Katie Keith

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Katie Keith

Student Essay Contest 2011

2nd Place, Graduate Students

Katie Keith
Georgetown University Law Center; Johns Hopkins University
Juris Doctor and Master in Public Health
Expected Graduation: May 2012

Biography

Katie is a third-year dual degree student earning a JD and Master’s of Public Health from Georgetown University Law Center and Johns Hopkins University. She is currently a health policy intern for Sen. John D. Rockefeller (D-WV) and a research assistant at the Georgetown Health Policy Institute where she studies implementation of the Affordable Care Act at the state and federal level. She has also worked as a research assistant for a number of professors at the O’Neill Institute for National and Global Health Law and serves as an associate editor of the American Criminal Law Review and Global Health Governance. Before law school, Katie earned a B.S. in neurobiology from the University of Texas at Austin, served as a Peace Corps volunteer in Ghana, West Africa, and worked as an AmeriCorps Program Director and fundraiser at United Way of Southern Nevada. Katie will spend this summer at Covington & Burling LLP as a summer associate.

Prize-Winning Essay

Health Reform 2011: Beyond the Affordable Care Act

Introduction

As the fight over health reform increasingly shifts to individual states, executive agencies, and the courts, members of Congress can continue to shape the debate, address legislative shortcomings, and shift their focus to spiraling healthcare costs. Though the political stakes may seem high, pro-reform politicians should remember that many claims made about the Patient Protection and Affordable Care Act of 2010[1] (“ACA”) were also made about now largely unquestioned Medicare and Social Security programs [2] and history may provide the ultimate validation for legislators intent on increasing access to healthcare. Though Republicans have been vociferous in efforts to repeal, [3] de-fund, [4] and de-stabilize [5] the ACA, Democrats have presented a united front that has largely protected main components of the law. However, Democrats must remain vigilant to prevent the ACA’s slow death by amendment [6] and should continue to defend this historic, hard-fought legislative victory.

As an advisor to Senator Tom Harkin, I would focus on three strategies to protect and advance health reform. First, Sen. Harkin and Democratic leaders should take back a public relations firestorm dominated by conservative voices. Second, Sen. Harkin should advocate for payment reform to address rising healthcare costs. Third, Sen. Harkin should advocate for limited legal and policy concessions to Republicans. Though the majority of these proposals are likely to be met with opposition, these steps are needed to advance health reform and continue the United States’ transition to one of the finest health systems in the world.

Reclaiming Public Opinion in Support of Health Reform

Democratic leaders have been charged with failing to develop a cogent public relations message surrounding healthcare reform, thereby creating a communication vacuum that was quickly filled by opponents crying death panels and rationing. The messaging imbalance is most strongly evidenced by the fact that nearly half of Americans are confused about the status of the ACA and twenty-two percent believe the law was repealed. [7] In response, Sen. Harkin should lead the way in defending the ACA but also representing the majority of Americans that oppose defunding the law.[8] Though one might argue that Democrats should avoid the thorny issue of healthcare reform, simply ignoring efforts to undermine the bill could be costly as voter groups such as the elderly begin to show diminishing support. [9] By avoiding the discussion or erecting a half-hearted response, Democrats risk support they cannot afford to lose.

Though Democrats have successfully touted popular provisions of the ACA,[10] this strategy has brought limited success. Instead, Democrats could appeal to conservatives by emphasizing that exchanges are consistent with Republican values of transparency and consumer choice [11] or highlighting the law’s flexibility and respect for state innovation. [12] Democrats should also reframe the justification for the individual mandate while developing alternatives should the provision be found unconstitutional. [13] For example, the individual mandate could be recast as an issue of individual personal responsibility whereby taxpayers no longer shoulder their neighbors’ burden. These framing adjustments could help endear the support of critical independent voters.

Heavy Lifting: Bending the Cost Curve

Second and perhaps most importantly, Sen. Harkin should address payment reform and the burden of healthcare costs on state governments. Sen. Harkin should immediately engage key stakeholders, such as the American Medical Association, to transition from fee-for-service to value-based reimbursement that financially incentivizes positive health outcomes. Though value-based reimbursement could result in “patient shopping” by physicians for the healthiest patients, the system could include tiers with greater reimbursement for positive health outcomes from less healthy patients. A value-based system need not result in poor doctor pay and the quality of the doctor-patient relationship would improve, as evidenced by experiences at facilities such as the Mayo Clinic and Group Health. [14] Sen. Harkin should note that even if accountable care organizations (“ACO”) are successful in curbing health costs, questions remain about ACO legality [15] and ACO creation should not foreclose meaningful payment reform.

Though Congress’ role here may be limited, states have increasingly demanded support or alternatives to ACA implementation. [16] Sen. Harkin should support Secretary Sebelius’ proposals to manage state Medicaid spending[17] and emphasize managed care for “dual eligible” patients through the ACA-created Federal Coordinated Health Care Office.[18] Sen. Harkin could also investigate whether “dual eligible” status is most appropriate for the poor elderly, support the efforts of Medicaid “savings squads,” [19] and heed advice by the Federal Coordinating Council for Comparative Effectiveness Research to best promote the public’s health in the most cost-effective manner possible.

Necessary Evil: Concessions to the GOP

Democrats should make limited legal and policy concessions such as addressing medical malpractice reform and flexible spending accounts. Though medical malpractice reform has been politically untenable for Democrats, Sen. Harkin should address criticism for the failure of the ACA to introduce medical malpractice reform. [20] While Republicans support statutory damage caps,[21] recent empirical studies on medical malpractice payouts in Texas suggest that caps have limited effectiveness and are unlikely to affect physician premiums. [22] To promote comparable state data systems, Sen. Harkin could require closed claim databases in states that implement exchanges, thereby improving access to data needed for meaningful policy changes. Sen. Harkin should also alter the “use it or lose it” rule for flexible spending accounts (“FSA”) [23] to complement the corresponding provision in the ACA that limit annual FSA contributions and make the FSA less likely to be abused.[24] Sen. Harkin could propose allowing individuals to cash out and pay taxes on any unused portion of the FSA at the end of the year. [25]

Conclusion

I would vigorously recommend these and similar measures [26] to promote healthcare reform. However, I would do so with the politically realistic understanding that there will be many compromises on healthcare before the presidential election in 2012. Though less than ideal, these compromises are acceptable if they garner support for President Obama’s reelection. Without that reelection, the hopes and dreams of uninsured Americans eager to join the ranks of the insured may be dashed. Thus, Sen. Harkin should lead members of Congress in being steadfast in defending and proactive in improving recent legislative successes.

Patient Protection and Affordable Care Act, U.S. Public Law 111–148 (2010).

Jill Quadagno, One Nation Uninsured: Why the U.S. Has No National Health Insurance (Oxford Univ. Press, New York 2005) (describing historical difficulties in achieving health care reform).

See Alexander Bolton, “GOP plans ‘unrelenting’ healthcare repeal effort, even after Senate defeat,” The Hill (Feb.3, 2011); e.g., H.R.-2, “Repealing the Job-Killing Health Care Law Act” (passed the House on Jan. 19, 2011); S. 192, “Repealing the Job-Killing Health Care Law Act” (introduced in the Senate on Jan. 26, 2011); S. 16, “Patient Choice Restoration Act” (introduced in the Senate on Jan. 25, 2011).

E.g., Julie Rovner, “GOP Counts the Ways to Defund Health Law,” National Public Radio Health Blog (Feb. 22, 2011); David M. Herszenhorn, “As House Votes to Cut $60 Billion, Standoff Looms,” NY Times (Feb. 19, 2011); David Nather, “Eric Cantor: GOP will defund health care law,” Politico (Feb. 8, 2011).

Julian Pecquet, “Congress relitigates healthcare reform at oversight hearing,” The Hill (Feb. 16, 2011); Jennifer Haberkorn, “House GOP launches repeal plan,” Politico (Jan. 26, 2011).

See, e.g., Timothy Jost, “A Slippery Slope to Defunding the Health Law,” Kaiser Health News (Feb. 15, 2011); Royner, supra note 3.

Kaiser Health Tracking Poll, “Public Opinion on Health Care Issues,” The Henry J. Kaiser Family Foundation, Publication 8156-F at 3-4 (Feb. 24, 2011). An additional twenty-six percent of respondents were unsure of the status of the law. Id. at 4.

Id. at 2 (“Most Americans (61%) – including majorities of Democrats and Independents – continue to oppose using the budget process [to stall implementation of the ACA.”).

Id. at 5 (“Seniors as a group have been consistently less likely to support health reform since passage than younger Americans. Recent months, however, have seen a rise in unfavorable views among seniors to 59 percent.”).

E.g., Tom Harkin, “Harkin Remarks at Families USA Health Action Conference,” Press Release (Jan. 27, 2011); see also Kaiser Health Tracking Poll, supra note 8 at 3 (“So while the public in general is divided over whether to keep or repeal the legislation, if they could pick and choose, the large majority (roughly eight in ten Americans) would keep the provisions providing tax credits to small business, and upwards of seven in ten would keep the provisions that close the Medicare doughnut hole, provide coverage subsidies to those of low and moderate income, institute the new voluntary long term care insurance program known as the CLASS Act, and prohibit insurance companies from denying coverage based on pre-existing conditions.”).

In fact, Rep. John Zerwas, a Republican member of the Texas legislature who filed the state’s first ACA implementation bill potentially in violation of state law has emphasized the positive aspects of health insurance exchanges such as “our position is, the health insurance exchange could be a valuable thing for Texans” and “the health insurance exchange has some potential value to citizens, because it’s a place they can come to better understand what’s involved in the purchase of health insurance.” Emily Ramshaw, “John Zerwas: The TT Interview,” Texas Tribune (Jan. 27, 2011).

E.g., Sheryl Gay Stolberg & Kevin Sack, “Obama Backs Easing Health Law Rules for States,” NY Times (Feb. 28, 2011); Kathleen Sebelius “Letter to Governors” (Feb. 3, 2011) (outlining state flexibility and federal support for Medicaid). Other government proposals to promote flexibility have included the provision of innovator grants to different states to design exchange models and variable state responses to changes in the child-only market (i.e., some states have designated open enrollment periods through legislation or rulemaking procedures while other states have done nothing).

See, e.g., Laurence H. Tribe, “On Health Care, Justice Will Prevail,” NY Times (Feb. 7, 2011); David A. Fahrenthold & N.C. Aizenman, “Senate rejects repeal of health-care law as fight shifts to courts,” Washington Post (Feb. 3, 2011). This is especially important as states, especially in light of Judge Vinson’s recent decision, have expressed contempt for the implementation process and are returning federal implementation funds. Michael F. Cannon, “All Governors Should Just Say No to ObamaCare,” Kaiser Health News (Feb. 22, 2011); N.C. Aizenman & Amy Goldstein, “In GOP-led states, health-care law inspires attacks and accommodations,” Kaiser Health News (Feb. 21, 2011).

See Bara Vaida, “How Group Health is Holding Costs Down: A KHN Interview with CEO Scott Armstrong,” Kaiser Health News (Feb. 14, 2011); Ron Winslow, “A Health-Care Dream Team on a Hunt for the Best Treatments,” Wall Street Journal (Dec. 15, 2010).

Robert Pear, “Health Law Provision Raises Antitrust Concerns,” NY Times (Feb. 8, 2011); Jenny Gold & Phil Galewitz, “Health Care Providers, Insurers: Accountable Care Organizations Bring Legal Worries,” Kaiser Health News (Oct. 15, 2010).

E.g., Robert Pear, “Governors Look for Means to Cope With Budgets,” NY Times (Feb. 26, 2011). In addition, Governor Jan Brewer, for example, recently asked for permission from Secretary Sebelius to trim Medicaid rolls of 280,000 childless adults, even after limiting benefits such as organ transplants early last year. Pat Wechsler & Hui- yong Yu, “Sebelius Says Arizona Medicaid Waiver May Not Be in Her Power to Provide,” Bloomberg News (Feb. 10, 2011); Ben Tracy, “Medicaid Cuts Could Doom AZ Transplant Patients,” CBS Evening News (Dec. 7, 2010).

See Robert Pear, “Governors Get Advice for Saving on Medicaid,” NY Times (Feb. 3, 2011); Despite this advice, states continue to claim that the heavy burden of implementation requires expedited review of the ACA’s constitutionality by the Supreme Court. See James Hohmann, “LePage’s Wish List: Flexibility,” Politico (Feb. 26, 2011); Jess Bravin, “Health-Care Battle Intensifies as Parties Step Up Legal Attacks,” Wall Street Journal (Feb. 9, 2011).

See Joanne Kenen, “When Care is Split Between Medicare and Medicaid: KHN Interview with Melanie Bella,” Kaiser Health News (Feb. 24, 2011). Dual eligible patients are eligible for both Medicaid and Medicare and account for 15% of the Medicaid population but require 39% of Medicaid costs. Kaiser Commission on Medicaid Facts, “Dual Eligibles: Medicaid’s Role for Low-Income Medicare Beneficiaries,” Fact Sheet 4091-07 at 2-3 (Dec. 2010).

See Marilyn Werber Serafini, “Sebelius Squad’s Mission: Medicaid Savings,” Kaiser Health News (Feb. 22, 2001).

E.g., Peter Orszag, Malpractice Methodology, N.Y. TIMES, (Oct. 20, 2010) (arguing that the ACA would have been a prime opportunity for policymakers to address tort reform by shielding doctors from malpractice liability when they adopt evidence-based guidelines as an incentive to force doctors to incorporate evidence-based research). Still others advocate for statutory caps on damages. See Victor Schwartz, “Medical Liability Reform Should Be Real and Effective,” Kaiser Health News (Feb. 24, 2011) (discussing a key feature of H.R. 5).

Schwartz, supra note 21.

See generally Kathryn Zeiler, Medical Malpractice Liability Crisis or Patient Compensation Crisis? 59 DEPAUL L. REV. 675, (2009). Using the Texas Closed Claims Database, the authors found that insurer’s policy limits – rather than judicial oversight or statutory caps – are the main limitation on plaintiff’s full recovery of damages, that physicians rarely pay out-of-pocket for above-limit payouts, and that physicians carry far less liability coverage than generally assumed. Id.

See I.R.C. § 125. Currently, individuals who maintain FSAs lose the money that is not spent at the end of the year, often termed the “use it or lose it” principle.

Joe Jackson, “Fix ‘Lose It’ So You Can Use It,” The Hill (Feb. 24, 2011).

Id.

Though I would list these issues as lower priority items largely because of the political difficulty in addressing any of them, I would encourage Sen. Harkin to consider revisiting ERISA preemption because of the limited remedies available for wrongful denial of coverage. With increased upheaval between lawmakers and union leaders, exemplified by recent protests in Wisconsin, eliminating preemption of employer-based coverage as relates to coverage may be untenable as unions argue that bargaining for health insurance coverage will be an increasingly important negotiating chip. However, Sen. Harkin might turn his attention to the limited remedies allowed under ERISA, which even Justice Ginsburg of the Supreme Court referred to as “an unjust and increasingly tangled ERISA regime” in Aetna Health Inc. v. Davila, 542 U.S. 200 (2004). Though the external review requirements under the ACA would hopefully address many of these cases through increased procedural protections and insurers will surely object, patients could still face diminished recovery on claims that are potentially devastating. Sen. Harkin should also take measures, such as tax breaks, to incentivize the opening of new medical school programs. If medical school was slightly less competitive (though not less rigorous), legislators could help make headway against a looming shortage of primary healthcare workers, and the increased possibility of becoming a doctor could attract American students into studying mathematics and science where the United States performs so poorly in global rankings.