Wednesday, November 19, 2014


Special Conference Reflects on the 50th Anniversary of Medicare and Medicaid

Leading health law experts and policymakers gathered in New Haven on November 6 and 7 for a unique conference reflecting on the 50th anniversary of Medicare and Medicaid at Yale Law School.

The Law of Medicare and Medicaid at 50 examined the intersection of law and politics across the two landmark statutes and how these laws changed the legal frameworks, political dynamics, and governmental structures of health in this country.

The first two panels explored the historical context of Medicare and Medicaid, with panelists discussing the commonalities in health policy debates today compared with what they were 50 years ago. The discussion found that there are continuing debates about cost and fiscal viability, national health coverage versus efficacy and importance of market forces and competition, and the role and influence of election outcomes on health policy.

The Medicaid panel featured an exchange of ideas on the use of the program to help cover the poor and children. Nicole Huberfeld, of the University of Kentucky College of Law, discussed the importance of the expansion of Medicaid to actually cover more of the poor, while John Jacobi, of Seton Hall University School of Law, raised concerns that this expansion might cause the program to lose focus on those who need it most, the very poor and vulnerable.

“For most of its history Medicaid has covered only about 40% of the nation's poor...it's a surprising number because we think of Medicaid as being the nation's safety net when in fact it's only been a safety net for some,” said Huberfeld. “It's been a safety net with gaping holes."

Jacobi said he believes the ability to incentivize addressing these social determinants is critical because "health care is not the answer to health status for poor people."

The third panel on “Historical Context, Legislation, and Administration” utilized panelists with various experiences to address health policy in the judicial context, political context, and legislative context. Professor Abbe Gluck ’00, the conference organizer, helped to illustrate the health law dynamics that play out on the Supreme Court to show that they rarely, if ever, decide Medicare and Medicaid cases as a part of some unified field of health law. Over the last 50 years, Gluck said there have been only 25 Medicare cases and 17 Medicaid cases, meaning the Supreme Court "is not where all the action is in health law."

The panel also featured Yale Political Science Professor Jacob Hacker and Tim Westmoreland, Professor at Georgetown Law School, who addressed the politics involved in the programs. Hacker discussed the importance of Medicare in elections, with the elderly voting in high numbers. Westmoreland explained that Medicare and Medicaid are mandatory spending programs, rather than discretionary, which he said somewhat shield the programs from changing too drastically due to changes in the political landscape and congressional make-up.

“Medicare and Medicaid are governed by health economics and not health policy...a blessing in the long run,” said Westmoreland. Eleanor Kinney, of Indiana University Robert H. McKinney School of Law, complemented these discussions by showing how administrative law has become the primary law regulating these programs.

During a panel on Policymaking and Innovation, Daniel Kevles, Professor of History at Yale University, said that Medicare and Medicaid programs have largely been absent in driving drug innovation, and Alan Weil, of the organization Health Affairs, found that while there is plenty of experimentation in Medicare, there is very little adoption of those experiments that prove effective. The panelists discussed that in Medicaid there is very little experimentation with formal evaluation methods but lots of adoptions of different programs. Professor Harlan Krumholz, of the Yale School of Medicine, expressed his belief that health policy has the power to improve health care, referencing the changes in quality of care standards and policy that focus not only on the inputs but the outputs as well.

The keynote address was given by Ezekiel Emanuel, a Senior Fellow at American Progress and chair of the Department of Medical Ethics and Health Policy at the University of Pennsylvania. Emanuel went through the history of Medicare to show how politics gave us the system that we have today with its various parts. He expressed concern over administrative problems with Medicare and Centers for Medicare and Medicaid (CMS) generally, given the amount of responsibilities that lie with a relatively small-sized agency.

“Once you have that structure, you are stuck with it, and I don’t think in our policy-making process we think hard enough about what are the long-term consequences of that and it really can create perverse incentives over time,” said Emanuel.

Ultimately, Emanuel said he felt that these administrative problems seen in CMS and with Medicare should give pause as to the benefits of a single-payer system or a Medicare-for-all approach.

“If you have one system for 310 million people it will become even harder to change and even more controversial with every change because of the interest groups that exist,” said Emanuel, who noted that while there are serious issues with the fragmentation of our current health care model, it remains more flexible than a single-payer system.

“It does have slightly more flexibility and slightly more experiments and I think over the next decade that is going to be more important as we try to move off and really change the whole healthcare system.”

A fifth panel titled “Health Law Federalism, Especially after NFIB,”focused on the federal-state relationship in the programs and how it may look moving forward. Both Sidney Watson, of Saint Louis University School of Law, and Heather Howard, of Princeton University Woodrow Wilson School of Public and International Affairs, examined the use of waivers in the Affordable Healthcare Act, 1332 and 115, respectively. Section 1332 of the Affordable Care Act (ACA) allows states to request five-year waivers of certain key provisions of health reform, including the individual mandate and the requirement to set up an exchange. Section 1115 of the Social Security Act, which was modified by the ACA, gives the Secretary of Health and Human Services authority to approve experimental, pilot, or demonstration projects that promote the objectives of the Medicaid and CHIP programs. Watson warned of future suits over an overly broad use of 1115 waivers by the Secretary, while Howard felt that 1332 waivers could become an important player in the 2016 elections, as they must be submitted in 2016 for a 2017 rollout.

The final panel addressed the future of the programs by examining their structure, the politics that will play a role moving forward, and the problems they've left unaddressed. Jonathan Cohn, Senior Editor at the New Republic, discussed his belief that while Medicare has become more insulated from threats to reduce funding, Medicaid too may face less of these threats as the program is so thinly funded now that any more cuts will make it difficult for politicians to hide from the actual harm these cuts produce. Nicholas Bagley, of University of Michigan Law School, shared concerns expressed by Emanuel during the keynote that CMS needs to undergo changes administratively to be able to handle the workload effectively. He also stated that empowering CMS with certain changes, including legal empowerment to sanction, would enhance their effectiveness.

Allison Hoffman, of UCLA School of Law, and Judith Feder, of Georgetown University McCourt School of Public Policy, both focused on the problem of long-term care, which is becoming an increasing problem with no solution in sight. Hoffman discussed the need to look at the risk not only for those who will need the care, but also for those friends and family whom more often than not are the ones providing informal care to their caregiver’s detriment. Feder explained how 40% of this type of care is needed by those under 65, and how the characteristics of the problem match any other issue that has been dealt with through social insurance.

The conference was sponsored by the Health Law Program at Yale Law School; Yale Health Law and Policy Society; the Yale Journal of Health Policy, Law, and Ethics (YJHPLE); Health Affairs; and the National Academy of Social Insurance.