|47. FN47. W. Michael Byrd & Linda A.
Clayton, The American Health Dilemma Continues: An Analysis of
the Clinton Health Plan from an African American and
Disadvantaged Patient Perspective 4-5 (Oct. 27, 1993)
(unpublished manuscript on file with author).
48. FN48. See infra part II.A.
49. FN49. See infra part II.B.
50. FN50. See infra part II.C.
51. FN51. See infra part II.D.
52. FN52. See infra part II.E.
53. FN53. Description, supra note 30, at
54. FN54. Description, supra note 30, at
*5-*6. The principles were universal access, comprehensive
benefits, choice, equality of care, fair distribution of costs,
personal responsibility, inter-generational justice, wise
allocation of resources, effectiveness, quality, effective
management, professional integrity and responsibility, fair
procedures, and local responsibility. Id.
55. FN55. Essentially, '(e)very American
citizen and legal resident should have access to health care
without financial or other barriers.' Description, supra note 30,
56. FN56. For instance, the Description
acknowledges that '(m)any Americans cannot obtain quality care,'
however, it limits its discussion of barriers to the shortages of
doctors, clinics and hospitals. Description, supra note 30, at
57. FN57. The articulated purposes of the
HSA are: to guarantee comprehensive health care coverage, to
simplify the health care system, to control the cost of health
care, to protect individual choice of health plans and health
care providers, to ensure the quality of health care, and to
encourage responsibility. See HSA s 3(1)-(6) (emphases added).
58. FN58. It stresses individual autonomy
by emphasizing the need to assure that consumers have 'the
opportunity to exercise effective choice about providers, plans
and treatments.' Description, supra note 30, at *5.
59. FN59. Regional independence is
specifically stressed by maintaining that 'states and local
communities (should be allowed) to design effective, high-
quality systems of care that serve each of their citizens.'
Description, supra note 30, at *6.
60. FN60. The HSA believes that
competition will ensure that 'health plans and health care
providers are efficient and charge reasonable prices.' The HSA s
2(2)(G). See generally id. ss 1300-1303, 1321-1330 (establishing
regional health alliances to contract competitively with health
care plans to service their identified area); see also id. s
1551(c)(2) (allowing the Board to require additional capital of
health care plan for factors likely to affect their financial
stability including market share and strength of competition);
Id. s 4118 (allowing 'competitive acquisition areas for the
purpose of awarding a contract or contracts for furnishing . . .
items and services' under Part B of Title XVIII of the Social
Security Act. 42 U.S.C. s 1395w-4 (1988 & Supp. IV 1992)).
61. FN61. Managed competition was coined
by the Jackson Hole Group and is synonymous with market-oriented
health care reform. Paul Ellwood et al., The Jackson Hole
Initiatives for a Twenty-First Century American Health Care
System, 1 J. Health Econ. 149 (1992). Managed competition
requires three major changes in the U.S. health insurance system.
First, regional health insurance purchasing cooperatives ('HIPCs')
need to be formed to manage the marketplace for health care
coverage. Second, employers must contribute the same amount of
money for coverage regardless of which plan a consumer chooses.
Third, new rules are needed to make it more difficult for plans
to avoid enrolling high- risk individuals. Thomas Rice et al.,
Holes in the Jackson Hole Approach to Health Care Reform, 270
JAMA 1357, 1357 (1993). See generally Sandra J. Greenblatt &
Michael J. Cherniga, New Florida Health Reform Plan is First
Large Scale Test of Clinton's Managed Competition Theory, 10
HealthSpan 7 (1993).
62. FN62. Groups supporting managed
competition include major insurance companies, the American
Medical Association, the Pharmaceutical Manufacturers
Association, and large health maintenance organizations (HMOs).
Rice et al., supra note 61, at 1357. Consumer organizations are
the only significant interest group not supporting managed
63. FN63. Rice et al., supra note 61, at
64. FN64. See generally U.S. Congress,
Congressional Budget Office, The Effects of Managed Care on Use
and Cost of Health Services (1992) (little evidence of savings);
J. Zwanziger & Rebecca R. Auerbach, Evaluating PPO
PerformanceUsing Prior Expenditure Data, 29 Med. Care 142 (1991);
James A. Hester et al., Evaluation of a Preferred Provider
Organization, 65 Milbank Q. 575 (1987); P. Diehr et al., Use of a
Preferred Provider Plan by Employees of the City of Seattle, 28
Med. Care 1073 (1990). But see Sheldon Greenfield et al.,
Variations in Resource Utilization Among Medical Specialties and
Systems of Care: Results from the Medical Outcomes Study, 267
JAMA 1624 (1992) (reporting some cost savings).
65. FN65. Rice et al., supra note 61, at
66. FN66. Rice et al., supra note 61, at
67. FN67. See generally Harold S. Luft,
Trends in Medical Care Costs: Do HMOs Lower the Rate of Growth?,
18 Med. Care 1 (1980); Joseph P. Newhouse et al., Are Fee-
for-Service Costs Increasing Faster Than HMO Costs?, 23 Med. Care
68. FN68. Rice et al., supra note 61, at
1357. See Richard Kronick et al., The Marketplace in Health Care
Reform: The Demographic Limitations of Managed Competition, 328
New Eng. J. Med. 148 (1993) (suggesting that managed competition
is not as effective if providers are allowed to contract with
multiple plans); Rice et al., supra note 61, at 1359 (suggesting
that providers will 'consolidat(e) into larger practices to
obtain countervailing market power').
69. FN69. W. Michael Byrd & Linda A.
Clayton, Managed Competition: An Analysis of Consumer Concerns,
in A Guide for Health Care Reform (1993) (unpublished manuscript
on file with author).
70. FN70. See infra notes 204-14 and
71. FN71. See infra notes 218-20 and
72. FN72. See generally W. Michael Byrd
& Linda A. Clayton, An American Health Dilemma: A History of
Blacks in the Health System, 84 J. Nat'l Med. Ass'n 189 (1992).
73. FN73. The sections of the Act which
would have been appropriate in demonstrating that equality of
health care was an essential ethical foundation of the reform
would have been section 2 (Findings) or section 3 (Purposes). See
generally Charles J. Dougherty, Ethical Values at Stake in Health
Care Reform, 268 JAMA 2409 (1992).
74. FN74. HSA s 1203(e). In fact, in
carrying out their responsibility, states have the flexibility to
establish either an alliance system offering multiple plans or a
single- payer health care system. Id. ss 1221-1224.
75. FN75. States are required to submit a
nationally approved standard health plan to the National Health
Board. Id. s 1200(b)(1). Each state must create an administrative
mechanism to administer the plan. Id. s 1201(4). States must
administer subsidies for low-income individuals, families and
employers. Id. ss 1202(e)(1), 9011(a). They certify health plans,
Id. ss 1201(2), 1203(b), and financially regulate the health
plans. Id. ss 1204(a)-(d)(1), 1201(3). The states are responsible
for administering data collection and quality management
programs. Id. s 5013(1), s 5004(b). Finally, the states are
responsible for the creation and governance of health alliances,
including mechanisms for selecting members of their boards of
directors and advisory boards. Id. ss 1201(1), 1202(a)(1).
76. FN76. For example, Medicaid is a
state-operated, federally authorized program and Medicaid
eligibility varies widely from state to state. John C. Boger,
Race and the American City: The Kerner Commission in
Retrospect-An Introduction, 71 N.C. L. Rev. 1289, 1329 (1993);
see also Diane Rowland, Medicaid: Financing Care for Low-Income
Americans 3 (Nov. 1991) (conference paper presented at 'An
African American Health Care Agenda: Strategies For Reforming an
Unjust System,' Johns Hopkins University) (discussing Medicaid's
role in meeting the health needs of African Americans).
77. FN77. Cf. Stephen F. Jencks, Quality
Assurance, 263 JAMA 2679, 2679-81 (1990) (discussing the role of
risk adjustment in quality assurance measures); Douglas Sharrot,
Note, Provider-Specific Quality-of-Care Data: A Proposal for
Limited Mandatory Disclosure, 58 Brook. L. Rev. 85, 148 (1992)
(discussing providers' tendency to shy away from high-risk
patients even if risk adjustment methodologies were extremely
78. FN78. HSA ss 1203(e)(3)(A), 1541(b),
79. FN79. See Allergy Briefs, 10 Pediatric
Rep.'s Child Health Newsl. 66 (1993) (discussing high risk of
Alaskan natives for contracting hepatitis B); Michael Higgins,
Native People Take on Diabetes: Indigenous Peoples from America
to Australia are Fighting Some of the Highest Rates of Diabetes
in the World by Returning to Traditional Foods and Practices, 21
East West 94 (1991) (discussing the high risk of diabetes among
Native Americans); Laurie Jones, Prevention Seen as Best AIDS
Hope, 37 Am. Med. News 3 (discussing outreach work with high-risk
African American men and women); David Marder et al., Effect of
Racial and Socioeconomic Factors on Asthma Mortality in Chicago,
101 Chest 426S (1992) (indicating that African Americans with low
incomes are at higher risk for asthma deaths);National Institute
on Drug Abuse, The Spread of Tuberculosis Among Drug Users, AIDS
Weekly 14 (Feb. 1, 1993) (indicating that African Americans and
Hispanics are historically at high risk for developing
tuberculosis); Vernellia R. Randall, Racist Health Care:
Reforming the Health Care System to Meet the Needs of African
Americans, 3 Health Matrix: J. of L. & Med. 127 (1993);
Treating Prostate Cancer, 5 Consumer Rep. on Health 89 (1993)
(indicating that African American men are at high risk for
contracting prostrate cancer).
80. FN80. Maya Wiley, Statement of the
Legal Defense & Educational Fund, Inc. on the Health Security
Act of 1993, Before the Subcommittee on Commerce, Consumer
Protection and Competitiveness, U.S. House of Representatives 5
(Nov. 16, 1993) (on file with the author).
81. FN81. Cf. HSA ss 1400-1414 (outlining
health plan requirements); Id. ss 1201- 1205 (outlining state
82. FN82. Id. ss 3061-3062(f). These
programs will, among other things, train health professionals and
administrators to provide culturally sensitive care. Id. s
3062(d). In addition, the Act permits states, if they wish, to
administer financial incentives to health plans to encourage the
plans to enroll 'disadvantaged groups' or to remove barriers to
access. Id. s 1203(e)(3)(B).
83. FN83. See infra part VII.
84. FN84. See supra note 76 and
85. FN85. HSA s 2(2)(J).
86. FN86. Byrd & Clayton, supra note
69, at 5.
87. FN87. For instance, in California,
African American men with less than a high school education are
twice as likely to be unemployed as European American menwith the
same education. Almost 25% of all African American men in
California over 16 years of age have been unemployed for more
than two years, compared to about 12% of European American men
and 10% of Asian American and Latino American men. Even for those
with jobs, African American men are concentrated in lower
prestige occupations, are about twice as likely as all other men
to work in the public sector, and are half as likely as European
American and Asian men to be self-employed. See Kim Clark,
Blacks, Males in MD Hit Hard by Unemployment But Women's Rate
Didn't Change in '92, Balt. Morn. Sun, Aug. 24, 1993 (Financial),
at 10C (unemployment rate for blacks jumped nearly 1 1/2 points
to 11.2%); Sonia Nazario, Grim Picture Painted for State's Black
Men Study, L.A. Times, Dec. 11, 1993, at A1; Spencer Rich, While
Most Gain, Millions Suffer: Conditions Worsen for Chronically
Poor 'Underclass,' Wash. Post, Jan. 20, 1986, at A1 (America's
28.6 million African Americans still lag far behind European
Americans in every measure of economic and social well-being).
88. FN88. See infra notes 204-29 and
89. FN89. Health plans may offer
standardized supplemental insurance policies to cover cost
sharing or health benefits above and beyond the comprehensive
benefits package. HSA s 1421(a).
90. FN90. See generally John B. Crosby
& David L. Heidorn, Achieving Full Access: It's Already Being
Done, 3 Kan. J.L. & Pub. Pol'y 31 (1993) (arguing that
managed competition would not be an acceptable way to provide
health care to all Americans or to control costs, especially in
rural areas); Robert Pear, Budget Official Sees No Savings in
Clinton's Health Care Plans, N.Y. Times, Feb. 3, 1993, at A16.
91. FN91. Nancy S. Jecker, Can an
Employer-based Health Insurance System be Just?, 18 J. Health Pol.
Pol'y & L. 657 (1993).
92. FN92. David V. Himmelstein &
Steffie Woolhandler, The National Health Program Book (1994)
(quoting Bill Link, Executive VP, Prudential).
93. FN93. Description, supra note 30, at
*3; See infra notes 199-203 and accompanying text.
94. FN94. Byrd & Clayton, supra note
47, at 4-5.
95. FN95. HSA s 2(2)(G). As articulated by
Henry Aaron, director of Economic Studies Program at the
Brookings Institution, 'A free market rests on the idea that
insurance should be cheaper for those who need it least and more
expensive for those who need it (more). It may be good economic
policy, but its bad social policy.' Byrd & Clayton, supra
96. FN96. The budget includes premiums
paid to cover the guaranteed comprehensive benefit package,
whether paid by employers, employees or individuals. Medicare and
Medicaid expenditures are included under separate budgets.
'Supplemental benefits beyond the comprehensive benefit package,
workers' compensation and auto insurance benefits are not
included in the budget.' Premiums for insurance policies
providing coverage for cost sharing are not included. This
includes budgets for fee-for-service plans. Description, supra
note 30, at *45, *64; HSA ss 1322(d), 2109.
97. FN97. Byrd and Clayton, supra note 47,
98. FN98. William A. Glaser, The
Competition Vogue and Its Outcomes, 341 Lancet 805 (1993).
99. FN99. Byrd & Clayton, supra note
47, at 4; Himmelstein & Woolhandler, supra note 92, at 1;
Vernellia R. Randall, Managed Care, Utilization Review and
Financial Risk-shifting: Compensating Patients for Cost
Containment Injuries, 17 U. Puget Sound L. Rev. 1 (1993).
100. FN100. Insurance companies deny
needed care by limiting providers, providing financial
disincentives for treatment, or delaying appointments. Another
problem with turning the system over to private enterprise is
that insurance companies will still engage in marketing
practices. Those practices not only will add to health care cost,
but they could actually help them to avoid certain consumers.
While the HSA forbids certain practices (i.e., marketing to a
smaller area than the entire area served, insurance tie-ins and
inaccurate information), HSA s 1404(a)(2), health plans may still
devise ways to avoid high risk consumers (i.e., ethnic
Americans). But cf. HSA s 1325(b) (requiring approval by regional
alliance of any materials used to market health plans offered
through the alliance).
101. FN101. Himmelstein & Woolhandler,
supra note 92, at 3.
102. FN102. HSA ss 1410, 5013.
103. FN103. Byrd & Clayton, supra
note 69, at 8-10.
104. FN104. See generally Gordon Bonnyman,
Jr., Unmasking Jim Crow, 18 J. Health Pol. Pol'y & Law 872
(1993); David B. Smith, The Racial Integration of Health
Facilities, 18 J. Health Pol. Pol'y & Law 851 (1993)
(discussing the limited published sources of data on health care
105. FN105. Memorandum in Support of
Motion to Appear as Amici Curiae, Hughes v. Shalala, No. 93-0048
(M.D. Tenn. 1993) (arguing that Department of Health and Human
Services should be required to amend claims forms for hospitals
and facilities by including spaces for information about race of
106. FN106. HSA s 1203(e).
107. FN107. Id. s 1203(e)(3). Certainly,
these incentives could be used to assure that ethnic Americans
have supplementary services such as translation and
transportation. Such services would help assure that low-income
groups, women, ethnic Americans and the disabled have real
choices in the health care system.
108. FN108. Byrd & Clayton, supra
note 69, at 8.
109. FN109. HSA s 1402(a)(1).
110. FN110. Id. s 1402(a)(2).
111. FN111. CNN News, White House Health
Care Reform, #177-10 (CNN television broadcast, Mar. 29, 1993)
(transcript on file with author).
112. FN112. Id.
113. FN113. Byrd & Clayton, supra
note 69, at 7.
114. FN114. HSA s 1501(a). The Board is
appointed by the President and confirmed bythe Senate. Id. s
115. FN115. The Regional Alliance
consists of employers, including self-employed individuals who
purchase such coverage. HSA s 1302. Nothing in the Act assures
representation of the Medicaid population, low income population
or ethnic Americans.
116. FN116. HSA s 1502(b).
117. FN117. Id. ss 1502(b), 1513(b)(3).
118. FN118. Cf. 45 C.F.R. s 46.111(a)(3)
(1992) (defining vulnerable populations as 'child- ren,
prisoners, pregnant women, mentally disabled persons or
economically or educationally disadvantaged persons').
119. FN119. HSA s 3331(b), (c)
(authorizing national prevention initiatives to develop and
implement innovative community-based strategies to provide for
health promotion and disease prevention activities targeted to
the most needy and vulnerable population groups); Id. s 3481
(authorizing payment to hospitals serving vulnerable
populations); Id. s 5004(c) (requiring that survey samples
adequately measure populations considered to be at risk of
receiving inadequate health care and difficult to reach through
consumer-sampling methods, including individuals who are members
of a vulnerable population).
120. FN120. Id. s 1302(c) (prohibiting an
individual from serving as a member of the Board of Directors if
the individual is: a health care provider; derives substantial
income from a health care provider, health plan, pharmaceutical
company or a supplier of medical equipment, devices or services;
derives substantial income from the provision of health care; a
member or employee of an association, law firm or other
institution or organization that represents the interests of
health care providers, health plans or others involved in the
health care field; or an individualwho practices as a
professional in an area involving health care). The health
professionals will be part of a separate Provider Advisory Board
to function under the direction of the Board of Directors. Id. s
121. FN121. Byrd & Clayton, supra
note 47, at 5.