ABSTRACT: This article is a critical analysis of the American Health Security Act of 1993. Although AHSA was soundly defeated when first proposed, parts of it have been enacted into law in 1996, with the prospect of further piece-meal enactments in the future. It includes matters of fundamental importance to American mental health practitioners, to vulnerable citizens with psychiatric disorders, to their families, and to their few champions in medicine and law. Utilitarianism is the unstated philosophical substructure of AHSA and its legislative progeny, i.e., whatever cuts medical costs and saves money is good.
The author delineates AHSA's mental health entitlements and limitations of in-patient, out-patient, and other patient care. She enumerates a dozen major imperfections and dangers of this mental health law, especially its medical utilitarianism emphasizing outcomes and quality of life. Dr. Cosman argues that medical cost, outcome, quality of life, and managed competition threaten the essential liberties and the lives of older persons, persons who are chronically ill, fatally ill, and most particularly those who are mentally impaired. She concludes that if limited money, medicine and time are invested only in inevitable medical success, then America's medicine by its medical law will be Medical Darwinism encouraging survival of the fittest by requiring extinction of the unfit.
When was the last time you read the failed Clinton Health Plan of 1993 called The American Health Security Act (AHSA)?(1) AHSA's 1,364 pages of legislation include sections of critical importance to American mental health practitioners, to the vulnerable citizenry with psychiatric disorders, to their families, and to their few champions in medicine and in law. Everyone concerned with America's mental health care should read AHSA. It is astonishing psychiatric cultural history. Analysis of AHSA, however, is more important for providing context for medical legislation directly derived from it and already law of the land.(2) Furthermore, studying AHSA now provides warnings of other AHSA sections proposed for forthcoming medical laws. Utilitarianism is the unstated philosophical substructure of AHSA and its legislative progeny. What is good for the state is good for the patient. Whatever cuts medical costs and saves medical money is good. A patient under capitation payments is simply one head among many hungry heads. Individualism, integrity, and autonomy are out-worn ideas no longer valid for modern America where medical costs are stratospheric, and chronically ill patients live expensively long lives with poor medical "outcomes," and dismal "quality of life." Every American must have equal access to medicine. Those who get too little must get more. Those who get too much must get much less.
Many powerful people lamented AHSA's failure to become American law, especially its mental health provisions. Some politicians still bemoan it as a lost necessity.(3) Other legislators are determined to implement AHSA slowly, surreptitiously, and part by part. Whole sections of the Clinton health plan already have been incorporated essentially unchanged in legislation Congress passed into law in 1996. For instance, the Health Insurance Portability and Accountability Act (HIPAA, familiarly called Kennedy-Kassebaum) contains approximately one hundred pages directly from AHSA of criminal penalties for doctors who minimally, even unintentionally, violate the law.(4) Other AHSA restrictions governing Medicare patients were interpolated into Section 4507 of the Balanced Budget Act of 1997.(5) Moreover, Senator Hillary Rodham Clinton and her adherents know that AHSA is not dead but hibernating, ready for vigorous reawakening, hungry and rapacious, whenever the political season warms and time converges with her opportunity
Dangers to liberty, restrictions of choice, and noxious naivete of AHSA are most dramatic in section 1115 defining Mental Health and Substance Abuse Services.(6) Note that section title. That itself should sound an alarm. Throughout the legislation, mental illness and drug addiction are joined as equals: as if their origins, expressions, requirements, social symptoms, pariah status, and remedies are identical. Moreover, legislation provides mental health care to all Americans, increasing manyfold the citizenry entitled to free or quasi-free psychiatric and or mental health care. Entitlements suddenly open to those who do not need them. Banal and ordinary treatment is provided to those who already have superior treatment plans.(7) Those with will and money to pay for better are required to accept worse care. Lamentably, the poorest, sickest needing most help have severe restrictions on their chances for getting it.(8)
For the mental health community, AHSA and its progeny in the law are obnoxious perversions of an attractive chance to do good. Good intentions, however, can lead to worse evils than sinister intentions. Malignant neglect can murder as effectually as guns or poisons. As the last half century of mental health legislation and litigation in America and in Germany suggests,(9) though we may be alert to obvious wickedness and readily fight it, we easily can be lulled into unwittingly killing precious excellence, suspending moral abhorrence, and encouraging the unspeakable to perform the unthinkable.
Permeating the mental health provisions of AHSA is the Hegelian philosophy that whatever is useful for the country is right for the person. AHSA's mental health sections demonstrate the moral irresponsibility of promising ideally generous benefits whose astronomical, reason-defying costs can be contained only by the cruelest restrictions not only upon those who cannot pay but upon those competent to buy care but who by law are forbidden to obtain it. I repeat: AHSA requires that every American have no more and no less mental health care than any American. People currently thriving with their own private mental health care would be prevented from getting it, even when ready, willing, and able to buy it with their own money. People accustomed to selecting among options their good insurances provide would be forced to take whatever the universal plan elected to provide. Independence, personal autonomy, and integrity of physician and patient choices not only are not permitted but are punished. Since most law guiding and guarding medicine in our nation is no longer civil law but criminal law, the punishments for violating medical law include prison.(10)
Mental health provisions in AHSA are defiant attempts at social engineering. If you have not studied these recently, I will delineate AHSA[sections] mental health entitlements and limitations of in-patient, out-patient, and other patient care. Then I shall list a dozen major imperfections and dangers of this mental health law, especially its medical utilitarianism emphasizing outcomes and quality of life.
Readers familiar with Hegel and medical utilitarianism in prewar Germany will find the mental health sections of AHSA terrifyingly suggestive of psychiatric Darwinism wherein survival of the fittest requires extinction of the unfit.(11) Those of us studying law and old enough to remember utilitarian controlling ideas and their perversions, know well that judging who shall live and who shall die via AHSA'S criteria of cost, outcome, quality of life, and managed competition will pose great inconveniences upon the liberty of the young and healthy. But medical cost, outcome, quality of life, and managed competition threaten the essential liberties and the lives of older persons, persons who are chronically ill, fatally ill, and most particularly those who are mentally impaired. Their costs of care are astronomical, their outcomes are gloomy, and their life quality to those who observe them, not necessarily in the patients' judgment, is life not worth living.
I believe with Justice Louis Brandeis, that our enemies often are our friends innocently trying to help us.(12) But worse are those who posing as our friends pridefully insist they know our minds and our bodies better than we do, and insist upon controlling what is done and not done to our minds and our bodies. The greatest dangers to liberty lurk in the insidious encroachment of people of zeal, well-meaning but without understanding.
Mental Health Provisions in the Clinton Health Plan
Of the twelve titles in the American Health Security Act the most important for mental health care are the first(13) and third.(14) The full Act's twelve titles are:
1. Health Care Security
2. New Benefits
3. Public Health Initiatives
4. Medicare and Medicaid
5. Quality and Consumer Protection
6. Premium Caps, Premium-Based Financing, and Plan Payments
7. Revenue Provisions
8. Health and Health-Related Programs of the Federal Government
9. Aggregate Government Payments
10. Coordination of Medical Portion of Workers' Compensation and Auto Insurance
11. Transitional Insurance Reform
12. Temporary Assessment on Employers with Retiree Health Benefit Costs
The major mental health provisions are found in Title 1, Health Care Security, subtitle B, Part 2, Description of Items and Services Covered, section 1115, called Mental Health and Substance Abuse Services.(15) Other mental health material is sprinkled throughout the legislation, especially in Title 3, subtitle F, Part 1, on Financial Assistance, section 3501, on Authorization on Public Health Services Initiatives Fund.(16)
Examining Mental Health and Substance Abuse Services repays time and effort. Before I suggest a dozen imperfections and dangers of this mental health law, let's review in detail the three separate though interrelated services of which we all would be beneficiaries: (1) In-patient and residential mental health and substance abuse treatment; (2) Intensive non-resident mental health and substance abuse treatment; and (3) Out-patient mental health and substance abuse treatment. Eligibility under the law is not always what it seems. The eligible mental health patient has, or has had during the one year preceding the date of treatment, a diagnosable mental or substance abuse disorder, and is experiencing or is at significant risk of experiencing functional impairment in family, work, school, or community activities.(17) A person under treatment for a diagnosable disorder but not functionally impaired in family, work, school, or community activities, shall be treated as if so impaired.(18)
Integrating entitlements theoretically is logical and case management is AHSA'S reasonable method. But case management for mental health and substance abuse patients under Section 1115(b)(2) is only conditional assistance to an individual in gaining access to needed medical, social, educational, and other services.(19) An eligible American will not necessarily get what he is eligible for.
Eligibility for case management requires the patient to be receiving out-patient mental health and substance abuse treatment.(20) But a health plan administering AHSA benefits (for instance, your local HMO or my state health plan) has the discretion to offer case management or not.(21) An amusing, unanticipated result of case management might be that Americans without mental health problems nor the luxury of an advocate helping them to "needed medical, social, educational, and other" services shall be required to fend for themselves against gatekeepers glad to keep them away from expensive, necessary services. Therefore those suffering mental health and substance abuse problems shall get better medical care than those without mental impairment. Unlike discretionary case management, other outpatient services such as psychiatric screening, assessment, and crisis services are compulsory.(22) Every health plan must provide under section 1115(b)(3) out-patient mental health and substance abuse treatments and services to all enrolled people. Since enrollment in AHSA is obligatory for every American, then, ipso facto, mental health and substance abuse entitlements of screening, assessment, and crisis service would be open to everyone.(23) Collateral services benefit family members of people receiving mental health and substance abuse treatment, serving the wife, husband, father, mother, sibling of a person with a mental or addictive disorder.(24)
Note well the consistent, inextricable linking of Mental Health to Substance Abuse treatment. Every American is considered a public health client. Jostling for space in the same psychiatric life boat are the alcoholic snoring in a downtown doorway, my wealthy neighbor's child with lithium-managed bipolar disorder, your fiscally competent nephew with minor retardation and severe cerebral palsy, the new mother with postpartum depression, all the city's drug addicts, plus you, and I.
By January 1, 2001, seven years after the plan was to become law, mental health care was to be totally integrated with all other bodily health benefits for a person with a health security card.(25) Parity meant equal poverty of benefits. Before parity, the maximum number of residential mental health care days was thirty days in a state-licensed facility legally authorized to provide treatment in a least restrictive setting.(26) A dangerousness exception extends the annual aggregate maximum to sixty days if the individual receiving treatment poses a threat to his or her own life or to the life of another.(27) AHSA gives no clue to what happens after the patient hospitalized for two months is not yet cured, a bureaucratic finality few serious mental conditions obey. Anyone not well in sixty days is out on the street. Inpatient hospitalization for substance abuse treatment covers only medical detoxification associated with withdrawal from alcohol or drugs.(28)
Intensive non-residential treatment, the second form of entitlement, offers diagnostics or therapeutics in non-residential hospitals, day treatment centers, psychological rehabilitation programs, ambulatory detoxification programs, home-based mental health services, or behavioral aid services.(29) But intensive non-resident coverage is discretionary to a health plan, which for philosophical or fiscal reasons may or may not offer it. Intensive non-residential treatment should avert the need for the more expensive residential, in-patient services. Annual limit to intensive nonresidential treatment is an aggregate 120 days.(30) Two days of intensive non-residential treatment equal one day of in-patient treatment.(31)
Therefore, a patient could exchange the maximum annual in-patient ration of sixty days to obtain twice as many days of care via this intermediate method between in-patient and out-patient. Intensive non-residential treatment, if available at all, can be extended an additional sixty days if medically necessary.(32)
The third mental health entitlement is out-patient treatment.(33) Nine classes of out-patient activities under section 1115(e) include: (1) Screening and Assessment; (2) Diagnosis; (3) Medical Management; (4) Substance Abuse Counseling and Relapse Prevention; (5) Crisis Services; (6) Somatic Treatment Services; (7) Psychotherapy; (8) Case Management; and (9) Collateral Services.(34)
Limitations on out-patient psychotherapy and collateral services (for patients' families) are thirty visits each.(35) Further out-patient privileges, available at the discretion of the health plan, might prevent hospitalization or facilitate earlier hospital release. Out-patient day exchanges with in-patient day limits are four-to-one.(36) For substance abuse, the four-to-one exchange is at the discretion of the health plan. In order to prevent relapse, thirty extra days of group therapy are available to an addict.(37) But a second in-patient detoxification period, if the first has failed, will be available only if the health plan determines that there is "substantial chance of success."(38)
Cost sharing is critical to the proposed mental health services.(39) Americans either would be obliged to share costs by co-payment, out of their pockets, or coinsurance, presupposing they possess it. For in-patient care, coinsurance is 20% of the applicable rate.(40) Cost sharing in intensive non-residential care requires no co-payment but a 20% applicable co-insurance payment. For out-patient services, cost sharing is $10.00 per visit as co-payment and 20% applicable coinsurance.(41) Psychotherapy has different cost sharing arrangements. Co-payment out of pocket is $25.00 per visit (until the then expected year 2001) and thereafter $10.00 per visit.(42) Co-insurance is 50% of the applicable payment rate (to the then expected 2001), thereafter 20%.(43)
AHSA's mental health benefits also are extended to unknown patients yet to be discovered. AHSA stresses bringing mental health and substance abuse services to the patients, not waiting for patients to ask. Progressively larger amounts of money are budgeted for patient transportation, community and patient outreach, patient education, foreign language translation services, and such other services as the Health and Human Services Secretary deems appropriate.(44) Title III, in the financial assistance section of subtitle F, originally mandated $100 million for fiscal year 1995, $150 million for fiscal year 1996, and then $250 million for each of the years between 1997 and the year 2000.(45)
Remarkably, increasing the number of clients is the proposed method for reducing total costs of universal medical care. Extensive, expensive Outreach Services are thought necessary prelude to integrating mental health and substance abuse services into the comprehensive benefit package.(46) Therefore AHSA requires reports.(47) Under section 3511(b)(3), a report must provide information on the extent to which each health provider furnishing mental health and substance abuse services participates in one or more regional or corporate alliance health plan, and, in the case of providers not participating, why not.(48) The report also must state the amount of money providers get from health plans.(49) Then, under section 3511(b)(8), the report must identify the changes in participation "and certification requirements needed to achieve integration of programs and providers into Health Plans."(50) This is not innocuous fact-collecting. Mandatory reportage has ominous implications under PORTS, the "Patient Outcomes Research Teams," and their annual ORPs, or "Outcome Performance Reports." Practitioners who do not conform are ousted from medicine. It already is happening.
AHSA also endangers confidentiality. It offers supplemental formula grants to states to provide money for coordinating and monitoring, especially (1) management information systems and (2) establishing linkages between providers of mental health and substance abuse services, primary care providers, and the health plans. Under the information infrastructure proposed in AHSA, confidentiality in psychiatry would vanish.(51) Today, under HIPAA, failure to provide medical record data is punishable by five years in prison.(52) Both physician and patient are liable under the law for not providing information or for providing "false" or incomplete information. Presumably, under current law, HIPAA, a psychiatrist and patient unwilling to report an episode or document a session could share adjoining cells.
Who plans for whom? Government plans for everyone in determining services: (1) from the most restrictive in-patient to medium restrictive intensive nonresidential to least restrictive out-patient; (2) from the most expensive in-patient to the medium expense of intensive non-residential to the least expensive out-patient psychotherapy or other services; and (3) from the most time-intensive twenty-four hour monitoring of in-patient treatment to the medium intensity of intensive non-residential treatment during the day to the least intensive partial day, hourly, or partial hour out-patient mental health activity. Levels of restriction, expense, and intensity require exchanges because of inevitable money demands. Intermediate intensive non-residential treatment is exchangeable two-to-one for in-patient. Outpatient is exchangeable four-to-one for in-patient days for the annual health care ration per American.
Any seductive logic to AHSA's three mental health and substance abuse services slips into oblivion when costs are counted. A health plan not able to afford or not willing to afford certain services is not obligated to provide them. Money determines whether there is or is not a basic triad of in-patient, intensive non-resident, and out-patient mental health and substance abuse treatments or simply the banal old pair of in-patient and out-patient care. Coercion would determine who gets how much of which service. Everyone in America is part of the who gets what. No matter how intelligent, independent, or wealthy, no one can have more and everyone shall have less mental health care. Rationing per head is only one of a dozen perils of the plan.
Imperfections and Dangers of AHSA's Mental Health Provisions
Mental health and substance abuse services are inextricably yoked in AHSA. Eligibility is identical, definitions of services, and limitations are the same for the one and the other. While thousands of Americans have dual diagnosis of mental disorder and addiction to either alcohol or drugs, mental illness and addiction are not equivalent. While substance abuse may be a sub-set of mental ill-health, mental disease is not necessarily consequent upon substance abuse. Nor is mental disability a sub-set of addiction.
Linguistic separation is essential. Mental disorders, subject to their own prejudices and stigmata, must avoid customary imputation of moral fault and free will attributable to addiction. One can elect to snort cocaine but I know no free choice for trying on an episode or two of schizophrenia. If genetic predispositions exist for alcohol and psychotropic drugs, and if chromosome studies ultimately prove heroin and crack addictive only to people with particular genetic configurations, nevertheless addiction almost always has a volitional beginning. Despite neurochemical and biochemical characteristics of drug dependency, free choice usually governs experimenting with drugs or using addictive substances for recreation or for escape. Volition in initiating addiction incites social censure. To attribute choice and free will to depression, neurosis, and psychosis is ridiculous and dangerous.
Linguistically linking addiction with mental illness also adds unjustifiable social stigmata of crime. Criminal acts, often concurrent with addicts paying for their drugs, such as assault, burglary, theft, and murder, by unjust implication attach to mental dysfunction, tainting mental disease with the stench of criminality. Inappropriate dual classification also places the mentally ill and mentally disabled at unnecessary risk to lose benefits when political power reduces them, as is inevitable, and as is demonstrated vividly in Canada and England.
Any classifying term or title either over-inclusive or under-inclusive is dangerous in an entitlement program. Classes incongruently joining conditions, as mental health and substance abuse, either inappropriately add those who should not obtain particular benefits or exclude those who should. Where there is no dual diagnosis nor overlapping of causation, there still may be some similarity in expression of bizarre behaviors, tendency to relapse or recidivate, and favorable response to similar or identical drugs, psychotherapeutic techniques, and behavioral therapy. Nevertheless, the person with depressive, neurotic, or psychotic disease has enough problems handling reality without a credulous public[sections] nomenclature-induced phantom distortions.
The most dangerous practical effect of equalizing mental illness with substance abuse is competition for money Historically in America both services have been under-funded.(53) AHSA requires them to compete for the same limited funds. Moreover, mental health money now is being spent inordinately frequently in prisons.(54) Consider California's mental health expenditures. In 1994, Dr. Areta Crowell, Director, Los Angeles County Department of Mental Health, correctly warned that health reform must provide appropriate treatment and rehabilitation for the mentally ill or society will pay directly via emergency rooms, jails, courts, group homes, or other expensive institutional, responses, including societal costs of urban violence and homelessness.(55)
Los Angeles is notorious for having more mentally ill in jails than in hospitals.(56) I intentionally use figures here from testimonies favoring AHSA's introduction in 1994. Nearly 10,000 people treated in jail programs for the mentally ill cost state government $5,000,000 in 1992 through 1993. According to Dr. Crowell, about 75% to 80% of people seen in psychiatric emergency rooms in Los Angeles have a substance abuse problem. "Bizarre behavior brings them to us, but we find that one-third have only a substance abuse problem, the others having a dual diagnosis of mental illness and substance abuse. We estimate those with only a substance abuse problem cost the psychiatric emergency rooms about $3,000,000. Law enforcement costs are an additional local burden of these untreated illnesses."(57)
Fortunately, public health statistics true for one large California city especially burdened with urban blight, unemployment, high drug use, and large numbers of illegal immigrants are not the psychiatry-addiction-unity statistics of the nation. Legislators generalizing from Los Angeles' mental health statistics to all America are as wrong as those who see cardboard sheds and shacks of the homeless defining American architecture, or dinners of poverty-dwellers exemplifying American cuisine. Mental illness must be disassociated from substance abuse.
Swapping and Limiting Use
The thirty day annual limit on in-patient care, with the additional thirty day extension in case of dangerousness to self or others,(58) and the thirty visit limitation on ambulatory psychotherapy care,(59) are familiar to current health insurance and unremarkable. But they are retrogressive in meeting the purposes of AHSA, to prevent catastrophic illness costs and to promoting universal access to health care.(60) Imposing limits on coverage will not control costs. Costs can be controlled without the day or use limitations.(61) Swapping psychotherapy sessions for in-patient days causes several problems. First is the conceptual difficulty: if a basic purpose of health reform is protection to families against financial ruin because of catastrophic illness, then, trading away in-patient coverage for out-patient psychotherapy will leave most vulnerable those who need the most help.
Second, swapping probably will raise not lower costs because relatively few people use in-patient care relative to psychotherapy.(62) Yet the pool of people likely to trade away in-patient days is relatively large. No strong research evidence suggests that psychotherapy is an important substitute for in-patient care. "The drafters of this provision appear to have lost sight of the fact that insurance benefit is not intended to provide a pot of money to use but is instead intended to offer financial protection against the consequences of illness. In general, health insurance should be something you do not want to use."(63)
Enticing troubled people to swap in-patient days for either the two-for-one intensive non-residential services or for the four-for-one out-patient psychiatric visits is likely to deprive the people who most need the most restrictive in-patient care at their times of most dramatic crisis. Either such people will be forced into whatever is left of a public sector mental health system, if such residue will exist, or they shall wander about America's streets untreated.(64)
Patient discretion to swap in-patient treatment days for out-patient treatment sessions must be counterbalanced by a mechanism to avoid both excessive utilization by the healthy and routine denial of in-patient care to the most desperate and the most dangerous.
Serious Chronic Mental Illness
Current Medicaid benefits for people with serious, long-term mental illnesses are far more generous (and fiscally more expensive) than AHSA provides.(65) Reducing benefits to already impoverished and troubled citizens will exacerbate not fix current community problems. AHSA's mental health benefits are ordinary, traditional, and should be appropriately integrated with, not substituted for, Medicaid benefits. To make case management and intensive non-residential therapy discretionary, and then to ration the amount to thirty days annual cumulative service, with an extended increase to sixty days only if "medically necessary," is simply inadequate for our most seriously mentally distressed population currently under expensive but nevertheless reasonably efficacious treatment.
Treating serious chronic mental illness is stunningly costly In California, for example, seriously mentally ill adults are now being treated under capitation plans at $17,000 per person per year versus the cost of such a person to the state of $100,000 annually in a state hospital or $60,000 per year in a skilled nursing home.(66) Los Angeles County has shifted 500 most costly clients, averaging $30,000 per person per year to Integrated Services Agencies costing merely $17,000 to $20,000 annually Appropriate field interventions reduce emergency room and jail episodes for these seriously mentally ill. Such nontraditional interventions, however, are not provided for in the pedestrian, traditional, anti-innovative AHSA mental health benefits.
AHSA resembles Medicare's generous need-anonymous entitlements gratefully abused by the middle-class and the wealthy elderly.(67) They do not know their peril in exchanging their true freedom for nearly free medical care. Nevertheless, people profiting most from AHSA's mental health advantages are those who need them least, namely: the mildly mentally ill middle class and wealthy people of all ages now paying via insurance or their pockets.
Banal Benefits in Mental Health Managed Competition
While states such as California, Oregon, and Arizona have experimented with integrated programs that are both cost-effective and medically-effective,(68) the Clinton AHSA benefit uses hospital bed days as the fulcrum around which the whole program pivots. With millions of middle class and wealthy people suddenly brought into a single mental health system which heretofore has studiously distinguished between the public and the private, and with 37,000,000 new patients from America's currently "uninsured," disproportionate numbers among the unemployed, under-employed, and homeless, this emphasis upon the old inpatient treatment is sure to lead to financial disaster.
Almost everyone in health law uses the phrase "managed competition." But even its originator, Dr. Alain Enthoven of Stanford, has never explained it efficiently or memorably.(69) When I am on a lecture podium handling questions, I attempt a requisite definition, but I do not truly believe it. Enthoven's impassioned rhetoric and slippery definitions cover such statements as "naked managed care is not a panacea but modified managed care may be."(70) Whatever that might mean, managed competition of mental health care does not yet exist. Like the coming Bodhisattva of the Buddhists, it has some avatars, preliminary earthly impersonations of blessedness presaging the perfection to come, namely in some competitive HMO mental health facilities and in some intelligently integrated psychiatric and social services nationwide.
Managed competition in its current inchoate forms seems to work best for acute mental illnesses with brief and immediate treatments.(71) But chronic mental illness cannot so simply be cured or its symptoms ameliorated or remitted. DRGs, the "Diagnostic Related Groups," may function as cost-controls in hospitals reasonably well for many purely physiological ailments such as infected gall bladders and comminuted tibial fractures. DRGs and managed care methods do not work nearly so well for serious mental disorders.
Even avid Clintonians recognize this. In 1993 the Little Rock Working Group on Mental and Substance Abuse Disorders in Health Care Reform, acknowledged inadequacies of managed competition for mental health:
Exactly how chronic care problems will be accommodated in a managed competition model has been the subject of some debate. Because the majority of health care expenditures are attributable to individuals with chronic illness, the Working Group believes that ... [for] persons with chronic illnesses including mental and substance abuse disorders and long term treatments ... the quality of care will not improve for this population and costs will not be controllable.... Individuals with severe and persistent mental and substance abuse disorders often require some form of care over a long period of time, including services for acute episodes, maintenance and rehabilitative care, and a range of services that do not fit a classic `acute care medical model.' ... An expanded form of managed competition may be required to more adequately respond to the long term care needs of this population.(72)
Strip away the sycophantic and sociological jargon. This pro-Clinton Little Rock Working Group correctly undermines the total concept of AHSA:
Capitation alone will lead to undertreatment of chronically ill populations. According to Enthoven, unmodified managed competition does not work for all people. Mechanisms must be devised to provide adequate funding to Accountable Health Plans to permit enrollment and to minimize the risk of responding with inappropriate or inadequate care.(73)
Some health plans not only will be penalized but probably bankrupted by patients with severe, persistent mental health and substance abuse disorders. Therefore the Group suggests types of risk-adjusted premiums, mixtures of capitation and fee-for-service systems.(74) AHSA alone does not intelligently handle the problems of refractory mental health diseases and chronic psychiatric problems.
Requiring 50% co-payments for out-patient services probably derives from reasonable desire to limit abuse of mental health services by those who do not need the services in the first place; however, the co-payments are retrogressive. Legislation requires that people not count out of pocket costs spent on alternatives to inpatient care that in other aspects of the Plan would count towards a maximum out of pocket liability.(75) That has the strange effect of vitiating a major purpose of mental health plan coverage. Ostensibly one reason for the total overhaul of American medicine is to provide against catastrophic costs.(76) Requirements that people pay co-payments, but not count them, violates this ostensible protection against catastrophic costs.
The alternatives to in-patient care are only used by individuals with severe mental health/substance abuse problems. These individuals with a high degree of certainty incur ruinous levels of expense. Exempting their out of pocket costs on the alternatives from the maximum liability rule presents a `pure transfer' from one of the sickest segments of the population to the rest of society. This is hardly in keeping with the humane and efficient vision that the President has set out for the treatment of mental health/substance abuse problems in America.(77)
Discretionary Alternatives to In-Patient Care
Unfortunately each health plan has the discretion to provide or not to provide alternatives to residential and in-patient mental health and substance abuse care. Health plans therefore easily will compete on the basis of cleverly selecting risks. Plans not offering the intermediate intensive nonresidential treatments clearly aimed at those who need them most, namely those with severe mental health or substance abuse problems, will not attract them as volunteer subscribers and will not have them allocated to them if, as is likely, many of these people do not sign up for alliances or health plans at all. Health plans not enrolling the severely ill will make more money and more profit than those which do. Insurance companies currently mining the risk pool for the healthiest diamonds tend to cede away those who are riskier. Therefore, when yearly report cards are granted, such clever health plans will look grand on comparative physical scales not because of inherent medical excellence or efficiency but clever avoidance of risky characters.
Health plans also were expected to be able to fully integrate mental health and substance abuse care into the total health system by the year 2001. Those plans persistently and directly avoiding the risks would not have the requisite experience either to manage or to deliver mental health care.
Like the intermediate non-residential intensive treatment, case management also is at the discretion of the health plan.(78) If case management is as important as it appears to be as an integrating force reducing duplication, appropriately joining physical and mental therapies, and providing those ancillary educational and other benefits to prevent relapse and recidivism, then only those health plans offering case management will attract patients who require it. Therefore, like intensive nonresidential treatment, adverse selection will overburden those health plans offering case management, a logical integrated function. Adverse selection will free other plans from substantial numbers of the mentally ill or the addicts. Therefore, their yearly finances will look better and actually be fiscally sounder.
The opposite result also is possible. Those plans not offering case management, like those not offering the intermediate intensive non-residential treatment, might incur higher costs than those plans which do, even for their more limited number of patients. Even with clever risk selection, there are such vast numbers of people needing or wanting mental health and substance abuse care that modest or even small numbers of those treated with expensive care such as in-patient services will ultimately prove more expensive to their plans than the hordes of enthusiasts or assignees to those plans offering case management and intensive non-residential treatment.
Long Term Care
No where in the mental health section is long term care specifically addressed.(79) Perhaps, AHSA drafters assumed that the most serious mental health or substance abuse problems already are handled under their section specifically dedicated to long term care. They are not. Everywhere that mental health and substance abuse care is mentioned specifically, it is treated separately because mental health and substance abuse coverages were expected to be slowly integrated into the plan (over a proposed seven years culminating in parity in 2001). Long term care, probably the most expensive of all mental health care, does not necessarily have to be inpatient and can, one way or another, be community-based. As AHSA suggests, long term care may include personal assistance services for those three of five activities of daily living impaired, such as feeding, clothing, and toileting.(80)
Long-term care entitlements, however, appear aimed at the aged. Available money for long term care under AHSA depends upon what percentage of the population is over seventy-five years of age. What about those suffering from such chronic cataclysms as birth defects? Are certain chronic and irretrievable mental health problems such as retardation included here? What about serious schizophrenia, bipolar disease, and deep depression which simply will not respond in the mandated thirty or sixty inpatient or even the 120 days of intensive non-residential AHSA allotment?(81) And what if people living longer increase the population of over-seventy-five-ers to an "unacceptable" number? Who will make the choice between treating Grandpa James with Alzheimer's versus young Susanna with autism?
Appropriate psychiatric treatment can reduce relapse rates in schizophrenia from 80% to just over 20%, in bipolar disorder from over 80% to approximately 30%, and in major depressive disorder from 70% to under 200%.(82) So Frank Docherty, M.D., Clinical Professor of Psychiatry at Tufts, testified on November 8, 1993.
We are in the center of a wave in new knowledge that has developed over the last two decades in both basic neuroscience and psychological sciences that has the promise to usher in an entirely new era in the effective treatment of the mentally ill. All of this will be lost without the acceptance of our societal responsibility to fully and completely care for all of our mentally ill.(83)
Though Dr. Docherty correctly rails against the unrealistic lifetime limits that insurance companies set for mental health coverage, emphasizing actuarial rather than clinical data, nevertheless AHSA uses the very same limits.(84) AHSA's time and condition limitations, like current insurance companies, will force patients into the residual public sector, if it exists, thereby overburdening that system.
Children and Adolescents
Limitations on access to care in the current system have shifted responsibility and cost to public mental health and substance abuse systems. While critics of current health insurance and advocates of the Clinton Health Plan damn the current system, they do not appreciably improve it in the proposed overhaul of American medicine. For children and adolescents both burden and cost have been shifted to the systems controlling child welfare, education, and juvenile justice.(85)
As Dr. Bernard Arons, Director, Center for Mental Health Services, Substance Abuse and Mental Health Administration, Public Health Services, Department of Health and Human Services maintains, "Even worse, sometimes these overburdened systems are not able to provide needed services, and the individual goes without treatment. Eventually, we all bear the cost of delays or gaps in service provision."(86) He maintains that a comprehensive array of services and flexibility to provide these upon medical necessity "produces better outcomes than those experienced with traditional benefits. There is also evidence that capitated approaches result in less costly provision of health care services."(87)
Dr. Arons' glittering generalizations in his writings and speech call for full integration of the mental health and substance abuse treatment system uniting currently uncoordinated federal, state, local, and private organizations, general hospitals, specialty institutions, clinics, and office-based clinicians, and integration of mental health with general health care entitlements.(88) He maintains that "creative use of utilization management and reimbursement systems (prospective payment, capitation, prospective budgets, and performance contracts) opens up opportunities for eventually providing deeper coverage."(89) He quotes Richard G. Frank, H.H. Goldman, and T. G. McGuire,(90) in his essay entitled "Mental Health and Substance Abuse Coverage under Health Reform."(91)
AHSA makes no distinction between problems of adults and children. As Senator Wellstone of Minnesota said, "our new national Health Care System must be a revolution in how we take care of our children."(92) Both Senator Wellstone and Oregon's Representative Mike Kopetski reminded Congress that approximately 14 million children suffer a diagnosable mental illness.(93)
Yet research tells us that some severe problems show improvement in 26 to 52 sessions, generally beyond the Administration's 30 session limit. Why should the design of our mental health benefit force the decision to hospitalize a child, removing her from her family, from her support system, just to use a health plan benefit? When hospitalization is the treatment of choice, it should be available and covered, but we don't want to force that choice just because that is the only mental health benefit left in the family's coverage.(94)
Many people now have far superior mental health benefits than those proposed in AHSA. Large employers, such as automobile manufacturers, and some union plans are considerably more gracious to their subscribers than AHSA.(95) Employees of these companies or union members would suffer diminished benefits if they were required to accept benefits through a regional alliance or their own company elected to emulate local regional alliances. Senator Robert Kennedy long ago suggested a solution to this dilemma of creating a mandatory entitlement for all while depriving some workers of a current excellence. He had included in earlier versions of his mandatory health insurance program the idea of actuarial equivalence.
Current medical benefits actuarially equivalent or better than the Clintonian AHSA benefit package should be permitted to continue. It is wasteful to cut benefits, restructure a comprehensive, generous plan into a Spartan basic plan and then add yet another supplemental plan to attempt to bring benefits back to their former heights. Since AHSA limits the numbers of days and visits, almost no supplemental coverage could span the gulf between the stingy and the grand.
Actuarial equivalence, however, speaks to the problem of AHSA's total effect. Most Americans are reasonably happy with their current coverage. Everyone's autonomy, individuality, and personal control over decisions about their bodies and minds would diminish under AHSA. Actuarial equivalence acknowledges that one size does not fit all, that not all American people need the same things nor want them. Freedom to choose is simpler and more logical than actuarial equivalence. The Federal Employee Benefit Program thrives because of its excellent choice, and its dependence upon consumer not customer satisfaction. Legislators willingly impose on all Americans restrictions they would not tolerate upon themselves.
Most discretionary judgments of who shall get what extension of benefit are made by health plan employees. Who are they? Providers come in many sizes, shapes, and colors, but they do not necessarily make the decisions. "Clerks" decide. Medicare, Medicaid, and insurance carriers employ "clerks" who make discretionary determinations of whether physicians and surgeons shall or shall not provide services to patients. Who are these people who determine who shall receive the life-enhancing medicine or treatment and who shall not? Who selects these decisions makers? What are their academic and practical qualifications? What knowledge do they possess of the individual patient whose mind and body is the subject of the decisions? How can the understanding and discretion of a person who never has seen nor examined nor interviewed the patient, and who is likely to be medically far less educated than a physician, be superior to the judgment of the physician and the patient?
Doctors now are free to treat for free (although treating for free under Medicare can be interpreted as a false claim, a crime against the government) if their intended treatment plans are not approved by third-party payers. Under AHSA physicians are forbidden to countermand prohibitions against care. If care is not medically necessary, the physician providing it and the patient requesting it are guilty of crime. Medical crime, including the crime of providing and billing for "medically unnecessary" medicine and surgery, is punishable by prison.(96)
Determination of what is "medically necessary" has little to nothing to do with what diagnostics, medicine, and surgery are necessary for the diagnosis, treatment, and cure of an individual patient. Medically necessary care is determined by what the third-party-payer will or will not pay for.
Even free care is tantamount to crime, and to be reported and penalized via fines and even prison for "excessive care." For somatic problems, an inexperienced or stupid decision-maker might cause a patient[sections] death. In psychiatry, the wrong decision on premature release or refusal to treat severely homicidal patients might cause not only the patient's death but deaths of others.
Among AHSA proponents who testified at Washington hearings in 1993 and 1994 were members of the gigantic employee health benefits company providing health plans to a large percentage of Fortune 500 companies called Hewitt Associates.(97) Hewitt speakers note an important caution: it is especially important that services be provided by persons specifically trained and with practical field experience, preferably professionals in social work, psychology, nursing, or medicine who have special training in substance abuse.(98) (Note the emphasis not on mental disability but on addiction, and the order of "providers," with physicians placed last). Though speaking of their experience gathered in the workplace by EAPS, "Employee Assistance Programs," the Hewitt speakers stress success of early intervention. Such access to mental health care potentially is available under the Health Security Act's inclusion of screening, assessment, and crisis services necessarily provided by all health plans. But the likelihood is small that enough excellent mental health professionals will work willingly for meager wages to screen, assess, and intervene. Who will train the cadres of bureaucrats required? Who will pay for that training? Who will pay the screeners, assessors, and interveners? Why? When? How?
Under AHSA, special training in addiction and in mental health must be required of all gatekeepers.(99) That is intolerable responsibility to place upon primary care physicians. Primary care doctors will become the least deeply medically-educated, least intellectually engaged medical personnel because as jacks and jills of all trades they have time and spirit to master none.
Managing Managed Care's Management Costs
Though ostensibly knowledgeable commentators state that AHSA's mental health benefit is managed care, it is not. Nothing in AHSA's mental health and substance abuse legislation particularly is demonstrative of managed care except for oblique references to capitation. Though usually united, they are not synonyms. Capitation, the payment for care per head of American no matter how much care or treatment the head or its body requires certainly is a major feature of managed care. But other payment mechanisms can be integrated into a system still called "managed." As friendly critics Dr. Frank McArdle, Dr. John Mahoney, and Mr. Dale Yamamoto of Hewitt Associates, said:
National health care reform legislation should include a managed mental health benefit alternative along with the indemnity Plan option. The principal reason is that current, state-of-the-art managed mental health plan designs would allow health plans to offer plan participants more generous benefits at a relatively lower cost. And if the proper standards are set for those who manage the care, quality may be improved.(100)
Such startlingly vague benefits justify the gigantic risk of total revamping of medical care in America. The Hewitt speakers are among the few favorable to AHSA who have pointed out the necessity for higher administrative costs because of managed care. Hewitt estimates thirty dollars per covered life per year "under the Managed Care scenario to reflect the costs to run a provider network and provide assessments, referral, ongoing review, and management services."(101)
That ludicrously low amount per person must create a new system. No administrative structure exists nor are personnel trained either to lead or to implement enrollment for millions: collecting premiums, adjusting health plan premiums for risk differences, informing consumers with verified information about each health plan, managing customer services, administering the global budget, claims processing, establishing and implementing medical policy for about 750,000 physicians and millions of other providers, managing the alliances as huge bureaucratic entities required to interact with a government bureaucracy, which, if it continues Medicare's dismal efficiency, requires familiarity with at least 20,000 pages of legislation, statutes, manuals, regulations, and directives, and new administrative instructions issued every five hours.(102)
The most specific management data on mental health and substance abuse in testimony to Congress provided information between four and seven years out of date. Even when current, it was illogical. Hewitt's Dr. McArdle quotes a managed health case study to substantiate assumptions in his analysis, not providing names, locations, nor any means of verification, reporting one company's managed mental health benefit begun in 1987. "In one location, they observed an overall 67% reduction in costs in the first two years of the program. The costs have continued to decline at an average rate of 13% per year."(103) "Similar" first year reductions existed at two other company locations with, again, no verifiable data, company names, nor geographical locales. Admission rates for locations adopting the managed program, Hewitt speakers maintain, decreased by 45%, on average, between 1990 and 1992.(104) Other locations not adopting the managed program increased 17% during the same time. The speakers allowed that upward adjustments in the cost of these plans should be made to reflect new pools of uninsured individuals. Nevertheless, "overall cost relationships maintain the same relationship."(105) Virtually all data in the McArdle, Mahoney, Yamamoto presentations was four years old in 1993, and still repeated after the turn of the millennium.
Vagueness, confusion, and contradiction define testimony of experts in AHSA's prolegislation history. But occasionally, truth glistened in a slim shaft of bright light.
As far as quality of care is concerned, we have noted a tendency to define `Managed Mental Health Care' as care provided through Health Maintenance Organizations (HMOs). We would like to emphasize to you that in our experience, the quality of care provided through a Managed Mental Health program can be superior to the average HMOs capitated approach, HMOs are paid a low flat fee per enrollee, and they `manage' mental health and substance abuse by adopting a system of benefit design or utilization decisions that may, in effect, deny care; and certain poor outcomes, especially for the more serious or chronic conditions, have been documented by some recent studies.(106)
HMOs couple utilization monitoring with discounted fee for service payments to doctors.
This allows for more appropriate and better quality treatment. But it costs more than HMOs typically spend for mental health care. The typical HMO targets a budget of approximately $5 per member per month for mental health and substance abuse spending. The actual number reported by InterStudy in 1989 was $2.69. This level of HMO spending is lower than the cost per covered life in the managed mental health programs we are describing, which is about twice as high. Thus, the managed mental health programs save money long term by making more effective use of resources, not by denying care in the short run.(107)
The best most ethical psychiatrist, psychologist, and mental health practitioner will provide the best care that time and talent allow. But that practitioner must be paid. Of course the practitioner might be a member of a religious order which provides his food, clothing, shelter, books, and entertainment. Or the mental health professional may have a generous spouse providing all creature comforts for the non-income producing doctor. Or the doctor may be independently wealthy, and thanks to a rich papa views medical work as private philanthropy with no recompense necessary. But the majority of mental health practitioners in America are intelligent, devoted, ethical, hardworking breadwinners for their families and themselves. Who is the physician who respects his own professional time, talent, training, and his integrity who willingly welcomes a mental health patient who pays for care a mere $2.69 per month?
Which legislator in Congress would dare build into a public minimum hourly wage law for unskilled workers a recompense as low as $2.69? Who in labor law would encourage for the least competent foreign manual laborers a stated recompense per hour, per "professional encounter," per unit of work at the meager rate of $2.69?
Under capitation, not every patient comes for care and not everyone comes each month. But mental health patients need care, use care, request care, and demand care. So do their advocates. Drugs are costly, written materials are costly, individual therapy is costly, group therapy is costly, residential care is costly. Why are the best and brightest mental health medical practitioners asked to work for a pittance? How can their therapists' starvation recompense benefit sick patients? Mental health clinicians, like other American doctors under managed care, are given the "carrot" of monetary incentives and year-end bonuses to withhold expensive procedures and medications. Clinicians are threatened with a "stick" of withholding a percentage of his or her own salary until year end when expensive-procedure utilization analysis determines that the physician has been frugal enough in depriving patients of as much care as can reasonably be tolerated.
What are the incentives to our best of best psychiatrists and mental health clinicians? What are the incentives to beleaguered families of the mentally ill? What are the incentives to legislators? Why are "ethicists" now debating medical futility?(108) Why are lawyers and ethicists urging the new "duty to die"?(109)
Medical Darwinism = Survival of the Fittest + Extinction of the Unfit
In some countries of the world, and under some medical programs in America, for example in Arizona and Oregon, patients with a mental disorder, chronic nervous condition, or mental impairment with poor prognosis are given a lower priority for treatment than patients with time-limited conditions and with good prognoses.(110) Conditions with low priority receive no money for treatment. Without money there is no treatment.
What are the next steps? Doctors by law cannot treat. Hospitals by law cannot treat. What happens to people whose conditions are serious but whose care is classed as less valuable because its expense is high and its outcome less favorable than those with higher ratings? Those not worthy of treatment must have mere custodial care. Custodial care, however, also is expensive. What shall be done with precious medical resources for those with conditions with poor current outcome and even worse prognoses? Is not custodial care a useless drain upon limited medical resources better applied to medical conditions with more hopeful prognoses?
Now what? Should "hopeless" cases be sent home to their families? Can families care and cope? Wouldn't it be kinder to the families to relieve them of the burden? If acute care is too expensive and custodial care also burdensome to the state, then caring for hopelessly ill people at home prevents the family giving care from being productive. That is socially expensive in lost wages and productivity Parents sacrificing for a sick child must neglect or abandon care of their well children. That would be a waste of parental effort for no possible gain, a social loss for the healthy children, and for the state.
Triage by Hegel's whatever is efficient is fight, leads inexorably to an unspeakable conclusion. But I will speak it. Would it not be efficient and fight to prevent the hopelessly ill from selfishly using resources better applicable to people likely to be cured and to become productive Americans? If given a choice, wouldn't these people want to avoid burdening their families, their siblings, their state? Wouldn't it be kinder to kill them? Would it not be better for all concerned to kill them?
Consider the logic. How can medical conditions which are incurable, hopeless, futile, "unqualified for life" be permitted to waste limited medical time, medical effort, and medical money? Aren't such incurable, hopeless, futile people unqualified for life? If their treatment is medically unnecessary, aren't they because of their illnesses also unnecessary?
If to treat them cannot be thought essential, imperative, indispensable, obligatory, or required, how can they be? On the other hand, if such a person's life was indispensable, how could we dispense with it? If the life were imperative, how could we not protect it and preserve it? Doubtlessly those who have no preservation-worthy quality of life we can voluntarily, not obligatorily, desire to treat if we have funds enough, world enough, and time enough.
But unfortunately for them, we do not have world enough and time enough. Death is the only logical conclusion. Likewise, national socialist Germany rationalized extermination of those with hereditary or refractory mental disease.(111)
I do not say we should. I do not say we will. I only say we could. Because we did.
Expendability of people with mental impairment is commonplace in the history of American medical law. Remember the Carrie Buck eugenic sterilization case. In Buck v. Bell,(112) Carrie Buck, committed in Virginia to the state "Colony for Epileptics and the Feebleminded" was sterilized because "three generations of imbeciles are enough."(113) That celebrated statement by Justice Oliver Wendell Holmes pertained to Carrie, an ostensibly retarded daughter of a putatively retarded mother, who gave birth to a presumably retarded daughter.
Under eugenic theory until Skinner v. Oklahoma ex rel. Williamson,(114) invalidated a statute authorizing sterilization of certain felons, we did it. Or consider the Willowbrook hepatitis experiments on "useless" children in homes for the retarded on Staten Island, New York.(115) Medical experiments on prison inmates(116) such as the Kaimowitz-prevented psychosurgery research suggest our capacity to formulate and actuate notable horrors.(117)
Prejudice against the "hopelessness" of mental retardation, mental diseases, and mental injury is evident in the current social scientific ideas of quality of life, futility, and emphases upon outcomes. Lethal effects of these three ideas are evident in the current case law pertaining to the right to die.(118) Nevertheless, I applaud the courageous Cruzan family in Cruzan v. Harmon.(119) I followed with admiration the adventures of the Quinlan's attempt to release from a ventilator their comatose daughter Karen Ann.(120)
I agree with enthusiasm with most holdings allowing an individual the right to refuse heroic life-extending mechanical treatments.(121) Yet I am appalled by the recurring assertions in court testimony and case holdings that death is preferable to disabled lives "not worth living." The concept of releasing people who want to die is fine. The application is faulty.(122) Case holdings and media reviews of the right to die laws act as insidious encouragement of people with severe disabilities to elect suicide.(123)
Quality of life, outcomes, and futile medical intervention also are important themes in medical malpractice cases on wrongful conception and wrongful birth. Courts view some disabilities as fates worse than deaths, with plaintiffs collecting damages for having to suffer the indignities of impaired life. Dr. Kevorkian and his physician-assisted suicide techniques called obitiatry provide thought-provoking material on the uses and effects of euthanasia for the mentally ill.(124)
Cost consciousness, cost efficiency, and cost savings are the major driving practical forces of AHSA. Cost control is the major perverter of morality Are we as a nation so poor that we must expend our aged and incurable? Shall we protect people with disabilities under the Americans with Disability Act, and then reduce their numbers by killing them off by withholding their medical treatment?(125) Psychiatric problems and mental health programs are particularly vulnerable in cost versus benefit analysis. If we refuse to treat by national policy, and under threat of criminal penalties we refuse to allow citizens or families to obtain from private sources care prohibited by the government (which malevolent clauses are written into HIPAA and the Balanced Budget Act's section 4507), then there are only two rational treatments available for those who not among America's mental fittest are unfit for medical care: neglect and death.
Determining what is medically necessary, namely what the government or insurance plan will pay for, assumes that medicine or surgery are available for treating a particular ailment yielding amelioration of symptoms, prevention of worse symptoms, healing, or curing. The most magnanimous interpretation of "medically necessary" defines as medically unnecessary those therapies "useless" because the patient's problem is too benign or too malign. At one extreme, home remedies or nature or time's passage will cure. Medicine is superfluous gilding to the gorgeous golden natural process. At the other extreme, medicine is unnecessary if the patient's problem is "fatal" and "hopeless." The person will die before medicine can benefit, and intervention would be futile intrusion. For such benign or malign medical problems, medicine would be frittered in wasteful expense. Diseases not responsive to treatment should not be treated. American money, medicine, and time are limited. America must invest only in medical success.
This is medical Darwinism. This doctrine encourages survival of the fittest and extinction of the unfit. Darwinism is good science in the natural world for describing evolutionary process. But social Darwinism is a perversion of the scientific idea. Battlefield triage, for example, may be reasonable in wartime when the necessary purpose is to save as many fallen warriors who shall survive and arise to fight again. Utilitarian triage in peacetime America's mental hospitals and psychiatric offices inevitably leads to malignant neglect.
AHSA's intended cost-effective research and cost-conscious practice was to replace with new doctors the old-fashioned, outworn physicians and surgeons who had pledged allegiance to their patients by having sworn allegiance to Hippocrates and Maimonides. AHSA and its modern progeny in HIPAA and similar legislation would create new doctors who pledge allegiance to America's global budget.
The most benevolent, efficient, and praiseworthy government cannot protect the patients' best interests simultaneous with state interests. Necessarily, governments are selfish beasts concerned with their own longevity, their own fiscal health, and their own privileges. In government-directed managed competition, managed care, and managed medicine, whatever these concepts really represent, capitation is a dangerous moral wedge. Patients are not individuals but mere "heads" classified by diagnosis. Another danger is "outcomes." Another is the idea of "medically necessary." Another is "quality of life." Inexorably these concepts lead to withholding medical care. Withholding is efficient. Withholding is utilitarian. But if the state decides, not the citizen, withholding is not just. Only accidentally is it humane.
AHSA's dozen dangers in mental health benefits are merely typical of the total Act which vitiates its own major stated intentions, such as preventing catastrophic illnesses from devastating families, and assuring everyone, rich or poor, currently insured or not, access to excellent medical care. AHSA's deficiencies in mental health care include over-inclusive naming uniting mental illness with drug abuse, treatment swapping, inadequate time and care for serious chronic mental illness, banal benefits to all, regressive co-payments, discretionary alternative intensive non-resident care, discretionary case management, unrealistic, meager requirements for long-term care, non-specific programs for children, actuarial equivalents, insufficient critical decision-making personnel, and naive under-projection of managed care's management costs.
AHSA's ideas are detrimental to the mental health of the nation. That failed legislation and its rejuvenations in current law are dangerous disservices to mental health law and the mental health of Americans. Mentally ill people are particularly vulnerable in cost versus benefit analysis. If by national policy of cost reduction we refuse treatment and by threat of criminal penalties we forbid citizens or their families to buy care privately, which already is the law under HIPAA and the Balanced Budget Act's section 4507, then two rational prescriptions for those not mentally fit thus unfit for medical care are neglect and death.
I am confident that there is better way to handle refractory mental impairments, honoring American individuality, integrity, and autonomy Compassion can be combined with fiscal responsibility, allowing the mentally impaired to live. My proposed solution is the subject of my next essay The purpose of this essay is to sound the alarm that malevolent medical reform in the Clinton Health Plan called American Health Security Act of 1993 is flourishing today in medical law. Horrors of the Progressivist eugenics of the 1920s and 1930s then paired in medicine with a perversion of Darwinism are again possible in our current American medical-legal context which honors integrity to the medical program while violating integrity of the patient, and which respects medical cost while disrespectful of physician and patient choice even if and when patient or family will pay for excellent care.
Under AHSA's legislative progeny, patients are collectivized and physicians are criminalized. Utilitarianism literally is deadly "Medically necessary" means whatever government or insurance will pay for. Psychiatric diseases only minimally responsive to treatment and chronic serious mental illness will not be treated. If limited American money, medicine, and time are invested only in inevitable medical success, then America's medicine by its medical law will be Medical Darwinism encouraging survival of the fittest by requiring extinction of the unfit.
(1) See American Health Security Act, H.R./S., 103d Cong., 1st Sess. (1993) (hereinafter AHSA), reprinted in PRESIDENT CLINTON'S HEALTH CARE REFORM AND HEALTH SECURITY ACT AS PRESENTED TO CONGRESS ON OCTOBER 27, 1993 (Commerce Clearing House 1993); THE PRESIDENT'S HEALTH SECURITY PLAN (Random House 1993).
(2) See Madeleine E Cosman, ABCs of the Clinton Medical World, CARDOZO OMNIBUS J., Apr. 1994, reprinted July, 1997, at 1, 1-8.
(3) See Toward an Urban Health Agenda, in J. URBAN HEALTH, BULL. N.Y. ACAD. MED., June 1998, at 2, 2; Bernard S. Arons et al., Mental Health and Substance Abuse Coverage Under Health Reform, HEALTH AFFAIRS, Spr. 1999, at 1, 1 (Introduction by Hillary Rodham Clinton).
(4) Health Insurance Portability & Accountability Act of 1996, H.R. 3103, 104th Cong., 2nd Sess. (1996), enacted, 42 U.S.C. [sections] 201 (1996); amended by, 42 U.S.C. [sections] 264, 1395 b-5 (1997) (hereinafter HIPAA).
(5) Balanced Budget Act of 1997, Pub. L. No. 105-33 (Aug. 5, 1997).
(6) AHSA, supra note 1, at [sections] 1115.
(7) See generally Mental Health and Substance Abuse Under the Health Security Act: Hearings on the American Health Security Act Before the U.S. Senate Comm. on Labor and Human Resources, 103d Cong., 1st Sess. (1993) (statement of Dr. Frank McArdle, Manager, Research Group, Hewitt Associates, Washington, D.C.).
(8) See text at notes 65-67, infra, and subsections entitled Serious Chronic Mental Illness, Banal Benefits, and Actuarial Equivalents.
(9) See KARL BINDING & ALFRED HOCHE, PERMITTING THE DESTRUCTION OF UNWORTHY LIFE (Felix Meiner Verlag 1920), reprinted in 8 ISSUES IN LAW & MED. 231 (Walter E. Wright, trans., and Patrick G. Derr, ed. 1992); and NUREMBURG TRIALS; THE MEDICAL CASE. TRIAL OF WAR CRIMINALS BEFORE THE NUREMBURG MILITARY TRIBUNALS, vols. 1, 2 (U.S. Gov't Printing Office, Wash., D.C. 1948). Four important studies are: HENRY FRIEDLANDER, THE ORIGINS OF NAZI GENOCIDE: FROM EUTHANASIA TO THE FINAL SOLUTION (1994); SAUL FRIEDLANDER, NAZI GERMANY'S CRIMES AGAINST THE JEWS (1997); ROBERT PROCTOR, RACIAL HYGIENE: MEDICINE UNDER THE NAZIS (1988); MAX WEINREICH, HITLER'S PROFESSORS: THE PART OF SCHOLARSHIP IN GERMANY'S CRIMES AGAINST THE JEWISH PEOPLE (1946).
(10) See M.P. Cosman, The Criminalization of American Medicine, 6 NAT'L TRIAL LAW. 1 (1994).
(11) See Leo Alexander, Medical Science Under Dictatorship, 241 NEW ENG. J. MED. 39 (1949).
(12) Olmstead v. United States, 277 U.S. 438 (1928) (Brandeis, J., opinion).
(13) AHSA, supra note 1, at [subsections] 1101-1115, 1122-1123, 1131-1136, 1409-1410, 1153-1154.
(14) Id. at [subsections] 3001-3601, including Subtitle E on medically under-served populations, and Subtitle F on the Public Health Initiatives Fund.
(15) Id. at [sections] 1115.
(16) Id. at Title III, especially [subsections] 3001-3601.
(17) Id. at [sections] 1115(b)(1)(A) & (B).
(19) Id. at [sections] 1115(b)(1)(B)(2).
(20) Id. at [sections] 1115(e).
(21) Id. at [sections] 1115(b)(1)(B)(2).
(22) Id. at [sections] 1115(b)(3).
(23) Id. at [subsections] 1001-1004.
(24) 1d. at [sections] 1115(b)(4); W.G. MANNING, ET AL., EFFECTS OF MENTAL HEALTH INSURANCE: EVIDENCE FROM THE HEALTH INSURANCE EXPERIMENT (RAND Corp. 1989); and W.G. MANNING, ET AL., USE OF OUTPATIENT MENTAL HEALTH CARE: TRIAL OF A PREPAID GROUP PRACTICE VERSUS FEE FOR SERVICES (RAND Rep. R-3277) (Nat'l Inst. of Mental Health 1986).
(25) AHSA, supra note 1, at [sections] 1115(c)(2)(D).
(26) Id. at [sections] 1115(c)(2)(A)(i)-(ii), (B), & (C).
(27) Id. at [sections] 1115(c)(2)(C).
(28) Id. at [sections] 1115(c)(2)(E).
(29) Id. at [sections] 1115(d).
(30) Id. at [sections] 1115(d)(2)(C).
(31) Id. at [sections] 1115(d)(2)(C)(i), (ii), (iii).
(32) Id. at [sections] 1115(d)(2)(C)(iii).
(33) Id. at [sections] 1115(e).
(34) Id. at [sections] 1115(e)(1).
(35) Id. at [sections] 1115(e)(2)(C)(i).
(36) Id. at [sections] 1115(e)(2)(C)(i).
(37) Id. at [sections] 1115(e)(2)(C)(ii)(E).
(38) Id. at [sections] 1115(e)(2)(E).
(39) Id. at [subsections] 1131-1136, 1371-1375, 3467, 3501, and 3701.
(40) Id. at [sections] 1115(d)(1)(D).
(41) Id. at [sections] 1115(e)(2)(D).
(42) Id at [sections] 1115, & Part 3 [subsections] 1131-1136, & 3501.
(44) Id. at [subsections] 1542 & 3461 for such "enabling services" as transport and translation.
(45) Id. at [sections] 3401, providing $100 million dollars for each year during 1995-2000; [sections] 3501, on the Public Health Initiatives Fund; and [sections] 3467, which authorizes, and [sections] 3701, which creates the Fund.
(46) Id. at [subsections] 1153, 1329, 1542; the so-called enabling services under [sections] 3461 included transportation, community outreach, translation services, and patient education.
(47) Id. at [subsections] 1324-1325, 1327, 1329, 1386, 1394, 1410-1411, 1413, 1504; [sections] 3511, on integration of services; and [sections] 3675, on local education agencies.
(48) Id. at [sections] 3511(b)(3).
(49) Id. at [sections] 3511(b)(8).
(51) Id. at [sections] 3411, on linkages among providers, health plans, information systems, and networks; and [sections] 3511, on reports on integration of mental health services.
(52) Id. at [sections] 5102, on privacy See also HIPAA, supra note 4, and note 96, infra. My comments are in parentheses and italics. Whoever makes a false statement to a health care plan administrator is liable to a five year prison term (HR 3103 at 205-206). (That includes patients. Psychiatrists appalled at revealing confidential information about patients pledge to destroy psychiatric records rather than subject themselves and their patients to risk of prison for the crime of maintaining confidentiality.) Failure to provide information to a criminal investigator carries a five-year prison term (HR 3103 at 206). (What happened to physicians' protections under the Constitution's 4th and 5th Amendments?) "In ANY investigation relating to any act or activity involving a Federal health care offense.... [the Attorney General] may require the production of any records that may be relevant" (HR 3103 at 208). The person supplying patient records in response to such a subpoena "shall not be liable in any court of any State or the United States to any customer or other person for such production or for nondisclosure of that production to the customer" (HR 3103 at 210). Health information so produced cannot be used against the patient "unless the action or investigation arises out of and is directly related to the receipt of health care or payment for health care" (HR 3103 at 210). (This ends patient privacy and empowers government to use medical records to prosecute ad lib).
(53) See INSTITUTE OF MEDICINE, BROADENING THE BASE OF TREATMENT FOR ALCOHOL PROBLEMS (Nat'l Acad. Press 1990); INSTITUTE OF MEDICINE, TREATING DRUG PROBLEMS, Vol. 1. (Nat'l Acad. Press 1990); D.P. RICE, ET AL., THE ECONOMIC COSTS OF ALCOHOL AND DRUG ABUSE AND MENTAL ILLNESS. (DHHS (ADM) 901694) (Alcohol, Drug Abuse and Mental Health Admin. 1990).
(54) An important introduction to this problem is the testimony of Dr. Crowell in 1993. Mental Health and Substance Abuse Under the Health Security Act: Hearings on the American Health Security Act Before the U.S. Senate Comm. on Labor and Human Resources, 103d Cong., 1st Sess. 3 (1993) (statement of Dr. Areta Crowell, Dir., L.A. County Mental Health Dep't).
(55) Id. at 3, 4.
(56) Id. at 4.
(57) See id. at 5.
(58) AHSA, supra note 1, at [sections] 1115(c)(2)(C).
(59) Id. at [sections] 1115(e)(2)(C)(i).
(60) Id. Introduction to the Health Security Act: "To ensure individual and family security through health care coverage for all Americans in a manner that contains the rate of growth in health care costs and promotes responsible health insurance practices, to promote choice in health care, and to ensure and protect the health care of all Americans, Be it enacted by the Senate and the House of Representatives of the United States of America in Congress assembled.... "See also AHSA Section 2, "Findings," listing the imperfections of the "current health care system."
(61) See W.G. MANNING, EFFECTS OF MENTAL HEALTH INSURANCE: EVIDENCE FROM THE HEALTH INSURANCE EXPERIMENT (RAND Rep. R-3815) (Nat'l Inst. of Mental Health/Health Care Finance Admin. & RAND Corp. 1989).
(62) See the reasoned testimony of Dr. Richard Frank. Mental Health and Substance Abuse Under the Health Security Act: Hearings on the American Health Security Act Before the U.S. Senate Comm. on Labor and Human Resources, 103d Cong., 1st Sess. (1993) (statement of Dr. Richard Frank, Prof. of Health Econ., Johns Hopkins Univ., Baltimore, MD).
(63) Id. at 7.
(64) See generally G.N. GROB, FROM ASYLUM TO COMMUNITY (1991).
(65) See generally Crowell, supra note 54, and Frank, supra note 62.
(66) Crowell, supra note 54, at 5.
(67) See generally ALAN LIEBERSON, THE PHYSICIAN'S GUIDE TO ADVANCE MEDICAL DIRECTIVES (1993); P Diehr, et al., Ambulatory Mental Health Services Utilization in Three Provider Plans, 22 MED. CARE 1 (1984); A. Dill & D.A. Rochefort, Coordination, Continuity, and Centralized Control: A Policy Perspective on Service Strategies for the Chronically Mentally Ill, 45 J. SOCIAL ISSUES 145 (1989); E. Keeler, et al., The Demand for Episodes of Mental Health Care, 7 J. HEALTH ECON. 69 (1988); R.G. Frank, et al., A Model Mental Health Benefit in Private Health Insurance, HEALTH AFFAIRS, Spr. 1992, at 99, 99; R.G. Frank, et al., Paying for Mental Health and Substance Abuse Care Under Reform, HEALTH AFFAIRS, Spr. 1991, at 337, 337.
(68) State medical care experiments have generated a huge bibliography. Oregon is a good example. For a selection of views, see generally David C. Hadorn, Setting Health Care Priorities in Oregon: Cost Effectiveness Meets the Rule of Rescue, 265 JAMA 2218 (1991); David Eddy, What is Going On in Oregon? 266 JAMA 417 (1991); Michael J. Astrue, Pseudoscience and the Law: The Case of the Oregon Medicaid Rationing Experiment, 9 ISSUES IN LAW & MED. 375 (1994); Donald Cohodes, Pragmatism and Health Care Reform, HEALTH AFFAIRS, Spr. 1994, at 74.
(69) On managed competition see A.C. Enthoven, Managed Competition in Health Care Financing and Delivery: History, Theory, and Practice (address presented at the Robert Wood Johnson Foundation "Changes in Health Care Financing Initiative" Workshop (Jan. 1993). On global budgets and related cost containment methods, see generally PAUL STARR, THE LOGIC OF HEALTH-CARE REFORM (1992); THE 21 ST CENTURY AMERICAN HEALTH SYSTEM POLICY DOCUMENTS (1991); S.S. Sharfstein & A.M. Stoline, Reform Issues for Insuring Mental Health Care, HEALTH AFFAIRS, Fall 1992, at 84.
(70) Enthoven, supra note 68.
(71) See M. Schlesinger & D. Mechanic, Challenges for Managed Competition from Chronic Illness, HEALTH AFFAIRS, Supp. 1993, at 123, 123; and M. Schlesinger & D. Mechanic, Chronic Illness Challenges Managed Competition (unpublished manuscript presented at the Institute for Health, Health Care Policy and Aging Research, Rutgers Univ.; Dep't of Epidemiology and Public Health, Yale Univ. Med. School, Nov. 1992).
(72) Recommendations of the Little Rock Working Group on Mental and Substance Abuse Disorders in Health Care Reform 8-9 (unpublished manuscript presented at the Centers for Mental Healthcare Research, Dep't of Psychiatry, Univ. of Arkansas for Med. Sciences, Feb. 3-5, 1993) (citations omitted, emphasis added).
(73) Id. at 13 (citation omitted).
(74) In their introduction, the Little Rock Working Group expresses the altruistic "sacrifice" philosophy behind their recommendations:
Recognizing that all elements of the present health care system must share in the sacrifice, we propose to reallocate expenditures away from the expensive, at times non-essential services, to those described in our recommendations. This requires massive change in mental and substance abuse services where, until now, incentives have been directed toward use of inpatient services.
Id. at 7. "Reinsurance and other risk-sharing approaches (e.g., mixed capitated/fee-for-service systems) [may be necessary for] ... severe and persistent ... disorders." Id. at 13.
(75) See Frank, supra note 62.
(76) See generally D. Mechanic, The Evolution of Mental Health Services and Mental Health Services Research, in THE FUTURE OF MENTAL HEALTH SERVICES RESEARCH (C.A. Taube, et al., eds., U.S. Gov't Printing Office 1989); D. Mechanic, Strategies for Integrating Public Mental Health Services, 15 HOSP. & COMMUNITY PSYCHIATRY 797 (1991); G. Norquist & K. Wells, Mental Health Needs of the Uninsured, 48 ARCHIVES OF GEN. PSYCHIATRY 476 (1991).
(77) Frank, supra note 62, at 7-8.
(78) See AHSA, supra note 1, at [sections] 1115(b)(2): Case Management.
(79) Long term care is not among the mental health benefits listed in AHSA, supra note 1, [sections] 1115. Long term care is one of two subjects under Title II "New Benefits," Subtitle B: [sections] 2101 deals with state programs for individuals with disabilities requiring long term care; [sections] 2103 defines disabilities; [sections] 2104 lists covered services; and [sections] 2106 covers quality assurance and safeguards; [sections] 2109 provides the budget with $4.5 billion assigned to year 1996 and $38.3 billion to year 2003.
(80) AHSA, supra note 1, at [sections] 2103.
(81) Id. at [sections] 1115(d).
(82) Mental Health and Substance Abuse Under the Health Security Act: Hearings on the American Health Security Act Before the U.S. Senate Comm. on Labor and Human Resources, 103d Cong., 1st Sess. 5 (1993) (statement of Dr. Frank Docherty, Clinical Prof. of Psychiatry, Tufts Univ., Boston, MA).
(84) Id. at 7.
(85) See generally R.M. Friedman & K. Kutash, Challenges for Child and Adolescent Mental Health, 11 HEALTH AFFAIRS, Spr. 1992, at 125, 125; Daniel B. Griffith, The Best Interests Standard: A Comparison of the State's Parens Patriae Authority and Judicial Oversight in Best Interests Determinations for Children and Incompetent Patients, 7 ISSUES IN LAW & MED. 283 (1991).
(86) Mental Health and Substance Abuse Under the Health Security Act: Hearings on the American Health Security Act Before the U.S. Senate Comm. on Labor and Human Resources, 103d Cong., 1st Sess. 3 (1993) (statement of Dr. Bernie Arons, Acting Director, Center for Mental Health Services, Dep't of Health and Human Serv's).
(87) Id. at 3, 4.
(88) Id. at 2-5. See also AHSA, supra note 1, at [sections] 3511, requiring reporting on integration of mental health systems.
(89) Bernard Arons et al., Mental Health and Substance Abuse Coverage Under Health Reform, HEALTH AFFAIRS, Spr. 1994, at 195, 195.
(90) Richard G. Frank, H.H. Goldman, & T.G. McGuire, A Model Mental Health Benefit in Private Health Insurance, HEALTH AFFAIRS, Fall 1992, at 98.
(91) Arons, supra note 89.
(92) Mental Health and Substance Abuse Under the Health Security Act: Hearings on the American Health Security Act Before the U.S. Senate Comm. on Labor and Human Resources, 103d Cong., 1st Sess. (1993) (statement of Senator Paul D. Wellstone, Chair).
(93) Mental Health and Substance Abuse Under the Health Security Act: Hearings on the American Health Security Act Before the U.S. Senate Comm. on Labor and Human Resources, 103d Cong., 1st Sess. (1993) (statement of Honorable Mike Kopetski).
(94) Wellstone, supra note 92, at 4.
(95) Mental Health and Substance Abuse Under the Health Security Act: Hearings on the American Health Security Act Before the U.S. Senate Comm. on Labor and Human Resources, 103d Cong., 1st Sess. 6-8 (1993) (statement of Dr. Frank McArdle, Manager, Research Group, Hewitt Associates, Wash., DC).
(96) See HIPAA supra notes 4 & 52. Draconian provisions of AHSA now are the law of the land via HIPAA. In May, 1996, HR 3103 and S 1028 moved successfully through Congress, passing the Senate 100 to zero. Taken almost verbatim from AHSA, about 100 pages of criminal sanctions and penalties against physicians, surgeons, and patients make a practitioner strictly liable, guilty even with no intent to do the forbidden deed. Forbidden "crimes," e.g., errors in coding for reimbursement, providing "medically unnecessary" care, and "referrals" prosecuted under the Stark Laws, are punishable by the formidable "Three Fs": guilt of a felony, fines up to $25,000 per incident, and five years in federal prison.
Here are seven examples (with my comments in parentheses and italics): (1) The Health Care Fraud and Abuse Trust Fund collects criminal fines, civil monetary penalties, and forfeited property from physicians and surgeons at conviction or before conviction. "The court, in imposing sentence on a person convicted of a Federal health care offense, shall order the person to forfeit property, real or personal, that constitutes or is derived, directly or indirectly, from gross proceeds traceable to the commission of the offense" (HR 3103 at 211). (2) Rewards are offered to patients and to medical staff members to act .as informants or whistle-blowers who share in money penalties imposed on physicians (HR 3103 at 161). (These are qui tam actions under the False Claims Act of 1986). (3) Civil monetary penalties are $10,000 for each instance of "failure to comply with statutory obligations"which include incorrect coding and medically unnecessary service (HR 3101 at 195). (The physician is liable (a) for every billing secretary's keystroke and (b) for exercising medical judgment that dares to differ from the third party payer insurance company which, if not wanting to pay, will deem the procedure medically unnecessary.) (4) Forbidden "remuneration" to doctors includes "transfers of items or services for free or for other than fair market value" (HR 3101 at 198). (Charity and friendly favors are considered criminal fraud). (5) No proof of specific intent to defraud is necessary (HR 3101 at 200). (This is strict liability for crime.) (6) A "Federal health care offense" is defined as any violation involving "any public or private plan or contract, affecting commerce, under which any medical benefit, item, or service is provided to any individual" (HR 3101 at 202). (The language of HR 3101 at this point is so over-inclusive that any innocent doctor can stimulate the ire of an overzealous investigator). (7) "Defrauding" any health care benefit program carries a fine and or imprisonment for ten years, or life imprisonment "if the violation results in death" (HR 3101 at 203). (A physician treating a terminally ill patient with "excessive care" could be jailed for life. Several physicians are serving in federal penitentiaries for medically unnecessary medicine and surgery. See, e.g., United States v. Rutgard, No. 96-50309 (9th Cir. filed Mar. 6, 1997) (reversing a criminal forfeiture order in the amount of $7,564,441.22 against Dr. Rutgard), and United States v. Anderson, 85 E Supp. 2d 1084 (D.Kan. 1999) (following a nine-week trial, a jury convicted two doctors and the head of a medical facility of Medicare kickback offenses in connection with an alleged bribery scheme by the doctors, who referred patients to the facility in exchange for compensation)).
(97) McArdle, supra note 7.
(98) Id. at 11.
(99) AHSA, supra note 1, at Title III, Subtitle A defines work-force priorities under federal payments. Subtitle B demonstrates the micro-managing of academic health centers, already underway because of HIPAA and other laws, requiring that after five years, no matter the physicians' interests and talents, 50% of all new physicians must be trained in primary care rather than specialties. This increases primary care residency positions by 7% each year for five years and decreases specialty training positions by 10% annually. The only medical specialties allowed to grow are family medicine, general internal medicine, and general pediatrics. Any medical school and university center not obeying those guidelines gets no government money, and the Council on Graduate Medical Education determines which residencies are to be accredited, (thus allowed to exist, and which not). The Council reserves internships, residencies, and fellowships for members of under-represented minority groups. Under Subtitle C's health research initiatives, government will fund scientific studies of cost effectiveness of care, administrative simplification (as in national data banks of medical records), practice guidelines, and consumer choice. Subtitle D discusses core functions of public health programs and preventive medicine called "preventive health," while Subtitle E is devoted to the medically underserved populations. Subtitle F is on mental health and substance abuse.
(100) McArdle, supra note 7, at 21.
(101) Id. at 17.
(102) See generally Donald Cohodes, Pragmatism and Health Care Reform, HEALTH AFFAIRS, Spr. 1994, at 264.
(103) Id. at 18.
(106) Id. at 8 (emphasis added).
(108) See generally Stanley Herr et al., No Place to Go: Refusal of Life-Sustaining Treatment by Competent Persons with Physical Disabilities, 8 ISSUES IN LAW & MED. 3 (1992).
(109) See generally Is THERE A DUTY TO DIE? (J.M. Humber et al. eds. 2000); Jerome C. Arnett, Is There a Duty to Die?, 5 MED. SENTINEL 183 (2000); J. Hardwig, Is There a Duty to Die? 27 HASTINGS CENTER REP. 34 (1997); Richard Lamm, Governor of Colorado, Address to Colorado Health Lawyers' Association, N.Y. TIMES, Mar. 29, 1984, at Al.
(110) See generally David C. Hadorn, Setting Health Care Priorities in Oregon: Cost Effectiveness Meets the Rule of Rescue, 265 JAMA 2218 (1991); David Eddy, What is Going On in Oregon? 266 JAMA 417 (1991); Michael J. Astrue, Pseudoscience and the Law: The Case of the Oregon Medicaid Rationing Experiment, 9 ISSUES IN Law & MED. 375 (1994); and Donald Cohodes, Pragmatism and Health Care Reform, HEALTH AFFAIRS, Spr. 1994, at 74.
(111) See notes 9 and 11 supra and accompanying text.
(112) 274 u.s. 200 (1927).
(113) Id. at 207 (emphasis added). The following puts the quotation in context:
We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sapped the strength of the state for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the fallopian tubes. Three generations of imbeciles are enough.
Id. (citation omitted, emphasis added).
(114) 316 U.S. 535 (1942).
(115) See generally DAVID ROTHMAN & SHEILA A. ROTHMAN, THE WILLOWBROOK WARS (1984).
(116) See generally JAY KATZ, EXPERIMENTATION WITH HUMAN BEINGS (1972).
(117) Kaimowitz v. Michigan Dep't of Mental Health (Cir. Ct., Wayne Co., Mich. 1973).
(118) See generally ALAN MEISEL, THE RIGHT TO DIE, 2 VOLS. (1995); and compare the entire back run of this journal, ISSUES in Law & Medicine, especially Daniel Avila, Medical Treatment Rights of Older Persons and Persons with Disabilities: 1991-92 Developments, 8 ISSUES IN Law & MED. 429 (1993); his Medical Treatment Rights of Older Persons and Persons with Disabilities: 1992-93 Developments and Emerging Trends, 9 ISSUES IN LAW & MED. 345 (1994); Diane Coleman, Withdrawing Life-Sustaining Treatment from People With Severe Disabilities Who Request It: Equal Protection Considerations, 8 ISSUES IN LAW & MED. 55 (1992); and Mark E. Haddad, Cruzan and the Demands of Due Process, 8 ISSUES IN LaW & MED. 205 (1992).
(119) 760 S.W.2d 408 (Mo. 1989) (en banc); affirmed sub. nom. Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261 (1990).
(120) In re Quinlan, 70 N.J. 10, 355 A. 2d 647 (1976), cert. den. sub. nom. Garger v. New Jersey, 429 U.S. 922 (1976).
(121) Washington v. Harper, 494 U.S. 382 (1990); Mills v Rogers, 457 U.S. 291 (1982); Bouvia v. Superior Court, 179 Cal. App. 3d 1127, 225 Cal. Rptr. 297 (1988); Bartling v. Superior Court, 163 Cal. App. 3d 186, 209 Cal. Rptr. 220 (1984); Matter of Storar, 438 N.Y.S.2d 266 (Ct. App. 1981); Schloendorff v. Society of New York Hospital, 211 N.Y. 125,105 N.E. 92 (1914); Blackburn v. State, 23 Ohio St. 146 (1873).
(122) See generally Nancy J. Osgood & Susan A. Eisenhandler, Gender and Assisted and Acquiescent Suicide: A Suicidologist's Perspective, 9 ISSUES IN LAW & MED. 361 (1994).
(123) See generally Paul Steven Miller, The Impact of Assisted Suicide on Persons With Disabilities -- Is It A Right Without Freedom? 9 ISSUES IN LAW & MED. 47 (1993); Peter A. Ubel, Assisted Suicide and the Case of Dr. Quill and Diane, 8 ISSUES IN LAW & MED. 487 (1993).
(124) See, e.g., Nancy J. Osgood, Assisted Suicide and Older People -- A Deadly Combination, 10 ISSUES IN LAW & MED. 415 (1995):
On June 4, 1990, fifty-four-year-old Janet Adkins ended her life lying on a cot in the back of a Volkswagen van parked in a Michigan suburb. Aided by retired pathologist, Dr. Jack Kevorkian, Adkins was hooked up to his homemade "suicide machine." She had a needle inserted in her arm, which first started saline flowing and, then, when she pressed the button on the macabre death machine, sent first a sedative and then deadly potassium chloride flowing into her veins. An active woman with loving children and grandchildren, Adkins has flown two thousand miles from her Oregon home to Michigan to seek Kevorkian's assistance in ending her life when she was diagnosed with Alzheimer's disease.... She made a deliberate decision to end her life rather than face the mental decline associated with senile dementia.
Id. at 415 (emphasis added).
(125) See generally David Hadorn, Setting Health Care Priorities in Oregon: Cost Effectiveness Meets the Rule of Rescue, 265 JAMA 2218 (1991).
Madeleine Pelner Cosman, Ph.D., Esq, Attorney and president of Medical Equity, Inc., San Diego, Cal., a national medical and law practice consultancy; B.A., Barnard College, 1959; M.A., Hunter College, 1960; Ph.D., Columbia University, 1964; J.D., Cardozo School of Law, 1995. Dr. Cosman is Professor Emerita of the City College of City University of New York where for twenty-eight years she taught medical students medical law, medical business, and medical history. She is a life Fellow of the New York Academy of Medicine. She is a member of the New York Bar, New Jersey Bar, and a Barrister of the American Inns of Court. One of her fifteen books was nominated for the Pulitzer Prize and National Book Award.…