Below is the preface for the highly anticipated Second Edition of Essentials of Health Policy and Law, by Joel B. Teitelbaum, JD, LLM and Sara E. Wilensky, JD, PhD from School of Public Health and Health Services, George Washington University.
Essentials of Health Policy and Law, Second Edition will be publishing April 1, 2012. Visit us to request your complimentary review copy today.
Health policy and law are matters of national and local focus and concern. Public opinion polls, media coverage, and policy debates at all levels of government and in private industry attest to the important place that health care and public health hold in the minds of the American public, policymakers, and lawmakers. The constant attention showered on health policy-related topics also highlights their complexity, which stems from multiple factors.
First, like most challenging public policy problems, pressing health policy questions simultaneously implicate politics, law, ethics, and social mores, all of which come with their own set of competing interests and advocates. Second, health policy debates often involve deeply personal matters pertaining to one’s quality—or very definition—of life, philosophical questions about whether health care should be a market commodity or a social good, or profound questions about how to appropriately balance population welfare with closely guarded individual freedoms and liberties. Third, it is often not abundantly clear how to begin tackling a particular health policy problem. For example, is it one best handled by the medical care system, the public health system, or both? Which level of government—federal or state—has the authority or ability to take action? Should the problem be handled legislatively or through regulatory channels? The final ingredient that makes health policy problems such a complex stew is the rapid developments often experienced in the areas of health care research, medical technology, and public health threats. Generally speaking, this kind of rapid evolution is a confounding problem for the usually slow-moving American policy- and lawmaking machinery.
Broadly defined, the goal of health policy is to promote and protect the health of individuals and of populations bound by common circumstances. Because the legal system provides the formal structure through which public policy—including health policy—is debated, effectuated, and interpreted, law is an indispensable component of the study of health policy. Indeed, law is inherent to the expression of public policy: major changes to policies often demand the creation, amendment, or rescission of laws. As such, students studying policy must learn about the law, legal process, and legal concepts. The range of topics fairly included under the banner of “health policy and law” is breathtaking. For example, what effect is health care spending having on national and state economies? How should finite financial resources be allocated between health care and public health? How can we ensure that the trust funds established to account for Medicare’s income and disbursements remain solvent in the future as an enormous group of Baby Boomers becomes eligible for program benefits? What kind of return (in terms of quality of individual care and the overall health of the population) should we expect from the staggering amount of money we collectively spend on health? Should individuals have a legal entitlement to health insurance? How best to attack extant health disparities based on race, ethnicity, and socioeconomic status? What policies will best protect the privacy of personal health information in an increasingly electronic medical system? Can advanced information technology systems improve the quality of individual and population health? Should the right to have an abortion continue to be protected under the federal Constitution? Should physician assistance in dying be promoted as a laudable social value? Will mapping the human genome lead to discrimination based on underlying health status? How prepared is the country for natural and man-made catastrophes, like pandemic influenza or bioterrorism attacks? What effect will chronic diseases, such as diabetes and obesity-related conditions, have on health care delivery and financing? How best to harness advancing scientific findings for the benefit of the public’s health?
As seen from this partial list of questions, the breadth of issues encountered in the study of health policy and law is virtually limitless, and we do not grapple with all of the preceding questions in this book. We do, however, introduce you to many of the policies and laws that give rise to them, provide an intellectual framework for thinking about how to address them going forward, and direct you to additional relevant readings. Given the prominent role played by policy and law in the health of all Americans, and the fact that the Institute of Medicine recommends that students of public health and other interdisciplinary subjects (for example, public policy or medicine), receive health policy and law training, the aim of this book is to help you understand the broad context of American health policy and law, the essential issues impacting and flowing out of the health care and public health systems, and how health policies and laws are influenced and formulated. Think of this textbook as an extended manual—introductory, concise, and straightforward—to the seminal issues in American health policy and law, and thus as a jumping off point for discussion, reflection, research, and analysis To further assist with those pursuits, this book is accompanied by Essential Readings in Health Policy and Law (Jones and Bartlett Publishers, 2008), a compilation of carefully selected readings meant to allow for deeper analysis of issues covered in this textbook, as well as some issues not covered due to space constraints.The health policy and law landscape has changed dramatically since publication of the first edition of this textbook in 2007 as a result of the Patient Protection and Affordable Care Act (known as the Affordable Care Act, or ACA), which was passed by Congress after an historic debate and signed into law by President Barack Obama in March of 2010. The ACA has been hailed as the most important set of changes to American health insurance since the 1965 enactment of Medicare and Medicaid and, over time, this hugely complex law could effectively reorder most aspects of the health care system.
At its core, the ACA represents two landmark achievements in health policy: major reform of the private health insurance market and, relatedly, a redistribution of resources to groups and individuals who, by virtue of indigency and/or illness, have historically been excluded from the health insurance market and/or health care system. Although in the end the approach taken by lawmakers in writing the ACA was to build on the existing public and private health insurance coverage system -- rather than tossing out the system in existence to replace it with something else, such as a government-sponsored single payer insurance system -- the ACA nonetheless makes sweeping reforms with an eye toward achieving near-universal health insurance coverage by 2019. Indeed, if fully implemented, the ACA will move the nation toward a more affordable, equitable, and stable insurance system, not only for the 32 million individuals who are expected to gain insurance, but also for the tens of millions of people who no longer face threat of a loss or lapse of coverage.
Although the ACA is most properly understood as a series of policy and legal decisions aimed at transforming health insurance coverage, the law includes dozens of other importnant reforms and new programs unrelated to insurance. For example, more efficient and higher quality health care, population health, health care access, long-term care, the health workforce, health disparities, community health centers, health care fraud and abuse, comparative effectiveness research, health information technology, and more all receive attention by the ACA.
The key to the many reforms put forward in the ACA is a reordering of the relationships that lie at the heart of the health care system. Individuals, providers, insurers, employers, governments, and others will be forced to alter normative behaviors in response to the policy and legal decisions underpinning the law. These changes are described in relevant places throughout this book, but we provide here a few examples. Most notable is the ACA’s requirement that individuals carry “minimum essential health coverage” or face specified financial penalties. This “individual mandate”, as it is known, is perhaps the most important provision in the ACA, because it creates a new and large pool of premium-paying individuals that operates as the quid pro quo to insurers forced to accept as insured beneficiaries individuals whom to this point they have deemed “uninsurable” because they are relatively unhealthy. For individuals unable to attain the type of minimum coverage mandated by the ACA, subsidies are made available.A second change key to health system reordering is a series of reforms that prohibit or curtail commonplace practices on the part of health insurers and health plans These include: prohibiting the use of preexisting condition exclusions and discriminatory enrollment practices based on an individual’s health status; guaranteeing the availability of health insurance and the renewability of an individual’s existing insurance; requiring coverage of certain preventive screening and immunization services recommended by the federal government; and guaranteeing coverage for dependent children who are under age 26. A third key shift is the ACA’s creation of state health insurance “exchanges” and expansion of Medicaid eligibility standards. The state exchanges were established for the purpose of giving individuals and small groups an opportunity to purchase health insurance products from a heavily regulated (and therefore relatively stable) market. The Medicaid expansion will for the first time cover all U.S. citizens and legal immigrants with incomes below 133 percent of the Federal Poverty Level.
A final word, for now, about the ACA and its implementation. As described in Chapter 9, passage of the ACA was anything but smooth. The law passed by the slimmest of margins after months of rancorous debate, and backlash against the law after its passage was swift and forceful. At the time of this writing, dozens of states, individuals, and organizations have lodged lawsuits against various aspects of the ACA, and these lawsuits are slowly percolating up through trial and appellate courts across the country. The most heavily litigated issue – the constitutionality of the individual mandate – is widely expected to reach the U.S. Supreme Court in 2012 or 2013, and several other courts could rule on various legal challenges to the ACA in ways that may affect, to one degree or another, implementation of the law. The outcomes of these lawsuits will no doubt be discussed in both the national media and in the health policy and law courses in which you register, and they will be devoted space in the pages of this book in future editions. Whatever the outcome of these individual cases, however, we urge readers not to lose sight of an important principle: whether the ACA ultimately survives wholly intact or undergoes changes as a result of courts’ interpretation of it is largely beside the point; the more important point is that the ACA has put the country on a path toward a more just, equitable, and accessible health system. A second significant change since 2007 that is relevant to this textbook and the entire Essentials of Public Health series has occurred in the field of public health education. Since the initial publication of this textbook, the Association of American Colleges and Universities (AAC&U) has worked with public health educational associations, including the Association of Schools of Public Health (ASPH) and the Association for Prevention Teaching and Research (APTR), and with the Council of Colleges of Arts and Sciences (CCAS), to develop the Educated Citizen and Public Health Initiative.
This initiative seeks to integrate public health perspectives into a comprehensive liberal education framework and to develpo and organize publications, presentations, and resources to help faculty develop public health curricula in the nation’s colleges and universities. As a result, public health perspectives generally, and health policy and law specifically, are increasingly being integrated into courses as diverse as political science, history, sociology, public policy, and a range of courses that prepare students for the health professions. We seek in this second edition to make the material as accessible to these diverse audiences as possible.
As a result of the changes just described and also in response to comments we received from users of the original textbook, this edition of Essentials of Health Policy and Law has undergone many revisions. Among them are new chapters covering the health care and public health systems generally, the ACA, and publc health preparedness policy; expanded content in the chapter on health care quality; expanded content around agency rulemaking in a health context; revisions to several chapters to reflect the ACA’s influence; a newly included glossary; updated figures, tables, timelines, and discussion questions; a reordering of some of the chapters to enhance the flow of the topics covered; and more.
Part I of this textbook includes five preparatory chapters. Chapter 1 describes the influential role of policy and law in health care and public health and introduces various conceptual frameworks through which the study of health policy and law can take place. The chapter also illustrates why it is important to include policy and law in the study of health care and public health. However, an advanced exploration of health policy and law in individual and population health necessitates both a basic and practical comprehension of policy and law in general -- including the policymaking process and the workings of the legal system – and an understanding of the nation’s somewhat fragmented health care and public health systems.
Thus, Chapter 2 discusses both the meaning of policy and the policymaking process, including the basic functions, structures, and powers of the legislative and executive branches of government and the respective roles of the federal and state governments in policymaking. Chapter 3 then describes the meaning and sources of law and several key features of the American legal system, including the separation of powers doctrine, federalism, the role of courts, and due process. Chapter 4 provides an overview of the health care system, including basic information on health care finance, access, and quality, and examples of how the U.S. system differs from those in other first-world nations.
Part I closes with an overview, in Chapter 5, of the public health system, including its evolution and core functions.
Part II offers several chapters focusing on key substantive health policy and law issues. The opening Chapter 6 examines the ways in which the law creates, protects, and restricts individual rights in the contexts of health care and public health, including a discussion of laws (such as Medicaid and Medicare) that aim to level the playing field where access to health care is concerned. The chapter also introduces the “no-duty” to treat principle, which holds that there is no general legal duty on the part of physicians to provide care and which rests at the heart of the legal framework pertaining to health care rights and duties. Chapters 7 and 8 cover the fundamentals of health insurance and health economics, respectively, and set up a subsequent thematic discussion in chapters 9 and 10.
Specifically, Chapter 7 describes the function of risk and uncertainty in health insurance, defines the basic elements of health insurance, discusses important health policy issues relating to health insurance, and more. Chapter 8 explains why it is important for health policy makers to be familiar with basic economic concepts, the basic tenets of supply, demand, and markets, and the way in which health insurance affects economic conditions. Chapter 9’s focus is on health reform, including the ACA. The chapter discusses the reasons why for decades the U.S. failed to achieve national health reform prior to the ACA, why the ACA passed given this hsitory, and what the ACA aims to achieve.
Chapter 10 explains how the federal and state policymakers have created health insurance programs for individuals and populations who otherwise might go without health insurance coverage. The basic structure, administration, financing, and eligibility rules of the three main U.S. public health insurance programs—Medicaid, the State Children’s Health Insurance Program, and Medicare—are discussed, as are key health policy questions relating to each program. Chapter 11 reflects on several important policy and legal aspects of health care quality, including the advent of provider licensure and accreditation of health facilities (both of which represent quality control through regulation), the evolution of the standard of care, tort liability for health care providers and insurers, preventable medical errors, and, with the ACA as the focal point, improving health care quality through quality improvement and provider incentive programs.
Part II concludes with a chapter on public health preparedness policy, including discussions about how to define preparedness, the types of public health threats faced by the U.S., policy responses to these threats, and an assessment of where the country stands in terms of preparedness.
The textbook concludes in Part III by teaching the basic skills of health policy analysis. Because the substance of health policy can only be understood as the product of an infinite number of policy choices as to whether and how to intervene in many types of health policy problems, Chapter 13 explains how to structure and write a short health policy analysis, which is a tool frequently used by policy analysts when they assess policy options and discuss rationales for their health policy recommendations.
- Joel B. Teitelbaum, JD, LLM