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Craig B. Garner, Founder, Garner Health Law Corporation

A Place for Death In Health Care



By Craig B. Garner
Founder
Garner Health Law Corporation



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Original Publish Date: October 10, 2017

“Art is the tree of life. Science is the tree of death.” -- William Blake

When President Obama signed the 2010 Patient Protection and Affordable Care Act into law on March 23, 2010, the word “death” appeared in the 903 pages of Public Law 111-148 a mere fifteen times. However, the concept of death plays an integral role in defining the institution of health care in the United States, often in the form of increased funding from or on behalf of a health care provider to forestall its inevitable arrival. At the same time, health care has an abundance of codified rules and regulations, and hospitals and providers must adhere to a stringent standard of care governing the provider-patient encounter. Within this equation, death is a total wild card, and the inestimable stress it places upon our health care system remains completely unpredictable.

If health care’s primary function is to challenge death, Medicare bears the brunt in this modern age, especially when it comes to crafting the rules that govern care for nearly one out of every five U.S. residents, not to mention the additional 22% of the population who receive benefits under state Medicaid programs. Between federal statutes, federal regulations, administrative decisions and Medicare’s online billing manual, it was likely easier to procure a second coin for a return trip with Charon back across the rivers Styx and Acheron than it is to actually understand the infrastructure within which the United States spent $646 billion for Medicare and $545 billion for Medicaid in 2015, the equivalent of 40% of the national health expenditures for that year.

Given the choice, most prefer life over death. That said, many of those same individuals may opt for an expedited ending rather than a slow, painful and protracted demise. And in this same scenario where financial resources happen to be unlimited, those who prefer to fight for life will likely spend considerable time and money trying to avoid the actual door behind which death is waiting. Others without financial means may linger nearby for months or more, depleting those resources to which they may be entitled, even when provider enthusiasm wanes. All these factors combine to result in discrepancies of care and illustrate the innate inability of the United States health care system to accommodate such challenges and occasional inconsistencies within a system tasked with watching more than 326 million people spread out over 3.5 million square miles. The oft catatonic response from the Executive and Legislative branches leads to the conclusion that, for the time being at least, the ACA is here to stay, while Medicare remains health care’s most valuable asset.

Fortunately, even as Medicare regulations continue to swell and close in on Georges de Scudéry’s 17th Century Cyrus the Great, with its 13,095 pages and 2,100,000 words, the fundamental elements of health care in the United States remain finite in nature. Health care’s contemporary trifecta includes the patient, the provider and the payer, and remains one of the few consistencies over the past century. The symbiotic and equally parasitic relationship between all three underscores the futility of “repeal and replace” logic, even if balance within the system exists only in theory. The patient seeks health, often at any price, sometimes even without any foreknowledge of the actual amount at issue. The provider seeks wealth, especially after spending several years preparing to monetize the delivery of care which patients hold so sacred. While certainly not the first choice among providers, death must be viewed as an acceptable and ultimately inevitable end result. The payers serve as gatekeepers, obligated to spend most of their money maintaining a system within which a patient can regain health, but only so much as necessary to motivate the provider into securing its delivery. Death is a necessity for the payer, and the painful truth from this perspective is that the faster it comes, the better the bottom line. While the elimination of preexisting conditions and lifetime limitations on health care benefits attempted to shift the balance of power away from the payers, the act of discarding “incentives” for patients to obtain health insurance at all times (such as the individual or employer mandates) results in the unleashing of the often-unpredictable payer.

In that regard, the ACA can be viewed as a bit of an anomaly. The emphasis on preventative care and well-being found within its pages attempts to reduce demand on the system by patients. The methodologies for provider reimbursement emphasize value, efficiencies and positive results, which in theory should reduce the total amount in payments to those who deliver care episodically, while theoretically increasing overall spending on an expanding population with longer life expectancies. Payers, who should already be benefiting from lower utilization by patients and greater efficiencies by providers, have statutory limitations on both profit and loss, not to mention the strict scrutiny under which they fall when raising premiums by more than ten percent, at least according to statute. Yet when President Trump first uttered the word “repeal,” these early signs of discord in health care policy resulted in projected escalation of health insurance premiums into double digits. To patients and providers, payers are modern day conquistadors, employing all available resources while identifying system vulnerabilities for the purpose of controlling health care, similar to the manner in which Hermán Cortés colonized modern day Mexico.

Rather than vacillating between greater complexity or outright abandonment, a successful health care system must reestablish that all-important, ever elusive balance between patient, provider and payer. Without stronger tenets of parity, patients may end up being forced to choose between financial ruin or possible death. This assumes providers do not eventually forsake the Hippocratic Oath itself, or worse, the Emergency Medical Treatment and Labor Act (EMTALA), by building an impenetrable wall to keep undesirable patients away. As state and federal governments push forward into this unknown terrain, millennials and octogenarians each have cause for alarm as they depart from their current protected status, only to become dreamers for the day when meaningful access to health care resumes at last.

Craig Garner is the founder of Garner Health Law Corporation, as well as a healthcare consultant specializing in issues pertaining to modern American healthcare. Craig is also an adjunct professor of law at Pepperdine University School of Law. He can be reached at craig@garnerhealth.com.


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