Health Reform - Reality

In my previous commentaries I talked about Health Insurance Reform because I saw the problem as being primarily one of insurance. Too many people are uninsured. Those who are insured often don’t get coverage when they most need it. The expense of insurance is astronomical and going up.

But as I study the problem in ever greater depth I have begun to realize that I have been looking at the tip of the iceberg. Insurance is only a part of the problem and I have concluded not the major one.

I have concluded that the cost of our medical delivery system is astronomically expensive and going up and while the inefficiencies of the private insurance companies are contributing to the problem they are not the primary cause. But the situation has been a problem since the time of Teddy Roosevelt and has now become nothing short of a crisis, which unless dealt with endangers the economy of the United States. If nothing is done health care is on a path where in a relatively short time it will bankrupt the country.

Let me repeat: If nothing is done health care is on a path where in a relatively short time it will bankrupt the country.

This is truly not a Republican or a Democratic problem it is in words of our President “an American problem.”

Fidelity Investments, a brokerage and Mutual Fund company, is not a political organization and certainly not a Democratic or a liberal one. Its mutual funds total $1.57 trillion in assets.

They write on their web site:

“The rising cost of health care in the United States represents a significant threat to the competitiveness of U.S. businesses and the fiscal sustainability of government finances.

“Reform that reduces the rate of health care inflation is critical to the long-term prospects for the U.S. economy.”

They go on to say:

“Health care expenditures have risen at more than twice the pace of overall inflation since 1970, …the United States spends far and away more money on health care …than any other country in the world. Health care spending makes up 15.3% of GDP compared to an average 8.8% for developed countries.

“…aggregate health statistics, such as life expectancy or infant mortality, are worse in the United States than other developed countries despite the extra expenditure. This is the essence of the problem: health care costs are rising more quickly than GDP, tax revenues, business sales, employee wages or any other measure of national, public, or private incomes. At this pace, health care will continue to consume an ever larger share of public and private sector resources. …it represents a large expense with inflation rates that are unsustainable.”

For Republicans to oppose change is irresponsible. To oppose reform by the use distortions and lies is inexcusable. To resort to comparisons to the Nazis or to euthanasia is despicable.

We probably should consider one of the systems that work, whether the British, the Canadian or the Swiss or any other as long as it controls costs. For an article that debunks some of the lies and myths about these systems see here.

For reasons that are incomprehensible to me, that is politically impossible.

An American single payer system like Medicare is the next best solution! A public option follows close behind. But, and this is directed at my liberal friends, reform of some kind is essential and the proposal, which seems to have support in the Senate, that if state co-ops or other programs failed to meet certain cost and coverage goals in five years, the president could create a public plan on a fast track without threat of a Senate filibuster has a lot to commend it as a compromise. 

It is not sensible to adopt the Republican approach of “My way or the highway.” Reform may have to be piecemeal, but we cannot forgo a start because it falls short. Time is short and neither inaction nor delay is an option.

The insurance companies, who have been the most effective entity in blocking reform in the past, make good villains. But they are doing what all business entities do in our capitalist system. They will fight to protect their profits and a review of their profits shows them not to be outrageously profitable. What they are is outrageously inefficient. According to Locker Gnome, Aetna, United Health and Tenet have profit margins of 3.85%, 4.1%, and 2.63% respectively, compared to e.g. Microsoft at 24.93%, Exxon 8.98% and Apple at 14.97%. But their inefficiency is most likely due to the huge amount spent cherry picking healthy people, denying insurance and claims to people with pre-conditions, and finding other causes for not paying claims. If the Health Reform legislation forbids these practices we will not only get people who are now uninsurable, insured, and get insured people reimbursed for their expenses, but we will have taken a huge step forward toward a better system.

 It doesn’t solve all the problems, but a half loaf is better than none, and we must guard against the perfect being the enemy of the good. Fighting for a public option is one thing, but making it the sin qua non of health reform, serves only to strengthen the hand of the enemies of all reform. Sometime it is better to win a battle and live to fight another day, than to gloriously go down to defeat, and lose the best opportunity for reform we shall see for a very long time. Right now liberal forces in sniping at the President are doing a disservice not only to Health Reform, but to all the other reforms that will follow once this battle is behind us.

Health Insurance Reform - Lies and Damned Lies

In my last commentary, entitled: ”Health Insurance Reform," I addressed some misconceptions about our health care. I pointed out that it is far from the best system in the world. Depending on the criterion we use it ranks 24th, 72nd and 30th according to our own CDC. Lately the UK system has come in for some bashing but it comes in 14th on life expectancy, a lot better than the US, but it is severely under funded.

According the conservative British newspaper, The Guardian that has a cross-reference under the heading, Data: health spending around the world the per capita expenditure on health in the UK is $ 2,784. For the US it is $6,714 and when measured by total expenditure on health as a percentage of gross domestic product, we find that the UK spends 8.4% while the US spends 15.3%. We spend two to three times what Britain spends and get poorer result and then critics of US reform bash the British. Nobody is proposing adopting the British system but we could do worst. It is certainly better than the one we have.

The bashing of the British system got to be such a sport that Investor's Business Daily wrote an editorial saying, “People such as scientist Stephen Hawking wouldn't have a chance in the U.K., where the National Health Service would say the life of this brilliant man, because of his physical handicaps, is essentially worthless.” When Stephen Hawking, upon hearing of this, pointed out that he is British, and it is the British Health Service that has kept him alive, the paper pulled this nonsense from its pages and blog. But the right wing, Rupert Murdoch-owned NY Post, stuck to the lie by writing:

“One troubling provision of the House bill compels seniors to submit to a counseling session every five years (and more often if they become sick or go into a nursing home) about alternatives for end-of-life care (House bill, p. 425-430). The sessions cover highly sensitive matters such as whether to receive antibiotics and "the use of artificially administered nutrition and hydration."

Scary, and a boldface lie, despite the reference to page numbers in the bill. The section referred to according to the Associated Press was authored by Republican Reps. Charles Boustany of Louisiana, Geoff Davis of Kentucky and Patrick Tiberi of Ohio and would authorize Medicare to pay for counseling if desired in the preparation of Living Wills. The AP article goes on to point out that “just a year ago, Congress overwhelmingly approved legislation requiring doctors to discuss issues like living wills and advance directives with new Medicare enrollees. And the government already requires hospitals and nursing homes to help patients with those legal documents if they want support, under a 1992 law passed under Republican President George H.W. Bush.”

But just about any lie will do to stop reform because in the words Republican Senator Jim DeMint "If we are to stop Obama on this, (referring to Health Care Reform) it would be his Waterloo. It will break him."

What is good for the country doesn’t matter. What matters is “breaking Obama.” They wouldn’t debate on the merits. On the merits they lose. And we know they don’t have a case when they start putting out boldface outrageous lies. And so what used to be something they were for, now becomes something that is euthanasia. And they all jump on the bandwagon. It started with that sterling Republican leader Sarah Palin when she put on her Facebook page, “The America I know and love is not one in which my parents or my baby with Down Syndrome will have to stand in front of Obama's "death panel" so his bureaucrats can decide, based on a subjective judgment of their "level of productivity in society," whether they are worthy of health care. Such a system is downright evil.” 

Such a system would be downright evil, but no such system is, was, or ever will be considered. What is evil is the lie. One might hope other Republicans would immediately repudiate it, but no, former House Speaker Newt Gingrich defended the bizarre claim by Palin.

Well, I don’t know if such outlandish lies will stop needed reform, but they have succeeded in killing the provision that would allow being reimbursed for the cost of getting advice from your physician on what provisions you want in a Living Will, that, by the way, can provide that you want to live no matter what the state of your health is. If you want to live in a vegetative state for decades you can provide for that in a Living Will. All it does is tell providers what your wishes are when you are not able to do so any more. It avoids the situation that occurred in the infamous Schiavo case.

But the outrageous get even worse, if that is possible. Glen Beck on Fox News actually went into detail on the Nazi extermination programs suggesting the Health reform mimics the Nazis and Rush Limbaugh proceeded to describe the ways Democrats are like Nazis -- a list that included their dedication to animal rights and their opposition to smoking and pollution. 

Jewish groups including the Israeli lobby, AIPAC were outraged, but nothing seems to be too low for people whose only allegiance is to the insurance companies and the drug companies and who will use any tactics to defeat what is not an option but a necessity.

I have questions about the cost of the bill and how it will be paid for. We all have questions of one kind or another. Some, particularly the very rich, the insurance companies and the drug companies, may be better off without reform and they are entitled to be against it. But when outrageous lies are used, we know that the opposition is bankrupt. An honest and civil debate is called for. Lies, smears, and scare tactics have no place in a discussion of such a crucial subject.

Health Insurance Reform

Health Insurance Reform appears to be in trouble, or at least that is what the media is telling us.

Should we care? Or is the present system fine for most of us?

These are questions that are legitimate and should be asked by all. After all we are told we have the best medical care in the world. For example Senator Shelby (R-Ala.) told Chris Wallace in June on "Fox News Sunday" that President Barack Obama's proposed health care plan is the "first step in destroying the best health care system the world has ever known" and Senator Mitch McConnell on July 19 said on Meet the Press: “They don't seem to grant that we have the finest health care in the world now. We need to focus on the two problems that we have, cost and access, not sort of scrap the entire healthcare system of the United States.”

These comments are very important because they set up certain premises that if true should give us all pause. Do we have the best health care system in the world? We all would like to think so. We like to think the U.S. is Number I in everything. That is something we should strive for, but in a sense we all come from Missouri, we ask is it true?

Well the World Health Organization has stopped doing these studies, so the latest figures we have date to 1999, but there is no reason to think that much has changed. On the basis of life expectancy the U.S. ranks #24. Japan Ranks #1, France #3, Sweden #4, Canada #12, UK #14. When the rankings are by eight relevant measures the U.S. comes in – hold your breath – comes in at #72.

But many Americans don’t trust the statistics of these “foreigners.” Well the American CDC (Center for Disease Control and Prevention) does a ranking on infant mortality rates. The latest one done as of 2005 shows the U.S. in 30th place.

So much for the claim that we have the best medical care in the world.

It is true, as some Republicans have contended, that the rich, the prominent often come to the U.S. for treatment - the Shah of Iran, with terminal cancer, came to the U.S., but all that shows is that if you have unlimited money excellent care is available in the US. Very few come from Germany or Italy or Canada, etc. Only a very few of us have unlimited money and whether people know it or not, even the insured don’t have unlimited coverage as so many are discovering.

We keep hearing about the uninsured and their lot is indeed serious. But the same goes for most of the insured who don’t know that when they need their insurance most they will discover that they forgot to read the small print. It doesn’t cover the most expensive procedures or they find the condition is a pre-existent one, even though they didn’t know that, and their insurance exempts pre-existent conditions. And then there are the co-pays. They can bankrupt you if you need an expensive procedure even if the procedure is covered by private insurance.

But let us remember what else McConnell said: he doesn’t want to “sort of scrap the entire healthcare system of the United States.” Well who does? What an outrageous setting up of a straw man. The discussion revolves around the insurance system, not the medical delivery system. The most controversial part of the reform is whether to have a government insurance system alongside private insurance and they treat that as though it were the most outrageous idea in the world. Well, Senator McConnell has government run health insurance along with every member of Congress. They all love it. Every American over 65 has a government run health insurance. Its called Medicare. All are very happy with it. Children who are not insured in a private health insurance plan have access to a government health insurance plan. Its called SCHIP. Parents whose children are covered by this plan are very happy to have it. The poor have a government health insurance plan, its called Medicaid. They are grateful to have it even though in many states it is under funded. As for veterans who are insured under the Veterans Administration program, a government program, they wouldn’t exchange it for private insurance.

None of these American Health insurance plans has turned us into a Socialist state and the insurance companies are still in business.

But now they tell us that Medicare may look good but it under-reimburses doctors. It is true that Medicare pays doctors less than they charge their un-insured patients*, but so does every private insurance company. According to Ethical Health Partnerships, “No matter how much we pay for private insurance, their payment to physicians is either slightly above Medicare rates (for better insurance companies) or BELOW Medicare rates. It is not uncommon for some insurance companies to pay 10-20% LESS than Medicare.”

It is no wonder that I have yet to find a notice posted in a doctor’s office that says we no longer take Medicare, though undoubtedly some don't. However, I do frequently find notices, “We don’t take United Health Care” or some other carrier, anymore. That means you lose your choice of doctor, and your choices of doctors are limited, with most private insurance companies having in-plan and non-plan doctors.

But one of the scare tactics used by the opponents of reform, and don’t be fooled by the claim that they want reform but “only the right kind,” is that you will lose your choice of doctor. They turn the facts on their head. Your choice of doctor is limited by the private insurance industry - it is not likely to be limited under any government program.

I realize that there are other issues that are troubling. Most important is cost. I will try to address all of them, or as many of them as I can, in future presentations.



* who are not only subject to the burden of having to pay all their medical expenses out of pocket, but are charged at a substantially higher rate then the insurance companies, so that they end up subsidizing the insured.

Originalism - A Constitutional doctrine without validity

In my last three commentaries I have been demonstrating how the doctrines propounded by the Right for judicial interpretation are fallacious and downright dishonest. I strongly urge my readers to reread these articles

I would also urge readers to read my analysis on the meaning of a Right wing Supreme Court which I published in October of 2005 under the title, “The Supreme Court - Consequences As New Appointees Shift Its Balance and the short add-on entitled, “The Debate About Supreme Court Nominees”

In these articles I demonstrated that the term activist judges more appropriately applies to the Right Wing of the court which strike down acts of elected legislatures with far greater frequency than the liberal judges and that “calling balls and strikes” is a misnomer which has no place in a realistic understanding of how the Constitution and the laws passes by Congress are interpreted.

Another favorite catch phrase used by the Right is that of “Originalism” by which the Right of the Court and in the Congress claim that they strive to interpret the Constitution by the original intent of the founders. I may be wrong but I believe that the term had its origin with Robert Bork, that highly controversial Reagan nominee to the Court who was denied confirmation by the Senate as being far, far too Right. Yet Bork himself admits that it is a doctrine that in the real world cannot be applied. In a book that he co-authored he writes in its Introduction:

“Regrettably, but perhaps inevitably, ‘[t]he ink was not yet dry on the Constitution when its revision began.’ Almost immediately, Congress began pressing beyond specifically enumerated powers granted it in Article I. As a result, today, Americans encounter a national government far more expansive than the Framers and men of their generation could ever have imagined…

“Uncertainty stems, in part, from the recognition that the scope of the commerce power has expanded so far beyond the original understanding of that power's boundaries that any attempt to adhere strictly to its original meaning today would likely be futile and inappropriate… “There is no possibility, today, of adhering completely to the original constitutional design. Such a daring plan would require overturning the New Deal, the Great Society, and almost all of the vast network of federal legislation and regulation put in place in the last two-thirds of the twentieth century. It appears that the American people would be overwhelmingly against such a change and no court would attempt to force it upon them.”

And at a later point he goes on to say: “When the world has changed but the underlying constitutional principle remains, the task for those ‘in this generation [is] to discern how the framers' values, defined in the context of the world they knew, apply to the world we know.’ The world we know includes the long-standing jurisprudence on the commerce power because ‘[w]hen there is a known principle to be explicated the evolution of a doctrine is inevitable."

So much for the claim that liberals on the court are activists and that Right-wingers are originalists. It is a phony paradigm. As I have stated before, judges are human and what they read into the vague text of laws or the Constitution, whether Left or Right, is informed by their backgrounds and their political philosophy. To argue otherwise is either insincere or naïve.

As for the loud cries against using references to foreign law in interpreting the Constitution that too is a misplaced argument. First it is not only the liberal Justices who make such references. Justices Kennedy and O’Connor both appointed by Reagan have supported this.

Secondly when we look to the Declaration of Independence we find the phrase, “a decent respect to the opinions of mankind” and the Constitution’s Bill of Rights in amendment VII refers to the “common law” which every lawyer knows is a reference to the decisions of British courts preceding the founding of the U.S.

It is again a tempest in a teapot without reason.

Just how little respect for due process the present five Justices of the Right have can be seen in their recent decision in DISTRICT ATTORNEY’S OFFICE FOR THE THIRD JUDICIAL DISTRICT ET AL. v. OSBORNE which held that a state is not obligated to allow DNA testing where it would conclusively show whether a man convicted of rape was, in fact guilty. See the Washington Post’s story on it here.

In that case the District Court granted Osborne summary judgment, concluding that he had a limited constitutional right to the new testing under the unique and specific facts presented, i.e., that such testing had been unavailable at trial, that it could be accomplished at almost no cost to the State, and that the results were likely to be material. The Ninth Circuit affirmed, relying on the prosecutorial duty to disclose exculpatory evidence under, e.g., Brady v. Maryland, 373 U. S. 83.

Finally, I strongly urge those who have an interest in these issues to listen to Senator Whitehouse of Rhode Island on Sotmayor nomination, which can be listened to in full here. The speech is 21 minutes long but I think that the investment of your time will be more than rewarded, though the first minute or two will not hold the reader spellbound.

The issues involved in these court decisions in many ways outweigh those pending in the Congress, and I urge you to take the time to read and listen, if you desire an understanding of the forces at work.