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

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.

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