Panelists focus on the uncertain future of healthcare in the U.S.

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WMU-Cooley Law School and WMU Homer Stryker M.D. School of Medicine hosted an Oct. 25 panel to discuss improving healthcare, featuring (l-r) Cooley Law Professor Lisa DeMoss, director of LL.M. in insurance law; James B. Falahee Jr., senior vice president for legal and legislative affairs, Bronson Healthcare Group; Hon. Jane Markey, Michigan Court of Appeals; former U.S. Congressman Bart Stupak; and Tyler Gibb, co-chief and assistant professor at Stryker School of Medicine.

Photo courtesy of WMU-Cooley Law School

By Cynthia Price
Legal News

Ten years later, not much has changed in terms of the view on the Affordable Care Act (ACA): it is still rife with uncertainty, though for a different reason than in the past.

For most of the ACA’s history, the lack of certainty stemmed from the daunting effort to translate a behemoth of a bill (over 2,000 pages) into practical guidelines and procedures.

Now, as several panelists who spoke at an Oct. 25 event, co-sponsored by Western Michigan University-Cooley Law School and the WMU Homer Stryker M.D. School of Medicine noted, the reasons are chiefly in the realm of politics.

“I’m disappointed the discussions on the Affordable Care Act have been political and not on substances,” said keynote speaker Bart Stupak, the former Representative in Congress from Michigan’s 1st District (most of which is in the Upper Peninsula).

Stupak was the only panelist who had any real political connection to the ACA, but other panelists agreed that the subject was too important to be viewed solely through the lens of gaining political points. Everyone seemed to feel that there are policy changes needed to reach the ACA goal of affordable health care for all, and most panelists advanced sound recommendations to make those changes.

Stupak himself, who introduced himself as a “recovering politician,” has written a book about, as he terms it, “the details and the secluded negotiations on the final votes for passage, the political shenanigans and the late night negotiations” involved in the act’s passage. He said that “For All Americans (The Dramatic Story Behind the Stupak Amendment and the Historic Passage of Obamacare)” was primarily occasioned by his impatience with the incorrect and untrue versions of its passage others were disseminating.

After he had started a manuscript of the book and set it aside, a documentary filmmaker showed him a clipping he had made of Rahm Emanuel, now mayor of Chicago but at the time President Barack Obama’s White House Chief of Staff. In the clip, Emanuel tells about sitting down with Stupak and the two “non-lawyers” hammering out in an hour the Executive Order banning federal funding for (most) abortions, a substitute for the ACA amendment sponsored by Stupak to that effect.

At the WMU panel discussion, Stupak explained some of the circumstances of the collaboration behind the Executive Order wording, and said, “Rahm’s version is false and Rahm also seemed to forget that I had been an attorney for 36 years.”

Stupak is a 1981 WMU-Cooley graduate, after first getting an Associate’s degree from Northwestern Michigan College in Traverse City, and an undergraduate degree in Criminal Justice magna cum laude from Saginaw Valley State University in 1977. During his education and until 1984, he was a Michigan State Trooper.

After a stint in the Michigan House of Representative, Stupak went to Washington in 1993. He retired in 2010, because, he told the panel discussion audience, “On election night 2008 I promised my wife Laurie that we would pass health care, and that I would retire from Congress if we did.”

The heart of Stupak’s book is the conflict he felt between two strong beliefs: that abortion is wrong versus his strong conviction that “health care is a right for all Americans and not just a privilege for those who can afford it.”
In making the political compromises necessary to salvage whatever he could of the amendment to ban federal funding for abortions, he seemed to make enemies of just about everyone on both sides of the issue.

Perhaps that is why Court of Appeals Judge Jane Markey, the moderator, said in her introduction, “As an elected official, I’ve always leaned a little more to the right, but there are few people I’ve encountered with Bart’s integrity and his ethics.”

After Stupak gave a brief history of health care legislation — noting that Michigan’s Martha Griffiths was the first to introduce a single-payer type of bill — he gave his recommendations for some tweaks to the ACA to effect such changes as stabilizing the insurance market and enforcing the “individual mandate.” He said, “We should restore the tax cuts that were intended to fund the individual mandate, including the medical device tax. And we should restore funding for navigators to help people with the marketplaces.”

WMU-Cooley Law School Professor Lisa DeMoss is an expert on the insurance industry, and her remarks focused on the uncertainty all the political maneuverings have caused in the industry. She also noted that the increase some purchasers are seeing is only natural, since the insurance companies only now have enough years of records to do the necessary analysis.

As far as the current climate, “I expect to see considerable reinterpretation by the agencies, which is permissible — according to the Chevron case great deference is given to the regulatory agencies’ interpretations of law so long as it’s not arbitrary. But if nothing else they’re going to create significant market instability.”

James Falahee, senior vice president for Legal and Legislative Affairs for Bronson Healthcare Group, emphasized that patient care does not, and must not, fluctuate. “There’s a lot of talk about all the uncertainty, repeal and replace, what version are we on... It’s been my pleasure over the years to speak directly to the health care providers, and my message is that what’s going on in Washington really has no impact at all and should not have any impact at all, on what happens at the bedside.”

Tyler Gibb, an associate professor at the WMU Stryker Medical School who has expertise in medical ethics, asked that consideration be given to the role of the medical care providers, especially physicians. Burnout is very real, and medical doctors are at much higher risk for suicide than the general population.

In answer to a question about the barriers to passage of universal health care, although all of the panelists seemed to agree single-payer was a possibility, Gibbs introduced a critical concept. “When we look at the principles that undergird our health care system, we talk about autonomy, freedom of choice, doing no harm, social justice issues... Those are kind of where the American ethos ends. But if you go across the pond, there are societies that incorporate the principle of community solidarity.

“We have a long history in that way, so it’s not surprising that we value rugged individualism over solidarity, but the idea of having a community where people take care of each other, even if they do have to sacrifice something of themselves, it is done in other places across the world.”

 

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