Today the Governor of Vermont signed a bill that would create a single payer health insurance system in the state and authorize a state heath insurance exchange under the new federal reform law, PPACA. This bill is just the first step. More will need to be done to determine exactly how the system will be financed and to obtain the appropriate waivers from the federal government. This latest development highlights the continued importance of state heath reform even after PPACA, and the degree of flexibility that PPACA and the Obama administration provide for state initiatives.
You can read more information about the bill at ModernHealthcare.com and
at CaliforniaHealthline.org.

This week, in Brown v. Plata, the U.S. Supreme Court upheld a three-judge district court order directing California to remedy two ongoing constitutional violations in California's prison health care system. The first violation, involving prisoners with serious mental disorders, is the subject of a case filed in 1990, Coleman v. Brown. The second violation, involving prisoners with serious physical medical conditions, is the subject of a case filed in 2001, Plata v. Brown. In both cases, federal courts found that deficiencies in the prison health care system were so severe that they violated the Eighth Amendment's prohibition against cruel and unusual punishment. Most recently, the Plata court described the system as "broken beyond repair" and causing an "unconscionable degree of suffering and death." In 2006, I wrote about this problem in a post for the Hastings Center Bioethics Forum titled The Hidden Costs of a Cruel and Unusal Prison Health Care System. In this post, I describe many of the horrific details about the individual and systemic abuses that have been occurring inside of prisons, and the hidden consequences these abuses have for the public's health and safety.

This ruling is receiving a great deal of attention because it upholds an order to reduce the prison population, which could, but does not necessarily have to, result in the release of prisoners. The focus of most commentary has been on whether this means that dangerous criminals will be put back on the street. But despite the alarms sounded by some editorials and the dissent in the case, the state has not been ordered to release dangerous criminals. Moreover, it is clear from the Supreme Court's opinion that the three-judge district court was very concerned about public safety. The district court heard from many experts, including former corrections officials, that reducing the prison population does not have to threaten public safety and, in fact, will likely improve it. The court was also careful to give the state a great deal of discretion over how it addresses the overcrowding problem.

California has a number of options to deal with this order that would not threaten public safety. It can move prisoners to other facilities, including county jails, that are currently almost empty. There is a law in place that authorizes the state to move nonviolent inmates to county jails, but lawmakers must still find the money to pay for it. The state can reform sentencing laws to divert those charged of non-violent offenses into alternative monitoring systems, to stop reincarcerating parolees for technical parole violations, and to lessen the sentences of those charged with minor, nonviolent crimes. Such reforms have been advocated for decades as fiscally smart and likely to improve public safety overall, but enacting them takes political will and most lawmakers fear being labeled "soft on crime". Finally, there is already a system in place to grant early "medical parole" to prisoners who are no longer a danger to the public due to incapacitation - prisoners whose conditions are so severe that they require costly medical treatment. This would mean significant financial savings, while posing no danger to the public. And yet, not one eligible prisoner has been paroled under this program, again because of an apparent lack of political will and fear of public reproach.

The district court's order to reduce the prison population was truly a last resort and is critical for two reasons. First, needed health care reforms, such as hiring more qualified providers and ensuring a better system of triage and timely diagnosis, are being undermined by overcrowding. The federal receiver appointed in Plata explained the effects of overcrowding on health care delivery: it "has created a culture of cynicism, fear and despair which makes hiring and retaining competent clinicians extremely difficult"; it "creates regular 'crisis' situations which . . . take time [and] energy...away from important remedial programs"; and it has "increased the incidence of infectious disease ... and had led to rising prison violence and greater reliance by custodial staff on lockdowns" which impede health care delivery and increase patient demands on the system.

Second, reforms have been stymied repeatedly by a fight over money and lack of political will. The state has had several years to correct these deficiencies, and the federal court has undertaken a number of steps in order to force the state to do so. While some improvements have been made, there has been significant legal and political resistance by state officials to these reforms, many of which require a signficant financial investment. Lawmakers are afraid to pour resources into services for prisoners during good economic times, let alone when the state is facing a budget crisis that has already led to cuts in other social and welfare services.

The fact is that the state should welcome the Supreme Court's ruling in Plata. The prospect of prisoner release should create the political will to act or at least provide lawmakers the necessary political cover to fix the prison health care problem. Lawmakers can finally push for long overdue reforms and resources for prisoners without being viewed as soft on crime. They can argue that reform is needed to ensure that dangerous prisoners won't be released or they can simply say that the Supreme Court made them do it.

A recent editorial in the NY Times, titled The Ryan Plan for Medicaid, describes why the House Republicans' plan to radically restructure Medicaid would be very bad for states and ultimately Medicaid consumers. The editorial does a good job of explaining the proposed changes to the existing Medicaid program, why these changes will ultimately shift more of the financial cost of health care from the federal government to the states, and how this will inevitably lead to states cutting even more services and provider reimbursement.

As bad as this is, Ryan's plan would further threaten access for vulnerable Medicaid consumers in another way - by undermining the legal rights that Medicaid consumers and providers have to challenge the state cuts that are likely to occur.

The Ryan plan proposes to change the Medicaid program into a block grant program that would create stricter limits on the money states get, but grant states greater discretion with respect to the amount and type of benefits, services, and reimbursement provided. We've already seen how states routinely disregard legal requirements under the existing Medicaid program. At least now providers and beneficiaries have legal recourse to halt illegal Medicaid cuts that threaten health care access and quality, and they have done so successfully.

Public programs that are administered through block grants typically have fewer clear legal requirements imposed on states to ensure that federal money is spent in ways that ensure equal access and quality care. In addition, these kinds of programs may not give beneficiaries the ability to sue to enforce these requirements or prevent illegal state action. In fact, we see examples of this in the way the Children's Health Insurance Program (CHIP) has been created and administered.

In 1997, Congress created CHIP under Title XXI of the Balanced Budget Act to provide insurance for uninsured children in families whose income was not low enough to qualify for Medicaid. The law allowed states to use federal funding to simply expand existing Medicaid coverage, create a new and separate CHIP, or create a combination of both a separate program and an expanded Medicaid program. Many states chose to create a separate CHIP, which not only maximized their flexibility with respect to program design, but also gave them the ability to limit beneficiary due process protections and eliminate the right of providers or beneficiaries to challenge programmatic decisions that violate federal requirements.

Greater flexibility and discretion for states in the administration of public insurance programs tends to mean less federal oversight, less consumer protection, and less accountability to the public. The current battle over illegal state cuts within the existing Medicaid program shows that what is needed is greater oversight and legal protection for Medicaid consumers, not less.

- For more information about successful legal challenges to Medicaid cuts, you read my prior post States Cannot Ignore Federal Role in Medicaid Program.

- For more information on consumer protections in the CHIP program, you can go the National Health Law Program website on CHIP and read The State Children's Health Insurance Program: An Analysis of Due Process in State Programs.