Brace yourself for "dense reading of the most tortuous kind"

Well, not here, I hope, but I thought I should warn you about it. With reports coming in that the House may pass the Senate health care bill with a simple majority and move it to reconciliation in the Senate for a simple majority vote, it seems that meaningful debate on the big issues is essentially over (though the partisan sniping shows no signs of letting up); there may be a few minor tweaks here and there, and some issues may be carved out and addressed separately.

If the bill is going to survive in roughly the same form in which the Senate passed it (i.e., likely its best hope for survival), then it is going to present a number of challenges to those who want to understand and implement it, as suggested in a previous post.

The first step in analyzing it is looking at the current laws that it would amend. Among the laws the bill would amend is the Social Security Act, which, among other things, governs Medicare and Medicaid. The bill would make significant changes to how Medicare and Medicaid are funded and reimburse for services. The U.S. Court of Appeals for 4th Circuit has characterized this body of law rather colorfully:

There can be no doubt but that the statutes and provisions in question, involving the financing of Medicare and Medicaid, are among the most completely impenetrable texts within human experience. Indeed, one approaches them at the level of specificity herein demanded with dread, for not only are they dense reading of the most tortuous kind, but Congress also revisits the area frequently, generously cutting and pruning in the process and making any solid grasp of the matters addressed merely a passing phase.

Rehabilitation Ass'n of Va. v. Kozlowski, 42 F. 3d 1444, 1450 (4th Cir., 1994)

"Surely," you might think, "this must be judicial hyperbole." I can assure with great confidence that it is not.

For example, below is a simplified (and rather incomplete) 1-degree semantic map of the term "physician" as it appears in Section 1861 of the Social Security Act, based upon analytical information available on the ontolawgy™ platform. By "1-degree", I mean that the map tracks only direct relationships among element within a system, i.e., A -> B and relationships that A and B share with other elements.


On the right are the terms that require understanding of the term "physician" or that one must understand to understand the term "physician". On the left are the legal provisions—only within Section 1861—that are in some way related to the term "physician". Each of the lines in this diagram represents not only that a relationship exists between elements in the system, but also actually describes what the relationship is. Think of each line as a thought that a lawyer would need to have—consciously or not—in order to actually understand what a term or statutory provision means.

In some instances, it may require 4 or 5 "thoughts" to fully understand the relationship among the elements. The ontolawgy™ platform tracks those thoughts and places them into a searchable database.

If that's a "simplified" map, what does an unsimplified map look like? Well, because you asked so nicely, here's a 2-degree map; it tracks relationships beyond the first degree. For example, A -> B is a 1-degree relationship. A -> B -> C is a 2-degree relationship; the map also tracks common relationships among A, B, or C:


If these diagrams don't look particularly helpful to navigate or understand the law, don't worry: They're not supposed to be (at least not when presented as static images). They are supposed to represent the complexity and interconnectedness of elements of the law and to demonstrate the difficulty that a mere mortal lawyer might encounter when researching Medicare and Medicaid issues.

Now before you jump to any conclusions about the intellectual prowess of lawyers, remember that this diagram just relates to the term "physician" as used in Section 1861 of the Social Security Act. It does not address the term as it may appear in the other 108 sections of Title XVIII of the Social Security Act, nor does it address the term as it might be used in the context of Medicaid, nor in any of the millions of words (no exaggeration) of regulations, rules, Medicare and Medicaid manuals, and other statements of official policy. It may also help to bear in mind that Medicare and Medicaid regulate considerably more than just physicians.

I submit that anyone who can keep track of all of this in his or her head either has a beautiful mind or an unusual affinity for toothpicks. Let's just say that I don't have a little shed out back and I eat with a knife and fork....

© 2010 Alex M. Hendler. All Rights Reserved. No claim to original government works.

An Escherian Dilemma: Health Insurance Access or Health Care Cost?

Access to health insurance is an important problem, as is evident from one insurer's recent announcement that it would raise premiums by up to 39 percent. Improving access to insurance seems to have been the main focus of most health care reform legislation to date, but there is more to the story. According to the insurer that is proposing to raise its rates, the cost of medical equipment and services is the reason behind its proposed premium hike.

Given the dramatic increase in health care expenditures over the last several years, there is no doubt that limiting the growth rate of medical expenditures is extremely important to do. To see why, just take a look at some of the scariest sites on the internet: The Congressional Budget Office's Health page, and the Centers for Medicare and Medicaid Services National Health Expenditure Data page.

If you are not familiar with the CBO, it does some impressive and eye-opening work. If you are at all interested in how the government is proposing to spend your money, take some time to review the CBO's site. The site includes a number of interesting documents relating to health reform efforts, and CBO (thankfully) has the freedom to demystify some of the more confusing language. For example, in one analysis, the CBO notes that the Senate's health reform bill would actually increase the deficit, while nominally preserving the solvency of the "Health Insurance" (that is, Medicare Part A) "trust fund" that has been projected to be bankrupt by 2017.

So, which should be addressed first, access to insurance or the cost of health care itself? Like almost everything involving paying for health care, the only clear and simple answer is that there is no clear and simple answer: This is a chicken that hatches out of its own egg. Are there any M.C. Escher devotees who want to try their hand at drawing that?

(On another note, here are some interesting additional perspectives on what it would mean to repeal the antitrust exemption for health insurers. Although most of the experts in that article suggest that repealing the exemption would have little, if any effect on the health insurance market, there is only one surefire way to find out what it would do....)

© 2010 Alex M. Hendler. All Rights Reserved.