Chapter 9.A (or 3.A)--Sources of Health Insurance

 

Udates on coverage and spending statistics can be found on the web pages of CMS and the Census Bureau.

 

This page has resources and notes on the following topics:


Web Resources and Notes on Private Insurance, Uncompensated Care, and Health Care Fraud

 

The Georgetown Institute for Health Care Research and Policy has produced a very useful set of consumer guides that describe in each state all of the various state and federal provisions that affect the availability, pricing, and coverage of private health insurance. These guides can be found at: http://www.healthinsuranceinfo.net/. Although they are very user friendly and clearly written, the dominant impression one takes away from reading them is how incredibly complex the fragmented health insurance system is in the U.S.  See also University of Houston Health Law and Policy Institute, Choosing a Health Care Plan. 

A good place to explore what type of information is available in choosing among health plans, and how a managed competition system might work, is the web site for federal employees. 

To get a sense of what health insuarnce costs at different benefit levels, go to EHealthInsurance.Com.  

 

Various other resources relating to insurance market regulation are collected at:   Wake Forest University Health Insurance Market Reform Study.

 

For discussion of various, more incremental or private-sector based reform proposals that are receiving current attention, see update for section F.2 of this chapter.

 

Two good sources for learning about state and local obligations to provide or fund care for the indigent are Community Catalyst’s Free Care Compendium, and the National Health Law Program’s State and Local Responsibility for Indigent Care files.  For additional litigation attempting to enforce these provisions, see SAINT ALPHONSUS REGIONAL MEDICAL CENTER v. BOARD OF COUNTY COMMISSIONERS, __ 2008 WL 2404738__ (Idaho 2008) (requiring county to pay some of the $187,000 medical bill incurred by an illegal immigrant).

 

For additional discussion of consumer-directed health plans and increased patient cost-sharing, see updates to Chapter 1.C.3; Carl Schneider & Mark Hall, The Patient Life: Can Consumers Direct Health Care? 35 Am. J. L. & Med. 7 (2009); Beth Fuchs & Julia A. James, Health Savings Accounts: The Fundamentals (National Health Policy Forum, April 2005);  Mark A. Hall, The legal and historical foundations of patients as medical consumers, 96 Geo. L.J. 583-597 (2008).

 

The Treasury Department has a useful website on Health Savings Accounts, at  http://www.treas.gov/offices/public-affairs/hsa/.
See also  John C. Goodman and Devon M. Herrick, Health Savings Accounts: Answering the Critics (March 21, 2006).;  Paul Fronstin and Sara R. Collins, http://www.ebri.org/pdf/briefspdf/EBRI_IB_03-2008.pdf;  U.S. GAO, First-Year Experience with High-Deductible Health Plans and Health Savings Accounts  (Jan. 2006).


Grappling with the problem that subscribers' ease of movement within the private insurance market negates insurers' incentives to invest in long-term health promotion, see Ronen Avraham &  K. A. D. Camara, The tragedy of the human commons, 29 Cardozo L. Rev. 479-511 (2007).

 

Confronting the problems of an employer-based insurance system, see John Bronsteen, et al., ERISA, agency costs, and the future of health care in the United States, 76 Fordham L. Rev. 2297-2332 (2008).

Arguing, based on experience in other countries, that a legal right to health care is justiciable, see Puneet K. Sandhu, A legal right to health care: what can the United States learn from foreign models of health rights jurisprudence?, 95 Cal. L. Rev. 1151-1192 (2007).

 

 

 

On the perceived excesses of anti-fraud enforcement by the government, see also Kathleen Boozang & Simone Handler-Hutchinson, “Monitoring” Corporate Corruption: DOJ’s Use of Deferred Prosecution Agreements in Health Care, 35 Am J. L. Med. 89 (2009).


Web Resources and Notes on Medicare and Medicaid, and Long-term Care

 

A good source for Medicare/Medicaid statutes and regulations is: http://hippo.findlaw.com/hippomed.html

Information about the current status of Medicare and Medicaid can be found on these two government web sites, www.cms.hhs.gov and www.Medicare.gov.  See also  Kaiser Family Foundation, Medicare at a Glance; Eleanor Kinney, ed., Guide to Medicare Coverage Decision-Making and Appeals (2002); Terry Coleman, Medicare Law (AHLA, 2nd ed. 2006).

 

From Tom Mayo on the Health Law Professors blog:  “Kaiser Family Foundation has a slick website to commemorate the 40th anniversary of the passage of Titles XVIII and XIX of the Social Security Act - the Medicare and Medicaid laws.  What caught my eye were video documentaries on the political history of the two programs, from the 1930s to the mid-1960s.  The documentaries (one on Medicare, one on Medicaid, one on both) are quite well done, partly because of some compelling excerpts of interviews with some of the principal players in 1965.  Of course, Wilbur Mills and LBJ are long gone, but there are still some terrific interviews with the president of the AMA at that time, Edward Annis; Joe Califano, a White House staffer at the time; LBJ's chief of staff, Jim Jones, and others.  Best of all, longer (7- to 9-minute) interviews with each of these fellows are available on the same page.  I like the way these videos really make the federal health care programs come alive.”

 

For additional discussion of private lawsuits to enforce states’ Medicaid obligations (which is mentioned in note 32 of the Perkins article), see Brian Dunne, Enforcement of the Medicaid Act under 42 USC sec. 1983 after Gonzaga Univ. v. Doe, 74 U. Chi. L. Rev. 991 (2007); Note, 117 Yale L. J. 1498 (2008).

 

On the future of Medicare, see Henry Aaron & Jeanne Lambrew, Reforming Medicare: Options, Tradeoffs, and Opportunities (2008).

 

For discussion of the Medicare Modernization Act, see Symposium, 1 St. Louis U.J. Health L. & Pol'y 1-230 (2007); Robert A. Berenson & Melissa A. Goldsteinm Will Medicare wither on the vine? How Congress has advantaged Medicare Advantage--and what's a level playing field anyway? 1 St. Louis U.J. Health L. & Pol'y 5-43 (2007). 

 

Excellent information about Medicaid, including a primer, program overview, and detailed fact sheets, can be found on the web site for the Kaiser Family Foundation.  See also Murphy's Unofficial Medicaid Page  and the AHLA's question and answer Guide to Medicaid Basics.

 

Further analyzing the "Kyl Amendent," which restricts physicians' ability to charge Medicare patients extra, see Kent Masterson Brown, The Freedom to Spend Your Own Money on Medical Care, Cato Policy Analysis No. 601 (Oct. 2007).

 

For additional discussion of the Part D Prescription Drug Benefit, see the detailed summary by McDermott Will & Emery, and the shorter summary by the Kaiser Family Foundation here.

For analysis of particular legal issues, see Elizabeth A. Weeks, Cooperative federalism and healthcare reform: the Medicare Part D "clawback" example. 1 St. Louis U.J. Health L. & Pol'y 79-129 (2007).

 

Capturing the maddening complexity of all of this is a diagram, prepared by Yaniv Hanoch & Thomas Rice, Can Limiting Choice Increase Social Welfare? The Elderly and Health Insurance, 84 Milbank Q. 37, 56 (2006). See also Janet Cummings, et al., Who Thinks that Part K Is Too Complicat?, 66 Med. Care Res. & Rev. 97 (2009); Richard H. Thaler and Cass R. Sunstein, Nudge: Improving Decisions About Health, Wealth, and Happiness, ch. 10 (2008).

 

Georgetown University has a very informative website as part of its Long-Term Care Financing Project.

Medicaid rules continue to tighten in order to make "spending down" more difficult.  Now, the look-back period for asset transfers is five years. The following is an example of how Medicaid estate planning could be used to pay for long term care for the middle class elderly. It was prepared by Wake Forest University law student Daren McDonough (class of 1999), so it may not be fully current, but it illustrates the gist of this type of planning. Do you think this use of Medicaid funds is proper, or does this constitute abuse?

 

Example: Medicaid Estate Planning

Widow is a 70 year old woman who has recently been diagnosed with Alzheimer's disease. She owns a lovely home in suburban Charlotte, North Carolina. The home is completely paid off with a fair market value of $250,000. This does not include the value of the half acre garden which is adjacent to the property and which is used to produce vegetables which Widow consumes herself. She has one car, a 1991 Cadillac El Dorado. Widow has never worked, she was supported by her husband, Dirk, who was a pilot for U.S. Air. Dirk owned a restaurant as a tenant in common with two other individuals, and upon his death he transferred his interest in the business to Widow, along with $500,000 in the form of proceeds from a life insurance policy and other cash savings.

Widow has recently used her money to buy a new 1997 Lexus (after trading in her El Dorado), titled in only her name, a new bedroom setting, a new kitchen lay out, as well as three new pieces of jewelry. Upon learning that she has Alzheimer's, Widow contacted a local attorney, Will Mack, who advised Widow she had a number of options concerning her estate. At the time of her meeting with Mr. Mack, Widow received $800/month in social security and $300/month from Dirk's pension fund. Widow has four children, all over 22, one child has severe mental retardation and currently lives in an assisted living home. (This is paid for by a trust set up by Dirk, which has Mercantile Bank as the trustee, and upon the child's death the remainder is to be given to a stated charity.)

Widow is worried about losing her home. She currently has the home willed to one of her children. Widow has over $100,000 dollars invested in stocks and bonds and plans on giving these assets along with proceeds from her full life insurance policy to her three able bodied children at her death.

Mr. Mack informs Widow that there is a way she can keep her home, give away her other assets as she sees fit, and let Medicaid pay for her upcoming nursing home care. Mr. Mack informs Widow that in order to qualify for Medicaid assistance some assets may need to be transferred and some assets may need to change form or be liquidated and invested into other areas. Mr. Mack's proposal sets out:

Once this is done, Widow's assets will be below $2,000. Her income is $1,100/ month and she would be entitled to receive Medicaid reimbursement.

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