Yearly Archives: 2013

Healthism, Health Care Rights, and the Affordable Care Act

Jul 1, 2013 Elizabeth Weeks Leonard

Jessica L. Roberts’s recently published article, “Healthism”: A Critique of the Antidiscrimination Approach to Health Insurance and Health-Care Reform, offers a provocative, thoughtful rebuttal to the antidiscrimination rhetoric surrounding the Patient Protection and Affordable Care Act (“ACA”). Some of the ACA’s most popular reforms, namely, the ban on preexisting condition exclusions, guaranteed issue and renewal, and community rating were touted as eliminating insidious health insurance industry practices that—in then-candidate Obama’s words—“discriminat[e] against those who are sick and need care the most.”¹ Roberts cites another commentator who characterized the ACA as a “civil bill of rights for the sick.”² But, as Roberts aptly notes, the practice of “discriminating” against the insured on the basis of health conditions and expected risk is endemic to commercial health insurance underwriting.³

For her titular concept, Roberts refashions the term “healthism,”⁴ defining it “as discrimination on the basis of health status.”⁵ She argues that despite the political rhetoric surrounding federal health reform and ACA provisions intended to eliminate “healthism,” other provisions of the law in fact operate as proxies for health status discrimination. She notes that previous federal statutes intended to eradicate healthism similarly fell short of this goal.⁶ The ACA, on its face, surely does eliminate discrimination, first, by requiring “guaranteed issue” and, second, by requiring “community rating.” Guaranteed issue means that health insurers must sell a policy to any individual, regardless of preexisting conditions,⁷ and community rating means that the insurer cannot discriminate in the price of the policy based on preexisting conditions or other health status indicators.⁸

But Roberts points to four notable exceptions to those requirements, which she concludes operate as subterfuge for “healthism”:  the ACA expressly allows insurers to vary premium rates based on (1) age, (2) geographic area, (3) tobacco use, and (4) participation in approved workplace wellness programs. Each exception, she contends, implicitly represents health status. Older people tend to use more health care than younger people. People in congested urban areas (or medically underserved rural areas) tend to have worse health status. Similarly, allowing rate variation based on tobacco use and wellness program participation, she contends, are proxies for health status discrimination.

That sounds right, but the latter two exceptions seem not so much proxies as express congressional endorsement of “healthism.” Surely the reason that Congress allowed premium rate variation based on tobacco use and participation in wellness programs was precisely because those behaviors do, in fact, strongly correlate with worse (in the case of smoking) or better (in the case of wellness programs) health status. The ACA’s retention of at least those two forms of health status discrimination somewhat undermines Roberts’s starting premise that the goal of the ACA was to eliminate healthism. But setting aside my quibble with Roberts’s characterization, a more interesting question to me (and the focus of my new project on “individual responsibility rating”) is why Congress expressly allowed insurers to continue discriminating based on those particular health-related habits or activities, which seem largely in individuals’ voluntary control. One answer, as Roberts notes elsewhere in her illuminating discussion of discrimination, is that lawmakers tend to treat “mutable” and “immutable” conditions differently.

Roberts’s convincing bottom line is that the antidiscrimination frame is both descriptively inaccurate of the ACA and normatively unproductive for health reform. Instead, she offers a universal rights frame. More accurately, the goal of the ACA, she suggests, should be seen as “ensuring a minimum level of care for all Americans.” Under this frame, she views the ACA’s controversial individual mandate,⁹ along with the essential health benefits package,¹⁰ as embodying a sort of universal right. It is counterintuitive, yet intriguing, to recast the mandate as some type of affirmative right to health care, especially when it compels private purchase of health insurance, rather than guaranteeing that the government will provide health insurance to all. She acknowledges that this “right” falls well below a cognizable, affirmative claim to health care but at least expresses a moral norm that everyone is “entitled” to a certain basic level of health insurance coverage. While I am not entirely convinced that the ACA embodies this rights framework or that the belief in a right to health care is widely accepted, I do agree with Roberts that the antidiscrimination frame is flawed.

The article concludes by briefly suggesting future directions for health reform, consistent with Roberts’ universal rights frame. She points to insurance risk adjustment,¹¹ nonprofit health insurance,¹² and publicly financed health care as desirable next steps. With those proposals, Roberts just scratches the surface of deep veins of theory and policy, which she may tap in her later work, including fragmentation of the health care system,¹³ definition of a universal right to health, and comparative models of social insurance.

In addition to providing rich food-for-thought for other scholars (myself included) and a host of possible further research projects for herself, one of the article’s most welcome, useful contributions is Roberts’s clear, plain-language description of the health insurance market. She methodically and comprehensively explains the operation of commercial health insurance, defining key concepts, such as risk-pooling, adverse selection, the “death spiral,” information asymmetries, community versus experience rating, deductibles, coinsurance, and copayments, providing easy-to-understand examples of each term. This descriptive background portion of the paper, alone, would be a welcome mini-treatise on health insurance for my students, who often struggle to grasp these concepts. All in All, Healthism, is an exciting project from a terrific emerging scholar.

Does Disclosure Protect Patients from Their Physicians’ Conflicts of Interest?

May 27, 2013 David Orentlicher

Empirical research often teaches us that our intuitions are misleading. In an important discussion of her recent studies, Sunita Sah provides good reason to believe that public policy has gone down the wrong track when addressing physicians’ conflicts of interest.

As conflicts of interest for physicians have come under greater scrutiny, regulators commonly turn to disclosure as a remedy for the problem. If patients know about their doctors’ conflicts, the patients can take the conflicts into account when making their health care decisions. Patients can discount a conflicted physician’s advice or seek a second opinion. In addition, disclosure may discourage physicians from accepting payments or making investments that put them in conflicted positions. As it is said, sunshine can be an effective disinfectant.

With these apparent benefits, disclosure has become the most common response to conflicts of interest in medicine. The American Medical Association and the Medicare Payment Advisory Committee emphasize disclosure as a strategy for dealing with conflicts of interest. And the Patient Protection and Affordable Care Act requires manufacturers of drugs, devices and other medical supplies to report consulting fees, honoraria, gifts, grants and other payments to physicians. The Centers for Medicare and Medicaid Services will publish the reported payments online for public access.

However, policies of disclosure have serious drawbacks. For some physicians, disclosure can result in a greater willingness to enter into a conflict of interest. Once physicians disclose their conflicts, they may feel they have met their ethical obligations and therefore are fee to remain conflicted.

In addition, disclosure policies rely on the recipients of the disclosures to police the conflicts, and it may not be realistic to have that reliance. In her research with colleagues George Loewenstein and Daylian Cain, Sah has found that patients may not respond appropriately to the existence of a financial relationship when deciding whether it should affect their willingness to agree to their physicians’ recommendations. For example, studies show that while patients worry when their physicians have conflicts, they also are reluctant to act on their concerns. Patients fear that if they reject their physician’s advice after being told of a conflict of interest, they will signal to their physicians that they do not fully trust the physicians. Ironically, disclosure may make patients less likely to decline their conflicted physicians’ recommendations.

As Sah concludes, the likelihood that disclosure will make things worse should lead regulators to rely less on disclosure and more on prohibition as a remedy for the problem of conflicts of interest in medicine.

In her article, Sah also illuminates other important questions about conflicts of interest. For example, she discusses studies that tell us why physicians engage in conduct that creates conflicts of interest and how second opinions affect the extent to which the first physician will give biased advice. Scholars interested in conflicts of interest will find this article of great value.

Some Things Are Better Left Unsaid: The Argument the Solicitor General Didn’t Make in NFIB v. Sebelius

Apr 23, 2013 Mary Crossley1 comment

Given the intense popular, political, and academic interest in the challenge to the Affordable Care Act, it comes as no surprise that the Supreme Court’s decision in NFIB v. Sebelius would launch a flotilla of articles about that decision, particularly since the outcomes (with respect to both the individual mandate’s constitutionality and the expansion of Medicaid) were not what conventional academic wisdom had predicted.  In the coming months and years, we will undoubtedly spend a good deal of time thinking through and reading about the possible implications of what the Court did, and didn’t do, in that case.

But the most intriguing and enjoyable article that I have read so far about NFIB focuses not on what the Supreme Court did or didn’t do, but on what Solicitor General Donald Verrilli chose not to do in defending the individual mandate against a commerce power challenge before the Court.  In “When the Tenth Justice Doesn’t Bark:  The Unspoken Freedom of Health Holding in NFIB v. Sebelius,” Abigail Moncrieff hypothesizes that the Solicitor General deliberately chose to forgo raising a more persuasive legal argument regarding the individual mandate’s constitutionality and that this politically strategic decision represents a previously unexplored terrain of popular constitutionalism.

According to Moncrieff, the argument that would have had a better shot at persuading a majority of the Justices goes something like this:  By steering consumers’ savings and consumption in the market for health care, health insurance of the sort mandated by the ACA performs an “aggressive regulatory function” in overcoming market failures flowing from optimism bias, hyperbolic discounting, and the credence goods problem.  So understood, the mandate functions to make the enormous, existing market in health care more efficient by eliminating the inefficiencies of self-insurance and shifting individuals into efficiency-enhancing insurance plans.  From there, Moncrieff argues, the forgone argument is straightforward:  “Obamacare wants to prohibit self-insurance because self-insured health care is systematically less efficient than fully-insured health care.  This story is an easy fit for existing commerce clause doctrine.”

Moncrieff is an expert when it comes to this forgone argument, having co-authored an amicus brief presenting it to the Supreme Court.  I can imagine that, if I had presented a novel and at least seemingly compelling argument like this, I might wonder why neither the Solicitor General nor the Court picked it up and ran with it. I might even feel a bit underappreciated by the Justices.  But instead of privately grousing, Moncrieff wrote an article offering a thoughtful explanation that reaffirms the strength of the argument while suggesting an intriguing hypothesis as to why the Solicitor General ignored it.

The core of Moncrieff’s argument is that, by creating incentives and disincentives that steer health care consumers’ choices, the health insurance mandated by the ACA is in effect an instrument of soft rationing, and that a constitutional justification of Obamacare based on this rationing function was politically unacceptable, particularly in an election year.  To Moncrieff, the only plausible explanation for Verrilli’s decision not to play this high card was that it would generate a strongly negative popular response.  She characterizes this populist sentiment objecting to health care rationing as being aligned with a “freedom of health” principle protecting autonomy in medical decision making, a principle that lacks full doctrinal recognition but conforms to a “loose substantive due process norm.”  She goes on to suggest that this popular political constraint effectively “muzzled” the Solicitor General (here acting clearly as an agent of the President rather than the Court) and thus functioned as a form of popular constitutionalism.  As Moncrieff puts it: “The popular constitutional freedom of health is … a populist sentiment that has the fortitude of a constitutional principle, the effects of a substantive constitutional right, and the strength of a constitutional argument that can shape judicial opinions – albeit silently and politically rather than openly and doctrinally.”

Moncrieff is the first to admit that characterizing this hypothetical scenario as an instance of popular constitutionalism in many respects does not fit neatly within established academic conceptions of that phenomenon. But that is part of what I like so much about this article.  Moncrieff’s attempt first to put herself in the position of the Solicitor General to hypothesize why he left a constitutionally powerful argument unmade and then to explore the broader significance of this puzzling decision is a wonderful example of legal scholarship that observes with a realist’s eyes how legal actors behave and seeks to make sense of that behavior against the background of legal rules and institutions.  Her hypothesis as to why Solicitor General Verrilli chose not to present a compelling argument in one of the most important constitutional cases in recent decades is intriguing, and – while the article may not rival Sir Arthur Conan Doyle’s Sherlock Holmes (to which Moncrieff’s title refers) for plot twists and suspense – it has a narrative flow that held my attention to the end.

While I found “The Tenth Justice” a provocative and enlightening read, at the end I found myself wondering about a question that was admittedly beyond its scope.  If Moncrieff’s hypothesis is right, President Obama (acting through the Solicitor General) decided to protect his re-election prospects at the price of forgoing his strongest argument for the constitutionality of the individual mandate – an integral part of his historic legislative accomplishment.  Why?  We know now that the gamble turned out well from the President’s perspective:  The Supreme Court upheld the mandate (though as an exercise of Congress’s taxing power rather than its commerce power) and the President won re-election.  But neither of those outcomes could be foreseen with any certainty when the Solicitor General briefed and argued the case.  Perhaps some good detective work will someday uncover the story behind the President’s decision….

The Reality of the Deterrence Effect: How Malpractice Lawsuits Promote Patient Safety

Mar 20, 2013 Kristin Madison1 comment

Discussions of patient safety often begin with the depressing statistic that 98,000 Americans die every year due to hospital medical error.  From there, they may veer toward a conversation about the culture of silence that hinders efforts to identify and address medical errors.  The reasons for the culture of silence? There are many, but the law usually features prominently among them.  Fearful that any discussion of errors may find its way into malpractice litigation, the providers best suited to preventing medical error are often reluctant to share the information necessary to do so.  Thus, rather than deterring error, tort law ends up deterring its prevention.

But this gloomy story is often told alongside a more hopeful one.  Thirty years ago, prompted at least in party by high malpractice insurance premiums, anesthesiologists made a concerted effort to improve anesthesia safety – and they succeeded.  So tort law can sometimes fulfill its deterrence function.  And it does not always chill communication about errors, either.  In institutions such as the Veterans Administration Hospital in Lexington, Kentucky, and the University of Michigan Health System, errors are not just discussed internally, but also disclosed to patients.

One way to reconcile these two very different perspectives on patient safety and medical malpractice is to say that these more hopeful anecdotes are just that, anecdotes.  In a fascinating article forthcoming in the N.Y.U. Law Review, however, UCLA law professor Joanna Schwartz shows that they are more than just anecdotes:  medical malpractice claims regularly play an important part in patient safety improvement efforts, and not just at a few prominent institutions.

Schwartz documents the relationship between malpractice law and patient safety through semi-structured interviews with individuals performing risk and safety functions in hospital settings and through a survey sent to members of the American Society of Healthcare Risk Managers.  Using the results of 35 interviews and more than 400 survey responses from hospitals across the country, she confirms that the patient safety culture in hospitals has been changing and illustrates the many functions that malpractice claims perform in patient safety improvement initiatives.

Schwartz’s results reveal that hospital risk managers traditionally responsible for limiting financial losses have become increasingly focused on patient safety issues.  While they once might have sought to curtail discussion of medical errors, risk managers now often promote increased transparency, both internally and in communication with patients.  In addition, they frequently work alongside patient safety officers in efforts to enhance hospital safety.

Schwartz also examines ways in which malpractice litigation supports patient safety.  More than 85% of survey respondents reported often or sometimes using “notices of claim and legal complaints for performance and safety lessons.”  Individual claims prompt internal investigations that can point toward safety problems, while claims trends highlight areas in need of further investigation. Respondents also frequently reviewed information generated during discovery; examples of this practice included gleaning information from depositions or from regular conversations with defense attorneys.  And the majority of respondents reported using closed claims files.  Files were used for education and training purposes, and, in some cases, to identify areas of safety concern.

While the survey results suggested that none of these malpractice-related sources of information were as useful as adverse incident reports or reports to risk management, many respondents still found them quite useful in responding to safety and quality concerns.  More than 80% of survey respondents characterized claims trend information, for example, as “very useful” or “somewhat useful.”  Most respondents also found complaints and legal notices of claim useful.  These documents revealed new allegations of medical errors with surprising frequency, especially in larger hospitals, and especially with regard to diagnosis and treatment errors.

Schwartz also presents evidence suggesting that the malpractice system’s chilling effects linger.  Some risk managers acknowledged a reluctance to discuss cases being litigated, for example, and some reported that limits on legal protections for peer review had shaped their patient safety efforts.  These findings do not detract from the central conclusions of the article, however, which are that hospitals are increasingly open about medical errors and have been able to make systematic use of malpractice-related data in patient safety efforts.

This study’s central results might not come as a big surprise to scholars of health law and policy.  But even so, the study makes a major contribution to the academic literature. The article’s reliance on systematically-collected data and a richly detailed, concrete discussion of how risk managers go about their work set it apart from much other work in this area.  In addition to survey data, the article makes extensive use of interviewee quotes that vividly illustrate and support its conclusions.  Readers more accustomed to bland and brief discussions of hospital risk managers’ tasks will likely find this approach both engaging and informative.  Moreover, Schwartz’s thoughtful and careful discussion of the implications of the study’s results for medical liability reform is worthwhile reading.

Like any empirical study, this one has limitations.  While the inclusion of hospitals with varying characteristics helps to establish that the trend toward openness extends beyond just a few hospitals, the survey response rate raises questions about the representativeness of the sample, an issue that Schwartz acknowledges.  And Schwartz did not study malpractice claims’ implications for patient safety outcomes, just their usefulness in patient safety improvement processes, as perceived by a survey sample consisting mainly (but not exclusively) of risk managers.

Nevertheless, the article provides ample evidence for a phenomenon that Schwartz has labeled “introspection through litigation.”  The article should prompt not only a fuller acknowledgement of the role malpractice claims can play in reducing medical error, but also more systematic use of the medical liability system in promoting patient safety.

Litigating Health Rights

Feb 20, 2013 Tim Jost

When lawyers (or, at least, U.S.-trained lawyers) think of legal rights, they think of rights enforceable in courts.  While a “right to health” or “right to health care” is widely recognized in international legal conventions and national constitutions, judicial decisions effectuating these rights are quite uncommon.  Moreover, it is not altogether clear that litigation is the most effective approach to realizing these rights.

Colleen Flood is one of Canada’s leading health law professors.  In Charter Rights & Health Care Funding:  A Typology of Canadian Health Rights Litigation, (which appears both at 19 Annals of Health Law 479 (2010) and as a chapter in Grand Challenges in Health Law and Policy (Catherine Regis and Robert Kouri, eds., 2010), Professor Flood and Y.Y. Brandon Chen analyze health care rights litigation in Canada.  They identify several categories of cases in which health care rights have been asserted in Canadian courts, classifying the cases by whether the claim sought to establish a positive or negative right, was accepted or rejected by the court, and in fact succeeded or failed to establish the right the claimant asserted.

The claims they analyze were brought under the Canadian Charter of Rights and Freedoms, the Canadian equivalent of the U.S. Bill of Rights.  The Canadian Charter does not recognize a right to health as such.  Rather the litigation was brought under section 7, which guarantees a right to life, liberty, and security of the person, and section 15, which guarantees equal rights.  Litigation has been brought in Canada both to establish positive rights—such as the right to sign language interpretation in medical facilities or access to in vitro fertilization—and negative rights—notably challenging laws limiting access to abortions or physician-assisted suicide or prohibiting the purchase of private health insurance to finance services covered by public insurance.

Few positive rights Charter claims have succeeded; the claim for sign language interpreter services being the notable exception.  Negative rights claims have been more successful, including R. v. Mogentaler, the Canadian equivalent of Roe v. Wade, and Chaoulli v. Quebec, which held that Quebec’s ban on private insurance violated the Quebec Charter of Human Rights and Freedom.  But even success in litigation does not guarantee that the right for which the litigants fight is in fact realized.  Sign language interpretation is still woefully underfunded, abortions are arguably less accessible than they were before Morgentaler, and access to private insurance remains contested, (although the Chaoulli decision has gone far toward legitimating private health insurance and health care in Canada).  Unless a health care right in fact is accepted politically—and resources are made available to make it a reality—mere judicial recognition counts for little.  Indeed, Flood and Chen are unable to identify a single situation in which the recognition of a positive right has in fact resulted in universal availability of the claimed service.

More interesting perhaps are claims that have failed.  Flood and Chen note that failed rights claims can have two results.  In some instances, illustrated by Auton v. British Columbia—a claim for autism services—the court has rejected the Charter claim but the case has generated support for the claimants, resulting in wider availability of the service.  In other cases, such as Cameron v. Nova Scotia—a claim for IVF services—the rejection of the legal claim has contributed to undermining political support for making the service available.

In sum, the establishment of health care rights has, in the end, less to do with judicial decisions than with political realities.  Litigation, successful or unsuccessful, can help illuminate a problem hitherto unrecognized, generating political support for solving the problem.  But failed litigation can render a claimed right less credible.  And successful litigation does not guarantee the ultimate establishment of a right.

In the end, as Flood and Chen demonstrate, the narrow focus of legal scholars on litigated claims, successful or unsuccessful, misses the point. Rights come to exist when they are accepted politically, socially, and economically.  Judicial decisions may help or hinder the process of acceptance, but they do not determine it.