Washington Lawyer - January/February 2020 - 33

FEATURE
During the primary contests, every serious
Democratic candidate offered a health care
legislative proposal ranging from Medicare for
All to the addition of a public option to health
insurance exchanges. On the other side, the
present Republican administration is seeking
to implement regulatory policies through
Medicare by executive order. The goal is to
increase choices and empower patients while
promoting innovation.
"It is obvious from an enormous amount of
polling that health care is at the top of people's
concerns," says Bruce Fried, a partner at
Dentons and a leader of the firm's global
health care practice.
Health care emerged as the top policy issue for
voters in a RealClear Opinion Research poll in
May 2019. Broadly, 65 percent of respondents
supported going to a system like Medicare for
All in which all Americans get health insurance
through the government.
"The issue that voters really face is not so much
one of access as one of cost. The cost of health
care is quite expensive for families, employers,
or government," Fried says. "This is particularly
significant when compared to other parts of
the world where care is often better than what
we experience in the U.S."
Consider the numbers. Nationwide, total
health care spending hit $3.7 trillion in 2018,
accounting for 18 percent of the country's
annual gross domestic product. That's almost
a fifth of the entire U.S. economy. According
to the Organization for Economic Cooperation
and Development, the United States spends
more per capita on health care than any other
industrialized nation.
The Centers for Medicare & Medicaid Services
(CMS), the federal agency responsible for
administering both programs, has projected
that under current law, health care spending
- including government and private sector
outlays - is projected to hit $6 trillion within
eight years.
What's troubling is that approximately 25
percent of that spending is wasteful, according
to a study published in October 2019 in the
Journal of the American Medical Association.
Meanwhile, there remain 27 million Americans
without health insurance, reported the Kaiser
Family Foundation.
The number of uninsured people went down
three years in a row after the Affordable Care

Act went into full effect in 2014, but now
that figure has begun to inch back up as key
pieces of the landmark law, widely known as
"Obamacare," have been peeled away by the
courts and Congress. And with rising costs
driving people into new, less expensive plans
- sometimes called "junk" plans - more
Americans are becoming under-insured,
according to some estimates.

TIME FOR MEDICARE FOR ALL?
Medicare as a national health insurance
program for Americans over the age of 65 was
established by Congress in 1965. President
Lyndon B. Johnson led the effort to win passage
of the legislation over fierce opposition by the
American Medical Association, which warned of
socialized medicine.
It took nearly two decades for Medicare to
become established with significant help from
private sector insurers, notably in those days
Blue Cross and Blue Shield. Over the intervening decades, the basic Medicare "feefor-service" program has been added to and
expanded. In 1997 seniors were given the
option of enrolling in care plans managed
by third-party sponsors that became known
as Medicare Advantage. In 2003, under
President George W. Bush, Congress added
a prescription drug benefit that went into
effect in 2006.
"What you've seen is an evolution from fee-forservice in the '60s and '70s to prospective
payments in the '80s and '90s to managed care
and lots and lots of Medicare Advantage

enrollment in the 2000s," says Sheree Kanner,
who leads the health care practice at Hogan
Lovells in Washington, D.C.
"Medicare Advantage is really growing by leaps
and bounds as all the baby boomers become
eligible for Medicare," adds Kanner, chief
counsel of the CMS from 1997 to 2002.
For Eric Zimmerman, head of the global health
practice at McDermott Will & Emery LLP, the
United States may not end up establishing a
single-payer system as proposed by Sen. Bernie
Sanders, "but there is a good chance that we
will end up with the son of Medicare for All, like
a public option on the exchanges or a lower
age of eligibility."
In April 2019, Sanders, one of the Democratic
frontrunners in the presidential contest, reintroduced his bill that would create a national
health insurance program for the country. "In
other words, there is a real chance that we will
end up with Medicare more, if not Medicare for
everyone," Zimmerman says.
"For lawyers operating in this space, you have
to look at it like [it's] 2012, 2013, 2014. It was an
extraordinary time. The entire health industry
was transformed by the Affordable Care Act
- substantial consolidation and realignment
- and lawyers played a lead role in facilitating
that transformation," Zimmerman adds.
So, what would Medicare for All look like from a
health care lawyer's perspective? According to
experts, that would translate to adding millions
and millions of Americans of all ages and demographics to a program designed to cater to a

The issue that voters really face is
not so much one of access as one of
cost. The cost of health care is quite
expensive for families, employers,
or government.
BRUCE FRIED, Dentons

JANUARY/FEBRUARY 2020

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