Presidents Adams and Jefferson, with a Few Others, Discuss Health Reform with a Disabled Lawyer

Norman, Gary C., Journal of Law and Health

I.   INTRODUCTION
II.  BACKGROUND
III. EXECUTIVE BRANCH
V.   JUDICIAL REVIEW
VI.  A LAWYER WITH A DISABIL1TY
VII. CONCLUSION

I. INTRODUCTION

Pondering two busts of Presidents Adams and Jefferson, (1) a Washington lawyer with a disability is suddenly interrupted from the reflection. (2) Long-time colleagues and passionate, if sometimes disgruntled, friends, (3) Presidents Adams and Jefferson request that they adjourn to a local tavern for dinner. (4) The Presidents propound an inquiry while imbibing a Fuller's London Porter. (5) What are the issues with which the American people are grappling? The size of, as well as the proper role of, government is as much an issue for the American people now as it was in the Presidents' time. (6) Specifically, Washington lawyers still constitute strategic actors within executive, legislative, and judicial forums. This Article discusses the interaction of Washington lawyers in these branches of government regarding healthcare law and policy. (7) The Article discusses how access to technology inhibits a disabled lawyer from equal involvement in the governmental process. (8) The Article also thematically presents the position Presidents Adam and Jefferson would likely harbor on healthcare reform. Public discourse must be more intellectual like that of the founding generation, (9) and it should be improved in its civility. (10)

II. BACKGROUND

The United States spends, as a percentage of Gross Domestic Product, more on healthcare services than any other industrialized nation, with annual expenditures equaling $1.6 trillion. (11) Since 2008 when President Obama campaigned on healthcare reform, (12) and since 2009 when he sought the enactment of healthcare reform, (13) health law and policy, namely healthcare reform, has been the subject of copious debate. (14) President Obama signed healthcare reform into law on March 23, 2010, now in its second anniversary. (15)

The Patient Protection and Affordable Care Act, (16) as amended by the Health Care and Education Reconciliation Act of 2010, (17) (hereinafter "healthcare reform" or "the Act," respectively) has been the subject of regulatory or litigious action and conflict within the three branches of government. (18) Healthcare reform has the affect of attempting to address issues of quality, access, and cost. (19) The purpose of the complex omnibus statute is to address flaws with health insurance, including the many millions of "uninsured Americans and the escalating costs they impose on the health care system." (20) Healthcare reform imposes myriad new mandates on individuals, states, and the private sector, providing for or attempting to provide for: (1) expanded health insurance to the uninsured; (2) reduced spending in such federal health insurance programs as Medicare; and (3) substantive and extensive changes in the private health insurance industry. (21) By 2019, when all of the healthcare-reform provisions will be in effect, an additional 32 million people will purportedly have health insurance coverage. (22)

The Individual Mandate, a principle integral to healthcare reform, (23) requires all citizens and legal residents to carry health insurance. (24) Beginning after 2013, if an individual violates this requirement, he or she must pay a monthly penalty of $7.91 per family member (not to exceed $285 per family). (25) Starting in 2014, individuals who are required to have insurance can either keep employer-based health insurance or benefit from new state exchanges that will be established by each state or by a regional coalition of states. (26) "Health insurance Exchanges are [the Act's] attempt to address historical flaws in the individual and small-group health insurance markets." (27) State operated exchanges will be systems through which private insurers provide plans. (28)

Not all individuals are eligible for the exchanges. (29) The self-employed, those who work for employers with less than 100 employees, and individuals who are retired but not eligible for federal insurance programs, can participate in the state exchanges. (30) Health insurance plans will be funneled through these exchanges, allowing for more regulation of health insurance plans, the benefits offered, the cost of the plans, and the extent that private insurers operating in the state exchange can discriminate. (31) States cannot establish the premiums charged to individuals. (32) "The federal government retains authority to establish the certification criteria for the state-based Exchanges, while states are responsible for the actual certification of plans and administration of the Exchanges." (33) In addition to reforming the health insurance industry through the state exchanges, (34) healthcare reform imposes numerous changes to the federal-health-insurance-entitlement programs of Medicare and Medicaid. (35)

In representing the people, the legislative branch, under the influence of the President, ought to cautiously construct and pass legislation. Healthcare reform is the broadest piece of Congressional legislation intended to achieve a sweeping social policy agenda since the Great Society. (36) The Act is "thousands of pages, requiring thousands more regulations written under the authority of Kathleen Sebelius. ..." (37) The Act is clearly a complex omnibus statutory scheme implicating profound constitutional questions.

Providing a brief sense of other facets of the Act might be helpful in demonstrating the Act's complexity. (38) The Act focuses general health and welfare of the populous, including, persons with disabilities. To address the epidemic of obesity, (39) the Act imposes national menu-labeling requirements, including, but not limited to, a mandate that nutritional information be conspicuously furnished by establishments that have twenty or more locations. (40) The Act imposes a mandate that the Secretary capture data on health disparities, including as to persons with disabilities. (41) Additionally, the Act exhibits policy experts' goal in addressing disparities of people with disabilities within the healthcare system by requiring the United States Access Board to develop and then issue, within two years of enactment, guidelines governing the accessibility of medical diagnostic equipment. (42) Congress passed, as part of the Act, the Elder Justice Act and the Patient Safety and Abuse Act, both of which are statutory attempts to expand efforts to prevent abuse, neglect, and exploitation of older adults. (43) Because of its omnibus nature, the Act has myriad facets that seek to affect overall healthcare policy.

In 1965, pursuant to its Spending Clause authority, Congress added Title XIX to the Social Security Act, thereby establishing a key component of the Great Society, (44) the Medicaid program. (45) The Medicaid program, also known as medical assistance, constitutes a federal insurance program in which states accept significant funding (to be matched or otherwise supplemented by such states) with the intent of expanding access for the poor to private and public providers. In addition to its role in providing insurance, the government applied the Medicaid program as a means of addressing larger societal concerns, such as reducing infant and maternal mortality. State membership in the Medicaid program is voluntary; each state must submit a state Medicaid plan to the Secretary of the United States Department of Health and Human Services, operating in compliance with that plan as well as the regulatory framework governing Medicaid. (46) If a State does not withdraw from the Medicaid program, while failing to comply with Federal requirements, the Federal Government can impose sanctions, terminate participation, or withhold all or part of a State's Medicaid grant. (47) Since 1965, Congress has frequently amended Medicaid; each time, Congress anticipated that States participating in the program would cooperate with the changes. Likewise, the Act will increase mandates on the states; after January 1, 2014, states are required to provide minimal essential coverage to individuals up to 130% of the poverty level. (48)

Thus, healthcare reform implicates a larger and long-held debate about the proper role of government, including but not limited to, the proper role of governmental regulation. (49) The liberal perspective of the political spectrum, including President Obama, argues that governmental regulation is the logical response to any failure or alleged failure in the private marketplace. (50) The Secretary of the Department of Health and Human Services, Kathleen Sebelius, posited that the federal government plays a key role in regulating "the healthcare arena." (51) Republicans increasingly oppose legislation they perceive as "liberal," arguing that government has no place to regulate social and commercial relationships. (52) Healthcare reform caused the positive consequence of initiating afresh the study of the United States Constitution by the American public and its leaders. (53) Healthcare reform is notable for its encapsulation of a new progressive federalism, in which power for issues that concomitantly affect the federal government and state government is centralized in the regulatory state. (54) The Act resulted in a continued discussion about the balance of power among the federal government and the states; namely, whether a state can, sometimes based on what has been called an orchestrated "battering ram strategy" by federal leaders within the Tea Party, nullify the directives of the federal government. (55)

III. EXECUTIVE BRANCH

The President is a crafty Prince. (56) President Obama has proven to be pugilistic (57) and pragmatic. (58) The vacillation between the "two Obamas" is often frustrating to his progressive base. (59) Republicans may perceive that, if they nudge sufficiently, President Obama will capitulate. (60) Arguably, they do so at their peril.

An administration has an array of tools to strategically utilize to both shaping and defending its policy agenda. In the age of mass telecommunications, an important tool is the "bully pulpit" of the Executive Office of the President. (61) An important statutory framework that influences the way the regulatory state makes an opaque enactment of Congress into reality is the Administrative Procedure Act. (62) The President can closely monitor63 and influence the instrumentalities of the federal government in furtherance of his social policy agenda.64 Another important tool is the Appointments Clause of the United States Constitution.65 President Obama utilized these tools with varied levels of success in shaping and in defending his social policy agenda.

In November 2010, a new political movement propelled the Republicans into power in the House of Representatives and assisted Republicans to acquire five seats in the United States Senate.66 Since the "Goldwater revolution" in the early 1960s, which matured with the election of President Reagan, the Republicans shifted dramatically to the right of the political spectrum.67 Since the New Deal, Democrats have become more liberal. The newfound political movement on the political spectrum's far right is called the Tea Party. (68)

The movement also has a caucus in Congress. (69) Michelle Bachman is the founder of the House Tea Party caucus, a Republican from Minnesota, and a prior 2012 Presidential candidate. (70) By July 2010, there were twenty-eight members of the caucus--all Republican. (71) The caucus has an anti-government perspective that: (1) government has a limited purview with reduced, even perhaps non-existent, regulation; (72) (2) public employees and their unions are to be eschewed; (73) and (3) the burden of taxes must be reduced, if there is to be renewed economic prosperity. (74) The size of government and the indebtedness of the federal government are chief concerns of the movement and of the caucus. (75) The caucus served as a thorn in President Obama's side, requiring the President to maneuver his agenda in a strategic manner.

While dining, the former Presidents discuss the Tea Party. From what the former Presidents understand, at rallies, organizers disseminate pocket copies of the Constitution; in the fashion of a carnival, people dress in colonial garb; and, speakers demand a return to the Constitution. (76) The Tea Party posits states that it is the guardian of the U.S. Constitution and argues that any piece of legislation passed by Congress, as well as any action of the federal government, must be linked to an authorizing provision. (77) Arguably, it is presumptuous for Tea Party Republicans to crown themselves as the legacy of a controversial event intended at expressing our disgust with the monarchy. (78)

There is a visible difference before the mid-term elections, and afterwards, in President Obama's oratory and willingness for negotiation. (79) Before the election, the administration would aggressively market its achievement, arguing that the average American will benefit from reforms. (80) At a backyard event in Northern Virginia, President Obama purposely indicated that the Bush administration, from 2001 to 2009, failed to address the escalating cost of healthcare at the same time that real

salaries were reduced exponentially by corporations.(81) Utilizing such forums as the State of the Union Address, President Obama strategically heralded himself as the leader willing to negotiate.82 President Obama stated that government is a "shared responsibility" by both political parties. (83) He also expressed on several occasions that the Act is not perfect, but he is willing to accept ideas and suggestions about a reasonable amendment. (84) Because President Obama seems to believe that healthcare reform is an economic engine for future growth, (85) he will not tolerate its repeal or delayed implementation. While President Obama may demonstrate a conciliatory tone, a Washington lawyer would be imprudent to translate that into the Obama administration shifting away from implementation. (86)

The Presidents agree with the statements of commentator George Will that "[t]he American Revolution was a political, not a social, revolution; it was emancipating individuals for the pursuit of happiness, not about the state allocating wealth and opportunity." (87) George Will also commented, "[h]ence our exceptional Constitution, which says not what government must do for American but what it cannot do to them." (88) Implementing healthcare reform is the task of the Department of Health and Human Services and its sub agency, the Centers for Medicare and Medicaid Services (hereinafter HHS and CMS, respectively), all of which are outrageous instrumentalities of government in the caucus's mind. (89)

In seeking to usurp the Republicans' position, a range of tools is at the administration's disposal, including the regulatory process and Executive Orders. (90) A facet of President Obama's health policy initiative to reimburse for end-of-life planning discussions among providers and beneficiaries, while ultimately withdrawn from the legislative package due to the furor created by Republican legislators and Republican Vice-Presidential candidate Sarah Palin about "death panels," (91) would be included within regulations promulgated by CMS. (92) Hospice Providers, such as the National Hospice and Palliative Care Association, favorably support the policy. (93) The regulation listed voluntary advance care planning as one of the services that could be offered in the annual wellness visit for Medicare beneficiaries. (94) Furthermore, President Obama signed an Executive Order keeping Hyde restrictions on federal funding of abortions shortly after the enactment of healthcare reform. (95) President Obama signed an Executive Order, in arguable response to the results of the midterm election, requiring "all executive agencies to review 'rules already on the books to remove outdated regulations that stifle job creation. ... (96)

Additionally, healthcare reform provides for the establishment, by no later than January 1, 2012, of a program to promote organizational arrangements called Accountable Care Organizations. (97) The goal is to incentivize providers to improve clinical performance, while controlling cost.98 The Secretary will, without surprise, have broad discretion to create the regulatory framework for this experiment in healthcare reimbursement based on certain quality measures and a focus towards coordination and continuity of care. (99) Agencies are subject to the Administrative Procedure Act and are consequently often outside of the scope of "dictatorial control" of the Executive Office of the President. (100)

Administrations, including but not limited to President Obama, encountered difficulty in implementing its policy agenda. (101) In Cohen v. Rice, the court observed that the President does not constitute an agency for purposes of the Administrative Procedure Act ((102) and Presidents have increasingly resorted to senior advisors within the White House who may not need to endure the confirmation process) (103)

President Obama sought the unprecedented centralization of policy formulation within the White House through "Czars."(104) These high-level White House senior advisors are "outside the normal cabinet structure" and are not subject to the scrutiny of Congress, such as Senate confirmation hearings) (105) President Obama employed a former Administrator of CMS (106) as the so-called Czar of healthcare reform. (107) The position installed by the White House was called Counselor to the President and Director of White House Office of Health Reform) (108) President Obama has, to the Republicans' dismay, employed Czars in many other policy portfolios) (109)

On the West Wing, President Jed Bartlett devolves much of the responsibility for policy formulation and implementation on a coterie of senior advisors. (110) In a television show, devolving this level of responsibility is sensible. In reality this is a different issue. According to Republicans, centralizing this level of power in the President is seemingly afoul of the checks and balances system created by the founding generation of the co-equal branches of government. Republicans believe government in furtherance of his social policy agenda. (64) Another important tool is the Appointments Clause of the United States Constitution. (65) President Obama utilized these tools with varied levels of success in shaping and in defending his social policy agenda.

In November 2010, a new political movement propelled the Republicans into power in the House of Representatives and assisted Republicans to acquire five seats in the United States Senate. (66) Since the "Goldwater revolution" in the early 1960s, which matured with the election of President Reagan, the Republicans shifted dramatically to the right of the political spectrum. (67) Since the New Deal, Democrats have become more liberal. The newfound political movement on the political spectrum's far right is called the Tea Party. (68)

The movement also has a caucus in Congress. (69) Michelle Bachman is the founder of the House Tea Party caucus, a Republican from Minnesota, and a prior 2012 Presidential candidate. (70) By July 2010, there were twenty-eight members of the caucus--all Republican.71 The caucus has an anti-government perspective that: (1) government has a limited purview with reduced, even perhaps non-existent, regulation; (72) (2) public employees and their unions are to be eschewed; (73) and (3) the burden of taxes must be reduced, if there is to be renewed economic prosperity. (74) The size of government and the indebtedness of the federal government are chief concerns of the movement and of the caucus. (75) The caucus served as a thorn in President Obama's side, requiring the President to maneuver his agenda in a strategic manner.

While dining, the former Presidents discuss the Tea Party. From what the former Presidents understand, at rallies, organizers disseminate pocket copies of the Constitution; in the fashion of a carnival, people dress in colonial garb; and, speakers demand a return to the Constitution. (76) The Tea Party posits states that it is the guardian of the U.S. Constitution and argues that any piece of legislation passed by Congress, as well as any action of the federal government, must be linked to an authorizing provision. (77) Arguably, it is presumptuous for Tea Party Republicans to crown themselves as the legacy of a …

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Publication information: Article title: Presidents Adams and Jefferson, with a Few Others, Discuss Health Reform with a Disabled Lawyer. Contributors: Norman, Gary C. - Author. Journal title: Journal of Law and Health. Volume: 25. Issue: 2 Publication date: Summer 2012. Page number: 307+. © 1997 Cleveland Marshall College of Law. COPYRIGHT 2012 Gale Group.

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