 14 ¶ 53, U.N. Doc. E/C.12/2000/4 (August 11, 2000).
75. See PPACA, supra note 109, at § 4001 (d)(3).
76. See discussion in Part II.
77. See IOM 21st Century, supra note 7, at 4. Accountability is a requirement for creation of an effective comprehensive plan to create and strengthen a health system under the core obligations that apply to all treaty parties. See Committee on Economic, Social, and Cultural Rights, supra note 143, at ¶ 56-57.
78. See PPACA, supra note 109, at § 4001 (i).
79. H. Rep. No. 111-299 at 326 (2009).