Presidents Adams and Jefferson, with a few others, discuss health reform with a disabled lawyer.

• Author: Norman, Gary C.

1. INTRODUCTION II. BACKGROUND III. EXECUTIVE BRANCH V. JUDICIAL REVIEW VI. A LAWYER WITH A DISABIL1TY VII. CONCLUSION I. INTRODUCTION

   Pondering two busts of Presidents Adams and Jefferson, (1) a Washington lawyer with a disability is suddenly interrupted from the reflection. (2) Long-time colleagues and passionate, if sometimes disgruntled, friends, (3) Presidents Adams and Jefferson request that they adjourn to a local tavern for dinner. (4) The Presidents propound an inquiry while imbibing a Fuller's London Porter. (5) What are the issues with which the American people are grappling? The size of, as well as the proper role of, government is as much an issue for the American people now as it was in the Presidents' time. (6) Specifically, Washington lawyers still constitute strategic actors within executive, legislative, and judicial forums. This Article discusses the interaction of Washington lawyers in these branches of government regarding healthcare law and policy. (7) The Article discusses how access to technology inhibits a disabled lawyer from equal involvement in the governmental process. (8) The Article also thematically presents the position Presidents Adam and Jefferson would likely harbor on healthcare reform. Public discourse must be more intellectual like that of the founding generation, (9) and it should be improved in its civility. (10)

2. BACKGROUND

   The United States spends, as a percentage of Gross Domestic Product, more on healthcare services than any other industrialized nation, with annual expenditures equaling $1.6 trillion. (11) Since 2008 when President Obama campaigned on healthcare reform, (12) and since 2009 when he sought the enactment of healthcare reform, (13) health law and policy, namely healthcare reform, has been the subject of copious debate. (14) President Obama signed healthcare reform into law on March 23, 2010, now in its second anniversary. (15)

   The Patient Protection and Affordable Care Act, (16) as amended by the Health Care and Education Reconciliation Act of 2010, (17) (hereinafter "healthcare reform" or "the Act," respectively) has been the subject of regulatory or litigious action and conflict within the three branches of government. (18) Healthcare reform has the affect of attempting to address issues of quality, access, and cost. (19) The purpose of the complex omnibus statute is to address flaws with health insurance, including the many millions of "uninsured Americans and the escalating costs they impose on the health care system." (20) Healthcare reform imposes myriad new mandates on individuals, states, and the private sector, providing for or attempting to provide for: (1) expanded health insurance to the uninsured; (2) reduced spending in such federal health insurance programs as Medicare; and (3) substantive and extensive changes in the private health insurance industry. (21) By 2019, when all of the healthcare-reform provisions will be in effect, an additional 32 million people will purportedly have health insurance coverage. (22)

   The Individual Mandate, a principle integral to healthcare reform, (23) requires all citizens and legal residents to carry health insurance. (24) Beginning after 2013, if an individual violates this requirement, he or she must pay a monthly penalty of $7.91 per family member (not to exceed $285 per family). (25) Starting in 2014, individuals who are required to have insurance can either keep employer-based health insurance or benefit from new state exchanges that will be established by each state or by a regional coalition of states. (26) "Health insurance Exchanges are [the Act's] attempt to address historical flaws in the individual and small-group health insurance markets." (27) State operated exchanges will be systems through which private insurers provide plans. (28)

   Not all individuals are eligible for the exchanges. (29) The self-employed, those who work for employers with less than 100 employees, and individuals who are retired but not eligible for federal insurance programs, can participate in the state exchanges. (30) Health insurance plans will be funneled through these exchanges, allowing for more regulation of health insurance plans, the benefits offered, the cost of the plans, and the extent that private insurers operating in the state exchange can discriminate. (31) States cannot establish the premiums charged to individuals. (32) "The federal government retains authority to establish the certification criteria for the state-based Exchanges, while states are responsible for the actual certification of plans and administration of the Exchanges." (33) In addition to reforming the health insurance industry through the state exchanges, (34) healthcare reform imposes numerous changes to the federal-health-insurance-entitlement programs of Medicare and Medicaid. (35)

   In representing the people, the legislative branch, under the influence of the President, ought to cautiously construct and pass legislation. Healthcare reform is the broadest piece of Congressional legislation intended to achieve a sweeping social policy agenda since the Great Society. (36) The Act is "thousands of pages, requiring thousands more regulations written under the authority of Kathleen Sebelius. ..." (37) The Act is clearly a complex omnibus statutory scheme implicating profound constitutional questions.

   Providing a brief sense of other facets of the Act might be helpful in demonstrating the Act's complexity. (38) The Act focuses general health and welfare of the populous, including, persons with disabilities. To address the epidemic of obesity, (39) the Act imposes national menu-labeling requirements, including, but not limited to, a mandate that nutritional information be conspicuously furnished by establishments that have twenty or more locations. (40) The Act imposes a mandate that the Secretary capture data on health disparities, including as to persons with disabilities. (41) Additionally, the Act exhibits policy experts' goal in addressing disparities of people with disabilities within the healthcare system by requiring the United States Access Board to develop and then issue, within two years of enactment, guidelines governing the accessibility of medical diagnostic equipment. (42) Congress passed, as part of the Act, the Elder Justice Act and the Patient Safety and Abuse Act, both of which are statutory attempts to expand efforts to prevent abuse, neglect, and exploitation of older adults. (43) Because of its omnibus nature, the Act has myriad facets that seek to affect overall healthcare policy.

   In 1965, pursuant to its Spending Clause authority, Congress added Title XIX to the Social Security Act, thereby establishing a key component of the Great Society, (44) the Medicaid program. (45) The Medicaid program, also known as medical assistance, constitutes a federal insurance program in which states accept significant funding (to be matched or otherwise supplemented by such states) with the intent of expanding access for the poor to private and public providers. In addition to its role in providing insurance, the government applied the Medicaid program as a means of addressing larger societal concerns, such as reducing infant and maternal mortality. State membership in the Medicaid program is voluntary; each state must submit a state Medicaid plan to the Secretary of the United States Department of Health and Human Services, operating in compliance with that plan as well as the regulatory framework governing Medicaid. (46) If a State does not withdraw from the Medicaid program, while failing to comply with Federal requirements, the Federal Government can impose sanctions, terminate participation, or withhold all or part of a State's Medicaid grant. (47) Since 1965, Congress has frequently amended Medicaid; each time, Congress anticipated that States participating in the program would cooperate with the changes. Likewise, the Act will increase mandates on the states; after January 1, 2014, states are required to provide minimal essential coverage to individuals up to 130% of the poverty level. (48)

   Thus, healthcare reform implicates a larger and long-held debate about the proper role of government, including but not limited to, the proper role of governmental regulation. (49) The liberal perspective of the political spectrum, including President Obama, argues that governmental regulation is the logical response to any failure or alleged failure in the private marketplace. (50) The Secretary of the Department of Health and Human Services, Kathleen Sebelius, posited that the federal government plays a key role in regulating "the healthcare arena." (51) Republicans increasingly oppose legislation they perceive as "liberal," arguing that government has no place to regulate social and commercial relationships. (52) Healthcare reform caused the positive consequence of initiating afresh the study of the United States Constitution by the American public and its leaders. (53) Healthcare reform is notable for its encapsulation of a new progressive federalism, in which power for issues that concomitantly affect the federal government and state government is centralized in the regulatory state. (54) The Act resulted in a continued discussion about the balance of power among the federal government and the states; namely, whether a state can, sometimes based on what has been called an orchestrated "battering ram strategy" by federal leaders within the Tea Party, nullify the directives of the federal government. (55)

3. EXECUTIVE BRANCH

   The President is a crafty Prince. (56) President Obama has proven to be pugilistic (57) and pragmatic. (58) The vacillation between the "two Obamas" is often frustrating to his progressive base. (59) Republicans may perceive that, if they nudge sufficiently, President Obama will capitulate. (60) Arguably, they do so at their peril.

   An administration has an array of tools to strategically utilize to both...