As lawmakers debated wheter health plans must cover certain tests, procedures and illnesses, everyone else--doctors, patients and the general public--wondered what there was to discuss. It only made sense, conventional wisdom argued, that health plans pay for these things. That is, after all, why these plans exist, and patients deserved good care.
Health plans' arguments that more mandates would drive up the cost of care were cast off as coming from institutions fixated only on the bottom line. But like most healthcare issues, it isn't that simple.
Ten years after the drum beating for mandating coverage first began, health plan officials now face more than 1,400 coverage mandates at the state and federal levels, according to the American Association of Health Plans, an HMO trade group. Those officials say they have no intention of trying to eliminate existing mandates. But, they point out, piling on more mandates will serve only to drive up the cost of healthcare while swelling the ranks of the uninsured.
And no longer can legislators count on organized medicine to reflexively support more mandates. In a recent report, the American Medical Association, which had argued for mandates in the past, recommended a thorough investigation into whether adding more would be sound medicine and financially smart.
The AMA's Council on Medical Service wrote: "(We believe) that any service being considered for inclusion in public or private sector insurance products needs to have evidence- based data to demonstrate both the cost-effectiveness of the service as well as whether it will make a difference in outcomes or quality of life for the patient."
"The decision to provide a service that has not been proven effective must consider the extent of potential benefit, the likelihood that the intervention is effective and the type of evidence indicating probable effectiveness," the report adds.
"These decisions must also weigh the costs and untoward effects of the intervention, including the societal costs of institutionalizing an unproven practice."
Meanwhile, industry observers and experts aren't convinced that some of the mandates already adopted have had the desired effect.
"I don't know that the particular regulatory actions have amounted to that much on the actual impact on care," says Paul Ginsburg, president of the Center for Studying Health System Change, based in Washington, D.C.
That's his gut reaction, Ginsburg says, but proving the point would require an extensive study.
"One needs to know whether the practice that is outlawed was really harmful," he says. "Part of the effect of regulation is to assure the consumers, make the consumers more confident, that their needs will be met."
It's understandable that people want solutions, says Yank Coble, M.D., president-elect of the AMA. But the solution to healthcare's problems can't be found in mandates, he says. "Almost anything that sounds too good to be true is. It's sometimes an emotional reaction to something."
Most of the 1,400 mandates--the bulk of which were passed at the state level--were passed in the 1990s when the economy was good and healthcare was stable.
That made arguing against them difficult, says Susan Pisano, spokesperson for the Washington, D.C.-based AAHP. Now, she says, the amount of money spent on these mandates is "unconscionable."
"We believe that there has to be some moratorium on mandates," Pisano says. "We have individual mandate by individual mandate. All of them are argued on the basis of patient protection. Some of them are not patient protection, but all of them are argued in a fashion that seems very worthy. And many of them, frankly, are very worthy."
But, she says, the mandates excise any flexibility plans might have in designing affordable benefits packages. For example, no one disagrees that mental health coverage is important, she says, but the idea that it's only a 1% increase in healthcare costs is misleading.
"Reporters will say to me that it only adds 1%," Pisano says. "I say, 'Yeah, but you talked to me last week about another mandate that only added 1%. It is not the same 1%. It's additive.'"
The cumulative costs are pricing employees and employers out of the healthcare market, she adds.
Increasingly, cost is an issue lawmakers must deal with when deciding what must be covered, says Ginsburg.
"The costs are much more of a significant issue today than they were five years ago when some of these provisions were passed," he says.
"We did go through a period when the percentage of GDP going to healthcare was shrinking, and people were a lot more relaxed about costs . . . I would say that today there's much greater consciousness about what something will cost."
The "prudent layperson" laws, which require health plans to cover emergency department services for situations in which a reasonable person believes an emergency exists, have several impacts, Ginsburg says.
People who would not have gone to the emergency room, but should have, might be more inclined to go, he says. But more often, people who didn't need emergency room services also went.
"They've wasted their time and their health plan's money. It probably has improved care for some people and has probably gotten in the way for other people. It costs society more resources where it didn't improve their care," he says.
It isn't just costs that can limit which mandates are feasible, Ginsburg says, adding that the marketplace has been more a driver of changes than mandates have been. For example, UnitedHealthcare, the nation's largest insurer, has eliminated its pre-authorization requests for most care.
"How do you balance those things if you're a policymaker?" Ginsburg asks. "It will probably increase the costs for little benefit. I don't know if healthcare is that different than other things, like getting your car repaired. You have a lot of uncertainty, you know that something is not working right, but you are not sure what it is that has to be fixed."
Mandates were sold to consumers and lawmakers as a sure way to improve patient care and reduce errors. But experts debate whether that's the case.
The problem originates when the mandates are proposed, Pisano says. "There's not some objective place to go to get a mandate evaluated to see if it helps patients or not, to see if it's cost-effective or not," she says. "So what we have tended to do is have a debate about whether it's instigated at the request of a provider or put forth because of an interested party or policymaker."
The AMA's CMS report recommends evaluating the efficacy and benefits of any potential mandate.
"Because the level of healthcare spending ultimately affects quality of life both directly and indirectly, it becomes necessary to assess whether the benefit of an intervention is worth its cost," the report states. "Recommended protocols, the frequency of interventions and the populations targeted to receive them can greatly affect the outcomes and costs of an intervention and should be determined with cost-effectiveness considerations."
Sometimes it is important to delineate which tests need to be covered, the AMA's Coble says. It does matter which bone screening technology is used, he says, but laws mandating coverage of annual physical exams seem to miss the mark.
"An annual exam may not be necessary for a very healthy young person. But it may be needed every six months to a year for the elderly," he says.
Depending on a patient's health history, a physician may recommend not coming back for an exam for three years or may recommend returning within six months to have blood sugars and cholesterol rechecked, Coble says.
Instead of mandating coverage, a more effective approach would be to ensure continuity of care, he says.
"That's one of the things we've lost the most," he says. "People have to move between plans so often, physicians don't have the opportunity to give them advice and follow up."
A national discussion
What's lacking in the mandate debate is a real discussion, says Reed Tuckson, M.D., senior vice president at UnitedHealth Group, the parent company of UnitedHealthcare.
"If there ever were a time for our nation to really participate in a focused and principled public discourse on what are the essential healthcare benefits, this is the time to have it and the time to call for it," Tuckson says.
"It's not so much to be focusing on what's wrong with mandates but really putting our energy into a proactive, principled direction and having a real, informed, national public discourse on what is the essential benefit package."
The conversation, he says, needs to develop an ethical set of national principles and base those principles in scientific research.
"Mandates are ultimately a failure for the nation," Tuckson says. "Having that many reflects the lack of a participatory national discourse."
He says the federal government should initiate the discussion, which needs to involve employers, physicians, policy leaders and the public.
Coble agrees and says some of that conversation has been going on at the research and government levels. The missing participants, he says, are "the most critical . . . the patients, the public."