READ THIS BEFORE YOU VOTE

America is in the middle of a health care crisis. Millions of Americans are uninsured, costs are skyrocketing, and the quality of care American’s receive is not up to par. Both presidential candidates have acknowledged the need for reform, and have developed detailed plans designed to address many of the problems plaguing America’s healthcare system. This article will discuss the background of America’s healthcare system, examine the details of each candidates proposal, and explore the relative strengths and weaknesses of each plan in order to aid voters in making an education decision on election day.

It’s that time of year again. The kids are back in school, the leaves are turning, the air is crisp, and, as usual, our mailboxes, our inboxes, our answering machines, and our television screens are filled with the latest attempts to win our hearts, and most importantly, our votes, for the hundreds of candidates who are running for public office in elections across the nation this November.[1] Election season is upon us, and, like the bell ringers who appear every December asking for our spare change, everywhere we turn we are faced with one more person handing out fliers and asking us to vote for one of the two men who hope to be our next president.[2]

As members of the voting public, we are charged with the daunting task of sorting out the deluge of information that reaches us each day and determining whom will best serve our country and our communities as we move head first into the 21^st century. Somewhere behind the smiling faces and political rhetoric, lie the real issues that will shape and define our country in the years to come. Although there are many important issues that have been pushed into the political spotlight this election season,[3] no issue has more potential to affect a greater number of Americans than health care reform.[4]

Recent studies indicate that the United States is in the middle of a health care crisis. According to the Keiser Commission on Medicare and the Uninsured (Keiser Commission), there are 44 million Americans without heath insurance coverage.[5] The cost of health care continues to increase annually,[6] and the cost of medical malpractice insurance is also skyrocketing.[7] The cost of prescription drugs, the availability of health care in rural areas of the country, and updating technology in the medical field are also areas of concern in the health care industry across the nation.

Both candidates have developed detailed plans to address the problems facing the health care industry and health care consumers. These plans have become the topic of much debate and commentary,[8] and it is clear that the choices Americans make on Election Day will have a great impact on the health care system in this country. The purpose of this article is not to persuade the reader to vote for either of the two candidates, but to bring to light the differences between the candidates plans and to compare their relative strengths and weaknesses. As John F. Kennedy once said, “the ignorance of one voter in a democracy impairs the security of all.”[9] Although health care is only one microcosm through which to view the political universe, it may have a greater impact on our day-to-day lives than any other issue in this election. The purpose of this article is to provide the reader with accurate information that will help them make an educated choice when they go to the polls on November 2.

This paper will be broken down into several parts. First, this paper will look at the current state of America’s health care system, followed by an examination of the health care reforms President Bush has been instrumental in enacting over the past four years. Next, this paper will look at each candidate’s proposal for addressing some of the major problems facing America’s health care system. This paper will conclude with a short examination of the relative strengths and weaknesses of each candidates plan for improving health care in this country.

In 2003, approximately 45 million American’s were uninsured.[10] Between 1988 and 1998, the number of Americans living without health insurance increased by approximately 1 million per year.[11] How large is 45 million? To put this number in perspective, consider this: 45 million uninsured Americans is more than all Americans age 65 and older,[12] all African Americans,[13] and all Hispanic or Latino Americans in this country.[14] 45 million is nearly 5 times more than the number of Americans living with cancer, 2.5 times higher than the number of Americans with diabetes, and 7 million more people than those living with HIV throughout the world.[15] It is about the same number of Americans living in the entire Midwest,[16] and about the same number of people living in California, Oregon and Washington combined.[17] Putting it in those terms sheds some light on enormous number of Americans who are living without insurance.

The uninsured are “predominately workers and their families, many of whom have low incomes.”[18] According to the Keiser Commission, those who earn less than 200% of the federal poverty level ($27,300 for a family of three in 1998) run the highest risk of being uninsured.[19] Young adults between the ages of 18 and 24 are also unlikely to have health insurance coverage.[20] Almost three-quarters of the uninsured are in families where at least one person is working full time, and 10% are in families with at least one part time worker.[21] “Only 16% of the uninsured are in families with no workforce attachment.”[22]

There are many reasons why so many Americans are uninsured, but the increasing cost of coverage is the most commonly cited reason for lack of health insurance.[23] According to the National Coalition on Health Care[24] “health insurance premiums are rising at their highest rate of increase since 1991. Real increases in health insurance premiums are associated with decreases in health coverage.”[25] Most Americans have health insurance through their employers, and as insurance premiums increase, employers are unable to provide employees with the same coverage that they have in the past. Dr. Henry E. Simmons, President of the NCHC recently stated:

As costs rise and coverage falls, more costs will be shifted to employers who currently provide coverage to pay the costs of care for the uninsured. Ultimately, those costs will be passed along to employees in the form of lower wage increases, reduced benefits, or higher out-of-pocket costs. This inequitable cost-shift will force more employer to drop or cut health insurance or go to defined contributions, and the erosion of the employment based system will increase.[26]

In addition to increases in premiums, changes in employment patterns have also affected Americans access to health insurance. As America continues to move from a manufacturing based to a service economy, there has been an increasing reliance on part-time workers who have diminished access to health insurance.[27] Many adults are also left without coverage due to gaps in the Medicaid program.[28]

According to the U.S. Census Bureau, there were 85,000 South Dakotans who were without health insurance for the entire year of 2003.[29] According to a report released by Families USA, over 180,000 South Dakotans under the age of 65 went without health insurance for all or part of the two year period from 2002 to 2003.[30] Following national trends, most uninsured South Dakotans are members of working families, and families in South Dakota with “incomes at or below 200 percent of the federal poverty level . . . were much more likely to be uninsured than families with incomes above 200 percent of poverty.”[31] In 2000, one forth of all workers in South Dakota worked for small employers with fewer than 20 employees, 38% of which did not offer health insurance to their employees.

“The lack of health [insurance] affects access to health care as well as the financial well-being of families [and individuals].”[32] Nearly half of the uninsured have no source of health care, and most delay or forego needed health care services.[33] The long term health consequences that the uninsured suffer due to their inability to seek treatment are often preventable if treated early, and the uninsured are more likely than those with insurance to be hospitalized for conditions that could have been avoided, such as uncontrolled diabetes and pneumonia.[34] “Decisions made by the uninsured to delay or forego needed care because of its cost”[35] ultimately lead to poorer health conditions among the uninsured. The uninsured also suffer greater losses to overall wealth when faced with a serious health condition than those who are insured.[36]

Society as a whole bears a large part of the burden of caring for the uninsured. It has been estimated that “[the] United States spends about $35 billion per year to provide uninsured residents with medical care, often for preventable diseases or diseases that physicians could treat more efficiently with earlier diagnosis.”[37] The 45 million uninsured Americans also cost the United States between $65 billion and $140 billion per year in lost productivity.[38]

Health care spending is rising at the fastest rate in this country’s history.[39] In 2001 health care spending in the United States totaled $1.4 trillion dollars, representing an 8.7 percent increase from the year before.[40] This rapid increase in health care spending can be attributed, at least in part, to a corresponding increase in cost. Employers, and in turn individuals, are paying more for health insurance coverage than ever before.[41] A recent study conducted by the Kaiser Family Foundation indicated that the average amount workers must contribute to their employer sponsored health plans for family coverage has more than quadrupled since 1988,[42] resulting in an average cost of $9,086 per year for employees to purchase health insurance for their families.[43] All types of health care plans, including HMOs, PPOs, and POSs, have demonstrated double digit increases in costs,[44] and in the absence of comprehensive reform, it is projected that by 2006 the average family health insurance premium could exceed $14,000![45]

The cost to consumers of purchasing prescription drugs is also rising. Americans consume almost 3 billion prescriptions a year,[46] costing them over $230 billion dollars annually.[47] The average annual rate for prescription drug expenditures increased 15% between 1995 and 2001, which was higher than the increase for any other type of health expenditures.[48] The co-payments consumers pay for brand-name drugs that have generic equivalents increased 62% in the 2000, and the costs of generic drugs also rose.[49] Senior Citizens, who spend approximately $2,300 a year on legal drugs, have been hit particularly hard by this increase in the price of prescriptions.[50] These increases have resulted in the reduced use of medication for many chronic diseases such as diabetes and hypertensions, leaving many Americans without drug treatment for serious health conditions.

The reasons sighted for these cost increases are many. In addition to scientific advances in treating disease and injury, the National Coalition on Health Care sites “inefficiencies, excessive expenses, inflated prices, poor management, inappropriate care, waste, and fraud” as other causes that significantly increase the cost of medical care and the cost of health insurance.[51] Some economists have hypothesized and attempted to prove that rising health care costs correlate to drops in health insurance coverage.[52] The skyrocketing costs associated with medical malpractice insurance has been cited by many, including both presidential candidates, as another reason that the price of health care has increased.

Despite claims by President Bush and others that our system of health care is the “best in the world,” there are many problems with the quality of health care many Americans receive. Although the United States spends a larger percentage of gross domestic product on health care than any other industrialized nation,[53] there continues to be an alarming number of cases where individuals are harmed by improper medical treatment. Whether they receive more care than they need, less care than they need, or the wrong kind of care[54] millions of Americans are suffering from preventable and harmful errors at the hands of our medical professionals. The National Patient Safety Foundation of the American Medical Association has estimated that the number of injuries caused by medical accidents in inpatient hospital settings nation wide could be as high as 3 million and cost as much as 200 billion a year.[55] In one study that compared patient care between five countries, patients in the US were most likely to report a medical or medication error that results in serious health consequences.[56] Patients often do no receive the recommended treatment for a variety of conditions, and are often subjected to tests, procedures, and medications that, on scientific grounds, cannot help them.[57] “Illnesses that result when patients do not receive recommended care costs the nation more than one billion dollars in medical bills and 41 million in lost work days” per year.

Thee most prolific piece of health care legislation to go into effect under the Bush Administration’s leadership was the Medical Prescription, Drug, Improvement Act of 2003.[58] This legislation, which was signed into law on December 8, 2003, has been called the “largest overhaul of Medicare in its 38 year history.”[59] The most widely publicized provision this legislation establishes a voluntary drug benefit plan for senior citizens under a new Part D within the Medicare structure.[60] These benefits, which are scheduled to take effect in 2006, will be provided in four stages depending on the individuals out of pocket expenses, and will provide Seniors and other qualified beneficiaries with some much needed relief from the burden of purchasing prescription drugs.[61] In the interim, eligible Medicare beneficiaries will have access to a “Medicare Prescription Drug Discount Card,” which will give them access to negotiated prices and discounts and will save them on average 10 to 15 percent of their pharmaceutical purchases.[62] This legislation also creates federal subsidies for employers who continue to provide prescription drug coverage to retirees if the coverage is substantially similar to the Medicare coverage.[63] This creates an incentive for employers to keep retirees on their existing drug plans.

In addition to the prescription drug provisions, the Act also contains many lesser known provisions that will improve health care in this country. Some of these provisions include:

These are just a few of the many provisions that will be integrated into the Medicare System in the coming years as a result of this legislation. For a detailed review of the provisions of the Medicare Prescription Drug, Improvement and Modernization Act, see www.aafp.org/x25558.xml?printxml.

III. ANALYSIS

Each presidential candidate has developed a detailed plan for addressing many of the issues that plague America’s health care system. According to one commentator, “[n]o issue separates the two candidates more than their health care proposals.”[64] What follows is a comparison of each candidates plan for addressing some of the major problems facing America’s healthcare system, followed by a comparison of the relative strength and weaknesses of each.

In his health care agenda entitled “A Plan for Helping American Families in a Changing World,”[65] President Bush identifies several ways to reduce health care costs. At the forefront of Bush’s agenda for reducing health care costs is reforming medical malpractice litigation. According to President Bush, existing sanctions under rule 11 do not adequately address the medical liability crisis that many states are facing.[66] According to the President, “too many lawsuits without merit are being filed against doctors and hospitals, forcing them to practice defensive medicine, driving good doctors out of the practice, and driving up health care costs for everyone. . . . To make health care more affordable and accessible to everyone, we must reduce the number of frivolous lawsuits and limit excessive jury awards.”[67] President Bush believes that reasonable caps on non-economic damages for pain and suffering, and stricter statutes of limitations for bringing malpractice suits will prevent the skyrocketing medical liability premiums that force up health care costs.[68] In a policy memo entitled “John Kerry and John Edwards’ Pro-Trial Lawyer Record is Driving Up Health Care Costs,” President Bush sites several studies that indicate lawsuits are the number one cause of the rising costs of medical malpractice premiums that are driving up costs for consumers.[69] He cites another study that indicates “medical liability reform like that the president proposed, ‘could save consumers between $60 billion and $108 billion per hear in health care costs, save taxpayers an additional $28 billion annually, and allow another 3.9 million Americans to afford health insurance.”[70]

President Bush also believes that promoting Health Information Technology that will make electronic health records universally available will reduce costs and increase access to affordable health care.[71] President Bush argues that increasing the use of information technology and adopting uniform standards to allow medical information to be shared and stored electronically will reduce error, cut waste, and reduce injuries, which in turn will reduce costs.[72] Bush’s plan calls for the establishment of a “high-level” office to coordinate government and private sector activities on health care IT, and also doubles funding to support jurisdictional units that are adopting health IT systems.[73] President Bush also cites the reduction of health care fraud and waste as additional methods for reducing the cost of health care in this country.[74]

In a decidedly more detailed plan, Senator Kerry outlines a five-point plan to address the rising costs of health care in this country.[75] Kerry’s first method for reducing costs would be to create a “premium rebate pool” that will make health care more affordable for employers and employees by reimbursing private and public employers and group health insurance plans that meet certain qualifications for a portion of catastrophic costs incurred by the insured.[76] This method is based on the premise that because catastrophic costs are both high and unpredictable, they raise the cost of health insurance for everyone.[77] Senator Kerry believes that the cost of caring for the sickest Americans should be shared not only by those who are paying for private insurance, but also by the government.[78] In order to qualify for the premium rebate pool, employers and insurers would have to: (1) provide health coverage to their workers, (2) adopt disease management and care coordination programs to improve quality and lower costs, and (3) share savings with their workers.[79]

Kerry’s second method for controlling health care costs is to “curb the spiraling costs of prescriptions for all Americans.”[80] Although recent legislation enacted under the Bush administration is aimed at ensuring that millions of Americans have access to insurance coverage that covers the costs of prescription drugs,[81] Kerry’s plan would eliminate certain loopholes that drug companies and pharmacy benefits managers use to keep drug prices high.[82] Kerry’s plan calls for: (1) the disclosure of incentives and savings received by pharmacy benefit managers from drug companies that are not being passed on to consumers;[83] (2) the closure of loopholes that keep more affordable drugs from the market;[84] and (3) the negotiation of lower drug prices for individuals who do not have prescription drug coverage.[85]

Kerry’s third proposal for reducing the cost of health care in America is to make Medical Malpractice Insurance more affordable.[86] Although Senator Kerry and President Bush agree that reform needs to be enacted that will reduce the costs of medical malpractice insurance, thereby reducing the cost of health care, Kerry strongly opposes capping damages in malpractice lawsuits.[87] Kerry argues that “capping damages will neither reduce premium costs for doctors, nor lower the cost of health care for Americans,” and that and that “capping damages affects only the least meritless cases and denies justice to those who suffer life shattering injuries.”[88] In order to reduce claims that are truly meritless, Kerry’s plan would:

1. Prohibit individuals from filing a medical malpractice lawsuit unless a qualified specialist determines that a reasonable claim exists.

2. Provide mandatory sanctions for claims and defenses that are presented for improper purposes or that are not warranted by existing law or by an argument without merit for the extension, modification, or reversal of existing law or the establishment of new law.

3. Provide additional incentives for reducing the number of lawsuits that can and should be filed. This plan would require states to make available nonbonding mediation in all cases before permitting plaintiffs to proceed to trial on any medical liability claim.

4. Prohibit the award of punitive damages in medical liability cases except upon proof of intentional misconduct, gross negligence or reckless indifference to life.[89]

Kerry’s fourth proposal for reducing health care costs is closing the gap between best practices and typical practices by offering a “Quality Bonus” that would help providers and purchasers improve quality. Kerry argues that closing the gap between best practices and typical practices for may chronic diseases, such as congestive heart failure, arthritis, diabetes, and stroke, would improve health outcomes and reduce costs.[90] To close this gap, and in turn lower costs by reducing injuries and deaths from substandard care Kerry’s plan would (1) provide financials incentives to help providers and purchasers improve quality, (2) reward health care organizations and physicians that invest in modern information systems, (3) provide economic incentives to computerize prescribing systems, and (4) make errors in medical treatment and care transparent.[91]

Kerry’s fifth proposal addressing the problem of rising costs calls for reducing administrative costs with what Kerry has coined a “Technology Bonus”. Kerry asserts that approximately 25% of all health care spending is spent on nonmedical costs, and like President Bush, Kerry believes that these costs can be reduced by using modern information technology that would make medical records available instantaneously and without costs.[92] In addition to ensuring that all Americans have electronic medical records by 2008, Kerry’s plan would require the federal government as well as private sector insurers to use advanced technology systems that he purports will not only held control costs, but reduce serious medical errors by as much as 88 percent.[93]

Kerry’s final method for reducing health care costs calls for reducing the cost of uncompensated care by investing in the health care safety net and supporting disease prevention and health promotion programs. Kerry believes that a significant amount of money can be saved by strengthening public health care providers, and supporting programs that encourage healthy live styles and preventative medicine.[94] He asserts that strengthening the institutions that make up “America’s Healthcare Safety Net” by investing in capital improvements and service expansions would save the federal government billions of dollars annually in uncompensated care.[95]

In an effort to assist the staggering number of Americans who are without health insurance, President Bush’s plan includes a number of provisions that would help the uninsured secure coverage. A major component of President Bush’s plan is the expansion of Health Savings Accounts.[96] Under President Bush’s plan, low income families would receive up to $2000 to pay for low-cost, high deductible premiums (which are required to receive benefits), and up to $1000 cash to put into their HSAs to help meet the deductible.[97] President Bush also supports the establishment of a tax credit for HSA contributions that would held individuals who work for small businesses fund their HSA’s by providing a tax rebate for contributions to the HSA of up to $500 per worker with family coverage and $200 per worker with individual coverage.[98] In an effort to encourage the use of HSAs, President Bush’s plan would also permit individuals who purchase low-premium, high-deductible policies to deduct the premiums from their taxable income.[99]

Another major component of Bush’s plan to increase coverage is to allow small businesses to establish Association Health Plans (AHPs). President Bush believes small businesses are often unable to provide insurance to their employees because they lack the purchasing power of large businesses that are able to negotiate better deals from insurance companies. In order to place small businesses on a level playing field with large businesses, President Bush’s plan would permit small businesses to “band together” in their negotiations with insurance providers.[100] President Bush also supports expanding the AHP concept to allow individuals to buy health insurance from groups other than their employer, including civic and charitable groups, churches, and other types of organizations.[101]

Bush’s health care plan would also permit individuals to shop for insurance coverage across state lines, and would also support a billion dollar “Cover the Kids Campaign” to sign up all eligible children for government sponsored health care under State Children’s Health Insurance Programs (SCHIP).[102]

Senator Kerry has also developed a detailed plan for increasing access to coverage for the uninsured. First, Senator Kerry would put more Americans on Medicaid and on the State Children’s Health Insurance Programs.[103] Under Kerry’s plan, the Federal government would pick up the full cost of providing Medicare for more than 20 million children if the states agree to: (1) expand coverage to 300 percent of poverty and enroll those kids; (2) expand coverage to families up to 300 percent of poverty,[104] and (3) assure that childless adults below poverty level have coverage.[105]

Next, Kerry would allow Americans to buy into the Federal Employees Health Benefits Plan (FEHBP), which has been widely praised for its relatively low rates and ability to meet the needs of its participants with a variety of different plans.[106] Kerry’s plan would create new pools for both small and large businesses, as well as individuals and families who need affordable health insurance.[107] Kerry’s plan would also provide a variety of tax credits to individuals and small employers to encourage them to provide health insurance to their employees.[108]

Many of the reform proposals offered by each candidate to reduce costs and increase coverage would also increase the quality of care patients receive. Improvements in technology and the reduction of waste, fraud, and abuse, would not only lower health care costs, but would also improve health outcomes. Senator Kerry’s emphasis on closing the gap between best practices and typical practices would improve care dramatically, and Health Information Technology promoted by both candidates would also have an impact on the number of medical mistakes that occur, thereby increasing quality and safety for all patients.

The subjective nature of the analysis makes it difficult to articulate the relative strengths and weaknesses of the two plans. Depending on a person’s values and beliefs, what one persons views as a strength of the candidates plan, another person might view as a weakness. Despite these difficulties, this section will attempt to articulate, as objectively as possible, many of the perceived strengths and weaknesses of each candidate’s health care proposals.

· Coverage. Thorpe estimates that Bush’s plan would provide coverage for only 2.1 million people who are currently uninsured.[121] AEI estimates it would possibly expand coverage to 6.1 million who are uninsured.[122] This is significantly fewer than the number of people who would obtain coverage under Kerry’s plan.

· May Limit Courts’ Ability To Compensate Plaintiffs in Medical Malpractice Suits. Bush’s proposal to cap awards for non-economic damages in medical malpractice lawsuits may prevent courts from being able to fully compensate plaintiffs for injuries sustained as a result of physician negligence. Because Bush’s plan does not directly address the problem of meritless claims, but simply reduces damages, it may not effectively curtail the cost of malpractice insurance, and instead needlessly limit plaintiffs recovery.

After reviewing both candidates plan for reform, it is clear that neither plan will succeed in proving health care for all Americans. It is also clear however, that both candidates are aware of the problems that plague Americans health care system, and that both candidates are committed to finding new and innovative ways to address these problems. Barring bipartisan politics that may prevent either plan from being enacted, November 2, 2004 may mark an important turning point in the history of America’s health care system. Be a part of that history and vote!

[1] In the 2002 Congressional Election, there were approximately 470,000 television ads nationwide according to the Campaign Media Analysis Group (CMAG). TNS Media Intelligence, CMAG, www.politicsontv.com (last visited Oct. 10, 2004). Since 1997, CMAG has tracked over $4 billion in political ad spending. Id. On average $2,617,021.28 are spent on political ads every day. Id.

[2] No offence to the Salvation Army is intended, who, through their fundraising efforts during the holidays and other revenue generating sources, is able to spend approximately $2.5 billion annually serving people throughout the US. Behind the Shield, 2003 National Annual Report, available at www.salvationarmyusa.org. (last visited Oct. 10, 2004).

[3] A nationwide survey of 1,512 adults, conducted August 5-10 by the Pew Research Center and the Pew Forum on Religion & Public Life, shows that in the war in Iraq, terrorism and the economy, are dominating issues in this presidential election. The Pew Forum on Religion and Public Life, GOP the Religion-Friendly Party, But Stem Cell Issue May help the Democrats, available at http://pewforum.org/docs/index.php?DocID=51 (last visited Oct. 10, 2004).

[4] Health care has been one of the top five issues in four of the last six elections. Henry J. Kaiser Family Foundation, Health Care & The 2004 Election, Public Opinion, available at www.kff.org (last visited Oct. 10, 2004).

[5] Henry J. Kaiser Family Foundation, The Uninsured and Their Access to Health Care, available at www.kff.org (last visited Oct. 10, 2004). The Keiser Commission on Medicaid and the Uninsured “was established by the Henry J. Kaiser Family Foundation to function as a policy institute and forum for analyzing health care coverage, financing and access for the low income population and assessing opinions for reform.” Id. According to this study, Low-Income Americans, who are those who earn less than 200% of the federal poverty level ($27,300) run the highest risk of being uninsured. Id. Almost three-quarters (74%) of the uninsured are in families where at least one person is working full time, and 10% are in families with at least one part-time worker. Id. Only 16% of the uninsured are in families with no workforce attachment. Id.

[6] For example, spending on health care rose 14 percent in 2003 nationally. Neil Irwin, Businesses Look to Slow Rising Health Care Costs, Task Force to Study Training, Legislation, Wash. Post, June 4, 2004, at E03.

[7] Policy Memo: John Kerry And John Edwards' Pro-Trial Lawyer Record Is Driving Up Health Care Costs, available at www.georgewbush.com (last visited on Oct. 10, 2004).

[8] See, e.g., Karen Davis et. al., Mirror, Mirror on the Wall: Looking at the Quality of American Health Care Through the Patients Lens, The Commonwealth Fund, January 2004.

[9] Quotable Quotes on Voting, available at http://www.annabelle.net/topics/voting.php (last visited on Oct. 10, 2004).

[10] See The Uninsured and Their Access to Health Care, supra note 5. This is approximately 15.6% of the total US population. National Coalition on Health Care, Facts on Health Insurance Coverage, available at www.nchn.org/facts/coverage.pdf (last visited Oct. 17, 2004). The number of uninsured children in the United States was approximately 8.4 million, or 11.4% of all children. Id.

[11] See The Uninsured and Their Access to Health Care, supra note 5. “The number of uninsured rose 1.4 million between 2002 and 2003.” Facts on Health Insurance Coverage, supra note 10 (citing Carmen deNavas-Walt, Bernadette Proctor, & Robert J. Mills, Income, Poverty, and Health Insurance Coverage in the United States: 2003, U.S. Census Bureau Report, Aug. 2004). Approximately 5 people lose their health insurance every minute in this country. Americans for Health Care, Here are the Facts, available at www.americansforhealthcare.org/facts/groups/hc_stats.cfm (last visited Oct. 17, 2004).

[12] There are 35.9 million Americans who are 65 and Older. Here are the Facts, supra note 11.

[13] There are 3.71 million African American in this country. Id.

[14] There are 39.9 million Hispanic or Latino Americans in this country.

[15] Id.

[16] There are 44.7 million Americans living in Alabama, Arkansas, Colorado, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, North Dakota, Oklahoma, South Dakota, Tennessee, and Wyoming. Id.

[17] There are 45.2 million people in California, Oregon, and Washington.

[18] The Uninsured and Their Access to Health Care, supra note 5.

[19] Id. “About a third of the poor and the near poor lack health insurance coverage.” Id.

[20] Facts on Health Insurance Coverage, supra note 10. “More than 28% of this age group does not have coverage.” Id. (citing Robert J. Mills & Shaileish Bharndari, Health Insurance Coverage in the United States: 2002, U.S. Census Bureau Report, Sept. 2003)

[21] The Uninsured and their Access to Health Care, supra note 5. A total of 25 million workers – 18% of the workforce – are uninsured. Id.

[22] Id.

[23] Id.

[24] The National Coalition on Health Care (NCHC) “is the nations largest and most broadly representative alliance working to improve America’s Health care.” National Coalition on Health Care, National Coalition on Health Care Information, available at www.nchc.org/about/ (last visited Oct. 17, 2004). The NCHC is a nonpartisan organization which units over 100 organizations and 150 Americans in the common belief that we need and can achieve better, more affordable health care in America. Id. The Coalition supports the following principles as a frame work for improving Americas Health Care:

(1) Health care coverage for all.

(2) Cost Management.

(3) Improvement of health care quality and safety

(4) Equitable financing.

(5) Simplified Administration.

Id.

[25] Facts on Health Insurance Coverage, supra note 10 (citing Carmen deNavas-Walt et. al., supra note 11). See infra pp. 9-11 and notes 39-52 for a discussion of health care costs in America.

[26] Id. (quoting Dr. Henry E. Simmons, President, National Coalition on Health Care, 2001).

[27] Id.

[28] The Uninsured and their Access to Health Care, supra note 5. “Medicaid covers 40 million law-income people, but million more do not meet its restrictive income and eligibility criteria and are left uninsured. . . . Nonelderly low-income adults must meet stringent income eligibility standards and generally are not eligible if they are single adults or childless, no matter how poor.” Id.

[29] Americans For Health Care, The State of Health Care in South Dakota, available at www.americansforhealthcare.org (last visited Oct. 17, 2004) (citing U.S. Census Bureau, Current Population Survey, 2002 Demographic Supplements). Twenty-one percent of the uninsured South Dakotans are children 18 and under. Id.

[30] Americans for Health Care, South Dakotans without Health Insurance, available at www.americansforhealthcare.org (last visited Oct. 17, 2004). “Of the 180,000 uninsured South Dakotans, nearly two-thirds (59.4%) went without health insurance coverage for six months or longer during that period.” Id.

[31] Id. “At least one person in the family of 86% of uninsured people in South Dakota works full or part time. Fifty-five percent have family members who work full time, all year long” The State of Health Care in South Dakota, supra note 29.

[32] The Uninsured and their Access to Health Care, supra note 5.

[33] Id. “Nearly 40% of uninsured adults skipped a recommended medical test or treatment, and 20% say they have needed but not gotten care for a serious problem in the past year.” Id.

[34] Facts on Health Insurance Coverage, supra note 10.

[35] Id.

[36] Id. “Diagnosis of a serious new health condition, including cancer, diabetes, heart attack, chronic lung disease, or stroke, reduced the wealth of uninsured households by 20 percent. Insured households in which a similar diagnosis was made suffered a 2 percent decline in their overall wealth.” Id. (citing Helen Levy, The Economic Consequences of Being Uninsured, ERIU Working Paper 12, 2002).

[37] Id. (quoting Bloombert/Hartford Courant, 18 June 2003: Hidden Costs, Value Lost: Uninsured in America).

[38] Id.

[39] National Coalition of Health Care, Facts on Health Insurance Cost, available at www.nchn.org/facts/cost.pdf (last visited Oct. 17, 2004). In 2001, health insurance premiums increased five times faster the general inflation, representing the largest one year surge in premiums in more than a decade. Id.

[40] Id. (citing National Center for Health Statistics, Health, United States 2003, available at www.cdc.gov/nchc/products/pub/pubd/hus/highlits.pdf).

[41] Id. “After corporate income taxes, employee benefits are the second largest structural cost for American manufacturers, adding 5.8 percent to costs.” Id. (citing Daniel Gross, Whose Problem is Health Care?, The New York Times, June 16, 2003).

[42] Id. (citing The Kaiser Family Foundation, Average Monthly Worker Contribution for Single and Family Premiums, 1988-2004, Employer Health Benefits: 2004 Survey). This study indicated that the average monthly premiums paid for family coverage increased from $52 in 1988 to $222 in 2004. Id.

[43] Id. (citing Julie Appleby, Health Insurance Premiums Crash Down on Middle Class, USA Today, March 17, 2004). This represents 21% of the national median household income of $42,402. Id.

[44] Id.

[45] Id. (citing National Coalition on Health Care, Charting the Cost of Inaction, May 2003).

[46] Id. (citing David R. Francis, Medicare Reform Carries a Huge Fiscal Toll, Christian Science Monitor, Oct. 17, 2003).

[47] Id. (citing Ceci Connolly, Drug Spending Up Despite Pressure to Cut Costs, Wash. Post, March 16, 2004).

[48] Id.

[49] Id. (citing The Kaiser Family Foundation).

[50] Id. (citing Francis, supra note 45).

[51] Id..

[52] Id. (citing Michael Chernew et. al., Rising Health Care Costs and the Decline in Insurance Coverage, ERIS Working Paper 8, Sept. 2002).

[53] Id. (citing David Walker, Health Care System Crisis: Growing Challenges Point to Need for Fundamental Reform, Presentation to the General Accounting Office Health Care Forum, Jan. 13, 2004). In 2001, the United States spent 13.9% of GDP on health care. Id. Compare this with Germany (10.7%), Canada (9.7%), France (9.5%), and Sweden (8.7%).

[54] National Coalition on Health Care, Facts on Health Quality, available at www.nchc.org/facts/quality.pdf

(last visited Oct. 17, 2004). The NCHC uses the terms underuse, overuse, and misuse, to describe the types of inappropriate care Americans receive in hospitals across the country. Id. “‘Underuse’ refers to the failure to offer patients diagnostic tests and treatments that are proven scientifically to improve their outcomes, ‘overuse’ involves subjecting patients to tests, procedures, and medications that, on scientific grounds, cannot help them, or, in the most egregious cases, are known to cause harm, and ‘misuse’ refers to the poorly executed tests and procedures.” Id.

[55] Id. This number is nine times the number who die on the highways and 3000 times the annual airline fatality rate. Id. More people die in a given year from medical errors than from automobile accidents, breast cancer, or AIDS. Id. (citing Walker, supra note 53).

[56] Id. (citing Karen Davis et. al., Mirror, Mirror on the Wall: Looking at the Quality of American Health Care Through the Patients Lens, The Commonwealth Fund, January 2004).

[57] Id.

[58] Association of University Centers on Disabilities, AUCD Summary of Provisions, Medicare Prescription Drug Improvement and Modernization Act, available at www.aucd.org/legislative_affairs/medicare_ law.htm (last visited Oct. 24, 2004).

[59] Id.

[60] American Academy of Family Physicians, Medicare Prescription Drug, Improvement and Modernization Act, available at www.aafp.org (last visited on Oct. 17, 2004).

[61] Id. The four stages of coverage are as follows: First Stage: The beneficiary is liable for an annual $250 deductible. Second Stage: When out-of-pocket costs exceed the $250 deductible, Medicare offers 25% coinsurance until the beneficiary’s costs reach $2250. Third Stage: no coverage until the beneficiary has spent $3600 out of pocket catastrophic limit. Once the beneficiary has reached the $3600 limit, there is nominal cost sharing. Fourth Stage: Low-income beneficiaries below 135 percent of the federal poverty level have no copayments above the catastrophic level. Those whose income is between 135-150 percent of poverty will have copayments of $2 for generic drugs and $5 for brand name drugs. Above 140 percent of poverty, the beneficiary pays 5 percent of coinsurance. Id. Other retired persons and persons with disabilities may also be eligible for similar benefits. Id. Most of the cost of the plan will be covered by the government (75%), with 25 percent of the plan being covered by the beneficiaries through a $35 monthly premium. Price Waterhouse Coopers, The Medicare Prescription Drug, Improvement, and Modernization Act of 2003, available at www.pricewaterhousecoopers.com.

[62] Id.

[63] Id.

[64] Election 2004 Presidential Issues: Federal Role at Issue in Health Care Debate; Bush Seeks Private Solution, Kerry Pushes Government, Milwaukee Journal Sentinel, Oct., 12, 2004, at A12. Kenneth Thorpe, a professor at Emory University’s health policy and management department has indicated that “[health care] is the biggest domestic policy difference these guys have.” Id.

[65] available at www.georgewbush.com/HealthCare (last visited Oct. 24, 2004).

[66] BC’04 Policy Department, Policy Memo: Kerry and Edwards’ Pro-Trial Lawyer Record is Driving Up Health Care Costs, available at www.georgewbush.com (last visited Oct. 22, 2004). “According to the American Medical Association, There are Now 20 States Experiencing A Medical Liability Crisis.” Id. (citing AMA, Medical Liability Crisis Map, available at www.ama-assn.org/ama/noindex /category/11871.html).

[67] Making Health Care Coverage More Affordable, available at www.whitehouse.gov/infocus/healhcare (last visited Oct. 15, 2004).

[68] Policy Memo, supra note 66. President Bush’s plan would permit unlimited compensation for economic loss, but would limit non-economic loss to $250,000. Id.

[69] Id. “Increased losses on claims are the primary contributor to higher medical malpractice premiums rates.” Id. (citing General Accounting Office, Medical Malpractice Insurance: Multiple Factors Have Contributed to Premium Rate Increases, available at www.gao.gov). In this harsh policy memo, President Bush stated that “[n]o candidate can be pro-patient, pro-doctor, and pro-trial lawyer at the same time,” indicating that “John Kerry is in the pocket of the trial lawyers, and running on the trial lawyer ticket.” Id. This memo also indicates that states which have enacted caps have experienced slower increases in the cost of medical malpractice insurance that states that do not have caps, and that the cost of health insurance in states that have caps is lower on average than the cost of health insurance in states that do not have caps. Id.

[70] Id. (citing Department of Health and Human Services, Addressing the New Health Care Crisis, available at www.hhs.gov; Joint Economic Committee, Liability For Medical Malpractice: Issues and Evidence).

[71] Plan for Helping American Families, supra note 65.

[72] Making Healthcare Coverage More Affordable, supra note 67.

[73] Id.

[74] Id.

[75] See John Kerry’s Plan to Make Health Care Affordable to Every American, available at www.johnkerry.com/issues/health_care/health_care.html (last visited Oct. 10, 2004).

[76] Id.

[77] Id.

[78] Id.

[79] Id.

[80] Id.

[81] See supra notes 58-63 and accompanying text for a discussion of this legislation.

[82] See Plan to Make Health Care Affordable to Every American, supra note 73.

[83] Id. Kerry argues that in addition to rebates for bulk purchasing, drug manufactures typically pay Pharmacy Benefits Managers:

(1) Access rebates for placement of products on PBM’s formularies;

(2) Financial rebates for garnering a higher market share; and

(3) Administrative fees for assembling date on market share.

Id. Often these savings are not passed on to consumers. Id.

[84] Kerry argues that although pharmaceutical companies should profit when they develop new drugs, “too many pharmaceutical companies take advantage of current loopholes in patent law that unfairly keep cheaper drugs off the market for years, or even decades.” Id.

[85]