November 15, 2021

Law professor Erin Fuse Brown studies the many ways in which Americans are ill-served by the nation’s healthcare system. But change could be on the horizon. 

By Katja Ridderbusch

Healthcare in America is largely an unmitigated mess. Even with the Affordable Care Act (ACA), more than 27 million Americans still lack health insurance. Getting access to care often means navigating a maddeningly circuitous and opaque bureaucracy. And even for the insured, medical treatments can be wildly expensive, leading people to take on debt or even declare bankruptcy.

“The problem with our healthcare is it’s extremely fragmented, a patchwork of many different systems,” says Erin Fuse Brown, associate professor of law at Georgia State University and director of the Center for Law, Health & Society. There are systems for the elderly, the poor, veterans, those who are privately insured through their employer and those who buy insurance on the market.

“It’s really a non-system,” she says, “and the consumer gets stuck in the middle of it.”

But Fuse Brown sees an opportunity for change on the horizon, thanks to the COVID-19 pandemic. More than 600,000 people in the U.S. have died from COVID-19, and the crisis has toppled some long-held notions — about who deserves care and how it should be delivered — propping up our system’s broken infrastructure. The pandemic, says Fuse Brown, made the case for a concept of healthcare as a basic need: more sustainable, stable and equal.

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It’s late in the morning on one of those dog days of summer, when traffic is slow, the faraway sounds of road construction blend with the crescendo of cicadas, and the heat begins to take a sharp grip on the city. In her office in the College of Law, Fuse Brown is getting ready to embark on a family vacation to visit her parents in Honolulu.

Growing up in Hawaii, she says, she felt she was in a unique position to observe the rest of the country.

“You’re looking from afar, a little like you are in a foreign country,” she says.

The daughter of a physician, she was struck by how deeply different the nation’s healthcare system is compared to other countries, especially in Europe and Asia. Her father, now retired, was an “old-fashioned internal medicine practitioner,” says Fuse Brown. “The kind of doctor who would visit his patients in the hospital every morning.”

He saw the system change over his career. Medicine became more automated, paperwork more involved, care more business oriented.

“It wore on him,” she says.

She briefly thought about enrolling in medical school, but decided to focus on the bigger picture, the policy side. She left Hawaii to study at Dartmouth College and later earned a master of public health degree at Johns Hopkins University and a law degree from Georgetown University.

Fuse Brown taught at Arizona State University and worked for a law firm in San Francisco before moving to Atlanta nine years ago to join Georgia State’s College of Law. Her focus is on healthcare law, financing, regulation and reform — urgent work that influences policy on the state and national levels.

In the U.S., healthcare is often treated like a market when in fact it is not, she says.

“If anything, it’s a failed market.”

Instead, it is highly consolidated, composed of monopolies with very few competitive forces at play. It’s a system without equity, where consumers are vulnerable, barely in the position to execute their purchasing power.

“When you or a loved one is sick or in an emergency, you don’t compare prices and you don’t bargain,” she says.

Its dysfunction has resulted in an explosion of costs, including soaring drug prices and insurance premiums. About 18 percent of U.S. citizens carry medical debt on their credit reports, according to new research published in the Journal of the American Medical Association. The study also found that collection agencies held $140 billion in unpaid medical bills last year.

Healthcare costs remain the number one reason for personal bankruptcy in the U.S.  Even for the insured, deductibles and out-of-pocket costs are often sky-high. Healthcare for a family of four can easily equal the cost of a new car — $25,000 per year or more.

Fuse Brown has extensively studied so-called surprise medical bills, which she says illustrate the dire state of the American healthcare system in a poignant manner. These are bills patients receive after seeing a provider who is not part of their insurance network. They typically show up after an emergency room visit or a scheduled procedure, like a colonoscopy, at an in-network hospital, where the care team may include out-of-network providers such as anesthesiologists or radiologists. Insurance sometimes covers a portion of the cost, but providers still bill patients for the balance, which can be significant.

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Over the years, surprise medical billing has sparked an outcry on both sides of the political aisle. Several states, including Georgia, have passed comprehensive legislation to regulate the practice. However, people who receive health insurance through their employer — about half of Americans — may be excluded from the states’ protection.

The exclusions are a result of the 1974 Employee Retirement Income Security Act (ERISA), which overrides most state regulation of employee benefit plans. Designed to protect employees’ pensions, ERISA also covers most employer-based health insurance plans.

“ERISA has become a real roadblock for progress in the health arena,“ Fuse Brown says.

“I think it is tremendously unfair to put patients in the middle of what is essentially a dispute between insurance companies and providers,” says Michelle Au, an anesthesiologist in private practice in Atlanta and a Georgia state senator. “Patients are on the hook, through no fault of their own.”

Because of the looming risk of surprise medical bills, some people may opt-out of procedures, Au adds.

“My biggest concern,” she says, “is that patients who need medical care are not going to seek it because they’re afraid to be struck with a $20,000 bill later.”

A new federal law attempts to close the most blatant gaps caused by ERISA. The “No Surprises Act” takes effect on Jan. 1 and should level the playing field, says Fuse Brown. Based on successful state laws, it prohibits out-of-network providers, including those who offer emergency services, from billing the patient for any amount above the in-network cost.

It also creates a mechanism for an independent arbitrator to work out payment disputes between an insurance company and an out-of-network provider.

“In most cases, surprise medical bills should soon be a thing of the past,” says Fuse Brown.

But some flaws remain. The new law does not address one traditional source of surprise bills — ground ambulance transport. Patients could continue to get charged unless the emergency medical services (EMS) company has contracted with the patient’s insurance plan. Only about half of ground ambulance services have done so.

EMS services are an important source of public revenue, especially in rural counties, says Laura Colbert, executive director of Georgians for a Healthy Future, a health policy organization in Atlanta.

“This is a really complex and thorny issue that needs to be addressed in the future,” she says.

Air ambulance services, controlled by a few private-equity-backed firms, pose another challenge. They fall under Federal Aviation Administration regulation and are not subject to state consumer protection laws. More than three-quarters have not contracted with any health insurance plan.

“So far, there are no provisions against predatory surprise medical billing in air ambulances,” says Fuse Brown, who led a study about the topic.

During her research, Fuse Brown came across numerous examples of people who’ve been hit with hefty air ambulance bills. A few stand out.

In a small Oregon town, a critically ill newborn was airlifted to a specialized neonatal intensive care unit at Children’s Hospital in Seattle and later died. As the parents were mourning, they received a $30,000 bill from the air ambulance company.

Then there was the rural Montana judge who fell off her horse, injuring her back but still conscious and alert. She objected to an air ambulance and requested ground transport. She was overruled and later hit with a $50,000 bill.

“If this woman couldn’t negotiate her way out of this, who can?” says Fuse Brown.

The good news, at least on paper, is that the “No Surprises Act” will apply to air ambulance services, given that it is federal legislation. But Fuse Brown remains skeptical of how well it will work in reality — partly because there are few in-network prices to benchmark rates in the air ambulance industry, and arbitrators cannot look to Medicare prices under the new law.

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Spiraling prescription drug costs are another largely unresolved yet pressing issue. When the U.S. Food & Drug Administration (FDA) approves a new drug, it also grants the pharmaceutical company the exclusive right to market the drug for several years. This creates a monopoly.

“And not even Medicare, which is the biggest buyer of pharmaceuticals in the country, has any room to negotiate or regulate,” says Fuse Brown.

A new Alzheimer’s drug called Aduhelm made headlines this summer when it was revealed that treatment would cost about $56,000 a year. The drug was controversially approved by the FDA in June even though several studies suggest that the drug has only marginal benefits.

The debate over Aduhelm may open a window for change, though significant hurdles remain, according to Fuse Brown. For one thing, she says, the pharmaceutical industry is among the most influential lobbying groups in Washington, DC. The groups’ refrain — that high drug prices subsidize the cost of research and reining them in may stifle innovation — has a strong echo during the pandemic.

“But while the rapid development of COVID-19 vaccines is a powerful example of how science can save the day, Aduhelm is not a blockbuster, a drug that solves the Alzheimer’s crisis,” she says. “And if Medicare is forced to cover the drug at the manufacturer’s price, it is going to bankrupt Medicare, and it is going to bankrupt the country.”

After a pause, she smiles.

“So, we cannot not have this conversation.”

Meanwhile, the debate about the Affordable Care Act is ongoing. After surviving several U.S. Supreme Court challenges, it’s here to stay, Fuse Brown believes. The insurance system has adapted to the law and has established a new online marketplace. Ending it would mean 20 million Americans would lose health insurance.

“It has become part of the fabric of the American healthcare system,” she says.

Fuse Brown expects that in the years to come, there will be two sides struggling to shape the future of healthcare in America. One side will call for turning the Affordable Care Act into a more stable and universal system by strengthening Medicaid and other public options. The other side may remain suspicious of potential government overreach, she says, shrugging her shoulders. They might be worried that government-run healthcare will infringe upon their individual freedom.

“Unfortunately, I think that this fundamental divide is going to be with us for a while,” she says.

In her vision of healthcare in America, Fuse Brown hopes lawmakers will look beyond the nation’s borders for inspiration.

“There are lots of different models from other countries,” she says, none of them perfect, but many worth taking ideas from.

Countries like Germany, the Netherlands, France, Taiwan or Singapore have stronger public options than the U.S. — and they offer private insurance, as well.

“I think there’s always going to be a role for private insurance in the U.S.,” says Fuse Brown. “It’s sort of baked into our system, our culture.”

Whether that will be a public option health plan or expansion of privately administered public plans, like Medicare Advantage, remains to be seen. As legislators explore the next steps of healthcare reform, Fuse Brown has one main concern — equity. Today’s healthcare system is imbued with inequity, and she says it’s critical those disparities aren’t cemented into a two-tier system — one for the poor and one for the wealthy.

After decades of fierce debates and crushed hopes for meaningful healthcare reform in the U.S., Fuse Brown points to one profound change that’s occurred.

“The most philosophical thing the Affordable Care Act did is it shifted the mindset of Americans a little more toward social solidarity,” she says. “The COVID-19 pandemic has further crystallized how interconnected we are when it comes to our health and driven home the concept that healthcare really shouldn’t be a market product but a fundamental right. And that’s big.”

© Georgia State University / Katja Ridderbusch