Speaking different languages about health care as a right

Now that the 2012 elections are over, there is a tendency for those whose perspective is more statist to view that they have received a mandate to go forward with their vision of health care reform. From my perspective, the election provides only the starkest of evidence of a closely divided country where a slim majority supported President Obama's vision of state driven health care changes.

Do not get me wrong. Our present system is terribly flawed and the trajectory of spending is unsustainable. There are constituencies who are committed to holding patterns attempting to extract as many rents from the current system as possible, hoping they can reach retirement age before their goose that lays golden eggs goes away. However, among virtually all thoughtful people there is almost complete agreement that what we are doing presently is not viable in the longer term. The issue is not whether change will happen but instead what that change will look like and who or what will drive it.

President Obama and his supporters tend to hold a belief system which places great confidence in the ability of the law to drive change and to structure human systems in such a way to that law is always a positive force. This belief system is predicated on the assumption that what is most important is the intent of the law and that smart people are fully capable of creating rules, often very complex, which can predictably result in improved incentives and improved outcomes. I should also note that professional politicians on both sides of the isle share this set of assumptions, albeit they may have different levels of confidence that the law can be used in different realms to coerce people to behave. Elements of both the left and the right can be all to willing to seize the reigns of a coercive state into order to bully other elements of the populace.

As I see this, the fundamental gulf that exists revolves around what groups view as the priorities of what the governing leadership should be. What are currently viewed as liberals or progressives (and I hate these terms) prioritize moving toward a world which should exists while conservatives (which is what I view myself as being) place priorities on moving toward a similar world but constrained by what can be. As I wrote about in an earlier blog, von Mises noted in his work "Human Action" (https://www.blogger.com/blogger.g?blogID=2308282620289958037#editor/target=post;postID=7269024980841579619), there is really little disagreement on the articulated goals of:

It is obvious that they do not differ from one another with regard to ends but only as to means. They all pretend to aim at the highest material welfare for the majority of citizens.

To me, the most important discussions should focus not on what we aim to achieve but instead on what is actually possible. Going all in aspiring to use the power of the state in order to strive toward a perfect world may sound good, but this experiment has been tried before. The product was not perfection but was instead perfectly awful. What limits our actions in regards to delivery of health care and specifically, what are the limits on state action? Why can't the state use the power of law to simply declare that health care is a right and that ALL those within the borders of the US should have access to health care?

Obviously entire books have been devoted to this and I will not exhaustively delve into all aspects of this question in this essay. The undisputed fact that so much has been and continues to be written belies the complexity involved. However, at the simplest level, you cannot mandate access to what you cannot define, particularly when the definition of what you are referring to is constantly morphing and evolving. Making something a legal right backed by the coercive power of the state requires that you must define the scope of that right. Decentralized private markets and charities are much more nimble in this regard. What one party does at any given time can be distinctly different from other parties involved in similar activities. This is not the case for legal rights. If one cannot define the nature of the right involved, it moves the action, however desirable at a theoretical basis, into the realm of practically impossible. Every decision regarding what is covered can be moved from the personal and medical into the legal realm. If you don't believe this will become unmanageable almost immediately, please refer to the case of Michelle Koselek in Massacheusettes (http://www.cbsnews.com/8301-201_162-57520960/mass-officials-to-fight-murderers-sex-change/).

The issues with defining the scope of any health care right was recently highlighted in the NEJM (http://www.nejm.org/doi/full/10.1056/NEJMp1208386)in a piece by Neuman and Chambers entitled "Medicare's Enduring Struggle to define Reasonable and Necessary Care". In the article the authors note:

Since its inception in 1965, Medicare policy has been guided by legislation mandating that the program not pay for items and services that are not “reasonable and necessary.” Over the years, amid escalating costs and the medical community's embrace of evidence-based medicine, the Centers for Medicare and Medicaid Services (CMS) has struggled to interpret and apply the “reasonable and necessary” criteria. At key junctures, CMS has been thwarted by political pressure or the courts. As Medicare spending takes center stage in the country's budget debates, “reasonable and necessary” warrants a closer look.

Neither necessary of reasonable is definable in any way meaningful way which will create any enduring structure which can address allocation of scarce resources. Neuman and Chambers dance around this issue and conclude by noting:

It may be tempting to believe that the matter will be rendered moot by payment reform and premium-support policies. That is, some may hope that the federal government can simply delegate coverage decisions to other parties, such as accountable care organizations, while forcing patients to consider the value of technologies through increased cost sharing. Such reforms are needed, since they will help move CMS out of the business of micromanaging coverage policy, though the details will be crucial. Offloading financial risk, however, does not absolve Medicare. Although it will shield CMS from certain controversies, questions will persist over how much geographic and socioeconomic variation in technology coverage the country will tolerate in a federal program. Moreover, the steady march of big-ticket, high-profile technology, such as cancer therapies, will demand a single response from Medicare regarding the adequacy and reasonableness of the evidence base.

Thus they admit that the creation of Medicare requires implementation of one size fits all approaches to defining scope. Where will those decisions be made? Whatever the initial intentions of those charged with defining and implementation will be co opted in the realm where all government decisions are made; the political realm. Political allocation of resources yields decisions which generate votes. The political realm works in a winner take all environment where those who can muster tiny majorities can impose their wills on substantial minorities, even if their governance may be unwise.

If the purpose of actions is to strive toward some ideal, whether effective or not, then aspiration alone can be a measure of success. However, I aim for more and am fearful of Utopian aspirations used to justify concentrations of power as a means to attempt what may be theoretically desirable but is almost certainly not attainable in the world of imperfect humans playing politics.