4. Ellen Shaffer responds (part one):

Since the Maine legislature became the first in the nation to pass single payer legislation a few weeks ago, I think it is difficult to make the case that patients' rights legislation has diverted political energy from efforts for universal coverage. Maybe the momentum of the national patient's right bill has even helped.

A critical question is which interests are allied on the patients' rights bill, which against, whether the balance of power has shifted, and if so where.

The quagmire that has forestalled universal health care for the last 70 years has been the inseparable opposition by the triumvirate of organized medicine, the insurance industry, and employers. Users of the system have been generally stunned into inertia, with occasional successes by the elderly, disabled, and disease-specific groups, particularly at times that other social issues loomed large (e.g. Medicare & Medicaid in 1965). In 1993, advocates of reform hoped employers would bolt from the triumvirate, but they rather shifted allegiance from providers to the insurance industry, preferring other businesses as a better partner than the government.

The patients' rights bill has been the manifestation of a split between providers and insurers. In this respect it is tempting to claim a similarity to the baseball strike - spoiled millionaires squabbling with spoiled billionaires. But the split in itself can have some positive results; in addition the legislation would give the public sector a greater say in how the industry conducts itself, and may have energized a political trend with some legs.

The managed care/insurance industry always defined patients rights legislation as a political attack by providers. Managed care has understood that it was their dirty job to control costs, and a primary political objective has therefore been to weaken providers' political power; managed care could have lived at any time with many of actual provisions of the bill, and as they like to point out many companies already do (and if they don't many states have mandated it). When the patients' rights bill was first introduced in the Senate in 1993 managed care hated it but was ready to acquiesce to almost everything, believing that the Clinton bill would also pass. When the Clinton bill died, the industry realized they had more muscle and dug in (and also got greedy and arrogant). The amount of money at stake is less significant than the political damage that could unravel the dominance of managed care - Managed Care companies are unlikely to get much more soaked in court than they are now, and employers' premiums are already, to use the old buzzword, skyrocketing.

The industry's problem is that, as noted by others, medicine has consistently succeeded in mobilizing users of the system (patients) across a broad spectrum of society (journalists are patients too) on the particular issues related to patient protections. So what has changed with the passage of the bill through the Senate is that the balance of power has tipped slightly against the insurance industry, and in favor of the coalition spearheaded by medicine and backed by a wide range of providers and users.

I note that Ted Marmor states delicately that an important result of this legislative fight could be a shift in the composition of the Congress, rather than claiming that advocates can rely on a return to a triple-Democratic regime (I seem to recall it was a Democratic House, Senate, and White House that blew health care reform in 1993). There have always been strong Republican supporters of both the medical lobby and of patients rights legislation in Congress; most recently Republican John McCain was an important public supporter in the Senate, as Charlie Norwood (a dentist) and Greg Ganske (an osteopath) have consistently been in the House. Sure there is a difference between the parties. Now that we've settled that, what composition will it take to make further progress on health care issues in Congress?

Ellen Shaffer, MPH, PhD, Assistant Professor, University of California at San Francisco

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5.  Ellen Shaffer (part two):

What if anything does this latest debate mean for prospects for universal coverage, to say nothing of other important issues such as prescription drugs and medical errors? Do advocates for reform have the juice to break through without insurers, employers or providers? Is a longer-lasting realignment in formation?

Insurers are unlikely to support universal coverage. It is not clear why supporters of reform should fret if the system is destabilized, or managed care companies lose money, as a result of having to be accountable and actually provide services to people. It is of course useful to take the opportunity to remind people that health care coverage is voluntary and therefore inherently unstable, as Marcia Angell has done. The fact is the industry is already losing money because it doesn't work; noting this, their corporate parents have cut them loose over the last six years, making them yet more unstable and possibly weaker than in 1993. (Aetna Health Care is no longer aligned with the liability and casualty company that once propped it up. Although it still has more money than you do.) And their expenses include paying for lawsuits, of late an extremely effective tool of public policy. The problem is not that the system will inevitably become yet more expensive and untenable, with or without this bill, but that the decline may or may not motivate comprehensive reform.

Providers have gained some points. Will progressive clinicians, patient groups, public providers and others be able to tug the AMA out of its official opposition to single payer (it is finally on board with the idea of universal coverage), or to create a coalition of equal strength without it?

Will providers or some leaders entertain the prospect that the hierarchical and industrial organization of the health care system is inequitable and regressive (ok medieval is too strong a word) and therefore perpetuates inequality, drop the Latin terminology so that they can communicate, and align with other sectors of society (the public sector would be a good place to start) to really protect patients from poor health and shabby care? (Errors are the tip of the iceberg.)

If not, will advocates come up with a message and program sufficiently compelling to mobilize any of the following: a vocal majority of the public, significant other special interests (Barbra Streisand?), or big money (Barbra Streisand?)? Some take-home points are these:

1. Achieving universal coverage in the US will be difficult without addressing the inequities and inefficiencies in the delivery system, and it's not yet clear how this will be successfully negotiated with providers. Other countries have done so in the past; however they are running out of money and options. (Yes, they spend less money than the U.S., and probably they should spend more than they do, but to their credit some are looking towards reforms in quality and accountability as well.) Managed care is certainly still with us, and may figure this out if it does not collapse, but there is little evidence for this. Ultimately it will probably be the government's responsibility. Enlightened leadership from the provider side would help, and this would be the best result of the bill of rights battle; but since the precedents for sacrificing power and self-interest are few, it may take a while to sort this out.

2. The patients' bill of rights has created some positive momentum on the issue of health care and called public attention to important issues. Advocates of stasis gain by dismissing it; advocates for reform could gain from analyzing and capitalizing on its benefits.

Ellen Shaffer, MPH, PhD, Assistant Professor, University of California at San Francisco 

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