Editor’s note: This is the first of several periodic posts stemming from presentations to be given at “The Law of Medicare and Medicaid at Fifty,” a conference that will be held at Yale Law School on November 6 and 7.
This post introduces an online symposium in connection with The Law of Medicare and Medicaid at 50, an upcoming interdisciplinary conference at Yale Law School. Many thanks to Health Affairs for its co-sponsorship of the conference and for this opportunity to preview some of the work to be presented.
Why focus on the law of Medicare and Medicaid? These two programs are almost always analyzed from a policy perspective, but one of the most significant changes that the 1965 legislation wrought was bringing two major federal statutes—and, with them, the three branches of the federal government—squarely into the center of health care and regulation. To be sure, Congress had passed laws related to health prior to 1965, but until Medicare and Medicaid, most health policy was made at the local level, by state courts and state governments, and by the medical profession itself.
Medicare and Medicaid brought not only Congress, but the Supreme Court and the rest of the lower federal courts into the picture. It also made the federal administrative apparatus—federal agencies ranging from Health and Human Services, to Treasury, to the Department of Justice—central players in the world of health policy and enforcement. Nevertheless, amidst the thousands of pages that have been written about the two programs, there has been relatively little reflection on how the distinct features of law—and federal law in particular—have affected the programs’ development and successes.
If there were any doubt as to the significance of these federal inroads, one need look no further than the Affordable Care Act of 2010 (ACA)—the largest federal intervention in health-policy in history—which is celebrating its own (fifth) anniversary this year. The ACA has brought with it a firestorm of attention about the role of the federal government in health policy, but the ACA builds squarely on the world of law and policy that Medicaid and Medicare wrought.
The remarkable range of work to be presented at this conference illustrates the breadth of Medicare and Medicaid’s impact on law—and law’s impact on the two programs. The presentations, some of which will be discussed in this series, all grapple with key questions of the costs and benefits of federal intervention; these include questions about remedying fragmentation, incentivizing innovation, effective enforcement, and, most fundamentally, the role of government—and with it, the role of the law—in health care.
First, to the issue of fragmentation. Policymakers commonly turn to federal law to bring more uniformity and coherence to a policy arena. The regulatory landscape of health law is a notorious patchwork, both with respect to how health care is paid for and also with respect to how it is regulated. It is not clear that Medicare and Medicaid have done much to address this problem. Law professors often contrast the field to the airline industry: Flyers do not pay separately for the airplane, the flight attendants, the staff who clean the runway, and so on—they buy just one ticket. But in health care, most patients still do pay separately for the MRI, the hospital, the anesthesiologist, the individual doctor, etc.
Medicare and Medicaid have each conducted experiments in bundled payment reform, and the ACA also contains similar experiments. But these moves have yet to spread throughout the private sector or even between the programs. Moreover, the ACA’s own experiments, which aim to spur horizontal and vertical coordination, may themselves be in tension with other federal laws, especially the federal antitrust laws, which aim to discourage consolidation.
At the level of governance, Congress’s design of Medicare and Medicaid may be as much to blame for the current state of health fragmentation as anything else. The 1965 legislation worked congressional compromise through an intentionally fragmented regulatory design that limited the power of the federal government, to ease the concerns of reluctant legislators. Congress gave Medicare to the federal government, but gave much responsibility over Medicaid to the states, and left everything else to the private sector (although one should never forget that our entire system of employer-provided insurance is not truly private at all, but rather is made possible by federal laws that make the employer contribution tax deductible). The ACA maintains this 1965 set of divisions: the elderly and disabled (and veterans) still get their insurance through the federal government; low-income individuals still get their insurance through Medicaid’s special state-federal hybrid; and the rest of us are still in the private insurance system, although one now more heavily regulated by the federal government.
A second prominent theme of the presentations is whether fifty years of federal intervention has done more for innovation and experimentation than a state-driven system would. Medicare has used its market power to drive both delivery and payment reforms; Medicaid has used its waiver provisions to incentivize many important policy experiments, including the Massachusetts health care reform and, in many states, the evolution of Medicaid from a program serving specific populations, such as pregnant women, to a means-based program open to all individuals. Other presenters take on the question of whether either program has had a positive impact on medical research, treatment or drug development.
Enforcement and Implementation
Third, federal intervention dramatically changes the nature of health-law enforcement and implementation. Congress is now a central player. Congress implements the health laws through statutory amendments, administrative oversight, and its own budget rules. How, for example, has Congress’s requirement of mandatory spending in Medicare and Medicaid affected how the two programs have developed? Cost control has also been a central feature in the political battles in Washington, especially when it comes to Medicare. And cost remains a major factor in Congress’s failure to address long-term care, an essentially omitted piece of the regulatory landscape.
Enforcement, of course, also includes the federal courts, where health law has arguably been a victim of some important legal developments not specific to health. For example, the Supreme Court has moved in recent years to limit when private individuals can enforce federal laws against both state and federal administrators—a development that has been keenly felt by individuals trying to enforce rights under Medicaid. The current Court also pays far more attention to federalism issues than did the Supreme Court of 1965. The 2012 health reform constitutional decision, in which the Court overturned the ACA’s Medicaid expansion on federalism grounds, is a recent but by no means the only example of how health law has been affected by the general pro-federalism trend on the Court.
The Court has also changed its own approach to statutory law over the past fifty years, and the development of health law, because it has had such a large statutory component since 1965, has undoubtedly been affected by the Court’s more textual approach to statutory cases. At the same time, as I will elaborate in my own contribution to the conference, the Court has not developed any coherent approach to interpreting these major health law statutes. The Court takes neither a health-law-specific approach to the statutes, nor integrates the broader norms of the field into its health-law decisions. The Court also may be exacerbating the field’s regulatory fragmentation, because the Court does not generally decide Medicare cases with Medicaid (or any other health-law statute) in mind, and vice versa. These failures are significant because the more health law is made by federal statutes, the more we must rely on the federal courts to make sense of the legal landscape.
The Role Of Government
Finally, and perhaps most fundamentally, fifty years of Medicare and Medicaid, followed now by the ACA, have caused us to grapple with one of law’s most basic questions: namely, the role of government in our society. The “big picture” debate that undergirds all of health policy is the same debate that has framed most of the post New-Deal-Era policy disputes: the divide between those who would limit the role of government, and especially the federal government, in favor of libertarian values and the marketplace, and those who would instead prefer a stronger role for the government, especially in affairs that go to the essence of a dignified life, including health.
Even those who believe in a robust governmental role divide over which government should play that role. Federalism—the proper allocation of power between states and the federal government—has always been the most important structural legal question in this country, and here too health law is at the forefront of more general national debates. The center of gravity in health law has controversially, but decidedly, moved away from the states, toward the federal government; this movement began in 1965 and has culminated (for now) in the ACA. At the same time, health law has changed federalism, too. As I elaborate in other work with Nicole Huberfeld and Ted Ruger, a “New Health Care Federalism” has recently emerged — a landscape of state and federal relations that is more dynamic, political and intertwined than ever before.
For those outside the world of law, it should not be difficult to see how all of these legal issues have an enormous impact on the shape of health policy. Fifty years of Medicare and Medicaid is fifty years of federal statutory health law, which brings with it fifty years of Congress, federal agencies, and federal courts shaping health policy alongside, and sometimes in tension with, the states. Any retrospective or prospective evaluation of these historic programs that does not consider the role that law has played in shaping them tells only part of the story.
For more about the conference or to register, click here.