For discussion of various, more incremental or private-sector based reform proposals that are receiving current attention, see:
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
would be from a single-payer system, see Henry J. Aaron, The Costs of
Care Administration in the United States and Canada: Questionable
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).
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:
1. DESCHAMPS J. — Quebeckers are prohibited from taking out insurance to obtain in the private sector services that are available under
2. As we
enter the 21st
century, health care is a constant concern.
The public health care system, once a source of national pride,
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
care. The demand for health care is
constantly increasing, and one of the tools used by governments to
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
their rights under the Charter of human rights and freedoms (“Quebec
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
public system. . . . In essence, the question is whether Quebeckers who
prepared to spend money to get access to health care that is, in
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
right to personal inviolability and that it is not justified by a
for democratic values, public order and the general well being of the
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:  R.J.Q. 786. . . . On the subject of s. 7
Canadian Charter, . . . Piché J. was of the opinion that the
purpose of the
[the prohibition of private insurance contained in] the Hospital
(HOIA) and the Health Insurance Act (HEIA) is to establish a public
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
11. The Court of Appeal dismissed the appeal:  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.
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. . . .
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. . . .
83. As can be seen from the
evolution of public plans in the few OECD countries that have been
studies produced in the record, there are a wide range of measures that
less drastic, and also less intrusive in relation to the protected
rights. . .
. For example, in the
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. . . .
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. . . . .
251. Reference has already
been made to the
For additional information about various foreign health care
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
Service Revisited, 350 New Eng. J. Med. 937 (2004); Allan S. Detsky
C. David Naylor, Canada's Health Care System: Reform Delayed, 349 New
J. Med. 804 (2003).
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