Pendulums Swing

Nicholas Bagley, Medicine as a Public Calling, 114 Mich. L. Rev. 57 (2015).

Even as some in Congress continue to vote to repeal the Affordable Care Act, most observers and political participants agree that the health reform law’s central elements are here to stay. Yet broad agreement also exists that, despite the law’s progress in decreasing the number of uninsured Americans, serious problems still plague the U.S. health care system. Escalating costs figure centrally among these problems, and recent news reports have highlighted the plight of insured Americans who face burdensome premiums or out-of-pocket costs. What is the most promising “fix” for addressing the persistent problems Americans face in accessing and affording medical care?

Against this backdrop, Nicholas Bagley’s new article Medicine as a Public Calling suggests approaches in the tradition of public utility regulation as a plausible response. Bagley’s argument is that—as we try to figure out how to move forward in a post-ACA landscape—we would do well to recognize how the public utility model shaped health care regulation in the twentieth century. The article is descriptive, rather than prescriptive. Bagley does not advocate regulation of health care prices, access, or supply, but he wants to make sure readers realize that such regulation would have a long lineage. I found the article’s careful description of this lineage tremendously valuable. Keeping up with the rapid pace of changes in health law, policy, systems, and technology is a constant challenge for health law teachers and scholars. These changes make it all too easy to think that “taking a historical perspective” means looking back ten years or so, which obscures understanding of the legal historical path to today’s vantage point. Bagley’s article corrects that historical shortsightedness.

The article addresses Bagley’s concern that contemporary policy choices are often boiled down to a dichotomy: move toward a single-payer system or give market forces more sway in distributing health care. That dichotomy, though, ignores a third path—treating the health care system as akin to a public utility.  He highlights how public utility regulation traditionally strives to address “the sorts of problems in market ordering—supply imbalances, access restrictions, and abusive and discriminatory pricing—that have long afflicted the medical industry.” Bagley acknowledges that the law-and-economics movement and the recent influence of market-based approaches to health care may make advocacy for a public utility model for health care seem passé. But he emphasizes both the durability of historical measures reflecting a public utility approach and the (re)emergence of federal and state initiatives resembling public utility regulation forebears. Suggesting that the policy pendulum may have already begun to swing away from market-based approaches, his explicit aim is “to give the pendulum a gentle push” back towards a public utility regulatory model.

Bagley begins by describing troubling aspects of the health care system—“supply shortages, access restrictions, and capricious, exorbitant prices”—that manifest failures in the health care market and, thus, suggest a public utility-inspired response. In particular, he notes the danger that the ACA’s efforts to “defragment” and coordinate care may prompt anticompetitive consolidation, in some cases producing dominant hospital systems that look like natural monopolies. He suggests that public utility regulation, by retaining “the basic architecture of the private financing system while asserting state control over the medical industry’s perceived excesses,” could offer a more moderate response than socialized insurance. Then, he identifies the precedent for that moderate approach, describing how laws recognizing medicine’s public calling historically have shaped health law.

Central to Bagley’s historical account is a description of the law of public callings that emerged by the early twentieth century. According to his account, public callings shared two key attributes: a business with a public calling “met an important human need,” and “some feature of the relevant market presented the risk of oppression.” Historically, public utility regulation did not demand an actual natural monopoly; instead, the touchstone was widespread consumer disadvantage in the market. Readers familiar with the history of health care in the U.S will likely accept Bagley’s explanation of why medicine was not deemed a public calling in the early 1900s and will nod with recognition as he identifies regulatory interventions in the second half of the twentieth century that demonstrate a public utility-inspired approach. These include Hill Burton and health planning legislation, civil rights laws, the community benefit standard, EMTALA, state and federal insurance rate-setting reforms, and state hospital rate regulation schemes.

Bagley does not claim that medicine was ever viewed as a true public utility or that the past few decades of health policy (at least pre-ACA) have continued the public utility tradition. Rather, he pushes back against a dominant narrative of health care regulation that obscures a deeply embedded historical understanding of the health care industry as having a public calling. That history is important, argues Bagley, as we consider how to address the persistent problems around supply, access, and pricing that have survived the ACA’s implementation. Bagley concludes by pointing out contemporary examples of state intervention in the market that embody public utility approaches. His examples resonated, in part because they echoed what I’ve been hearing on the news. While I was reading his article and writing this review, the news has been full of stories about outrage over exorbitant pricing increases by drugmakers and how Maryland is using hospital global budgeting to control costs, to give just two examples.

Before reading Bagley’s article, I would not have seen a public utility connection between these two news stories, but now it is obvious to me.  Medicine as a Public Calling does not create a new paradigm. Instead, it reveals and establishes the contemporary relevance of an old paradigm—understanding the medical industry as being affected with a public interest that justifies intervention akin to public utility regulation. Reading the article permitted me to see the history of health care regulation—and today’s issues—differently. It’s the difference between seeing a bunch of stars up in the sky and seeing a constellation. Bagley’s article illuminates both the connection between seemingly disparate historical and contemporary regulatory points, as well as their linkage to the public utility model. I recommend the article for anyone who seeks a richer understanding of the historical context in which today’s health policy debates occur.

Cite as: Mary Crossley, Pendulums Swing, JOTWELL (November 5, 2015) (reviewing Nicholas Bagley, Medicine as a Public Calling, 114 Mich. L. Rev. 57 (2015)),

The Case for Rate Regulation of Hospital Prices

Erin C. Fuse Brown, Resurrecting Healthcare Rate Regulation, 67 Hastings L. J. (forthcoming, 2015), available at SSRN.

With health spending in the U.S. outpacing both general inflation and spending by other developed nations, policymakers have targeted their attention on a primary culprit for our excess costs – high health care prices. Economists and other experts have offered a range of policy solutions to discipline health care prices in the United States. Using hospital prices as her case study, Fuse Brown provides a comprehensive analysis of these policies. In doing so, she guides the reader to two important conclusions: first, that there is no single solution that addresses the full range of market failures that cause high hospital prices and that a combination of approaches is therefore necessary; and second, that the package of solutions must include direct rate regulation of hospital prices for the most health care markets. This article builds on Fuse Brown’s earlier article, Irrational Hospital Pricing, 14 Hous. J. Health & Pol’y 11 (2014), which explains the harms caused by the current hospital pricing system.

Fuse Brown’s new article begins with a clear and succinct discussion of the market failures that cause high hospital prices. Most importantly, she explains how the growing concentration of hospital markets has reduced competition, removing a necessary price constraint. The article also discusses the principal-agent problems that plague health care, information asymmetries that leave the patient-consumer unable to make informed purchasing choices, and moral hazard created by reliance on third-party insurance to finance health care. Fuse Brown then explains the externalities that a dysfunctional hospital pricing system imposes on the uninsured and underinsured, such as harsh debt collection practices and personal bankruptcy.

Part II then systematically evaluates the policy solutions for disciplining hospital pricing, assessing the extent to which each one addresses the various market failures identified in Part I. Specifically, Fuse Brown evaluates the merits of market solutions, antitrust enforcement, payment and delivery reforms, consumer protections, and direct rate regulation. This discussion is what sets Fuse Brown’s article apart from other scholarship on excessive health care prices. Whereas other scholars have considered only one or two policy approaches in isolation, Fuse Brown allows us to compare their relative strengths and shortcomings side-by-side. In presenting a comprehensive, side-by-side analysis of the different policies, Fuse Brown allows the reader to see the big story—that rate regulation is the only policy prescription capable of addressing the growing problem of highly concentrated markets, and that rate regulation must be paired with payment and delivery reforms (e.g., bundled payments, shared savings for accountable care organizations) that address the principal-agent problems driving overutilization.

Fuse Brown’s discussion of the shortcomings of market solutions and antitrust enforcement is particularly informative. The article explains that the market solutions popular among policymakers—pricing transparency, consumer-directed health care, reference pricing, and tiered and narrow networks—will not work in concentrated markets where there is little choice or competition among providers. In these markets, patients simply cannot shop around or substitute lower-cost or higher-value providers, even if given pricing information or financial incentives to be more cost-conscious consumers. Unfortunately, society’s weapon for addressing market concentration—antitrust enforcement—is an imperfect solution. Building on the work of Tim Greaney, Fuse Brown explains that antitrust laws tolerate extant monopolies, in particular, providers that have lawfully gained their existing market power such as “must-have” hospitals providing unique services, or as the sole hospital in geographic areas that cannot support multiple hospitals. Consequently, antitrust enforcement cannot reach many, perhaps most, of the already highly concentrated provider markets. Moreover, the antitrust agencies have been hesitant to block the current trend of provider consolidation given the potential benefits of integration (e.g., better care coordination, improved quality).

The article also provides an overview of the different models of direct rate regulation – all-payer rate setting, caps on negotiated rates, and single-payer. That discussion briefly notes the challenges of rate regulation generally, including its inherent complexity, the risk of agency capture, and bureaucratic inefficiencies. While Fuse Brown’s article does not argue for a particular form of direct rate regulation or suggest how to overcome these challenges, I anticipate that her future scholarship will do exactly that. I look forward to hearing her specific policy recommendations.

Cite as: Jessica Lind Mantel, The Case for Rate Regulation of Hospital Prices, JOTWELL (September 2, 2015) (reviewing Erin C. Fuse Brown, Resurrecting Healthcare Rate Regulation, 67 Hastings L. J. (forthcoming, 2015), available at SSRN),

On Health Status, Choice, and Immutability

Jessica A. Clarke, Against Immutability, 125 Yale L. J. (forthcoming, 2015), available at SSRN.

Jessica Clarke’s insightful forthcoming Yale Law Journal article, Against Immutability will be of particular interest to those of us writing and thinking about disability, obesity, equal protection, and discrimination. I found it especially helpful for ongoing work on health status discrimination—or, healthism—that Jessica Roberts and I are conducting. Professor Clarke’s thoughts are especially timely in light of the Supreme Court’s landmark decision in Obergefell v. Hodges. Although Justice Kennedy did not rely on immutability explicitly in recognizing the constitutional right to same-sex marriage, that reasoning implicitly underlies the Court’s reasoning.

Historically, discrimination law has drawn distinctions between “immutable” and “mutable” traits, recognizing the constitutional guarantee of equal protection for the “immutable” (e.g., race, gender, ethnicity, national origin) but not the “mutable”. The rationale is that individuals should not be disadvantaged on the basis of traits that they are powerless to change, or—put another way—traits that are not the individual’s choice or fault (the Court has referred to these as “accidents of birth,” see Frontiero v. Richardson, 411 U.S. 677, 686 (1973)). On the other hand, if the trait or characteristic is something within individuals’ control, it seems fair to treat them differently on that basis. In that way, the law can even serve to appropriately incentivize individuals to alter their “bad” conduct or choices and thereby gain the privileges enjoyed by others making the “right” choices.

As Clarke demonstrates, and many courts and commentators, are finding, this is a very difficult line to draw.

First, it is not always clear what conduct or traits are truly “voluntary.” Although it may be tempting to think of obesity as the result of poor self-control, overeating, and lack of exercise, in some cases it may in fact be the product of a physiological condition or body chemistry that the individual cannot control. Even more nettlesome, individuals often are limited in their choices about diet and exercise by socioeconomic conditions, including education, income, and access to healthy foods and safe recreational options—what the public health literature refers to as “social determinants of health.”

To be fair, the courts have long recognized that immutability does not encompass all anti-discrimination law. For example, the Constitution prohibits discrimination based on religious beliefs, even though religion is a trait that can be changed and may be the product of voluntary choice. The rationale for extending equal protection to that realm is that religion in such a core trait or characteristic that “it would be abhorrent for the government to penalize a person for refusing to change” (Clarke, quoting Watkins v. U.S. Army, 875 F.2d 699, 703 (9th Cir. 1989) (Norris, J., concurring)). Relying on this “new immutability” rationale, advocates have argued for constitutional equal protection for sexual orientation, and statutory protection from employment discrimination for various “mutable” traits, including pregnancy, marital status, union affiliation, and military service.

The new immutability rationale operates from the premise that some traits are so fundamental to personhood that they are not proper bases for differential treatment. So framed, however, the analysis turns immutability on its head, providing legal protection precisely because the individual has made certain choices about her identity, rather than because she is powerless to do so. Additionally, new immutability creates significant line-drawing problems, with the legal protection deriving from moral judgments about which traits the court deems fundamental or personhood-defining at any given time. For example, one person may consider sexual orientation central to her personhood while another may consider religious beliefs that reject homosexuality core to his. Moreover, by deeming certain traits, even if chosen, as “immutable” while excluding others, the analysis reinforces stigma and stereotypes of the excluded traits.

Those problems led Clarke to reject reliance on the new immutability rationale to extend legal protection for new forms of unfair differential treatment. Instead, she advocates incremental expansion of targeted antidiscrimination protection through legislative, judicial, and private industry protections for various forms of systemic bias. Clarke’s focus on systemic forms of discrimination better targets the legal response to underlying stereotypes and stigma as well as social and institutional causes of unfair unequal treatment, just as our healthism project aims to do. Moreover, her approach allows the possibility of legal protection for conditions such as obesity, pregnancy, alcoholism, AIDS, cancer resulting from tobacco use, criminal records, and other conditions that individuals may not consider core to their sense of personhood but nevertheless subject them to systemic bias. In accord, our definition of healthism similarly emphasizes the same sort of structural impediments to equal opportunity, or what Joseph Fishkin has called “bottlenecks.” In sum, Clarke offers a probing, carefully analyzed rejection of a popular conception of discrimination law, which will surely be useful to other health law projects besides my own.

Cite as: Elizabeth Weeks Leonard, On Health Status, Choice, and Immutability, JOTWELL (July 22, 2015) (reviewing Jessica A. Clarke, Against Immutability, 125 Yale L. J. (forthcoming, 2015), available at SSRN. ),

Putting Employer-Provided Health Care in Context and Thinking about the Future

Brendan S. Maher, Regulating Employment-Based Anything, 99 Minn. L. Rev. (forthcoming 2015), available at SSRN.

Employer-provided health care occupies an uneasy position within health law. On the one hand, it is the primary source of health insurance coverage for non-elderly Americans and provides relatively robust coverage. On the other hand, linking health insurance availability to employment status and subsidizing such purchases through the tax code raises significant fairness concerns. The explanation for the Affordable Care Act’s continued reliance on employer-provided coverage was largely based on political expediency: health care reform had no chance of passing if it looked like the future of employer-provided health care was threatened. We were assured, after all, that if we liked our health plan we could keep our health plan.

Brendan Maher’s article, Regulating Employment-Based Anything, seeks to move our discourse away from merely relying on political expediency arguments to try to articulate the theory behind encouraging socially desirable goods to be provided through the compensation deal and, perhaps even more importantly, to articulate the theory behind employer-based interventions versus other forms of market interventions. While the article is not focused solely on health care, I found it very helpful in thinking through many of the issues involved in attempting to build a system of universal health coverage around an existing employer-based system.

One of the most important contributions the article makes is to encourage all of us who think about employer-provided health care to engage in more thorough analysis of the justifications for such market interventions, rather than simply chalking everything up to “historical accident.” As Professor Maher explains, employee benefit regulatory interventions occur because the government concludes there is a problem with the provision of Good X, and further concludes that regulating the labor deal is an attractive way to fix it. The article presents three possible advantages of regulating the labor deal as compared to other regulatory interventions to deliver Good X: (1) the use of sophisticated parties to aid employees in obtaining Good X, (2) the power of groups in purchasing Good X, and (3) use of the compensation deal as a natural decision point to promote Good X acquisition and planning.

Maher is quick to point out that there is also a case to be made against using the labor deal to provide socially desirable goods. First, he explains that the three advantages above are actually weaker than they appear, and that labor-based interventions may not be as attractive as other forms of market intervention. More subtly, he points out that regulating the labor deal leads to opacity regarding the provision of Good X (Who is paying for it? How much does it cost?). In addition, employment-based interventions may lead to the perception that the delivery of Good X is an employment issue rather than a social issue.

When we apply this framework to the provision of health care through the labor deal, we see that there is at least a plausible case to support such intervention. First, purchasing health insurance is a highly complicated decision, and employers may be more sophisticated than employees in making such decisions. There are also advantages of group insurance purchasing—lower overhead costs and natural risk pooling. Finally, there is a plausible case that tying the health insurance decision to the compensation deal makes sense. Health care is a significant expense for most individuals and encouraging individuals to think through that expense in the context of their compensation deal is arguably a natural decision point.

But as Maher explains, reality is more complicated than the above analysis provides. First, it is not universally true that employers are more sophisticated decision-makers than employees. Large employers may have this expertise, but there is little reason to believe that the same is true for small employers. And importantly, Maher points out that even in the case of large employers, a sophisticated decision-maker only benefits employees where employer-employee interests are aligned. Maher makes an important, and often overlooked, point that there is relatively little reason to believe that employers and employees preferences are similar. In explaining the lack of alignment, Maher notes, “This is not to impugn business decisions as immoral—not at all—but merely to make the uncontroversial point that humanistic warmth toward others is routinely, in commercial settings, deprioritized or set aside.” The second advantage for regulating the labor deal, the advantages of group purchasing, is likely the strongest argument in favor of employer-provided health care. These advantages are well-documented. However, as the article points out, the ACA will dramatically change the individual health insurance market in ways that make the group purchasing advantage less obvious. And finally, while there is a plausible case that health insurance should naturally be considered as part of the compensation deal, there is little compelling about it other than being a major financial purchase, not unlike a housing or car purchase.

In terms of employment-based interventions versus other forms of market intervention, Maher points out that regulating the labor deal to encourage the provision of health care has always been a fragile exercise due to the constant threat by employers to refuse to play. When contemplating employer-based health care regulations, regulators feel constrained by employer threats to cease offering health insurance at all—a particularly serious threat given the pre-ACA health insurance market which, in most states, did not offer a viable alternative to group coverage.

Maher’s article does not offer any prescription for health care reform, nor reform of any other aspect of employer-provided benefits. What it does do is to encourage those of us working in the field to be more disciplined in our thinking about employer-based regulations, rather than simply accepting and analyzing the status quo. As things begin to meaningfully shift in the health insurance arena, it is a good time to step back and consider reasons other than political and historical path dependence for our continued reliance on employer-provided health insurance.

Cite as: Amy Monahan, Putting Employer-Provided Health Care in Context and Thinking about the Future, JOTWELL (May 29, 2015) (reviewing Brendan S. Maher, Regulating Employment-Based Anything, 99 Minn. L. Rev. (forthcoming 2015), available at SSRN),

Addressing the Health Care/Public Health Dichotomy through Justice

Lindsay F. Wiley, Health Law as Social Justice, 24 Cornell J.L. & Pub. Pol’y 47 (2014), available at SSRN.

A longstanding and confounding divide exists between treatment of the individual and care for the collective. While the former is deemed health care, the latter is called public health, and American medicine has long maintained this dichotomy (a story that Paul Starr told decisively in The Social Transformation of American Medicine). This divide exists not only in the medical establishment but also in the law pertaining to it. While the field called health law tends toward being subject matter inclusive, it paradoxically has excluded public health law as a separate discipline. In part, this dichotomy may result from public health’s focus on the whole community rather than individual relationships, rights, and treatments. But also, this divide is strengthened by the historic primacy of private law rather than public law in health care, a hierarchy that has reinforced bias toward protecting medical stakeholders’ rights in their professional space. In addition, the law has sidestepped race, gender, economic, and other disparities in health care, allowing inequalities to fester. Though health care reform took on some of these issues, health disparities are a persistent problem. Fortunately, Professor Wiley is battling these old lines with her new work.

Health Law as Social Justice makes a convincing case that health law includes more than health care finance, bioethics, and regulation of related entities and markets. Instead, Wiley argues, health law and public health must be intertwined to effectively battle health disparities. The article contends that such a merger could be facilitated by drawing on the social justice movement and its understanding of the societal factors that affect certain industries and their corresponding fields in the law. Wiley argues that America’s deeply entrenched health disparities can only be uprooted by the communitarian considerations inherent in the booming study of social determinants of health, which she urges can translate to policy reform, effective advocacy, and legal change through broadened health care law inquiries.

Professor Wiley begins by exploring three variants of social justice: the environmental justice, reproductive justice, and food justice movements, each of which includes health disparities in its core objectives. These movements offer key takeaways for the “health justice” theory being developed here, which include focus on collective action and community in health; the role of government in securing social determinants of equality; and the democratizing instincts of these three movements that encourage participation, reject explicit and implicit biases, and encourage cross-pollination of societal priorities. The three sub-movements provide a foundation for importing social justice concepts into the field of health law.

The paper next considers existing legal mechanisms for addressing health disparities, beginning with a brief tour of major federal statutes that have addressed health disparities over time, including Medicare, Medicaid, EMTALA, HIPAA, COBRA, and the ACA. The article describes that the ACA does more to address disparities in health than create near-universal insurance coverage; the Obama Administration also has developed a variety of plans and committees to address enduring health disparities along the lines of race, ethnicity, income, and other factors. In contrast, Wiley highlights certain types of legal incentives and programs designed to encourage healthy behaviors, such as “wellness programs,” which some states have eagerly implemented for their Medicaid programs, and which were encouraged for employers by the ACA. These and other healthy behavior laws often disproportionately penalize the poor for failure to comply with measures that require a health literacy many do not possess. Similarly, Wiley argues, “healthy community” initiatives create tensions for the very communities they are meant to benefit, especially given the industry interests driving food accessibility in low-income neighborhoods. According to Wiley, the dissonant and confusing state of health law reflects the multifarious interests and general perplexity facing lawmakers at all levels who are attempting to address social and other determinants of health.

The idea of health justice then is considered through a three-part framework that facilitates tackling health disparities via mechanisms alternative to traditional market competition and patients’ rights paradigms. To that end, Wiley first recommends broadly defining health law to include all social determinants of health rather than just finance and delivery. Second, she suggests taking a hard look at individual responsibility approaches that may harm the communities they are meant to serve. And third, she proposes implementing interventions that engage communities in designing methods used to address their health disparities rather than simply imposing intermediations. Wiley’s use of social justice theory as a vector to further health care reform and to help reduce disparities is persuasive and important. The theory of “health justice” is such a significant idea that I wished for a cocktail party definition in addition to this complex three-pronged engagement.

Perhaps a future project could also incorporate work on vulnerability theory, which relates strongly to social justice themes and could further strengthen the argument that the old paradigms do not account for enough of the human condition to facilitate health justice. Vulnerability theory adds to the critiques of “market justice” and individual rights advanced in this article by further underlining the state’s responsibility for improving health based in the notion that all citizens are vulnerable, and in similar ways. Like health justice, vulnerability theory rejects the limited individual pursuit of rights-based equality, and it complements the normative themes in the paper.

Professor Wiley has made an important contribution just by, as she stated, “start[ing] a conversation” about health justice and how it can fit into the debate about health care policy in America. The constellation of factors that she names address both individual and communal health, and health disparities will only be defeated through such comprehensive catalysts for change. While moves such as expanding Medicaid and leveling insurance accessibility are key steps toward eliminating health disparities, they are only pieces in a larger puzzle. I look forward to Professor Wiley’s further development of the health justice principle to help complete that puzzle.

Cite as: Nicole Huberfeld, Addressing the Health Care/Public Health Dichotomy through Justice, JOTWELL (April 2, 2015) (reviewing Lindsay F. Wiley, Health Law as Social Justice, 24 Cornell J.L. & Pub. Pol’y 47 (2014), available at SSRN),

Making Cost Sharing Fairer and More Effective

Christopher T. Robertson, Scaling Cost-Sharing to Wages: How Employers Can Reduce Health Spending and Provide Greater Economic Security, 14 Yale J. Health Pol’y L. & Ethics 239 (2014), available at SSRN.

While many popular policies that require individuals to share the costs of their health care can be counter-productive, as when high deductible health insurance plans discourage people from seeking necessary care, Christopher Robertson’s “scaled cost-sharing” proposal offers considerable promise.

Robertson observes that employers typically use a one-size-fits-all approach to the cost-sharing features of their health insurance plans. Whether workers earn $40,000 or $400,000, they face the same deductibles, copayments, and other cost-sharing features that kick in when individuals seek care. In particular, these cost-sharing requirements come with an annual cap on out-of-pocket spending that is the same for all employees. Plans that cap out-of-pocket spending at $5,000 apply that cap to all workers, and plans with $10,000 caps also apply their cap to all workers. The Affordable Care Act (ACA) reinforces the practice of standard caps with its maximum amounts for in-network, out-of-pocket spending.

As Robertson notes, fixed annual caps come with a number of problems. For example, they are regressive in the way that flat tax rates are regressive, and highly so. If employers peg their annual cap for family plans at $8,000, the $40,000 wage-earner would have to pay as much as 20 percent of income on health care while the $400,000 wage-earner would have to pay only up to 2 percent of income. In addition, standard annual caps distort health care decision making. For the highly paid employee, a cap at only 2 percent of income may encourage overconsumption of health care. For the poorly paid employee, a cap at 20 percent of income may result in underconsumption of health care.

To address the problems with fixed caps, Robertson would switch from a dollar-based annual cap to an income-based annual cap. That is, instead of using a standard cap of $8,000, employers might peg their caps at 6 percent of income. A worker earning $40,000 would face an annual cap of $2,400, while a worker earning $400,000 would face an annual cap of $24,000. Such a switch would be desirable from a number of perspectives. It would be fairer to low-paid workers, it would reduce the distortions in health care decision making, and it would be financially advantageous to employers. Employers would benefit because their higher-paid employees would bear a larger share of the company’s insurance costs. Nevertheless, the health of those workers should not suffer—income-based annual caps address the incentive that fixed caps create for overconsumption of health care by highly-paid employees. Indeed, writes Robertson, empirical data indicate that cost-sharing leads higher-income persons to reduce their consumption of health care without compromising their health.

Robertson also considers the barriers to adopting income-based annual caps. For example, health insurance is a group-based benefit, making it difficult for employers to treat workers differently under their plans. In addition, changes in the law are needed to facilitate the adoption of income-based caps. In particular, Congress needs to revise—or the Department of Health and Human Services waive—the ACA’s maximums for annual caps. Currently, out-of-pocket annual caps may not exceed $6,600 for an individual plan or $13,200 for a family plan. An income-based cap of 6 percent would work up to incomes of $110,000 for individuals or $220,000 for families. Hence, while it is possible to fully implement income-based caps for low-income workers, ACA limits their use for high-income workers.

In the meantime, Robertson provides an intriguing argument for why current law might actually require some degree of income-based caps (i.e., income-based caps when fixed caps present a barrier to care for low-income workers). As Robertson observes, federal health insurance law includes anti-discrimination provisions to prevent employers from favoring their highly-compensated employees. But when low-income employees must pay a higher percentage of their income for their care, they are less able to afford care and therefore less able to draw on their health care benefits. Fixed annual caps very much favor highly-compensated employees.

And the disfavoring of low-income employees can come with harms to health. As Robertson points out, much of the problem with cost-sharing in health insurance comes from its impact on low-income individuals who are more likely to suffer an adverse impact on their health when increases in cost-sharing lead them to reduce their demand for medical care. By tying cost sharing to income, employers can better ensure that all of their employees realize the benefits to health from health care insurance.

Cite as: David Orentlicher, Making Cost Sharing Fairer and More Effective, JOTWELL (February 27, 2015) (reviewing Christopher T. Robertson, Scaling Cost-Sharing to Wages: How Employers Can Reduce Health Spending and Provide Greater Economic Security, 14 Yale J. Health Pol’y L. & Ethics 239 (2014), available at SSRN),

Law Learning from Medicine

Evan D. Anderson & Scott Burris, Educated Guessing: Getting Researchers and Research Knowledge into Policy Innovation, Temp. U. Legal Stud. Res. Paper No. 2014-10, available at SSRN.

The Society for Empirical Legal Studies (SELS) was created less than a decade ago to create a forum for scientific research on the law itself, and the Society has grown each year, with now hundreds of submissions from all over the world for its annual conference and flagship journal. Although there are many strands of such research, a primary research question is whether any particular law works to achieve its end, and if so how? Does the death penalty reduce crime? Does medical malpractice reform promote patient safety or lower costs? Do restrictions on the practice of medicine promote health?

Even before SELS was created, scholars in many fields were looking at the law as an independent variable, and looking at various dependent variables that could be used to access their success or failure. Health outcomes present an obvious dependent variable, given its importance for overall welfare and given the rich data available in this sector. Five years ago, the Robert Wood Johnson Foundation created the Public Health Law Research Program (PHLR), and appointed law professor Scott Burris as its director. PHLR is dedicated to “building the evidence base for laws that improve public health. PHLR funds research, improves research methods, and makes evidence more accessible to policy-makers, the media, and the public.” PHLR has helped to create a rich multidisciplinary field of scholars and practitioners engaged in this sort of research to understand the impact of law on health.

This empirical turn in legal scholarship—drawing other scholarly disciplines into the law and developing empirical capacities among legal experts—creates a wonderful opportunity to improve the law itself. As the methods become more rigorous and the breadth of the work grows, it will be possible for lawmakers to make more intelligent decisions about which laws to enact and which to repeal, based on the empirical evidence as to whether they in fact work. In this way, evidence can supplant ideology in the law, just as evidence has supplanted superstition in medicine. In the grand scheme of things, this approach begins to fulfill the aspirations of philosophers like Francis Bacon, Jeremy Bentham, John Dewey—who all sought to bring intelligent evidence into the domain of social policy.

With this background, I turn to the excellent new work of Evan Anderson and Scott Burris. In this paper, Anderson and Burris begin to explore the question of how empirical evidence can feed into the lawmaking process. Assuming that the science has been performed, and that it is good, how can policymakers incorporate those findings to actually improve the laws on the books and the laws as enforced? This inquiry is analogous to the question of “translation” in medicine, the movement of scientific findings from the bench to the bedside.

Anderson and Burris first note that there is a problem of synthesis: it does little good for there to be dozens of research studies performed on a given question, if they are not all published, not all found, and not all commensurable, given their divergent datasets, methods, and interpretations. Thus, the authors are correct to note that there is an urgent need for more synthesis. We have a model for doing so, again from medicine. As Anderson and Burris explain:

The Cochrane Collaborative grew out of Archibald Cochrane’s observations in the early 1970s about the fragmented and often misleading state of knowledge on the effectiveness of maternal health interventions (Cochrane 1972). The Collaborative quickly became an international force in the promotion of rigorous and methodologically consistent reviews. There are currently more than 5,000 systematic reviews covering a wide range of health interventions in the Cochrane collection, each following a standard protocol detailing how the research question was defined, the relevant studies were identified and the overall body of evidence was characterized (Cochrane Collaborative 2013).

In my view, there is an unmet opportunity for legal scholars to be trained in these methods and begin incorporating them systematically. We also need to get the right outlets and incentives for producing this sort of systematic synthesis. For law professors, just as much effort should be directed to systematizing scientific evidence about whether the law works, as is currently directed towards systematizing legal doctrine (and rhetoric) about what the law is. A systematic account of judicial superstitions provides little guidance as to whether the law works, and what the law should be.

That said, the movement towards bringing evidence into lawmaking is fraught with the danger of bias, and junk science, a problem that is exacerbated by the role of self-interested funders and investigators. Some of this biased research will skew the systematic reviews. In particular, much of the recent development in empirical legal methods has focused on adopting more and more sophisticated mathematical methods (drawing especially from the field of econometrics). In my view, this is often a zero-sum game. As the methods become more complex, it simply creates more opportunities for analysts and consumers to exercise discretion in how they model and interpret the data.

Anderson and Burris acknowledge another deep problem with this agenda of using evidence to shape policy. “For all the value of these efforts, a practical paradox confronts exponents of evidence-based public health law: if a legal intervention is truly innovative, there will not yet be direct evidence of its impact. There will be no studies for systematic reviews and syntheses to digest.” In my view, the answer is experimentation, first in the laboratory (using vignettes or other forms of simulation), and then in the field (with the cooperation of actual policymakers or their proxies exercising law-like power in private settings). Aside from its power to test truly novel interventions, experiments often allow robust causal inference, due to random assignment, without the need for complex and discretionary modeling choices. Instead the discretionary choices are more transparently made in the design of the experiment, and those choices are made behind a veil of ignorance, before the data is known.

We should much more often collaborate with policymakers to conduct randomized rollouts of policy interventions, and similar mechanisms, which allow gold-standard scientific inference about the impact of laws on their expressed goals. And today, we see this agenda gaining steam, as the United States Government, following Britain, is implementing randomized controlled trials to test the efficacy of federal policies. Unfortunately, however, experimentation is woefully under-represented in empirical legal scholarship, and policymakers sometimes seem to conceive the enactment of laws as the fulfillment of ideologies (ends-in-themselves), rather than as mere means for promoting welfare or liberty.

One of the greatest contributions of empirical legal research is to simply train analysts and policymakers to ask the right questions. Anderson and Burris demonstrate the importance of careful causal inquiry through “causal maps,” which are simply graphical depictions of pathways for causation, which help distinguish and clarify the potential relationships. Simply seeing these potential pathways can give rise to important research questions and hypotheses. In particular, using the example of traumatic brain injuries in sports and potential regulatory solutions, Anderson and Burris provide a compelling example of how causal mapping can make explicit the empirical questions and enhance our ability to conceive solutions. The causal map allows the analyst to reject the obvious reforms in favor of real solutions that get to the root causes. In this way, training analysts and policymakers to be careful about causal inference about data can also help us understand how policy reforms actually work.

This is an important paper, laying the groundwork for future empirical research and the translation of that research into smarter law and policy. Anderson and Burris help us understand how laws can work to improve the world and how evidence can enhance the chances that laws will actually do so.

A version of this paper appears as “Researchers and Research Knowledge in Evidence-Informed Policy Innovation” in Regulating Tobacco, Alcohol and Unhealthy Foods: The Legal Issues (Tania Voon, Andrew Mitchell & Jonathan Liberman, eds., 2014).

Cite as: Christopher Robertson, Law Learning from Medicine, JOTWELL (February 2, 2015) (reviewing Evan D. Anderson & Scott Burris, Educated Guessing: Getting Researchers and Research Knowledge into Policy Innovation, Temp. U. Legal Stud. Res. Paper No. 2014-10, available at SSRN),

Beginning with the End (of End-of-Life Law) in Mind

Lois L. Shepherd, The End of End-of Life Law, 92 N.C.L. Rev. 1693 (2014).

No one is happy these days with how we die in America. In just the past few months, we’ve received reminders of that sad reality. In September 2014, the Institute of Medicine came out with its report Dying in America: Improving Quality and Honoring Individual Preferences Near the End of Life, and in October, Dr. Atul Gawande published Being Mortal: Medicine & What Matters in the End to much acclaim. Each of these works describes our society’s—and in particular the medical care system’s—failure to provide people with meaningful choices and support regarding the care they receive at the end of their lives.

While certainly not the only culprit in this woeful state of affairs, the law undeniably plays a significant role in shaping practices surrounding end-of-life choices. The latest article by Lois Shepherd, The End of End-of-Life Law, seeks to reorient how we think about the law’s approach to medical decisions made near the end of life. Shepherd has thought and written about dying and the law for years, and in this latest article she argues that the law should approach questions about end-of-life care in the same way it approaches other important medical choices, without “special laws, special burdens of proof, or unique requirements for documentation.” As she points out, decisions made at the end of life are not the only medical decisions that are important and permanent, with potentially irrevocable consequences. The touchstone for all these decisions, according to Shepherd, should be respect and care for patients and their families, and our legal framework should help rather than hinder that focus.

The article starts with a helpful summary of the existing legal approach to end-of-life decision-making (an approach synthesizing statutes and case law from fifty states and supplemented by federal laws and payment systems), and then it recommends that we jettison this elaborate structure. In the section titled “Even if you do everything right, the law is still a problem,” Shepherd recounts in some detail the stories of two cases that illustrate some of the many problems with the existing framework. To be clear, her point is not that the law is either too permissive or too stingy in permitting the termination of treatment; instead her point is that the law—with its obsession with documentation, formalities, and rigid priorities—too often proves uncaring and disrespectful of the true needs and interests of patients and their families.

To remedy the situation, Shepherd describes eight general principles that should guide the law relating to important medical decisions, whether or not they are usually described as end-of-life decisions. Several common themes emerge from this list of principles: The law should enhance, not obstruct, the ability of patients and their families to reach and implement choices consonant with the patient’s interests and values, even when the patient has failed to engage in any advance care planning. Communication about health care decisions should be encouraged. Decisions should not be rushed. It should be simple to appoint a health care agent with broad decision-making authority. Yet despite a general reluctance to see “more and better drafted laws” as the cure for existing problems, Shepherd is resolute that the law should include protections tailored to some patients’ particular vulnerabilities and provide a forum for resolving cases where irreconcilable disagreements among patients, families, and providers arise.

A critic might chide Shepherd for failing to present any kind of roadmap for turning her general principles into a legal reform proposal or to detail the challenges that any attempt at reform would encounter, but those are not her project. Shepherd’s goal, as I understand it, is to describe the key characteristics of a legal approach to important health care decisions that prioritizes care and respect for patients and their families. In short, she is prodding us think carefully and anew about what the ultimate goals for laws governing medical decision-making should be. To borrow the oft-quoted phrase from Stephen Covey’s The 7 Habits of Highly Effective People, she is reminding us to “begin with the end in mind.” That’s good advice, particularly since the “thick and sometimes impenetrable end-of-life legal apparatus” that exists today is the product of multiple, uncoordinated attempts over the past four decades to fix discrete problems that arose as technology advanced and ideologies advanced or receded. One could argue that we got where we are today by proceeding without a clear and overarching end in mind.

Of course, “beginning with the end in mind” has dual meanings here. In reviewing Being Mortal for The Guardian, Gavin Francis wrote: “The message resounding through [the book] is that our lives have narrative – we all want to be the authors of our own stories, and in stories endings matter. Doctors and other clinicians have to get better at helping people with their endings. …” The law needs to get better at helping people with their endings as well, and The End of End-of-Life Law provides a wonderful contribution to that project.

Cite as: Mary Crossley, Beginning with the End (of End-of-Life Law) in Mind, JOTWELL (December 9, 2014) (reviewing Lois L. Shepherd, The End of End-of Life Law, 92 N.C.L. Rev. 1693 (2014)),

Super-Sizing Health Reform

William M. Sage, Putting Insurance Reform in the ACA’s Rear-View Mirror, 51 Hous. L. Rev. 1081 (2014).

For this Jot, I wanted to review recent or forthcoming scholarship on the bombshell D.C. Circuit Halbig v. Burwell decision, now awaiting en banc rehearing and buttressed by a similar decision from an Oklahoma District Court in Pruitt v. Burwell. But the only articles that I could find were Michael Cannon and Jonathan Adler’s piece that started the whole mess and a succinct rebuttal in State Tax Notes. My search, however, did turn up a terrific Commentary by Bill Sage, which I had somehow missed in my routine reading. Appropriate at the time that Sage wrote his Commentary, Sage gave Halbig a mere one-line, one-footnote reference in his insightful perspective on the aims and limits of recent U.S. health care reform efforts. Thankfully, it was Halbig that enabled me to discover Sage’s piece.

Necessarily, given the Affordable Care Act’s 2,400-page length and complexity, many of us have focused our writing on discrete aspects of the law. Sage instead offers a cogent flyover, bringing to bear his years of experience in this business, to explain what is and isn’t working in the ACA. Stepping back from the details, Sage identifies the ACA’s ambitious agenda not only to achieve near-universal health insurance coverage but also to reform the health care delivery system and improve population health. He commends this “triple aim,” emphasizing that insurance reform is, and must be, just the beginning of a successful health policy agenda.

Most commentaries have focused on the first aim—health insurance reform. But Sage urges that if we stop there we cannot hope for any real change. Sage aptly analogizes the second aim—health care delivery—to a ballpoint pen, representing health care providers’ largely unrestrained discretion to order more and more health care services and products. The third aim—population health—is colorfully analogized to a French fry, representing the public’s unchecked appetite for high-calorie, highly processed convenience foods and distaste for physical activity. Addressing the first aim “simply” (would that it were so simple!), by getting the remaining 15% of the U.S. population insured, will do little to address the pen and French fry problems. But combining all three aims in one large statute could potentially derail the entire effort. Sage (and we) hope not.

Sage identifies three underlying assumptions that stymie the United States’ health reform efforts. First, the ACA hews a managed competition approach, combining a patchwork of public and private structures to deliver health care, rather than making the leap to a single-payer approach. Second, the law operates from the premise that there is enough money in the system and that universal coverage with a minimum essential package of benefits will distribute those funds more efficiently. Third, the public accepts the necessity of a social safety net for certain segments of the population and assumes that those needs are valid, unmet, and properly delivered through existing program design. Sage offers those three explanations for the ACA’s shortsighted strategy of trying to address the underlying problems with aims two and three, health care delivery and population health, largely through aim one, health insurance reform.

As things have played out, of course, health insurance reform itself has faced multiple unanticipated challenges, including obstructionist, federalism-propounding states opting for federally, rather than state, run health insurance marketplaces; major technology glitches with rollout of the website; President Obama’s promising what he couldn’t really promise—that health insurers would not drop subscribers; the Supreme Court’s NFIB v. Sebelius decision upholding the individual mandate as a tax while striking down Medicaid expansion as exceeding congressional spending power; and, most recently, in Halbig and Pruitt, the courts’ acceptance of a seemingly laughable argument that federal subsidies to make health insurance more affordable would be available to only a portion of the nation’s population, depending largely on the politics of their statehouses and capitols.

If we learned anything from the policy debates around the ACA, it is that everything old is new again; there are few new ideas in health reform. And Sage’s article does not purport to offer a wholesale, novel rethinking of approaches to the triple aim. But what I most enjoyed about his Commentary were the novel nuggets (including but not limited to the colorful ballpoint pen and French fry analogies) that connect apparently disparate dots in existing thinking about these problems.

For example, Sage notes that Medicaid now competes with education for the biggest share of state budgets, and that tension necessarily undermines demonstrated synergies between education and health. Instead of pitting those agendas against each other, policymakers need to recognize that healthy children learn better, and that better-educated people live healthier lives. He also offers a different way of framing the ACA’s much-touted health insurance reforms, including guaranteed issue, community rating, mandated benefits, and mandatory participation, as about not just expanding the risk pool (as the standard narrative goes) but also encouraging insurers and insureds to think about health insurance as prepaid health care, rather than insurance against risk. That rethinking, we are left to surmise, operates as a mental down-payment on more ambitious future reforms, such as a single-payer system. For now, although Congress declined to consider a Canadian or European-style national health insurance program, Sage observes that the ACA was enacted in similar historical climate as Social Security and Medicaid, namely, the country’s most severe economic downturn since the Great Depression. The ACA, he concludes, “conveyed solidarity, if not uniformity” with the view that health reform is a national problem requiring a national solution.

Sage concludes with cautionary optimism about the future of health reform. The ACA’s triple aim is the right idea. But health insurance reform will not succeed without serious commitment to changing payment systems, improving information flow, rationalizing pricing, and reducing barriers to innovation and efficiency. Moreover, we must take steps to improve our health, combining both communitarian public health and libertarian individual responsibility approaches, and in so doing, must avoid bogging down in the partisan politics that so far have derailed insurance reform.

Cite as: Elizabeth Weeks Leonard, Super-Sizing Health Reform, JOTWELL (November 7, 2014) (reviewing William M. Sage, Putting Insurance Reform in the ACA’s Rear-View Mirror, 51 Hous. L. Rev. 1081 (2014)),

The Medicare Shared Savings Program: A Missed Opportunity to Address Providers’ Growing Market Power

Thomas L. Greaney, Regulators as Market-Makers: Accountable Care Organizations and Competition Policy, 46 Ariz. St. L. J. 1 (2014), available at SSRN.

Most discussions of the Affordable Care Act (ACA) focus on its primary goal—expanding health insurance coverage. Often overlooked, however, are various ACA initiatives targeting another important goal—reigning in health care costs. Included among these initiatives is the Medicare Shared Savings Program (MSSP). The MSSP ambitiously seeks to shift the health care delivery system away from independent providers who provide costly, uncoordinated care to organizations that focus on coordinated, evidence-based care. Specifically, the MSSP encourages the formation of accountable care organizations (ACOs), clinically integrated organizations of physicians and other providers that work together to provide patients better care while lowering overall costs.

Proponents of ACOs believe ACOs hold great promise for slowing the growth in health care costs. Professor Greaney’s article, however, offers a cautionary note. As he explains, the movement toward ACOs threatens to exacerbate the problem of health care providers’ increasing market power. Although federal regulators are cognizant of this risk, Greaney contends that the MSSP’s regulatory framework does too little to prevent provider market power.

Although implemented under the Medicare program, the MSSP also is intended to benefit private payors and their enrollees. ACOs participating in the MSSP share in a portion of any savings they generate for the Medicare program provided they meet certain quality performance standards. To succeed under the MSSP, then, an ACO must redesign its clinical care processes in ways that improve the quality of care provided to Medicare beneficiaries while also lowering Medicare’s costs. These changes also benefit the private sector, as privately insured patients treated by ACOs likewise receive higher quality, more efficient care. In addition, ACOs are attractive contracting partners for commercial insurers and employers seeking alternative payment arrangements, such as bundled payments and capitation.

Greaney, however, cautions that encouraging the development of ACOs brings risks. As providers come together to form ACOs, we are seeing an acceleration of a 15-year trend of greater provider concentration. This increased provider concentration strengthens providers’ leverage in their negotiations with commercial plans and employers, leverage they have used to both extract higher fees and resist alternatives to traditional fee-for-service. Of particular concern are ACOs that leverage their market power in one provider segment (e.g., hospitals) to negotiate higher prices in other provider segments (e.g., physician services). In addition, reduced provider competition weakens incentives for providers to alter their clinical practices so as to improve quality while economizing patient care. This lack of innovation also threatens the quality of care provided to Medicare beneficiaries. Finally, providers extracting higher prices from private payors may be less willing to treat Medicare beneficiaries for whom they receive lower payments.

Although the MSSP regulations and the FTC/DOJ Statement of Antitrust Enforcement Policy Regarding ACOS Participating in the MSSP (“FTC/DOJ Statement”) address these concerns, Greaney argues that federal regulators did too little. He sharply criticizes the government’s decision to abandon its earlier proposal to require mandatory review of certain ACOs by the FTC or DOJ as a prerequisite for their participation in the MSSP. He notes that a pre-screening process would have discouraged providers from forming ACOs that press the outer boundaries of acceptable arrangements under the antitrust laws. A pre-screening process also would have allowed the FTC or DOJ to condition their approval of an ACO on the organization agreeing to certain stipulations that protect competition (something the FTC and DOJ frequently do in merger cases).

Greaney also argues that the FTC/DOJ Statement focuses too narrowly on collaborations among otherwise independent providers, ignoring the potential competitive harms posed by ACOs formed by dominant providers or resulting from mergers. This omission encourages providers to consolidate into single entities, a trend we are seeing in the form of hospitals employing physicians and acquiring physician practices. Of particular concern is that consolidation may frustrate the emergence of a competitive ACO market, as individual providers integrated into a single organization are less likely to withdraw and form a competing integrated network. Greaney argues that CMS, the FTC, and DOJ missed an opportunity to facilitate closer monitoring of ACOs formed by dominant providers or through mergers. For example, federal regulators could have conditioned MSSP participation on ACOs providing data on their costs and negotiated rates with private payors. Regulators also could have required ACOs with dominant hospitals to unbundle their competitive and non-competitive services when negotiating with payors, a step that would have allowed private payors to bargain down fees for services for which there exist substitute providers.

Many people, myself included, believe the MSSP and similar programs have the potential to fundamentally re-shape the health care delivery system. Importantly, the shared savings model provides a bridge from fee-for-service to the risk-based payment models that hold great promise for slowing health care inflation. Greaney’s thoughtful analysis highlights that this transformation may prove harmful to the private sector if regulators fail to aggressively protect market competition from dominant ACOs.

Cite as: Jessica Lind Mantel, The Medicare Shared Savings Program: A Missed Opportunity to Address Providers’ Growing Market Power, JOTWELL (October 8, 2014) (reviewing Thomas L. Greaney, Regulators as Market-Makers: Accountable Care Organizations and Competition Policy, 46 Ariz. St. L. J. 1 (2014), available at SSRN),