42 Stetson L. Rev. i (2012-2013)

handle is hein.journals/stet42 and id is 1 raw text is: STETSON LAW REVIEW

VOLUME 42                          FALL 2012                          NUMBER 1
ECONOMIC ASPECTS OF HEALTH LAW
INTRODUCTION                                              Louis J. Virelli III  1
HEALTH LAW ARTICLES
Health Reform and the Affordable Care Act:
Not Really Trusting the Consumer                          Marshall B. Kapp      9
The Affordable Care Act (ACA), the result of two pieces of legislation
passed by Congress in 2010, is likely to produce significant impacts on
most aspects of the American healthcare industry. This Article focuses
on two possible philosophical and operational approaches to healthcare
reform: supply-side regulation and demand-side policy interventions.
The Author asserts that the general philosophical and operational
approach taken in the ACA is that of supply-side regulation. The Author
states that this approach is paternalistic (the government knows best
and consumers are uneducable) and contends that, for the most part,
the ACA fails to allow individual healthcare consumers to take an active
role in improving healthcare quality, access, and affordability. This is
argued to be a missed opportunity to gain the advantages offered by a
robust healthcare marketplace that could be garnered by focusing on
demand-side policy interventions rather than supply-side regulation.
The Author begins by giving a background of the supply-side
concentration that the ACA has embraced. This background includes
specific examples and explanation of this supply-side concentration
such as: diminishing Medicare Advantage plans, establishing the
Independent Payment Advisory Board, and enacting measures that
essentially prohibit private insurers from taking part in traditional
underwriting. This provides an outline of the expansion of the federal
government's role in healthcare financing and delivery under the ACA.
The Article then discusses the ACA's failure to consider the demand-
side of the healthcare debate and to give consumers more respect and
involvement in the improvement of healthcare quality, access, and
affordability. The Author argues that even if many Medicare
beneficiaries do not currently have the education to take part as active
healthcare coverage consumers, the correct response is not the ACA's
paternalism, but rather is to develop resources to enhance consumer
knowledge and create a better environment of information exchange.
Next, the Author points out that, although the majority of the ACA
focuses on the need for government to take care of consumers who are
unable to make their own healthcare choices, the ACA section on
Comparative Effectiveness Research and its authorization to financially
support a Patient Centered Outcomes Research Institute shows faith in
consumer decision-making in complex medical decisions.
The Article then uses specific examples of proposals for conversion of
the traditional entitlement structure of Medicare to a premium support
program to show the possibilities a greater consumer focus could
provide. These proposals entail a more positive vision of consumers and
their abilities to take part in the healthcare market. These specific
proposals are then used to present rationales for demand-side policy
interventions. The Article presents the argument that the defined
contribution and voucher approaches to healthcare promote respect
and self-determination with regard to an individual's healthcare.
Additionally, these programs would allow consumers not traditionally

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