With All Eyes on the "Market," Health Reform Overlooked Human Rights

October 27, 2010

This guest blog post is by Anja Rudiger, director of the Human Right to Health Program at the National Economic and Social Rights Initiative

Six months ago the United States almost got universal health insurance. Advocates celebrating the passage of the federal health reform law argued that this was as good as it gets. While it was understood that the optimistically named Patient Protection and Affordable Care Act (PPACA) emerged as the result of political compromises, many applauded it as a step toward finally realizing the human right to health care in the United States. After all, the bar had been set quite low: because the United States produces poor health outcomes and shocking health disparities despite the highest health care spending in the world – driven by a for-profit health industry – the only way the country could go was forward. Or so it was hoped.

Yet six months later we awake to news of children’s coverage dropped, sick kids being charged more, skyrocketing insurance premiums, employers’ shifting costs to workers, and insurers defending paper-shuffling as essential medical expenses.

Everyone knew from the start that the reform would not be fully universal, with the Congressional Budget Office predicting 23 million people to remain uninsured, nor equitable, with access to care dependent on the payment of premiums, co-pays, and deductibles, nor accountable, with for-profit insurers setting prices and limiting access to doctors and services. Yet many had hoped that a little bit of universality would go a long way toward getting improvements for some. By the same token, the principle of “equity” was deemed just slightly too ambitious when insurance companies could simply be subsidized for selling their products to those working low-wage jobs.

As far as accountability goes, it was considered safer to keep the enemy – our beloved insurance companies – as close as possible, rather than unnecessarily antagonizing it. If the reform stuck to a market-based insurance system – so went the reasoning – access could be within reach of more people without causing disruptions to those benefiting from the status quo.

Except that some rather painful market disruptions are upon us now, with insurers dropping policies and raising rates in droves. But once again, advocates cling to their optimism; after all, the bulk of the reforms won’t come into effect until 2014, and once we plow through this disruptive period, all the pieces will fall into place. Or will they?

The National Economic and Social Rights Initiative (NESRI) has taken a careful look at how the PPACA will impact the communities most affected by the denial of the human right to health care. A new series of fact sheets examines the potential impact of the law on people of color, immigrants, and women. Beyond the mudslinging between defenders and disparagers of the new law, NESRI examines the promises that may become reality in 2014.

From the perspective of people of color, for example, the expansion of Medicaid to almost everyone earning under 133% of the federal poverty level appears largely positive, since people of color are almost three times more likely to be poor than Whites. At the same time, however, Medicaid is being privatized and contracted out to for-profit insurers at rapid speed, despite warnings by the Government Accountability Office about misspending billions of public dollars. How will this translate into access to actual care, delivered in communities of color?

The lack of providers, especially those that accept low Medicaid reimbursement rates, will likely be exacerbated with many newly insured people in search of doctors. In fact, there is no comprehensive strategy in place for rectifying the inequitable distribution of health resources across different communities. The law fails to systematically shift funding to reduce the concentration of health risks in communities of color. Some tepid measures aimed at increasing and diversifying the health workforce remain subject to discretionary funding. So how will the law help eliminate the direct and institutional racism that has consistently led to lower quality care for people of color? This problem, too, has received only scant attention. No positive responses will be required to remedy the persistent health disparities evidenced by data collection over the past decade. Almost no secure funding is available for the few well-meaning but woefully inadequate initiatives (such as cultural competence training) to address disparities.

Health reform looks even less appealing for immigrants. Not only does the new law continue the five year waiting period for permanent residents to become eligible for Medicaid, it even prohibits undocumented immigrants to buy private health coverage with their own money on the new insurance exchanges. This may lead to people losing the coverage they have now.

Finally, the fate of women under the new law illustrates the story of hope and disappointments that characterized so much of the health reform debate: high expectations fed by new regulations prohibiting gender rating and discrimination based on health status quickly turned into disillusionment epitomized in the struggle over access to reproductive care. Neither the insurance exchanges nor the temporary high-risk pools, set up this summer for those with so-called pre-existing conditions, will cover full reproductive care services. Beyond the divisive issue of reproductive rights, gaping loopholes remain in the popular insurance regulations, and the cost of both buying and using coverage may well remain prohibitive for many women, who still earn much less than men.

Neither people of color, immigrants, or women will find their human right to health care realized under this new law. The PPACA’s failure to meet the key human rights standards of universality, equity, and accountability has concrete repercussions for these already disadvantaged groups. It is disheartening that many reform advocates have accepted this failure and moved on to become staunch defenders of this law, instead of supporting the growing movement for health care as a human right and public good for all. But some rights-based efforts underway at the state level require urgent support:  Vermont is on the cusp of adopting a human rights-based health system, yet without support from activists across the country, this effort may yet succumb to the same political and industry pressures that marred the federal reform.