At Law: Oregon's Disability Principles or Politics?

Abstract

Health care reform--to overcome problems of who gets care and how it gets paid for--has moved into the national spotlight during this election year. While Congress and the presidential candidates weigh dozens of proposals for partial or comprehensive change, the states have taken the lead in actually adopting new programs. On 3 August 1992, Louis M. Sullivan, M.D., Secretary of the U.S. Department of Health and Human Services, derailed one of the boldest reform measures when he denied Oregon's petition to be excused from certain requirements of the joint state-federal Medicaid program. Although this rejection was not wholly unexpected, the grounds on which Secretary Sullivan acted came as a surprise to many observers--while also giving a hint at a novel use for the new Americans with Disabilities Act of 1990, which came into effect on 26 January 1992. Programs for universal access to care enacted this year by states such as Minnesota, Vermont, and Florida have received considerable notice, but perhaps the most attention has been directed at Oregon's plan, which was adopted three years ago but scheduled to go into effect in July 1992. The Oregon Basic Health Services Act of 1989 actually comprises three separate bills that together aim at extending access to health care to the 16 percent of the state's population that is uninsured. Two of the statutes have generated relatively little national controversy. Senate Bill 534 establishes a high-risk insurance pool for people who are unable to purchase ordinary policies due to anticipated high need, typically those who have a preexisting condition, in insurance jargon. The premium for these policies may not be more than 50 percent higher than the state average; state funds and mandatory contributions from private insurers will cover any shortfall from premimums. A second act, SB 935, will ultimately require all employers either to provide employees with health insurance or to make contributions to a state fund created for the purpose of issuing insurance. Together these two acts would provide health insurance to about two-thirds of the state's uninsured. The centerpiece of the 1989 Oregon reform was Senate Bill 27, which extends access to care to most of the remaining 120,000 uninsured Oregonians by providing Medicaid coverage to all legal residents with incomes up to the federal poverty level. At present, Medicaid in most states covers only a subset of the poor, primarily those who qualify on categorical grounds, such as being eligible for AFDC (Aid to Families with Dependent Children). In Oregon, AFDC recipients must generally have incomes below 50 percent of the poverty level to be eligible for Medicaid. The controversial aspect of the Oregon plan is not it effort to create universal coverage but the means it uses to keep the costs of the program within bounds: the benefit package for all Medicaid recipients (as well as for people covered by the state health care insurance fund) would be determined by a list of 709 health condition-treatment pairs ranked by a newly created Health Services Commission. To make its ranking, the commission drew on information about how the public values various health care outcomes, as revealed through a telephone survey, public hearings, and meetings conducted by Oregon Health Decisions. Based on 17 major categories of outcomes (from treatments of acute conditions that prevent death and result in full recovery, to treatments that produce minimal or no improvement in patients' quality of well-being), the commission ranked condition-treatment pairs to reflect how the expected outcome of each contributed to achieving what the public values. This method was intended not merely to permit total spending to be controlled but also to define the benefit package in a more logical way, thereby providing not just rationing but rationality as well. Every two years, when the Oregon legislature meets, it will determine how much to spend on health care, thereby drawing a on the list of conditions and treatments where the projected cost of providing the services above this line equalled the funds available. …