Chapter 9.F.1. (or 3.F.1) -- Reform Proposals and Foreign Models (including Chaoulli)

For discussion of various, more incremental or private-sector based reform proposals that are receiving current attention, see:

For a new proposal for a single-payer system, see Physicians Working Group for Single-Payer National Health Insurance.
For general commentary on the possibility and desirability of universal coverage, see  Susan Channick, Come the Revolution: Are We Finally Ready for Universal Health Insurance?, 39 Cal. West. L. Rev. 303 (2003); Uwe E. Reinhardt, Is there Hope for the Uninsured?, W3 Health Aff. 376 (Aug. 27, 2003); Symposium, 32(3) J. L. Med. & Ethics 386 (Fall 2004); Symposium, 24(6) Health Aff. (Dec. 2005); Theodore R. Marmor & Jerry L. Mashaw, Understanding Social Insurance: Fairness, Affordability, and the "Modernization" of Social Security and Medicare, 25(3) Health Aff. w114 (June 2006).

New York Times columnist Paul Krugman wrote a series of  penetrating articles in 2005 analyzing various proposed solutions for the problems in the U.S. health care system.  Tom Mayo has posted a summary and links to the articles  on the Health Law Prof Blog.

For a pessimistic view, see Victor R. Fuchs & Ezekiel J. Emanuel, Health Care Reform: Why? What? When?, 24(6) Health Aff. 1399 (Dec. 2005) (comprehensive "reform is likely to come in response to a major war, depression, or large-scale civil unrest").

Advocating the expansion of access through government clinics and hospitals rather than through insurance, see Donald W. Moran, Whence and Whiterh Health Insurance? A Revisionist History, 24(6) Health Aff. 1415 (Dec. 2005).

A good place to explore how managed competition works is the web site for federal employees.
On the demise of Tennessee's managed competition program for Medicaid ("TennCare"), see 25(3) Health Aff. w217 (2006).

In 2003, California adopted "play or pay" legislation that would have required all employers with 50 or more workers to either provide health insurance or pay into a state purchasing pool.  The law was struck down, however, by a ballot referendum in late 2004.  For more information, see California Healthcare Foundation.  For additional discussion of state state efforts to expand health care coverage, see Symposium, 7 J. Health Care L. & Pol'y  1-148 (2004).  In 2005, Maryland adopted an unsual verison of play or pay, restricted to empoyers with more than 10,000 workers, in order to target WalMart's limited health insurance benefits.  The law requires super-large employers who do not spend at least 8% of their payroll on health benefits to pay the difference to the state's Medicaid fund.  A district court held that this requirement to provide health benefits is pre-empted by ERISA.  Retail Industry Leaders Association v. Fielder, D. Md., No. 06-316, 7/19/06.

In a dramatic move, Massachusetts enacted in 2006 the framework of a complex plan to achieve near-universal health insurance coverage, melding several distinct approaches, including:
a) an individual and employer mandate that taxes those who do not purchase insurance, coupled with sliding-scale subsidies to lower-income non-poor workers to help purchase private coverage; b) expansion of Medicaid for children in families up to 3 times the poverty level.  It remains to be seen whether all the elements of this "roadmap" become fully funded and operational.  For more information, see www.roadmaptocoverage.org;  Michael Tanner, No Miracle in Massachusetts: Why Governor Romney's Health Care Reform Won't Work (Cato Institute, 2006).

Further analyzing the question of how much the administrative cost savings would be from a single-payer system, see Henry J. Aaron, The Costs of Health Care Administration in the United States and Canada: Questionable Answers to a Questionable Question, 349 New Eng. J. Med. 801 (2003); James G. Kahn, et al., The Cost of Health Insurance Administration in California, 24(6) Health Aff. 1629 (Dec. 2005).


Foreign Models

In a major decision, Canada's Supreme Court struck down as unconstitutional the aspect of it's public health insurance system (known as "Medicare") that prohibits private insurers from covering the same benefits.  The purpose of this ban is to keep wealthier people from avoiding the public system by purchasing private coverage. The Court reasoned that the length of wait times for major procedures under the government program threatened peoples' health, and so this restriction amounted to what U.S. law would characterize as a substantive due process violation.  Below are excerpts from the decision (pronounced "shah-OO-lee"), which also discusses European health insurance systems:

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Chaoulli  v. Quebec (Attorney General), 2005 SCC 35  (Canada 2005).

1. DESCHAMPS J. — Quebeckers are prohibited from taking out insurance to obtain in the private sector services that are available under Quebec’s public health care plan.  Is this prohibition justified by the need to preserve the integrity of the plan?

2. As we enter the 21st century, health care is a constant concern.  The public health care system, once a source of national pride, has become the subject of frequent and sometimes bitter criticism.  This appeal does not question the appropriateness of the state making health care available to all Quebeckers.  On the contrary, all the parties stated that they support this kind of role for the government.  Only the state can make available to all Quebeckers the social safety net consisting of universal and accessible health care.  The demand for health care is constantly increasing, and one of the tools used by governments to control this increase has been the management of waiting lists.  The choice of waiting lists as a management tool falls within the authority of the state and not of the courts.  The appellants do not claim to have a solution that will eliminate waiting lists.  Rather, they submit that the delays resulting from waiting lists violate their rights under the Charter of human rights and freedoms (“Quebec Charter”), and the Canadian Charter of Rights and Freedoms (“Canadian Charter”).  They contest the validity of the prohibition . . . on private insurance for health care services that are available in the public system. . . . In essence, the question is whether Quebeckers who are prepared to spend money to get access to health care that is, in practice, not accessible in the public sector because of waiting lists may be validly prevented from doing so by the state.  For the reasons that follow, I find that the prohibition infringes the right to personal inviolability and that it is not justified by a proper regard for democratic values, public order and the general well being of the citizens of Quebec.

5. The validity of the prohibition is contested by the appellants, George Zeliotis and Jacques  Chaoulli .  Over the years, Mr. Zeliotis has experienced a number of health problems and has used medical services that were available in the public system, including heart surgery and a number of operations on his hip.  The difficulties he encountered prompted him to speak out against waiting times in the public health care system.  Mr.  Chaoulli  is a physician who has tried unsuccessfully to have his home delivered medical activities recognized and to obtain a licence to operate an independent private hospital. . . .

6.  The Superior Court dismissed the motion for a declaratory judgment: [2000] R.J.Q. 786. . . . On the subject of s. 7 of the Canadian Charter, . . . Piché J. was of the opinion that the purpose of the [the prohibition of private insurance contained in] the Hospital Insurance Act (HOIA) and the Health Insurance Act (HEIA) is to establish a public health system that is available to all residents of Quebec.  The purpose of s. 11 HOIA and s. 15 HEIA is to guarantee that virtually all of Quebec’s existing health care resources will be available to all residents of Quebec.  In her opinion, the enactment of these provisions was motivated by considerations of equality and human dignity.  She found no conflict with the general values expressed in the Canadian Charter or in the Quebec Charter.  She did find that waiting lists are long and the health care system must be improved and transformed.  In her opinion, however, the expert testimony could not serve to establish with certainty that a parallel health care system would solve all the current problems of waiting times and access. . . .

11. The Court of Appeal dismissed the appeal:  [2002] R.J.Q. 1205. . . .According to Delisle J.A., the right affected by s. 11 HOIA and s. 15 HEIA is an economic right and is not fundamental to an individual’s life.  In addition, in his opinion, the appellants had not demonstrated a real, imminent or foreseeable deprivation.  He was also of the view that s. 7 of the Canadian Charter may not be raised to challenge a societal choice in court. . . .

27. In the instant case, s. 7 of the Canadian Charter and s. 1 of the Quebec Charter have numerous points in common:

 Canadian Charter 7.  Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

 Quebec Charter  1.  Every human being has a right to life, and to personal security, inviolability and freedom. . . .

 37. The appellant Zeliotis argues that the prohibition infringes Quebeckers’ right to life.  Some patients die as a result of long waits for treatment in the public system when they could have gained prompt access to care in the private sector.  Were it not for s. 11 HOIA and s. 15 HEIA, they could buy private insurance and receive care in the private sector.

 38. The Superior Court judge stated [TRANSLATION] “that there [are] serious problems in certain sectors of the health care system” (at p. 823).  The evidence supports that assertion.  After meticulously analysing the evidence, she found that the right to life and liberty protected by s. 7 of the Canadian Charter had been infringed.  . . .

 40. Dr. Daniel Doyle, a cardiovascular surgeon, testified that when a person is diagnosed with cardiovascular disease, he or she is [TRANSLATION] “always sitting on a bomb” and can die at any moment.  In such cases, it is inevitable that some patients will die if they have to wait for an operation.  Dr. Doyle testified that the risk of mortality rises by 0.45 percent per month.  The right to life is therefore affected by the delays that are the necessary result of waiting lists. . . .

 44. In the opinion of my colleagues Binnie and LeBel JJ., there is an internal mechanism that safeguards the public health system.  According to them, Quebeckers may go outside the province for treatment where services are not available in Quebec.  This possibility is clearly not a solution for the system’s deficiencies.  The evidence did not bring to light any administrative mechanism that would permit Quebeckers suffering as a result of waiting times to obtain care outside the province.  The possibility of obtaining care outside Quebec is case specific and is limited to crisis situations. . . .

 VI.  Justification for the Prohibition

 46. Section 9.1 of the Quebec Charter sets out the standard for justification.  It reads as follows:

9.1. In exercising his fundamental freedoms and rights, a person shall maintain a proper regard for democratic values, public order and the general well being of the citizens of Québec.

In this respect, the scope of the freedoms and rights, and limits to their exercise, may be fixed by law. . . . First, the court must determine whether the objective of the legislation is pressing and substantial.  Next, it must determine whether the means chosen to attain this legislative end are reasonable and demonstrably justifiable in a free and democratic society.  For this second part of the analysis, three tests must be met:  (1) the existence of a rational connection between the measure and the aim of the legislation; (2) minimal impairment of the protected right by the measure; and (3) proportionality between the effect of the measure and its objective. . . .

 74. Even if it were assumed that the prohibition on private insurance could contribute to preserving the integrity of the system, . . . prohibiting insurance contracts is by no means the only measure a state can adopt to protect the system’s integrity. . . . The regimes of the provinces where a private system is authorized demonstrate that public health services are not threatened by private insurance.  It can therefore be concluded that the prohibition is not necessary to guarantee the integrity of the public plan. . . .

 78. In a number of European countries, there is no insurance paid for directly out of public funds.  In Austria, services are funded through decentralized agencies that collect the necessary funds from salaries.  People who want to obtain health care in the private sector in addition to the services covered by the mandatory social insurance are free to do so, but private insurance may cover no more than 80 percent of the cost billed by professionals practising in the public sector.  The same type of plan exists in Germany and the Netherlands, but people who opt for private insurance are not required to pay for the public plan.  Only nine percent of Germans opt for private insurance. . . . (C. H. Tuohy, C. M. Flood and M. Stabile, “How Does Private Finance Affect Public Health Care Systems? Marshaling the Evidence from OECD Nations” (2004), 29 J. Health Pol. 359). . . .

 83. As can be seen from the evolution of public plans in the few OECD countries that have been examined in studies produced in the record, there are a wide range of measures that are less drastic, and also less intrusive in relation to the protected rights. . . . For example, in the United Kingdom, there are limits on the amounts physicians may earn in the private sector in addition to what they receive from the public plan. . . .  A measure as drastic as prohibiting private insurance contracts appears to be neither essential nor determinative. . . .

 THE CHIEF JUSTICE AND MAJOR J. — We concur in the conclusion of our colleague Deschamps J. that the prohibition against contracting for private health insurance violates the Quebec Charter of Human Rights and Freedoms. . . . The appellants do not seek an order that the government spend more money on health care, nor do they seek an order that waiting times for treatment under the public health care scheme be reduced.  They only seek a ruling that because delays in the public system place their health and security at risk, they should be allowed to take out insurance to permit them to access private services.

 104. The Charter does not confer a freestanding constitutional right to health care.  However, where the government puts in place a scheme to provide health care, that scheme must comply with the Charter. . . . The Canada Health Act, the Health Insurance Act, and the Hospital Insurance Act do not expressly prohibit private health services.  However, they limit access to private health services by removing the ability to contract for private health care insurance to cover the same services covered by public insurance.  The result is a virtual monopoly for the public health scheme.   The state has effectively limited access to private health care except for the very rich, who can afford private care without need of insurance.  This virtual monopoly, on the evidence, results in delays in treatment that adversely affect the citizen’s security of the person.  Where a law adversely affects life, liberty or security of the person, it must conform to the principles of fundamental justice.  This law, in our view, fails to do so. . . .

 108. The government defends the prohibition on medical insurance on the ground that the existing system is the only approach to adequate universal health care for all Canadians.  The question in this case, however, is not whether single-tier health care is preferable to two-tier health care.  Even if one accepts the government’s goal, the legal question raised by the appellants must be addressed: is it a violation of s. 7 of the Charter to prohibit private insurance for health care, when the result is to subject Canadians to long delays with resultant risk of physical and psychological harm?  The mere fact that this question may have policy ramifications does not permit us to avoid answering it. . . .

 BINNIE AND LEBEL JJ. (DISSENTING). . . .

 166. The Quebec government views the prohibition against private insurance as essential to preventing the current single-tier health system from disintegrating into a de facto two-tier system.  The trial judge found, and the evidence demonstrated, that there is good reason for this fear. . . . It would be open to Quebec to adopt a U.S.-style health care system.  No one suggests that there is anything in our Constitution to prevent it.  But to do so would be contrary to the policy of the Quebec National Assembly, and its policy in that respect is shared by the other provinces and the federal Parliament.  As stated, Quebec further takes the view that significant growth in the private health care system (which the appellants advocate) would inevitably damage the public system.  Our colleagues the Chief Justice and Major J. disagree with this assessment, but governments are entitled to act on a reasonable apprehension of risk of such damage.  . . .  We now propose to review briefly some of the evidence supporting the findings of the trial judge.  . . .

 (ii)   The Impact of a Parallel Private Regime on Government Support for a Public System

 248. The experience in other OECD countries shows that an increase in private funding typically leads to a decrease in government  funding.  At trial, Dr. Bergman explained that a service designed purely for members of society with less socio-economic power would probably lead to a decline in quality of services, a loss of political support and a decline in the quality of management.

  (iii)  Private Insurers May “Skim the Cream” and Leave the Difficult and Costly Care to the Public Sector

  249. The evidence suggests that parallel private insurers prefer to siphon off high income patients while shying away from patient populations that constitute a higher financial risk, a phenomenon known as “cream skimming”.  The public system would therefore carry a disproportionate burden of patients who are considered “bad risks” by the private market by reason of age, socio-economic conditions, or geographic location. . . . .

 (iv)      The U.S. Two-Tier System of Health Coverage

 251. Reference has already been made to the U.S. health care system, which is the most expensive in the world, even though by some measures Americans are less healthy than Canadians. The existence of a private system has not eliminated waiting times.  The availability, extent and timeliness of health care is rationed by private insurers, who may determine according to cost, not need, what is “medically necessary” health care and where and when it is to occur.  Whether or not the private system in the U.S. is better managed is a matter of debate amongst policy analysts.  The point here is simply that the appellants’ faith in the curative power of private insurance is not borne out by the evidence put before the Court. . . .


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For analysis of this decision, see Colleen M. Flood, et al. eds., Access to Care, Access to Justice: The Legal Debate over Private health Insurance in Canada (2005); Theodore W. Ruger, The United States Supreme Court and Health Law: The Year in Review, J. L. Med. Ethics, Fall 2005, at 611. 

For additional information about various foreign health care systems, see Collee Flood, ed., Just Medicare (2006); Symposium, 30 J. Health Politics Pol'y & L. 1 (2005); Symposium, 23(3) Health Aff. 7 (June 2004); Symposium, 28 J. Health Politics Policy & L. 575 (2003); Rudolf Klein, Britain's national Health Service Revisited, 350 New Eng. J. Med. 937 (2004); Allan S. Detsky & C. David Naylor, Canada's Health Care System: Reform Delayed, 349 New Eng. J. Med. 804 (2003).
 

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