Toward a New Health Care System THE CIVIL LIBERTIES ISSUES IN BRIEF Summary of an ACLU Pub

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Toward a New Health Care System THE CIVIL LIBERTIES ISSUES IN BRIEF Summary of an ACLU Public Policy Report TOWARD A NEW HEALTH CARE SYSTEM THE CIVIL LIBERTIES ISSUES IN BRIEF Toward a New Health Care System: The Civil Liberties Issues is a comprehensive report that examines the Clinton Administration's health reform plan, the Health Security Act, through a civil liberties prism. The American Civil Liberties Union (ACLU) supports and calls for comprehensive health care reform legislation that advances civil liberties and civil rights. Although the United States Constitution does not guarantee a right to adequate health care, the denial of such care can threaten an individual's constitutional rights to life, liberty and property. In addition, an improperly designed health care system may undermine equal protection, privacy and due process. The ACLU intends to remain an active participant in the national debate on health care reform in order to sensitize the public and Congress to the civil liberties issues involved in this massive and vitally important undertaking. Toward a New Health Care System: The Civil Liberties Issues, prepared by the ACLU's national offices in New York and Washington, D.C., is divided into four sections. Each section corresponds to a major civil liberties principle implicated by health care reform: equal protection, personal privacy, due process of law and the First Amendment freedoms of religion and speech. I. EQUAL PROTECTION > Equal protection issues arise whenever the government provides services or benefits to some of the governed, while excluding others. Although in many respects the President's Health Security Act provides for more equitable treatment than our present health care system, it also creates some sharp inequities that must be addressed. UNIVERSAL COVERAGE Enrollment > The ACLU supports the expansion of health care coverage contemplated by the Health Security Act to the vast majority of the 37 million Americans currently uninsured. However, the Act unjustifiably excludes several groups from enrollment. All undocumented persons, including pregnant women and children, and many legal permanent residents are excluded from coverage. Prisoners and Native Americans are also inadequately covered under the Act. Accessibility and Affordability > Although the Act contains provisions addressing the needs of historically underserved communities, the ACLU believes it does not go far enough to end a problem that plagues our current system: inadequate access to health care services in many poor and minority communities. In addition, the co-payments required under the Act would discourage low income individuals and families from seeking medical care. COMPREHENSIVE BENEFIT PACKAGE Clearly, the government is not required to include coverage for every conceivable medical treatment, but it cannot single out particular subgroups and deprive them of their right to care. While the Health Security Act represents an expansion of services over many existing insurance policies, the ACLU has several concerns about the scope of the comprehensive benefit package that the Act guarantees. For example, the schedule of covered clinical preventive services for children may be deficient. And while the Act provides coverage for all reproductive services, including abortion, whether abortion services can be restricted by a particular health plan's "gatekeeper" requirements remains to be clarified. Finally, limitations on outpatient rehabilitation services for individuals with disabilities, and on mental health and substance abuse services, should be removed. FINANCING HEALTH CARE REFORM Overall, the Health Security Act's financing scheme promotes principles of equal protection by, for example, eliminating experience rating and allowing most families to purchase coverage through a common regional alliance purchasing pool. Some of the financing provisions, however, might have discriminatory consequences. For example, while low income families on AFDC or SSI would pay no premiums and have their co-payments reduced by 80 percent, other families living below the poverty line would have to pay a premium and a higher co-payment. Such differential treatment has no legitimate basis and would result in a reduction in health care for many poor families. REMEDIES FOR DISCRIMINATION General Requirements > The Health Security Act should include a comprehensive anti-discrimination section that extends to all entities involved in the health care system, both governmental and private. The Act should prohibit discrimination based on characteristics or perceived characteristics of race, national origin, gender, age, religion, disability, socio-economic status, citizenship or immigration status, sexual orientation, language, political beliefs, family status, health status or anticipated need for health services. The Act should forbid not only intentional discrimination, but also conduct that has a discriminatory effect. The Act should also establish procedures for enforcing its prohibitions against discrimination. Alliance Boundaries > The Health Security Act prohibits states from discriminating in setting boundaries for health alliance areas, but the Act should go further. Regional alliance boundaries should be subjected to preclearance review to ensure that the alliances are structured in a nondiscriminatory way. States should be required to draw boundaries in such a way as to avoid concentrations of minorities, the poor or the otherwise disadvantaged in particular alliances. II. PERSONAL PRIVACY > The Constitution guarantees a right to privacy, including both privacy of personal information and autonomy in personal decision-making. Decisions about medical treatment are among the most sensitive decisions we make, and our medical records contain some of the most intimate and confidential information about our lives. It is vital that any health care reform legislation incorporate comprehensive privacy protections. PRIVACY OF MEDICAL INFORMATION Medical Record Confidentiality > The Health Security Act requires the creation of a national electronic data network that would contain vast quantities of information on every person residing in the U.S. Therefore, a privacy policy for medical information and records must be developed based on a number of central principles, including: 1) strict limits on access and disclosure; 2) individual control over health records; 3) built-in security measures; 4) denial of access to employers; 5) notice to patients of all uses of medical records; 6) right of access to personal medical and financial records; 7) remedies for wrongful disclosure or misuse of information, and 8) federal oversight to ensure compliance. The Act already acknowledges most of the principles cited above but lacks an enforcement mechanism, instead deferring the responsibility for developing enforceable privacy standards to a later date. The ACLU believes that privacy protections must be built into the Act at its inception. National Identifier/Social Security Number > The creation of a national card and identifier system raises serious privacy concerns. The ACLU believes that any personal information collected and amassed for inclusion in the system's electronic data network should not be used for any non-health related purpose. Although the Health Security Act limits the uses to which the card would be put and establishes criminal penalties for its misuse, any comprehensive, linked data base would inevitably tempt others in the private and public sector to access information for a variety of purposes, ranging from marketing to law enforcement. If an identifier is to be used, it should not be the Social Security number, which is notoriously unreliable and is already used for a wide array of public and private purposes. Financing and Intra-Family Privacy > Under the Act, health plans provide coverage on a family, rather than individual, basis; premiums and cost-sharing obligations are calculated in the same way. As a result, a family member would likely be able to obtain information about care received by a child or spouse. Individuals should have the right to receive medical treatment without their family's knowledge, and protections against intra-family disclosure should be built into the Act's financing system. NATIONAL HEALTH CARD The Health Security Act requires the creation of a health security card and a unique identifier system for individuals. The creation of any type of national card raises serious civil liberties problems because it could result in widespread discrimination against foreign-appearing citizens and residents. It would become a de facto national identity card that would threaten personal privacy. Alternatives to a national health card should be further explored. However, if such a card is approved, it must be provided to all persons, regardless of immigration status or health care eligibility and must not contain any visible information regarding same. To reduce threats to privacy, the card should not contain an individual's Social Security number. III. DUE PROCESS OF LAW > The Constitution mandates that no person shall be deprived of "life, liberty, or property, without due process of law." A government-supervised system of comprehensive health care would affect each of the three interests protected by the due process clause. At its core, procedural due process requires an individual to receive timely and meaningful information about rights and responsibilities, and requires that fair procedures be in place to challenge any deprivation of rights. CONSUMER INFORMATION Health care consumers must receive sufficient information about health care plans to make informed choices about coverage, financial obligations and procedures for challenging adverse decisions. This information must be thorough, understandable, accessible and timely. While the Health Security Act requires certain disclosure of information to consumers, it leaves open some troubling gaps. ACCESS TO JUSTICE Substantive Remedies for Enforcing Rights > The Health Security Act creates private rights of action to redress violations of it provisions, but in some cases it does not go far enough in providing substantive remedies. For example, the Act would allow consumers to challenge, either administratively or in court, a health plan's decision to deny payment or withhold services. If a consumer were take the administrative route, she would be able to obtain an order of payment or services. If a consumer sought judicial review in court, however, her rights and remedies would be determined by state law. The ACLU believes that a federal right to health care should not be defeated by state law limitations. Fair Administrative Procedures > Once a remedy exists, due process requires that fair and adequate procedures be in place so that a claimant can secure relief. The Health Security Act does, in general, show sensitivity to procedural due process concerns. Nevertheless, several modifications should be made. For example, the Act's prescribed procedures for contesting denials of service could take more than a year to complete. This length of time is unacceptable in cases where a patient is seeking preauthorization for treatment. Shorter deadlines for such claims should be established. Furthermore, given the complexity of the procedures established by the Act, insignificant technical mistakes made by claimants should be disregarded, so that people would not be unfairly penalized. Judicial Review > The right of access to the courts is central to our constitutional system, and only in rare instances can government actions be insulated from judicial review. The Health Security Act improperly restricts judicial review in two areas. First, one section limits constitutional challenges to the Act by establishing a "statute of limitations" one year after enactment, and by barring preliminary injunctive relief. Second, the Act insulates National Health Board determinations regarding premium caps from judicial review. Both of these provisions violate due process. Attorneys' Fees > Access to justice is illusory unless a consumer can find competent legal counsel. It is essential that health care reform legislation provide for the possibility of attorneys' fees on behalf of consumers who successfully challenge adverse decisions. The Health Security Act does provide for attorneys' fees, but in some instances it makes the award optional. All attorneys' fee provisions should be mandatory but limited to the prevailing plaintiff or complainant, most often a health care consumer. Medical Malpractice Reform > The Health Security Act amends federal and state medical malpractice liability in a number ways, several of which raise civil liberties concerns -- including, in particular, the certification of merit requirement and the Act's authorization of more restrictive state laws. In addition, the Act's definition of "medical malpractice claims" is too broad and should be narrowed to apply only to the professional negligence claims at which it was aimed. Government Enforcement Programs > Due process also applies to the government's efforts to enforce responsibilities imposed by the Health Security Act. The Act establishes an elaborate enforcement regime, including criminal sanctions, civil monetary penalties and disqualifications from participation in various parts of the health care system. Overall, the Act displays sensitivity to due process concerns, but some modifications are needed. The ACLU is especially concerned about the breadth of the five new federal criminal offenses. We fear that the overfederalization of criminal law will only burden federal prosecutors and clog the federal courts. Many of these cases should be left to state authorities. IV. FIRST AMENDMENT FREEDOMS > Health care reform implicates both the constitutional right to free exercise of religion and to free speech. Whether they are individual patients or individual providers, people may not be forced to participate in medical treatment that conflicts with their religious beliefs or moral convictions. FREEDOM OF RELIGION The Right to Opt Out of the Health Care System > The constitutional right to free exercise of religion is implicated by the requirement that all eligible individuals enroll in health plans. Certain faiths, notably Christian Science, reject traditional medicine. The Health Security Act must, therefore, recognize the equivalent of "conscientious objector" status. Conscience Clause > Individual health care providers cannot be compelled to perform medical procedures that violate their personal beliefs or convictions, and the Health Security Act is appropriately respectful of that right. However, the Act also extends the right to invoke a "conscience clause" to institutions by permitting any "health facility" to refuse to perform a procedure. This provision is far too broad in that it would allow any health facility to impose its stated institutional beliefs on patients and individual providers who might not share them, raising serious Establishment Clause issues. FREEDOM OF SPEECH Marketing Practices > The Health Security Act contains a number of restrictions on consumer marketing by health plans and purveyors of long-term care insurance. Some of the restrictions are unobjectionable, but several raise serious constitutional problems. The requirement, for example, that health plans submit all marketing materials to their regional alliance for prior approval constitutes an unconstitutional prior restraint on speech. Statutory Protections for Speech Rights > First Amendment concerns are also raised by the absence of certain protections in the Act. Nothing in the Act, for example, prohibits a health plan from excluding a provider based on political beliefs or protects whistleblowers who expose improper practices by their health plan employers. ============================================================= ACLU Free Reading Room | A publications and information resource of the gopher://aclu.org:6601 | American Civil Liberties Union National Office ftp://aclu.org | mailto:infoaclu@aclu.org | "Eternal vigilance is the price of liberty"

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