Health Care From Our ‘State of Tutelage’

It's easy to understand how the U.S. pays more for health care than any other industrialized nation. It's less easy to understand the poor results.

According to federal Indian control law, Indian nations are “in a state of tutelage,” meaning that the indigenous people are supposed to learn from the settlers how to govern themselves. That is clear because the Supreme Court tells us so. Less clear is how we progress to the free and independent peoples we were before our tutors took us on as a project?

Is there an exam to pass? What are the standards to evaluate our progress? I fear that in the unlikely event the U.S. ever debated the standards, that debate would fall into the maelstrom of current U.S. politics, where every issue is a partisan issue. In that case, our passing would depend on who gets to grade the exam.

Democrats, at least since the New Deal, have claimed that we have governments to take care of each other and of the commons. “Commons” is defined to include not just public lands, but air and water generally. This kind of thinking gave us Social Security, Medicare and Medicaid, Affordable Care Act, and the Endangered Species Act.


Republicans challenge the idea of “the commons,” because whenever the government sets aside land for parks or a wildlife refuge or to keep development out of a flood plain, that land was taken from somebody who was the rightful owner, with a written chain of title going back to whichever European royal claimed the right to rule over us.

The proper function of government is defense, the GOP claims, protecting existing property rights. The folks you might call fundamentalists will not go much beyond defense. They might approve collective hiring of firefighters, but if so they would be OK with watching a house burn if it belongs to somebody behind in payments to the fire department.

My favorite socialist institution, the public library, is beyond the pale because the library contains books people could and should buy for themselves.

People differ on which decisions are the hardest, but the thing to remember is that taxes represent stolen money. Any crime short of homicide can be justified, meaning that committing the crime causes less harm than not committing the crime. Even the hardest core Republican can think of some instance where taking his money in the form of taxes would be justified.

One of the best places to argue about when using tax money is appropriate is health care, because we all need it at least twice in our lives when we could not pay for it ourselves, when we are very young and again when we are very old. These are the times of “death panels,” and the issue is whether we want our death panels run by the government for political ends or the insurance industry for economic ends.

I’ve had some serious health challenges lately that got me two hospital stays of about a week each. I’m not worried about medical bankruptcy because I have Medicare plus a backup insurance plan from my first career, but this happens at the first of the year so all my deductibles will be due and of course there will be substantial co-pays.

Even sitting in a better position to stand this surprise expense than most people, I know I’m going to get hit hard and it will be more than I can pay in one or two months. Therefore, I’ve got to be close with money until the bills come in, which won’t happen until they bill Medicare and then bill my other insurance. It could be months, which gives me some time to save up for the hit but also leaves me financially immobilized.

Right now, you might say I’m watching the debate over what the Republicans will do to Affordable Care Act from the cheap seats, because whatever they decide will not touch the bills hanging over my head.

If I understand their plans, I’m not even going to get hit at first. They are going to eviscerate Medicaid and then let the political dust die down before they start dismantling Medicare. The destruction of the Affordable Care Act exchanges and shrinking of Medicaid will hit the hardest in the states that swung the election for Trump, so it could be that the political backlash will delay or even stop the assault on Medicare.

The Republican Congress is trying to do two things that conflict. They want to require coverage of preexisting conditions but they also want to do away with the mandate that everybody have insurance.

The obvious problem is that people can wait until they are diagnosed and then buy insurance.

I thought the way they would finesse that would be to require no breaks in coverage in order to have preexisting conditions covered. I got this from a discussion while the bill was being drafted. Give them a few years and those people who are not insured through an employer will have a lapse....or they will change jobs and there will be a lapse. It will take some years to get there, but we'll be back to no coverage for preexisting conditions.

Now the replacement for Obamacare is announced. While the debate is cranking up, we have time to look at the bill. It’s supposed to be more market-based than Obamacare because, left alone, the market can be counted upon to do the right thing for the greatest number of patients.

When there is a lapse, there is a surcharge on the premium that sounds a whole lot like a penalty, except that it goes to the insurance company rather than the government Also, the insurance companies are allowed to charge whatever they wish for preexisting conditions.

That last wrinkle would probably wipe out most coverage for preexisting conditions all by itself. That is tolerable, they tell us, because the market will gravitate to a natural price. Any attempt to regulate that price by law would introduce “distortions” in the market that would do harm at some point. The market knows best.

It's easy to understand how the U.S. pays more for health care than any other industrialized nation. It's less easy to understand the poor results. After all, the U.S. is the place to get sick if you are wealthy.


Conservatives are fond of pointing out the obvious truth that government regulations impose costs. They are less excited to admit that a bureaucratic maze that did not originate in Washington also imposes costs.

I haven't gotten over the revelation that how much a procedure or a pill costs depends on who is paying for it. In one of the price-gouging scandals a couple of years ago, the maker of the item in question protested that he did not get most of the money in the price and he did not know who did.

He drew ridicule, but I believed him.

I've got a Medicare statement right now for a cushion that goes on a medical device. It's an itty-bitty thing made of plastic and it just snaps on. Could that cushion cost as much as a buck? Hard to picture.

The Medicare statement informs me:

Amount Supplier Charged: $830.

Medicare-Approved Amount: $105.25.

Amount Medicare Paid: $82.52.

Maximum You May Be Billed: $21.05.

See Note C Below.

Note C informs me, "You live in a Competitive Bidding Area..."

Boy, that's a relief. Without competitive bidding, the pricing could get irrational. Can’t let distortions creep in or the Republican half of our tutors might make us repeat the course on the role of the market.

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.