I wish single payer plans could work in the USA.  I really do. But alas, they don’t, and they can’t.

Here’s an example of the mess we are in.  Doctors and recipients are suing California for cutting compensation to doctors, and the case has landed in the Supreme Court.  From Nina Totenberg’s excellently reported NPR story:

On Monday...the court heard arguments in another case involving the provision of medical care, a case with enormous ramifications for states desperate to cut costs, and patients desperate to get medical care. The issue is whether doctors, hospitals, and patients can go to court to challenge cuts in Medicaid.The federal Medicaid law establishes a cooperative federal-state program to provide medical care for the poor. Depending on the state, the federal government pays between 50 and 75 percent of the costs, but the condition for getting the federal money is that the state pay health providers sufficiently to ensure that poor patients have access to doctors and hospitals.

In 2008 and 2009, California cut these fees by up to 10 percent, and the cuts went into effect without being submitted to the federal Medicaid agency for approval as required by law. Health care providers went to court, contending that the cuts were solely for budgetary purposes and did not meet the federal requirements for balancing money issues and access to health care. On the steps of the Supreme Court on Monday, California Medical Association doctors said they simply can’t afford to take care of substantial numbers of Medicaid patients when fees are so low. Dr. Ted Mazer said, for example, that the California Medicaid program pays him $168 to perform a tonsillectomy on a child, including pre- and postoperative care, and that, he said, is not enough to even cover his costs.

Indeed. And this same draconian underpaying of providers is looming in Medicare—especially once the authoritarian Independent Payment Advisory Board is up and running.  

Regardless of the justice of their cause, the plaintiffs in the lawsuit have a big problem.  Litigation over Medicaid payments isn’t authorized by federal law, and creating that right judicially out of thin air would lead to chaos:
The legal worm turned, however, when attorney Carter Phillips got up to argue on behalf of the medical providers and patients. Chief Justice John Roberts repeatedly asked why Phillips’ clients can sue when Congress did not authorize lawsuits, and Phillips repeatedly answered that his clients are not asking for damages; they are just suing to prevent irreparable harm to health care under a state law that violates a federal law. In such conflicts, he argued, the Supremacy Clause of the Constitution means that federal law is supreme, and that is the longtime teaching of Supreme Court decisions dating back to the 1800s.

Justice Stephen Breyer asked what limits there could be under that theory: Wouldn’t there be lawsuits galore? Phillips replied that the federal agency always has the ultimate authority to step in and take action, but here the state tried to put “unlawful” rate cuts into effect without even notifying the agency and then made no response when the agency asked for information. Without court action, he said, these illegal cuts would have gone into effect for years and indeed would still be in place. Unpersuaded, Justice Breyer reiterated that if anyone could challenge a state law on the grounds it violates a federal law, it would just be “a mess.”

I cannot imagine the Supremes allowing lawsuits over single payer budgeting.  (This case also could impact the Planned Parenthood lawsuits against Indiana over the state’s effort to cut off paying providers that provide abortions.  But let’s not get into that here.)  It just isn’t going to happen.

But here’s the thing, whether or not the suit succeeds, it is a lose-lose situation for single payer systems and the states.  If it loses, doctors will stop taking Medicaid patients, and the ongoing systemic collapse will accelerate.  But if it wins, states will lose the ability to control costs and set budgets over Medicaid—the lawsuits will never end—and the ongoing systemic collapse will accelerate even faster.

Like I said, I wish single payer plans could work in the USA.  But alas, they don’t, and they can’t.

Articles by Wesley J. Smith

Loading...

Show 0 comments