caring & efficatious
L E G A L T R A D I T I O N S
10 pages — 1 —
INTRODUCTION
“The law is reason,
free from passion.”
Aristotle (384 – 322 BC)
“In the absence of justice,
what is sovereignty but organized robbery?”
Saint Augustine of Hippo (354 – 430 AD)
“Justice, sir, is the greatest interest of man on earth.
It is the ligament which
holds civilized beings and civilized nations together.”
Daniel Webster (1782 – 1852)
“Law and order exist for the purpose of establishing justice.
And when they fail in this purpose, they become the dangerously structured dams
that block the flow of social progress.”
The Reverend Doctor Martin Luther King, Jr. (1929 – 1968)
PARADIGM SHIFT PARALYSIS
The combined Federal, State, County, and City levels of government should promote the requirements for providing the most fundamental function of our nation’s healthcare industry: the Basic Healthcare Needs of each resident person. In addition, each level of government should also promote these Needs amidst its responsibilities for research, the licensing of professionals and facilities, enforcement, financial stability, and public health. Fragmentation of these responsibilities for Basic Healthcare Needs has increasingly worsened since 1969, largely related to a decline in our nation’s social cohesion.
As a result, the healthcare for the Basic Healthcare Needs of each resident person has become neither equitably available nor ecologically & culturally accessible. In turn, it has also become neither justly efficient nor dependably effective. Justice is the starting point for improving the alignment among these four attributes of our nation’s healthcare. Any New Strategy for healthcare reform will require a collaborative effort among all levels of our nation’s governance, especially community by community.
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TRADITIONS
HEALTH INSURANCE
The fundamental purpose of health insurance is to protect a person from the unexpected cost of health care for certain Basic and Complex Healthcare Needs. The word “certain” requires a special comment. The most common exceptions to health insurance coverage are for health services that are 1) experimental, 2) payable through another form of insurance such as Workers Compensation or a third-party liability claim (viz car-accident), or 3) unrelated to a person’s HEALTH as for certain cosmetic requests. The future economic demands for healthcare research will be substantial given the “explosion” of the newly defined genetic and epigenetic diversity underlying our Knowledge about each resident person’s HEALTH.
For instance, there is a genetic anomaly that prevents a person from absorbing one of the most common antibiotics historically prescribed by a Primary Physician, amoxicillin. It is estimated to exist for about 1 in every 100 persons. There is no applicable test to identify the occurrence of this anomaly. The true implication of this anomaly is the following: how many of the medications commonly prescribed for Basic Healthcare Needs have this problem? No one currently knows the answer, since almost none of the medications used by a Primary Physician have been tested for genetically determined effectiveness. — 3 —
Given the complicated issues of hereditary diversity and the local traditions of healthcare, there is a need for a nationally sanctioned, semi-autonomous institution that is widely respected as a means to define the Benefits of health insurance for every resident person’s Basic Healthcare Needs. This would be especially important if there are isolated, locally beneficial needs such as for lead poisoning screening or mass immunization programs. Keep that concept in mind for the remainder of this Sub-Page.
Putting aside the issues of health insurance exclusions, there are other attributes of insurance that make its application to HEALTH especially difficult. To the extent that a specific healthcare encounter is more predictable and definable, it becomes relatively more insurable. By granting insurance coverage for healthcare that is less definable, these health services become less predictable because the services will occur more frequently just by having insurance coverage. This phenomenon is known as Parkinson’s Law. The converse is also true. The lack of coverage produces less utilization, as in immunization compliance. This problem is especially prominent for the insurance coverage of a resident person’s Basic Healthcare Needs and its coordination with any Complex Healthcare Needs. Given the uneven reimbursement processes for Primary Healthcare, its equitable availability to each resident person within our nation’s communities is highly uneven, especially throughout certain areas of a community.
Without a nationally sanctioned means to define the attributes of Primary Healthcare that are associated with predictable and definable healthcare, the healthcare for Basic Healthcare Needs will continue to become progressively less insurable. This Legal Tradition contributes to our Nation’s healthcare, Paradigm shift because there is no nationally recognized process to certify or standardize an enhanced level of Primary Healthcare for every resident person. Any certification process should support those attributes of Primary Healthcare that would eventually stabilize our nation’s health spending for Basic Healthcare Needs. What then would most likely improve the overall efficiency and effectiveness of the healthcare continuum for each resident person?
Largely unrecognized, the enhanced character of Primary Healthcare must include augmented telephonic “medical TRIAGE” by an RN-licensed, clinic staff member from within a resident person’s Primary Healthcare Team. A nationally defined Certification process for enhanced Primary Healthcare would also improve its actuarial character to qualify for augmented financial support. The only barrier for this proposal would be the task of assembling a widely supported, national institution for mobilizing the Federal and State collaborative consensus necessary for its implementation. The Design Principles for collective action as defined and validated by Professor Elinor Ostrom (Ostrom 2005) and her many colleagues would apply for resolving the multi-layered social dilemmas that would occur.
The portion of our national economy devoted to health spending must be slowly and steadily reduced. The set of Design Principles represents the only verified realm of applicable Knowledge that could guide the implementation of a collaborative risk-management process among the payors, providers, and resident persons at all scales to achieve this reduction of national health spending by 30%. And, a DESIGN EPISTEMOLOGY would serve as a guide to assure that the implementation process included all of the ‘relevant marketplaces’ of Knowledge potentially important for continuously sustainable improvement.
FEDERALISM
The long-standing Legal Tradition of federal versus state responsibilities, federalism, is a substantial reality for our country. Any law enacted by the Federal government that would limit or control the responsibilities of a State’s government would need a widely supported, national mandate for change. Specifically, each individual State regulates the private insurance companies operating within its own borders as well as specific their coverage requirements and financial stability. Prior to 2010, certain isolated exceptions did exist for federal control of private retirement insurance, but these laws have had a limited impact on any state’s relationship with its health insurance industry.
With the ACA of 2010 ()bamacare), the impact on the state regulatory processes for health insurance has been profound. Amidst this nationally evolving regulatory process, there is as yet no means to establish a financial arrangement for the augmented financial support of enhanced Primary Healthcare. There are many options to solve this problem, most prominently a “single-payer” institution managed by the Federal government. To date, the degree of disruption for federal-state responsibilities from a “single-payer” form of healthcare reimbursement has prevented this option from occurring. Basically, the state-by-state loss of insurance industry employment continues to maintain a single-payer strategy as a “non-starter.” This has been substantially affirmed by various estimates of the increased Federal demands to increase its contribution to national health spending. The consensus effects on the annual fiscal deficit continue to be ignored by all involved, especially from within the healthcare industry itself. — 5 —
NATIONAL FORMULARY
As occasionally proposed in Congress, a centralized payment system for our nation’s healthcare industry would especially impact the pharmaceutical industry. Many healthcare institutions have a Formulary that represents a carefully defined list of preferred medications. With a centralized, national source for the direct control of reimbursement for all healthcare, a National Formulary could be implemented as a means to establish price controls for limiting the total cost of medication. The prospect of price controls would naturally be a very special concern to all healthcare providers, but especially for the pharmaceutical industry. Encountering controversial issues, such as medication costs, through a positive and non-confrontational process should be a priority for any healthcare reform strategy.
The Proposal clearly separates the national structure for defining the insurance benefits of Basic Healthcare Needs, its humanitarian mandate, from the structure of financial resources responsible for the reimbursement of Complex Healthcare Needs, its scientific mandate. Each mandate cannot exclusively operate to the exclusion of other benefits. But with a balanced commitment, they could operate separately to support a common goal of “Stable HEALTH For Each Resident Person” beginning with available, accessible, effective, and efficient Primary Healthcare.
MEDICAL EDUCATION
Each Medical School receives support from Medicare for the education of medical students. Specifically, each Medical school receives an augmented Medicare reimbursement for the services that a faculty physician provides to a resident person who has Medicare insurance. As compared to other community providers of healthcare, the extra payment to medical schools partially underwrites the educational cost of undergraduate medical students during the usual four years of medical school. Medicare also supports the training of post-graduate specialists after each physician finishes medical school. In 2015, these payments represented $18 Billion. At that time, no further increases for post-graduate (residency) training were authorized, in spite of the annually increasing numbers of medical student enrollment.
Any Federal legislation for healthcare reform could initiate a reconsideration of this arrangement. Any change in the fragile financing of medical education would affect the economic stability of most medical schools. Financing the cost of our nation’s medical schools is a fundamental problem for any proposal to reform our nation’s healthcare. There are many dimensions to this problem. This NATIONAL HEALTH Proposal recognizes that a major improvement in Primary Healthcare will eventually require a substantial increase in the proportion of physicians becoming a Primary Physician as compared to the other physician specialties.
A change in the funding arrangements for the medical schools may be necessary to support the special requirements necessary to implement the ‘VISION’ of the Proposal. NATIONAL HEALTH when initiated could grant financial support for a few selected medical schools to 1) evaluate new strategies for augmenting the training experience of a Primary Physician throughout their career, 2) assist in defining the national certification process for Primary Healthcare, and 3) begin a process to define the basic skill-set of any Primary Physician, especially for the high level of uncertainty associated with Primary Healthcare and the needs for supportive planning to sustain a professional development process by each Primary Physicians.
By qualifying for HEALTH SECURITY certification, a Primary Healthcare clinic would be eligible for augmented reimbursement by all payer sources. NATIONAL HEALTH would define the HEALTH SECURITY certification process through a collaborative effort involving its Regional Councils and their respective Community HEALTH Forums. This collaborative effort would require the widespread involvement of medical schools, state Health Departments, community hospital systems, and actively practicing Primary Physicians.
INDIVIDUALISM
There is a significant, legally sanctioned equity tradition in our society based on tort law. This legal tradition establishes the opportunity for financial entitlement to anyone suffering from an unjust loss or traumatic healthcare event. The future possibility of a single-payer system for the healthcare industry could unravel the health-related, liability claims process established by the tort law tradition. The tort law tradition applies to third-party claims, Workers Compensation as well as medical malpractice. Since this Proposal would enhance the Legal Traditions of the current healthcare industry, a single-payer for all future healthcare would be less likely because it would require special provisions for the tort laws. Thus, this Proposal would be unlikely to influence the tort law legal tradition. Supporting tort law is important since it is a means of social change that is necessary and valuable for our society as a whole. — 7 —
There are certain inadequacies of Tort Law for healthcare that should not be applied to the basis for healthcare reform. The current status of tort law may not fully offer justly equitable recognition of loss from the adverse effects of health care. But, the inherent inequities associated with the current tort law tradition do not represent a basis for reducing the widespread support for NATIONAL HEALTH or, especially, its new strategy and three national projects.
PUBLIC HEALTH
Congress implemented Healthcare planning at a national level beginning in 1972. It focused on the pre-authorization of hospital construction projects as a means to control costs. The “certificate of need” concept is a lasting memory for many hospital executives. Its demise over 15-20 years may have represented a failure to acknowledge the evolving paradigm shift that began to unfold in 1969 within our nation’s healthcare industry. Currently, there are widespread efforts to plan for certain national healthcare needs, such as local and national disasters, immunization, food quality, sanitation, homelessness, and mental health.
But, a nationally authorized and widely supported means to offer equitably available as well as ecologically & culturally accessible, enhanced Primary Health Care does not currently exist for any resident person’s community. It is likely that certain highly visible health problems will not be substantially improved without a nationally sanctioned plan to assure that enhanced healthcare is equitably available for the Basic Healthcare Needs of each resident person, community by community.
Our nation’s unacceptably high maternal mortality rate is representative of this need. As compared to a decreased worldwide maternal mortality ratio of 44% between 1990 and 2015, the ratio for the United States increased by 17% between 1990 and 2015. We represent the only advanced/developed nation with a worsening maternal mortality ratio for more than 30 years.
MULTIPLE BARRIERS TO CHANGE
Private insurance regulation, federalism, medical school funding, pharmaceutical resources, tort law, and public health in combination contribute substantially to the fundamental inertia associated with starting any substantially New Strategy for healthcare reconfiguration. The main sources of its paradigm paralysis are clear. For the last 50 years, these Barriers To Change have successfully resisted any Congressional proposal for centralized Federal control of our nation’s healthcare industry, frequently by intent to maintain current economic strategies but more often through fear of any change.
The ACA 2010 legislation was an attempt to decrease the number of resident persons without health insurance, but it accomplished little of anything to seriously change the character of each resident person’s Primary Healthcare. Unfortunately, paradigm paralysis has prevented many other national proposals intended for change, with the major exceptions identifiable by the legislation for Medicare/Medicaid in 1965, Medicare Part D in 2005, and the Accountable Care Act in 2010. Congress authorized all three by very narrow margins.
Because of these and the other deeply rooted medical, social, economic and innovation traditions, our country is alone among the developed nations of the world without a nationally sanctioned plan to promote enhanced Primary Healthcare for each resident person, community by community. Enhanced Primary Healthcare should be equitably available, ecologically & culturally accessible, justly efficient, and dependably effective for the Basic Healthcare Needs of each resident person including the coordination of these Needs with any Complex Healthcare Needs. — 9 —
PARADIGM SHIFT REVERSAL
The NATIONAL HEALTH Proposal is but one of many options for the reconfiguration of our nation’s healthcare. It is unique in that its success would be the result of encountering the healthcare system as it is now. The Proposal represents a strategy for promoting a commitment by the healthcare industry to improve its own affairs, community by community. By establishing NATIONAL HEALTH, the combined federal and state legislatures would initiate a nationally coordinated regulatory process for promoting enhanced Primary Healthcare for each resident person, locally sponsored, community by community, and federally sanctioned with an annual cost of $1.50 per citizen. This expense would have increased our nation’s health spending in 2019 by 0.02% (viz., 2 one-hundredths of 1%).
We are in the midst of great social change, at a worldwide level as well as within our own nation. As we encounter the unknowns of this social change, a broadly-supported set of PRINCIPLES has much to offer for stabilizing the future reform of our nation’s healthcare. Even though the future of social change will be unpredictable throughout the world, a “mission to the moon” strategy could be a precedent for renewing the social capital asset of each community that will be regularly required for our nation’s healthcare reform. Achieving “Stable HEALTH for each Resident Person” would be a unifying ‘VISION’ for stabilizing each community’s, locally managed Survival Commons for their own resident persons. This investment in our nation’s social capital will also be required to maintain each community’s Social Cohesion as we adapt to the unpredictable and dangerous disruptive processes underlying each resident person’s HEALTH throughout the worldwide community.
Our nation’s autonomy within the worldwide community is at stake. Investing in the social capital assets of each community will be required for a high-quality healthcare industry at a substantially reduced portion of our nation’s economy. With its evolving population explosion, the world’s marketplace arenas for its Resources, Knowledge, and Human Dignity will increasingly threaten our nation’s autonomy within the worldwide community. Given a worldwide population of 8 billion in 2023 and its estimate of 9 billion by 2050, the continuous reform of our healthcare industry will be a basic requirement for our nation’s preparedness to maintain our nation’s future autonomy within the worldwide community and it various marketplace arenas.