Essay on "Administrative Law & Health Reform"

Essay 10 pages (3260 words) Sources: 1+

[EXCERPT] . . . .

On the state level there are similar problems. States must create new insurance exchanges that offer consumers a choice of insurance plans, establish common rules regarding the offering and pricing of insurance, and provide information to assist consumers in understanding the options available to them. States must also establish high risk pools that provide a safety net for the medically uninsurable population. These safety nets will ensure that these individuals are able to procure private health care insurance that is both unrestricted and offered at a reasonable premium rate. Finally, the states must be prepared to handle the increased numbers that will result due to the near universal availability of health coverage. With all these new requirements it is easy to see why there are such serious concerns regarding a huge increase in administrative laws and agencies necessary to regulate the new requirements?

The litigation regarding the Affordable Care Act began almost as soon as it was enacted. Twenty-six different states have filed suit challenging the constitutionality of the Act. The decisions on such issue have been split and the U.S. Supreme Court has already agreed to hear arguments relative to its constitutionality. The outcome of this review is unknown but assuming that the constitutionality is upheld it will not be the end of the discussion or the debate. The natural result of such a ruling will be the creation of volumes of regulatory rules by the various governmental agencies that will be required to oversee the proper operation of the new Act. Interestingly, the Act contains little or no language that will provide the courts with any indication as to the intent of the drafters. The Act was prepared in rapid fashion and, as a result, there is a strong likelihood that a variety of loopholes exist which will require additional court involvement and review.

The area of administrative law is one that most individuals have little or no contact but as governmental regulation has increased the importance of the administrative law field has increased as well. Proceedings in administrative courts are considerably different than those in typical courts. Most courts are based upon the adversarial system where both sides to an issue present evidence to the judge or jury in an attempt to persuade said individual or group of their version of the facts. The administrative law procedure may or may not be adversarial but in most cases it is not. Most administrative decision making is made outside the courtroom through semi-formal hearing procedures.

The Affordable Care Act, despite what have been promised to be concentrated efforts to the contrary, will undoubtedly add considerably to the load of the Government administrative agencies that will administer the program. The enactment of the Affordable Care Act will require an entirely new bureaucracy within the United States Government and within the various state governments as well in order to administer the application of the new legislation and to oversee its operation. Even a cursory view of the Act reveals that the Department of Health and Human Services has been entrusted with a remarkable responsibility and that, as outgrowth of this responsibility, it will be necessary that several new agencies will need to be created. Each of these new agencies will have new administrative rules and regulations. These new rules and regulations will be subject to interpretation and enforcement and require decision making by administrative agencies. This eventuality is one of the biggest arguments raised in opposition to the passage of the Affordable Care Act: the increased growth in government.

The recent passage of the State of New Jersey's Healthcare/Pension reform measures covering public employees within that state provides a remarkable contrast to the enactment of the Affordable Care Act by the U.S. Congress (Pew Center, 2010). The New Jersey legislation marks a retreat from the expanding role of government and their administrative agencies. The New Jersey bill provides for cut-backs in pension contributions to its state employees and for a reduction in the percentage of health care premiums paid by the state for its employees as well. The bill also attempts to curtail the collective bargaining rights of the state's employees.

Like the Affordable Care Act, the New Jersey legislation is subject to much controversy. State employees obviously are disturbed by the fact that their benefits are being restricted and that they are now expected to contribute far more heavily toward their retirement and health benefits and that, through the loss of their collective bargaining rights, they have affectively lost their ability to battle back against the government's policies. On the other hand, there are a great many of individuals in the State of New Jersey who view the passage of the new legislation in a very favorable light. These individuals view government has having grown too big and too expensive and see this legislation as a way of not only limiting the power and authority of the government but also as a way of cutting back considerably on costs.

The actions taken by the New Jersey legislature and the state's Governor have not been done in isolation. It is one of several attempts by state governments throughout the country to take similar steps to limit the authority of governments and to curtail costs. Similar efforts have been exercised in Ohio, Wisconsin, Indiana, and Michigan with mixed results but there is no doubt that these efforts are indicative of a strong concern among segments of society that government and government organizations are too powerful and expensive to maintain.

As a public policy matter, there is likely little argument that everyone should have access to health care. Few in society would argue that only those that can afford it should be able to maintain their health or that the poor should be left to their devices when attempting to remain healthy. Not everyone agrees, however, with the proposition that the government should be responsible for ensuring the health of its citizens or that the government should be burdened with the cost of providing health care. The advent of the Affordable Care Act is not the U.S. Government's first step forward into the health care field. The U.S. Government has been involved in health care since it first passed public health legislation and has remained so. The Affordable Care Act is just another step in this evolution.

If the Affordable Care Act is ultimately determined to be a proper exercise of governmental authority by the U.S. Supreme Court the effect on the area of administrative law will be considerable. It can be expected that the existing agencies responsible for health care administration will see considerable growth and responsibility while several new agencies will be created to administer the new responsibilities placed on the government. The major task for the government will be to minimize, as much as possible, the development of an administrative system that becomes too complex and complicated so that it fails to fulfill its primary function which is to provide health care to those who presently lack it.

The debate over the passage of some form of national health care program involves issues far more complex than whether or not everyone should have access to quality health care. Access to health care is part of the issue but the debate transcends far more than that. American society is sharply split over many issues and the discussions regarding the Affordable Care Act are just a small part of this split. The actions of the New Jersey legislature are a sterling example of how serious this debate has become and how it has torn as the very fragment of American society.

When American society first began to rely upon the field of administrative law to address its concerns relative to the activities of its various government agencies, the administrative law process was seen as an effective and efficient method of operation. Recent debates over a variety of issues, however, indicate that the administrative system may be less effective and efficient than it was originally considered to be. The debate over national health insurance that resulted in the passage of the Affordable Care Act highlighted how the administrative system may be actually contributing to the high cost of medical care but also to the lack of quality in the delivery of that care. Now, the very system that is contributing to the problem may be responsible for overseeing the proposed solution. Critics of the Affordable Care Act and other government sponsored programs argue that it is time that the entire administrative law process needs to be reformed.

The Administrative law process was designed to provide a mechanism in which the acts of government agencies could be effectively controlled. The system expanded greatly during the last half… READ MORE

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