Pat Bagley via politicalcartoons.com
So, let's talk about women's health and health care today. It's a great topic, and doesn't get enough coverage (and only children's health means more to me, being a pediatrician). But while we're at it, let's also talk about precedent, federalism and equal protection under the law.
We know, on the one hand, that the sensible contraception rule from the new Affordable Care Act (ACA) led to plenty of controversy and discussion this week. But, in fact, what's being offered is not new. From NPR:
Rules Requiring Contraceptive Coverage Have Been In Force For Years
Here's the rub: The only truly novel part of the plan is the "no cost" bit.
The rule would mean, for the first time, that women won't have to pay a deductible or copayment to get prescription contraceptives.
"Now millions more women and families are going to have access to essential health care coverage at a cost that they can afford," says Sarah Lipton-Lubet, policy counsel with the ACLU. "But as a legal matter, a constitutional matter, it's completely unremarkable."
In fact, employers have pretty much been required to provide contraceptive coverage as part of their health plans since December 2000. That's when the federal Equal Employment Opportunity Commission ruled that failure to provide such coverage violates the 1978 Pregnancy Discrimination Act. That law is, in turn, an amendment to Title VII of the 1964 Civil Rights Act, which outlaws, among other things, discrimination based on gender.
You can't get a more clear difference in world view and approach to governance between the two parties.
The Democratic position on this:
Figure out how to apply it. USA Today:
The measure also sparked an internal debate at the White House. Vice President Joe Biden, then-chief of staff Bill Daley and deputy national security adviser Denis McDonough, all Catholics, raised concerns about how the administration proceeded on the policy. On the other side, senior White House advisers Nancy-Ann DeParle, Pete Rouse and David Plouffe argued for the need to ensure coverage for all without exception, as a matter of women's health and fairness.
The Republican position on this:
Change the law, this one and many others. See Rick Santorum says birth control shouldn't be covered by insurance at all and the even more broad GOP Sen. Roy Blunt to introduce bill allowing employers to deny coverage for any health service. As bizarre and radical as those actions may seem, it's what they have to do to make sure everyone is provided equal protection under the law, and rather than cover women, or only secularly employed women, best (in their view) not to cover anyone.
But all of this political jockeying fits into a much broader framework: the national approach to health reform, which sets minimum standards for the states (all states) and expects the states to comply, and a federalist one, which devolves some of the choices to the states. This important framework is a source of many (but by no means all!) of the political arguments we hear about how to proceed.
(Continue reading below the fold)
In a pair of Perspective articles in the
New England Journal of Medicine this week, the role for federal guidance and regulation in making certain that minimum standards of care are provided is both laid out and defended. The argument is over what constitutes the definition of an
Essential Health Benefit as described by HHS, and who decides, and how much of this falls on the states versus the feds. Neither author responded for comment for this post.
(White House/Pete Souza), March 2, 2009
In the first piece, The Value of Federalism in Defining Essential Health Benefits, Alan Weil discusses the HHS rule in terms of federalism:
Under the principles of federalism that have guided the development and implementation of policy in this country since it was founded, there are three potential benefits associated with permitting states to make these decisions with respect to the EHBs. These three advantages relate to learning what works, tailoring policies to local conditions, and reflecting citizens' values.
The metaphor that states are the laboratories of democracy is most apt when applied to situations in which we truly don't know what the best policy would be. A perfect example is the statutory requirement that the EHBs include habilitative services. As the Department of Health and Human Services (DHHS) noted when it released its bulletin, habilitative services are not defined in a consistent way in existing commercial insurance plans. Supporters of a single federal standard for the EHBs would have the federal government craft a definition of this benefit. But when it comes to something new and unknown, there is value in testing various conceptions and definitions before settling on a single, national standard.
The theme here is that devolving at least some power to the states in order to give flexibility is a good thing that will enhance implemetation, match plans to existing plans and be the least disruptive. Notable is this comment:
The third reason to allow states to choose the EHBs is to better match policy to local values. Fundamentally, decisions regarding the scope and scale of the EHBs are decisions regarding the portion of health care costs that should be shared rather than borne by the individual. A national compromise on this matter is likely to disappoint everyone.
So, if one takes, for example, the HHS/ACA rule on covering birth control pills, one can see where a national compromise might lead to disappointment. Yet, there couldn't be a clearer role for the federal government to set specific standards that apply to everyone so as to avoid gender discrimination.
Another point of view, laying out some limits to federalism, by Jennifer Prah Ruger, can be seen in Fair Enough? Inviting Inequities in State Health Benefits:
But what if this policy means shoddy health care for some patients and top-of-the-line health care for others — a two-tiered system? And what if variations in quality lead to disability, dysfunction, complications, or premature death? Quite different outcomes can be achieved in a person with full access to high-quality health care and one who lacks such access, even if the two have the same health condition. Hypertension, for instance, affects almost 20% of the U.S. population, yet millions of Americans have undiagnosed hypertension, and only 58% of patients receive appropriate treatment. And research shows that less than 3% of postmenopausal women with distal radial fractures received bone-density testing, and less than 25% received osteoporosis treatment within 6 months after their fracture occurred. Such gaps in care increase the risk of poor health outcomes.
It seems to me that Weil makes a great case for the myriad ways that ACA tries to accommodate federalism (i.e., a local approach), and in doing so, undercuts many of the complaints from conservatives about ACA being an overreach. At the same time, the argument from Jennifer Prah Ruger rings true.
In fact, we've heard similar arguments before. Back in 2008, the fight over expansion of the State Children's Health Insurance Program (SCHIP), which President George W. Bush vetoed, had a similar federalist strain:
In the end, the SCHIP battle became a proxy war over the duties that government should assume in national health care reform. As SCHIP's reach has grown, the program has wandered into an enormous ideological divide over whether government should be permitted to act as a group sponsor and monitor of plan accountability. The use of government as purchaser and market overseer itself represents a crucial policy and political compromise between advocates of pure public insurance models and proponents of full market deregulation. Certain recent high-profile legislative reforms — Medicare Advantage, Medicare Part D, and the Massachusetts Connector Authority, for example — are evidence of the potential for architectural compromise. Given the need for a compromise providing a robust approach to managing an enterprise as vast as the purchasing of personal health care services, these hybrid systems appear to offer a means of breaking the policy logjam.
But it was such a solution that the administration sought to halt in the case of SCHIP, precisely because of its implications for broader future reforms. The effort to stop SCHIP was aided by the toxic atmosphere in Washington and the administration's labeling of SCHIP as a middle-class boondoggle. This allegation was made believable, according to one prominent Republican polling expert, because some families receiving assistance in certain states, such as New Jersey, had incomes that, though modest by regional standards, far exceeded the national median. The veto “played well in the South” for the administration, according to this expert; the maximum annual income of eligible New Jersey families seemed absurdly high to focus groups in poorer (and Republican) parts of the country, whose own SCHIP programs were far less generous. Reactions in these strongholds were powerful enough to reassure Republican House members that their support for the President's veto would not damage their chances in the 2008 elections.
SCHIP was passed after the election and
signed into law by President Obama in 2009.
In an election year, one can expect conflict over a national approach to standards, as we are seeing with the implementation of ACA rules, and the dynamic between a federalist, local approach and a national one will continue. Some of it is healthy, and built in to ACA (see Weil, above), and some will simply have to be adjudicated one way or another.
But in the case of contraceptive coverage, just as with SCHIP, it's hard to see how a federalist approach would have worked. I agree with the philosophy laid out in Ruger's article:
There is no perfect health care system. But setting a goal of equal access to high-quality, evidence-based care would be a step in the right direction. Unceasing effort to standardize comprehensive health coverage and reach a gold standard of care is essential to attaining this goal.
If that means appreciating that what works in New Jersey won't work in Mississippi, then that begs the question: is it because of price, quality, resistance to change or because it was suggested by a Democrat? Understanding that will go a long way in determining how much devolution goes to the states. As noted above, ACA tried to do that in many cases.
To me, that applies to contraceptive coverage, and all women's health services, along with everything else. The goal is high-quality, evidence-based care. Entertain whatever you need to get there.
We've seen how it works with SCHIP. If federalism advances the goal for ACA now, build some in, and that's terrific. If not, well, Uncle Sam will need to have his say.
UPDATE from Alan Weil 2/13/2012:
I think it is fair to say that the approach the administration took on the contraception issue was one of setting forth a single, national standard, rather than relying upon each individual state to set its own policy. I should note that one of the values of a federalist approach is that you can experiment with various ideas and see how they work. I'm not at all an expert on the contraception topic, but I understand from others that more than half of the states had some sort of a mandate in place and that the path the Administration took reflected an approach currently in use by a few states. Thus, one could make the argument that the Administration benefited from American federalism in this case by learning from the experimentation that had already occurred. My point is that federalism doesn't require that states have authority in perpetuity, but that if they have it long enough that the nation can learn from the various approaches they take, that is a valid exercise of federalism that has benefits even if the ultimate choice the nation makes is to adopt a single standard. I should also say that I do not know if the federal law would have permitted HHS to adopt an approach with respect to contraception like the one they took with essential benefits. That would require a closer reading of the statute in that area than I have done.