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Do states have a constitutional right to set health care policy?
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Results so far:
| No | 48% | 24 votes | Total: 50 votes | |
| Yes | 52% | 26 votes |
No
by Roberto Alvarez-Galloso
Created on: March 13, 2009
When the government plays the role of a health care surrogate, it is usually a recipe for disaster. While people are talking about Universal Health Care versus Private Health Care, it should be remembered that we have a semi private health care regulated by the government.
We do not have to go far to see Medicare and Medicaid as part of the regulations by government. Medicare and Medicaid started with good intentions. Medicare was the Federally Funded program that covered people who were 65 years of age and over as well as those with End Stage Renal Disease. Medicare also covered disability.
Medicaid was the joint Federal and State Program which helped the indigenous until they were able to find health insurance. While the State may have good intentions with these and similar programs, we have been witness to the fact that the Patient Physician Relationship has been eroded by over regulation by the state and its allies in the bureaucracy, lobbies, and insurance companies.
An example of how the state can ruin health care policy is in Tennessee. Tennessee has the Tenn Care program which was created as an alternative to the traditional Medicaid Program. It had a great start and was going to help those that could not help themselves in matters of health.
Tenn Care started to run into trouble with the politicians, citizens, and insurance companies abusing and milking the system. It arrived at a point where there was an FBI Operation called the Tennessee Waltz which managed to arrest those involved in abuse of Tenn Care.
Governor Bredesen of Tennessee almost abolished Tenn Care in order to revert to traditional Medicaid but was forced to back down after a strike inside the State's Capitol. While most of the problems surrounding Tenn Care have been resolved, WBIR [an NBC Affiliate in Tennessee] announced the arrest of an Alabama Woman named Vicky Hookey for Tenn Care Fraud. It appears that Ms. Hookey claimed to live in Tennessee when she is a resident of Alabama.
In the process of all of the soap opera charades of Tenn Care, it was the patient that suffered because of the state setting up a health care policy instead of leaving health care to the patient and the Physician.
While there have been some exceptions such as the success of the Dirigo Health Program in Maine, many states have had to deal with excessive bureaucracy, lobbyists, and the insurance companies when it comes to health care policy. The majority of times, this has lead to the patient losing his or her battle for better health.
It must be remembered that the bureaucrats, lobbyists, and insurance companies may have employees who have never set foot in Medical School or any other Schools where Health Care is taught. The interests of the bureaucrats, lobbyists, and insurance companies is only to acquire money for themselves and to give to the state what the state wants.
There have been some exceptions to the rule such as the Health Care Program in the Commonwealth of Kentucky called KY Health Choices. KY Health Care is one of the few programs in the United States of America that assigns responsibility to the beneficiary. There is the requirement to be responsible for payments based on an income based sliding fee scale.
KY health Choices also provides incentives for those who engage in preventive behavior such as smoking cessation and weight loss programs. The program is also uses practices that have functioned in the private sector to develop programs for mental and physical health.
Reference:
http://www.ncsl.org/programs/health/kymedicaid.htm
http://www.wbir.com/news/local/story.aspx?storyid=77009
Learn more about this author, Roberto Alvarez-Galloso.
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Yes
by Bruce Vargo
Created on: December 17, 2011
There are three critical aspects of this question that must be addressed (whether through analysis or assumption) in any response, whether that response is “yes” or “no”.
First, the knee-jerk reaction to say “no” based solely on one’s belief that government (any government) should stay out of the healthcare policy arena must be suppressed. The question is NOT “Should government regulate healthcare” or anything like that. Rather, the question plainly stated is, “Do States have a constitutional right to set health care policy?” Having a right to do something is entirely separate from whether one should act upon that right.
Second, it is important to recognize that the question refers to “States” rather than the federal government. The federal government’s powers are delegated within the U.S. Constitution AND LIMITED BY the U.S. Constitution. The power of the States, however, involves each State’s own constitution and the interplay of federal / State powers under the U.S. Constitution. Any analysis of the question is flawed that does not address both the State’s constitution (whichever State is used as an example) and the now-muddled interplay of federal government powers and State government powers within the confines of the U.S. Constitution.
Finally, what does it mean to “set health care policy”? The answer to that question will impact not only the analysis of the “federal power v. State power” issue of the U.S. Constitution but also the analysis of whether the State government has the authority to act under its own constitution.
For the purpose of this article, however, we must make certain assumptions; otherwise, this article would necessarily become a multi-volume constitutional treatise. The first assumption that must be made is that “set health care policy” is akin to what the federal government is trying to do via Obamacare, that is, force people to purchase healthcare. I make this assumption simply because that is the “hot topic” in the healthcare arena.
The next issue, the interplay between federal government power and State government power as balanced by the U.S. Constitution, involves a weak federal government and a powerful State government. Even a cursory review of the U.S. Constitution shows that the federal government is not empowered to enact compulsory healthcare laws. None of the limited powers granted to the federal government by the States and the people as outlined in Article I of the U.S. Constitution relates in any sense to compulsory healthcare (or even healthcare in general, compulsory or not) while other parts of the U.S. Constitution, including the amendments thereto, directly prohibit the federal government from that type of action. (And, while most “scholars” (read: drive-by media pundits) always reference the “supremacy” clause, that simply shows their ignorance of the topic because an unlawfully-enacted federal “law” by its nature is not a law and thus cannot be “supreme” to the States’ laws. So, yes, the federally enacted Obamacare legislation is unconstitutional under the U.S. Constitution.)
This leaves only the question of whether the State, whatever State is being considered, has the authority to regulate healthcare pursuant to its own constitution. While every State’s constitution is unique, and while there may be exceptions most States have been granted by their citizens certain powers which include the power to compel people to comply with insurance requirements. For instance, States have the power to force people to purchase automobile insurance. There is, of course, an argument that the purpose behind the automobile insurance purchase requirement is strikingly different than the purpose driving the purchase of healthcare insurance, which may then prove this analogy to be misguided and perhaps even wrong. Alas, short of a full analysis of every State’s (or any State’s) constitution, this counter-argument will remain a valid possibility. Nonetheless, the more probable answer to the question “Do States have a constitutional right to set health care policy?” is yes.
Learn more about this author, Bruce Vargo.
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