Under civil rights law it’s unconstitutional to offer an accommodation, which by its very nature would have to be considered inequitable.
Two distinct water fountains, one for Caucasians and a second for all other people, doesn’t pass legal muster. Brown v. Board of Education, the legal case which struck down the “Separate but Equal” segregation laws are over half a century old. Equal protection rights exist well beyond the question of race — Most recently the federal courts upheld a series of decisions that legalized gay marriage. In doing so, the court repeatedly found that offering anything short of full marriage rights would be inherently unequal.
Equitable and equal are two completely different legal standards, and by either measure the American Health Care Act fails the most vulnerable amongst us. The revised version of the American Health Care Act (or AHCA 2.0) now being passed by House Republicans authorizes each states to reintroduce high risk health insurance pools. High risk pools for health insurance takes everyone with a pre-existing medical condition and forces them to pay vastly over-inflated costs for health coverage. It’s a health insurance users fee for anyone who might have the unbridled audacity to consider using their health coverage. The more one might avail themselves of the health care buffet, the greater the cost that they would be expected to kick in.
Literally, anyone with a chronic medical condition — stroke, heart attack, diabetes — would all be moved into a high risk pool. Women simply because they are women would be moved into a high risk pool. A multitude of patients will be driven from the ordinary healthy insurance market for ordinary healthy patients. These less desirable patients, or rather “consumers of health care services,” would be issued policy quotes based on their having a health insurance need, for which they are contracting with a health insurer. Health insurers guided first by responsibility to stockholders, and second by their own financial interest, will go to extreme lengths to shield themselves from risk. People with chronic health needs by their very nature constitute an ongoing financial risk across a period of years. Insurers will fight to pay less, and sick people will seek to get their health needs met. These interests by their very nature can’t help but be in conflict. The parties fighting do not come into the square as equals, rather the parties do battle as an insurance behemoth versus John Q. Public.
Over time, anybody who would be using their health care benefits with any kind of frequency would be segregated into a high risk pool. High risk pools were reality for millions of Americans before Romney/Obamacare became law. In those days, high risk pools were largely unsupported by both the state that created the pool and the health insurers who view these “consumers” to be as costly and demanding. The net result was that client care for patients was insanely expensive and, patients reported they frequently experienced what they considered sub-par health interventions.
The segment of the population health insurers want are people who are basically well … people with few health needs because they pay in more in premiums than they use in benefits.
At the core of AHCA is the idea that market forces will, through competition, create more consumer choice and result in better overall care. But what if entire segments of the population are abandoned instead? The segment of the population health insurers want are people who are basically well … people with few health needs because they pay in more in premiums than they use in benefits. Under Obamacare there were problems for sure — insurance markets that were not competitive, where one primary health insurance provider is serving a significant majority of the people in a given county, region or state. And while this wasn’t ideal, it is preferable to having an insurance market in which the patients most in need of health care coverage can’t access coverage because they represent a bad financial risk. Many states that had high risk pools prior to the passage of the ACA faced risk pools which were consistently underfunded, challenges accessing care using a Medicaid benefit intended to supplement the high risk pool or both. That was the reality facing patients forced into high risk pools immediately prior to the enactment of the Affordable Care Act, and in spite of pronouncements to fund pools better in the future, the reality is, these promises have seldom held true for the people most in need of care.
The argument for a high risk pool pivots around the idea that healthy individuals shouldn’t or won’t pay in advance for coverage which pre-emptively covers generally healthy individuals for potential future harms. The reality underlines a fundamental fact. Health status like race or class is a factor which is based often in one’s genetic makeup, and discriminating on the basis of health status is just as discriminatory.
People have no earthly idea when life will find them moving from the company of people who are generally healthy to those facing a medical crisis. That diagonals or life event, imposing new and traumatic life-altering realities, has no “born on” date. There is no way of knowing the exact moment one goes from being a policyholder covered under a basic health plan to someone who will need chronic and sustained care.
No one has ever chosen to need more health interventions. People generally try to avoid the infusion suite or dialysis machines. Be clear, reasonable people don’t go about their days looking to consume more and more health benefits. As a result of this bill, those most in need of health care services are likely to be deserted by their health insurers. This scheme (and yes, it very much is a scheme) will have the effect of making health insurance companies form multiple classes of patients to whom they will sell largely the same coverage product. In doing so, these insurance companies will inevitably engage in the sale of a product which by its nature must be sold or conveyed in a way that is inherently both separate and unequal.
While it is impossible to know today where this health coverage debate in Washington is headed, as we write, one thing is certain: Patients and their families need a guarantee, as a matter of law, that everyone is entitled to basic and adequate health care coverage. State lawmakers should take the step of acting to guarantee that every Vermonter regardless of health status is entitled as a matter of law to basic health care services. It is the proper role of government to set the floor, and ensure a baseline of adequate care, period. Increasingly, the federal government appears to be devolving health care policy to the states. Our state should take the step of signaling that sustaining a culture of life and well-being are intertwined and we understand that wellness will be judged not based on those of us who are largely well, but rather; those amongst us who for one reason or another aren’t.
RAD Member Steve May is a licensed independent clinical social worker who formerly served as the national director of state affairs at the Hemophilia Federation of America and as director of advocacy for its New England Chapter, the New England Hemophilia Association. He also is a member of the Selectboard in Richmond.