Yearly Archives: 2020

Our Reinsurance Moment

Jul 6, 2020 Christina S. HoAdd a Comment

We are in the midst of a health reinsurance “moment” right now. The idea of reinsurance, and in particular, government-sponsored reinsurance, rises to the fore in cycles, and our current rash of state-based reinsurance proposals signals that we’re in the ascendant phase. Reinsurance is at once a clever technocratic device but also a powerful conceptual frame. In the health context, government-sponsored reinsurance can take the form of a policy where the reinsurer, in this case the government, assumes the obligation to pay claims incurred by a given beneficiary once those claims exceed an annual attachment point. CMS has, for example, built in a de facto reinsurance policy for ACA plans, kicking in 60% of medical costs for any ACA plan enrollee who has incurred over a million dollars in claims. As you can see from this example, the primary insurers with this reinsurance protection are partially shielded from the risks of large catastrophic claims requiring excessive capitalization.

But government reinsurance also represents the distinctive structure of public-private power in our era.  How is risk backstopped today, and under what conditions? When does an outcome count as catastrophic such that our existing risk management institutions cannot be expected to absorb it or hold reserves to meet it? Who gets a bail-out, and who must take the consequences of their bad bets? The question of who enjoys government reinsurance is a lens that helps us penetrate many of the mysteries of our current political situation.

Part of my engagement with the reinsurance moment is the pleasure I take in discovering interesting writing, past and present, on the subject of reinsurance. A new and enjoyable entrant in this category is Govind Persad’s new article, Expensive Patients, Reinsurance, and the Future of Health Care Reform, forthcoming in Emory Law Journal.

Persad’s article starts with what I think of as his signature concern, that of expensive medical care that threatens to burst the limits of our health care resources. He then threads his way through to reinsurance as the corresponding tool for both mustering funds for this expensive care while spreading costs in such a way as to keep us within the resource horizon.

What to do about those expenses is, Persad rightly argues, a normative question, rather than a matter of expedient technical design. Others have analyzed the technical virtues of reinsurance. Persad provides a tripartite framework for the normative analysis. He identifies three interlinked considerations for fairly addressing the costs of expensive patients: 1) the breadth of cost-spreading, across a larger or smaller risk pool 2) the bounded scope of the treatment whose costs are shared in this way, and 3) progressivity of the incidence of those shared costs. Persad contends that broad sharing is justified to counteract brute bad luck, but the scope of what is shared must be closely bounded under Dworkin’s “hypothetical prudent insurance” ideal to avoid unfair economic burdens especially upon those who suffer the brute bad luck of poverty. But he then observes that if the economic load of expensive care in this highly inequitable world could be arranged progressively, strict boundedness can be somewhat relaxed, since the wealthier can be justly asked to absorb much of the burden.

And a policy of progressively financed, government-sponsored reinsurance to backstop our various fragmented insurance pools is precisely the device that can achieve these three conditions at once:  breadth of sharing and progressivity of economic contribution, thereby allowing a looser boundedness that frees us from painful decisions about withholding expensive care.

There is much I agree with and much I disagree with throughout the piece, which itself is teeming with fact and argument. Indeed, the density of ideas is what I most enjoyed about the piece—and reading it was like running my own thinking through a clarifying sieve.

Here are some things I agree with. Plaudits to Persad for pushing back on the tendency of reinsurance proponents to dismiss, or even invisibilize the burdens and trade-offs. Reinsurance lends itself to this kind of avoidance. It can seem like the proverbial free lunch where everyone eats and no one pays.  Hence the focus on its technical virtues: reinsurance certainly benefits the high-cost patients to whom it is targeted, but it also makes insurance more affordable for low-cost, low-risk, and financially straitened patients in at least four ways. First, insofar as primary insurers cede certain catastrophic claims to the government, the state is injecting a public subsidy. Second, even if reinsurance were financed purely through insurer fees, reinsurance reduces the primary insurers’ risk, and thereby reduces their need to load on a risk premium. Third, primary insurers with reinsurance need not incur or pass-on the administrative costs associated with aggressive risk selection designed to avoid high-risk individuals.  And, finally, to the extent that risk stabilization helps to, as John Jacobi describes it, “induce private plans to participate in precarious individual and small group markets,” this may foster price competition that exerts downward pressure on premiums.

But the headroom to be gained from reinsurance is not infinitely elastic and it is indisputable what Persad points out: “The imposition of small burdens on many in order to help a few greatly is contested in ethical theory, and its endorsement may rest on cognitive limitations in visualizing the magnitude of the population who experience the small burden.” Moreover, the spiraling expense of these treatments is not a given but a function of political will. As Persad says, “The number of patients with yearly claims over a million dollars rose by 87% from 2014 to 2017.”He pegs many of the expensive treatments as “halfway technologies,” incentivized by policies and exclusivities that misprioritize the targets of pharmaceutical development. How can extortionate pricing for this marginally valuable care justify financial burdens on every single enrollee or taxpayer? Yet the government, having created this covariate cost risk through its regulatory abdication, may through reinsurance simply pass-on the cost. I think of Colombia in the late 1990’s and early aughts, when pharmaceutical companies opportunistically sponsored patients with dire health needs, typically of higher socioeconomic status, to sue successfully for state coverage of treatments like the newest brand-name cancer drugs of marginal efficacy, while the public benefit package was strained to the point of excluding key preventive vaccines. Reinsurance is not immune to that dynamic, and we need vigilance on that front.

Assuming the greater upstream regulation that Persad proposes to curb misdirected technological development, I take a somewhat broader view of who benefits from reinsurance. The trade-offs to me are not so crisp, insofar as the “many” who bear small burdens also benefit from advantages of mutuality. These advantages are ones that prevailing methodological individualism sweeps behind its own cognitive limitations, behind the temptation to fetishize individual choices, despite Dworkin’s heroic attempts to correct for their inevitable short-termism and other biases. The “many” who bear the burden now can easily become the catastrophic “few,” as the Health Care Cost Institute clearly showed in the 2018 study Persad cites in the article’s first paragraph. But even supposing any one of us manages to run the entire gauntlet without brushing up against a medical cost catastrophe, all of us, in the meantime, benefit from the knowledge that those in our community do not suffer from avoidable pain or fear, as that pain or fear could just as well be ours.

Have Institutional Review Boards (IRBs) Become ‘Compliance Bureaucracies’?

Jun 9, 2020 Edward Dove1 comment

Research ethics governance will never be the most popular subject in health law, but its importance is hard to overestimate. A significant amount of scientific research involves human participants, whether directly (interviews, observations, or experiments on human subjects) or indirectly (use of human tissue or data). In the absence of such research, our knowledge of human health would be much worse, and so too would our individual lives and collective well-being. Medical progress is contingent on scientific research.

Before almost all forms research involving human participants can take place, though, investigators must submit their project to a committee for review on the basis of ethical soundness and compliance with rules, standards, and principles (found in laws, guidelines, and other regulatory instruments). This committee is known as a Research Ethics Committee (REC) in some countries, like the United Kingdom. In the United States, it is known as an Institutional Review Board (IRB), as the board is connected to a particular institution, be it a university, hospital, or private organization.

Sarah Babb, Professor of Sociology at Boston College, recently contributed to this niche area with a short, empirically informed monograph on IRBs in the United States, entitled Regulating Human Research: IRBs from Peer Review to Compliance Bureaucracy. Babb’s interest in the subject was sparked by her own time serving on Boston College’s IRB. As she writes, she was surprised to learn that she was expected to not only “apply” the classic “Belmont principles” of research ethics, but also to apply guidelines from the “Common Rule” on the regulation of human subjects research and from other sources:

Over time, I came to understand that the image of IRBs as committees charged with weighing ethical dilemmas captured the tip of a much larger iceberg of activities. I could see that there was a more routine form of regulatory decision making that was important, but not widely understood or even acknowledged. (P. 3.)

Her book makes a quick read (indeed, there are only 117 pages of text), and an enjoyable one.

Babb’s central thesis is that IRBs have transformed since the late 1990s from committees of peer reviewers – fellow academics making ethical judgements on the basis of scholarly expertise, but paying little attention to the letter of the regulations—to “compliance bureaucracies,” wherein full-time IRB administrators do much of the heavy lifting, often behind the scenes. Babb defines compliance bureaucracy as “a nongovernmental office that uses skilled staff—compliance professionals—to interpret, apply, and oversee adherence to government rules” (P. 5.) In this transformed governance environment, faculty board members still participate in terms of voting on whether to approve a project or expedited research protocols, but their work is simply not possible without IRB staff. This transformation, Babb argues, was due primarily to the growth in IRB scrutiny in the late 1990s by the Office for Human Research Protections (OHRP), which is situated in the federal Department of Health and Human Services. In turn, there was consequential growth in funding from research institutions to invest in IRB administration to better manage the risk associated with OHRP audits and enforcement actions. IRBs today are led not by peer reviewers, then, but rather a professionalized service of research administrators who know the nuances of IRB management. Babb’s case is summarized thusly:

…human research protection bureaucracies supplanted amateur IRBs both because they could make sense of the rules and because they were better equipped to manage the demands of auditable compliance. They could meet regulators’ demands for precisely recorded, auditable indicators, while addressing organizations’ need for efficacy, as compliance became increasingly intrusive and expensive. (P. 11.)

A second thesis that Babb advocates is that independent IRBs—IRBs disconnected from an academic institution and run for-profit – have proliferated in the last two decades, in large part due to two reasons: (1) the high cost now associated with running an IRB at an academic medical center or institution, and (2) the perceived high competence and fast turn-around time that private IRBs offer. Independent IRBs now review the majority of privately sponsored biomedical research, such as research sponsored by pharmaceutical companies). These independent IRBs have influenced the whole IRB apparatus in recent years, foremost those still situated at universities and at affiliated academic medical centers. The standards set by independent IRBs have spread by way of market competition, private accreditation, and the desire to adopt widely accepted best practices. There are plenty of concerns one may have about independent IRBs—and Babb does share her own concerns and acknowledges the benefits of a centralized government role in human research protections (as in the United Kingdom). Yet she rightly points out that a market-driven, privatized system can carry some advantages depending on legal and socio-political context. In the United States, a key advantage is that it can provide protections beyond the reach of antiregulatory politics, which are more pronounced than in almost any other country. As Babb writes, “In the case of our protections for human research subjects, it is important to clearly understand the imperfections—but also to acknowledge that our workaround framework is a great deal better than nothing. In this day and age, there is something to be said for that”. (P. 117.)

Babb’s central thesis is, on the whole, convincing. In large part, it is evidenced by the corpus of empirical data she has gathered through interviews over many years. I somewhat agree with her claim that this transformation is largely an example of the quirkiness of American governance, whereby in the absence of strong centralized government activity, governance is delegated (and strongly decentralized) to local, private actors, sometimes with specialized offices staffed by skilled workers. I would note, however, that professional staff have proliferated in other countries that have research ethics governance structures similar to the United States’, such as Canada, which has “Research Ethics Boards” (REBs) at local institutions. Based on my personal experience, these are also largely run and managed by full-time staff. Similar instances may also be found in other federal systems with decentralized research ethics governance structures, such as Australia.

While Babb may overplay the American-ness of the story, it remains the case that a transformation has indeed taken place in how IRBs function in the United States, and that the growth of independent IRBs, many of which lack adequate transparency and accountability, is cause for concern. Babb’s book makes for an interesting comparison to work done by ethics committees in other countries, such as the National Health Service RECs in the United Kingdom, which I recently investigated. I found that while professional staff are also crucial for the work that is done by NHS REC members, the members still very clearly play the central role. While I didn’t investigate the transformation question per se that is at the heart of Babb’s book, I would venture to say that there has been some shift over time in NHS RECs from peer review to a limited form of compliance bureaucracy, but it is not nearly as pronounced as it is in the United States. What is certainly the case, though, is that ethics committees should be seen as regulators in their own right.

In sum, Babb’s book is a welcome addition to the scholarship on research ethics governance. For those interested in this area of health law, it is a must-read.

White Racial Anxiety + Political Manipulation = Perverse Health Outcomes

May 29, 2020 Mary Crossley2 comments

Nelson Mandela has been quoted as saying “Resentment is like drinking poison and then hoping it will kill your enemies.” Jonathan Metzl’s 2019 book shows how the intersection of race, politics, and health in three states illustrates Mandela’s simile. Health law scholars concerned about health justice are familiar with research findings that the chronic stresses of living in a racist society contribute to poor health outcomes for people of color, particularly black people. But Metzl–a psychiatrist with a PhD in American Culture–reverses the lens and considers how entrenched racism affects white people. The book views white people not as objects of discrimination or even as perpetrators of racist actions, but rather as political actors whose racial anxieties leave them ripe for manipulation by political and corporate interests. It offers three case studies of how conservative GOP policy issues affect white population-level health. Specifically, Metzl explores how policies like loosening gun control laws (Missouri), rejecting the ACA’s Medicaid expansion (Tennessee), and drastically cutting taxes on corporations and the wealthy (Kansas) garnered popular support by implicitly or explicitly promising to protect the status of white people, a status perceived as threatened by progressive policies and an increasingly diverse society. What Metzl finds is that conservative political victories came at the steep cost of poorer health and rising death rates, both for the minority and immigrant communities who were their targets, but also for white supporters. He concludes: “white America’s investment in maintaining an imagined place atop a racial hierarchy–that is, an investment in a sense of whiteness–ironically harms the aggregate well-being of US whites as a demographic group, thereby making whiteness itself a negative health indicator.” (P. 9.) Hence the title, “Dying of Whiteness.”

Missouri is Metzl’s first stop. He explores how the state transformed from having relatively strict firearm registration laws to enacting some of the most expansive gun rights laws anywhere, including its so-called “guns everywhere” law. Some of the book’s most poignant moments come when Metzl talks with men and women who lost family members to suicide by gun. A consistent refrain in Metzl’s interviews was that guns and gun policies were not to blame for the lives lost. But as Metzl dives into and crunches the vital statistics regarding cause of death in Missouri, he finds that, while white Missourians may support permissive gun laws so they can protect themselves from dangerous “others,” the rate of white male gun suicides has skyrocketed. Some number crunching permits Metzl to calculate the cost, both in terms of financial costs and years of life lost, of the high white male suicide rate. (If you would like to hear more about this case study and are a AALS member, check out Sidney Watson’s excellent presentation (at 21:50) from the 2020 Annual Meeting.)

Metzl measures impact in Tennessee as well, estimating that the state’s “refusal to expand Medicaid cost every single white resident of the state 14.1 days of life.” (P. 13.) Using focus groups of men, Metzl tries to understand Tennessee’s transformation from “a Southern beacon for progressive approaches to health care for low-income people” (P. 133) to a Medicaid expansion holdout. Those focus groups revealed historically grounded and racially inflected negative responses to “government” among many white men, as well as a conviction that expanding Medicaid would mean having to pay for black people and immigrants. Ultimately, according to Metzl, having health care reform as a common enemy provided white men with beneficial group cohesion and an affirmation of the value of their whiteness, even as it deprived them of access to needed health care.

In Kansas Metzl examines the “backlash conservative takeover” of state government led by Gov. Sam Brownback, which featured massive tax cuts and budget cuts to shrink the role of government. This austerity regime’s impact on public education–once a gem in Kansas’ crown–is Metzl’s particular focus. He describes how school systems suffered and declined and how budget cuts amplified racial and economic inequities in public education. In this way and others, “[a]usterity codified hierarchy.” (P. 217.) Although health repercussions were less immediate than in Missouri and Tennessee, Metzl also examines increased high school dropout rates and studies demonstrating decreased life expectancy for persons without a high school degree to find long-term, “politically induced” (P. 258) health effects of education cuts for both black and white Kansans.

I recommend Dying of Whiteness to anyone interested in health law and policy, as it offers insights into voter behavior that, viewed from afar, may appear irrational. I’m white and I grew up in Tennessee, and reading the book gave me a richer appreciation of how perceived threats to white racial status and privilege fueled the State’s objectively self-defeating decision to reject the Medicaid expansion. Moreover, Metzl’s narrative exemplifies a “health in all policies” mindset and illustrates both direct and distal policy impacts on health. He reminds readers that “fancy upstream policy solutions” (P. 117) are likely to be ill fated as long as the cultural and political landscape fosters racial division and vilifies compromise. In this regard, Metzl seems to sing from the same page as others who argue that institutional and structural racism presents the fundamental impediment to adopting equitable health policies in the US.

I really liked this book for several additional reasons. For one thing, Metzl’s prose is lucid and vivid. I caught myself highlighting turns of phrase nearly as often as noting substantive points. (For example, “[o]vert religiosity and conservatism emerge in deep twang” from the Tennessee focus groups. (P. 144.)) In addition, beyond deploying statistical analyses to support his conclusions, Metzl delves into regional history and culture to help readers understand choices that might seem illogical to outsiders. For example, an extended examination of the racialized history of gun ownership rights and patterns offers insight into the cultural and symbolic meanings of guns in Missouri.

Finally, to my mind, Metzl achieves the delicate balance of portraying the regular people whom he interviews and interacts with respectfully, without being sympathetic to racist histories, structures, or sentiments. He’s willing to call out politicians who speak falsely, but he doesn’t belittle the voters who swallow those falsehoods. To be clear, Metzl identifies how the policies he describes negatively affect minorities and immigrants, but anyone who has been paying attention knows about those impacts. His real contribution lies in opening the reader’s eyes to how whiteness hurts white people materially and physically. If Dying of Whiteness has villains, they are not the white folks experiencing racial anxiety in a changing world. Rather, the villains are the politicians and corporate interests who play upon those anxieties to put in place self-serving policies that harm the very voters who support them. They promise greatness but deliver “a biology of demise.” (P. 281.) In the end, the book offers a cautionary tale of how attempts to preserve the privileges of whiteness end up harming everyone.

Intersectionality in the Opioid Crisis: Anti-Black Racism and White, Pregnant, Opioid Users

May 12, 2020 Craig KonnothAdd a Comment

Political and social discourse is often characterized by an oppression Olympics. Which group, which characteristic, can assert that they are “more authentic, more oppressed, and thus more correct“? This dynamic appeared in full force during the Democratic primary. Was Pete Buttigieg more oppressed because of his homosexuality? Elizabeth Warren for being a woman? Kamala Harris for being a black woman? As a recent article by Khiara Bridges shows us, thinking about oppression in this way misses the nuance of how different forms of oppression intersect with one another. In Race, Pregnancy, and the Opioid Epidemic, Khiara Bridges weaves together some of today’s most perplexing issues.

Bridges begins with a puzzle. White privilege, as commonly understood, is supposed to promote the life outcomes of white individuals (and, conversely, undermine those of people of color). If that is the case, how can we explain the opioid crisis that has disproportionately undermined the life expectancy of white individuals? The problem can be stated more universally, beyond the opioid context: “[W]hen bad things happen to white people—when the jobs and the industries on which they once relied disappear, when their preferred university denies them admission, when they lose a promotion to a nonwhite candidate, when they die from suicide and drug overdoses at unprecedented rates—we are left to believe that white people experiencing these negative consequences did not have white privilege[.]” (P. 774.) Some might even argue that white privilege never existed to begin with. Perhaps other axes of oppression—sex or poverty—have more oppressive force than race.

Bridges uses the regulation, arrests, and prosecutions of pregnant people for the use of opioids to show how “white privilege is a double-edged sword.” (P. 775.) (She notes that because data collection in this context uses the category of “women,” she does too, although not just women become pregnant. I follow suit.) Bridges first sets up the paradox at the heart of the Article: she shows how white women—who putatively experience white privilege—are nevertheless the face of opioid punishment. Bridges begins by providing an overview of the opioid epidemic that has resulted in 400,000 overdose related deaths between 1999 and 2017. The face of the epidemic, she notes, is white, although the distribution of opioid deaths across race tracks the racial population of the American population as a whole. To my mind, such a framing is appropriate: while deaths are not racially disproportionate in purely numerical terms, they are disproportionate in terms of how economic, class—and race—privilege is distributed. Given the disproportionate capture of such privilege by white America, the fact that white individuals perish in proportion to their representation in the population as a whole is remarkable.

Bridges contrasts the treatment of the opioid epidemic with that of the crack-cocaine epidemic. If the opioid epidemic codes as white, crack cocaine was associated with black America. Scholars suggest that this differential coding resulted in unequal treatment: the opioid crisis is generally understood as a medical problem; white opioid addicts are victims who cannot help their fate. Black crack addicts, on the other hand, were demonized; the crack epidemic was the subject of criminal, not medical, intervention.

Pregnancy, however, is an exception to this general rule—unlike other opioid users, white pregnant women who use opioids are treated as criminals. Bridges documents how pregnancy has historically been the site of state intervention. Historically, although the evidence suggests that women of color and poor women do not disproportionately use substances during pregnancy, “prosecutions for substance use during pregnancy have tended to fall on the shoulders of black women.” (P. 820.) Between 1973 and 2005, before the opioid epidemic hit its stride, 52% of women arrested for substance abuse during pregnancy were black. Part of the racial disparity of these “first generation prosecutions” (P. 823) came from the higher rates of testing poor black women experienced, as Bridges’s body of work documents. It also developed as a result of state decisions about which substances would be criminalized. Bridges writes, “A number of … substances can harm fetuses…. the state’s choice to single out users of crack cocaine for criminal punishment, while ignoring users of the abundance of other substances that are unhealthy to fetuses, is a consequence of crack cocaine having been racialized as black.” (P. 819.)

The opioid epidemic, however, has resulted in a rash of “second generation prosecutions.” (P. 824.) Now, white women are being targeted at unprecedented rates, with white pregnant defendants prosecuted for substance use in South Carolina outnumbering black defendants 16:1 in 2014. Further, although state laws mostly criminalize only opioid possession, rather than opioid use, prosecutors have turned to other statutes to criminalize opioid-use-while-pregnant. Pregnancy thus expands white women’s criminal liability beyond that which non-pregnant opioid users would experience (to the extent they experience any criminal liability at all).

Herein lies the paradox: how could individuals with “white privilege” become the face of opioid prosecutions? How can one reconcile scholarship that treats crack prosecutions as a manifestation of racism and white privilege with the white face of opioid prosecutions?

As Bridges explains, the concept of white privilege has been problematized in the face of suffering among white individuals. Some scholars argue that only certain kinds of white individuals experience that privilege, or that white privilege may sometimes yield only intangible benefits. However, Bridges argues that white privilege is very much responsible for the coercion that poor pregnant white opioid users experience.

First, “white people are at times made vulnerable to disadvantage because they occupy a privileged social location.” (P. 828.) For example, some accounts suggest that “white people’s drug use is a result of their disappointment with their current social and financial condition—a disappointment produced by the belief that they were going to be better off,” (P. 827) in part, perhaps, because of their race. Minorities, who lack similar expectations, are therefore arguably less susceptible.

Next, Bridges points to the history of the eugenics movement. There, while white women who were “imagined to bear substandard genes” (P. 830) were subject to sterilization to protect the integrity of the white race, people of color—whose race was already inferior—were not. Similarly, in the opioid epidemic, she suggests, an overriding preoccupation of the well-being of white babies, undergirded by a preoccupation with preserving the “vitality of the white race,” (P. 832) drives prosecutions. Unlike the “crack babies” of the crack-cocaine epidemic, which commentators denounced as future burdens on the state, white babies in the opioid crisis are treated as sympathetic victims. Put simply, “[i]nasmuch as society prizes white procreation over its nonwhite complement, the higher esteem in which it is held has made white reproduction a site of particular interest to the state. This interest, in turn, has opened white people up to state violence—this time in the form of prosecutions for opioid use during pregnancy.” (P. 833.)

Third, Bridges points out, race is constructed. While the concept of “whiteness” at the founding of the nation was quite limited, over the centuries various ethnic groups (such as those of Irish and Polish descent) were incorporated as fully white members of society, to better draw the divisions against people of color. She suggests that “[t]he most radical interpretation of [opioid] prosecutions would be that they are about the desire to exclude from the white race a segment of people with a nominal claim to inclusion.” (P. 841.) I think this interpretation is perhaps too radical and sits uncomfortably with Bridges’s earlier suggestion—white pregnant women are disciplined precisely because of their membership in the white community. But Bridges’s overall point is well taken. Although she does not explicitly draw on expressive theories of law, I read Bridges as pointing to the expressive function of opioid prosecutions: chastising women who have “degraded” their “whiteness… functions to establish what whiteness really is. Whiteness is not poverty, criminality, substance dependence, or corrupted pregnancy.” (P. 843.) These prosecutions do the work of reinforcing race boundaries by policing those who transgress the boundaries of race. By being made “examples” of, pregnant white women prosecuted for using opioids are once more victims of the class privilege they putatively enjoy.

If on one hand white women are rendered vulnerable by white privilege, they are also made vulnerable because of black disadvantage. White pregnant women are not just white—they are also pregnant women. In that way, they share a social space with black women who experienced profound racial disadvantage in the crack cocaine context. Path dependence in that space damns white pregnant women as well: while opioid dependency is treated as a health problem, very differently from the crack cocaine epidemic, for pregnant women, “the racist prosecutions that took place during the crack cocaine scare might have normalized” punitive approaches. (P. 850.) “The result is the reduction of white privilege’s power to protect its holders from disadvantage.” (P. 850.) In this way, “sex and gender,” specifically in the context of reproduction and fetal welfare, “constrain the promises of white privilege.” (P. 847.)

Bridges’s seamless synthesis has broader implications, beyond the specific context she excavates. First, to my mind, it shows how discourses of power can provide cross-cutting support to each other. It is no accident that white supremacy uses as its sacrificial cautionary tales those who experience disadvantage because of gender and economic status. In shoring itself up, it also reinforces these other categories of oppression. This reinforces key insights of intersectionality theory and of activists on the ground who would discard an oppression Olympics metaphor for one of interlocking oppression.

Further, it offers insights for other ways in which discourses of power can often harm those who putatively benefit from them in other contexts. Scholars have noted how masculinity discourse can actually work to harm men; in various contexts, men who feel they have not lived up to the ideal that gender hierarchies expect of them exhibit behaviors that are problematic from a public health standpoint. They do not obtain required mental health support, and engage in substance abuse at higher rates. Indeed, gay men, who may feel less constrained by traditional gender roles, are more likely to seek out mental health care than straight men. Similarly, bisexual individuals, who some may assume occupy a higher status on the hierarchy of sexual orientation than lesbian and gay individuals, suffer far worse health outcomes than both gay or straight people. As scholars and practitioners incorporate understandings of social structure and injustice into healthcare, they must nuance their understanding of the roles we play with respect to the various discourses we occupy.

The Failure of Patient Cost-Sharing

Apr 14, 2020 David OrentlicherAdd a Comment

There are many reasons to reject deductibles, co-payments, and other ways in which insured patients are expected to pay out-of-pocket when they receive health care. In particular, as former FDA Commissioner Scott Gottlieb has observed, “sick people aren’t supposed to be subsidizing the healthy.” But as Gottlieb recognized, that’s exactly what out-of-pocket payments entail. Unlike insurance premiums which spread the cost of health care across both healthy and sick, deductibles and co-payments are paid primarily by those who are sick.

In Exposed, Christopher Robertson discusses this flaw and the many other deficiencies in patient cost-sharing. As he documents, cost-sharing rests on misguided (though prominent) economic thinking, ignores key concerns of moral theory, and persists despite solid empirical evidence of its ineffectiveness. Designed to eliminate wasteful spending, cost-sharing often leads the sick to forego valuable health care. For example, one study found that doubling the co-payments for prescription drugs decreased medication use and increased emergency department visits and hospital stays for patients with diabetes or asthma. Similarly, when patients have high-deductible health plans, those with lower incomes reduce their emergency department visits not only for low-value care but also for high-value care.

Moreover, cost-sharing diverts attention from the real causes of high health care spending in the United States. As Robertson observes, whether one prefers Medicare-for-All, Obamacare 2.0, or greater reliance on market competition, patient cost-sharing can play at best only a marginal role in cost containment. Indeed, as he points out, it is easy to find low health care cost countries that do not employ patient cost-sharing as a cost containment strategy.

Health care costs are higher in the United States than in any other country not because American patients pay more visits to their doctors or have more hospitalizations. Actually, doctor visits and hospital stays are less frequent. As Robertson notes, the real health care cost drivers lie in (a) the monopoly power that health care providers possess and that allows them to charge high prices for their services, (b) inadequate information about the efficacy of many medical treatments, and (c) the financial interests of hospitals and physicians that encourage high-cost care rather than high-quality care.

There are many strengths to this book. Robertson delves into economic theory, moral theory, and the empirical evidence. He reviews a wide range of research on decision-making in general and in the context of health care in particular. He also provides an illuminating history of cost-sharing and the role that mainstream economics played in exaggerating concerns that when people carry health insurance, they will too quickly seek care. Rather, as indicated above, health insurance primarily makes it possible for people to afford care they need.

And even to the extent that insurance encourages overutilization, cost-sharing can’t solve that problem. As Robertson discusses, health care decisions are complex, require medical expertise, and are difficult to make prudently when experiencing the stress of illness. It is not surprising that efforts to make patients more careful shoppers for health care have come up short. In one study, patients could reduce their exposure to costs by comparing MRI prices online and choosing a lower cost provider. Less than one percent of the patients used the online information. The patients chose MRI providers based on their physicians’ recommendations.

While Robertson would prefer that cost-sharing be eliminated, he also suggests how cost-sharing can be improved as long as it is used. For example, insurers could expand existing practices that vary the amount of cost-sharing with the value of care. The Affordable Care Act already ensures that people can receive effective preventive care such as flu shots without any out-of-pocket payments. For other treatments, insurers could require minimal cost-sharing for highly-effective care and significant cost-sharing for care whose effectiveness is uncertain. Or reward patients for choosing lower-cost care that is equally or more effective compared to higher-cost care. Patients could be paid for choosing the lower-cost care or charged for choosing the higher-cost care. For example, greater use could be make of “reference pricing,” in which insurers reimburse at the level of the lower-cost providers, with the patient paying the difference when choosing a higher-cost provider.

Robertson also would vary cost-sharing based on a person’s income. Rather than imposing a $5,000 deductible on all policies, an insurer could peg the deductible at a percentage of the person’s income (e.g., 6 percent). Similarly, insurers could reduce co-payments for lower-income families and raise them for higher-income families. Tying out-of-pocket costs to income would respond to the problem of cost-sharing discouraging lower-income patients from seeking valuable care. It also would generally be simple to implement since most Americans receive their insurance from their employers.

Exposed provides a rigorous, comprehensive, and authoritative analysis of cost-sharing in health care. It really is an essential read for scholars, policymakers, and others interested in strategies for containing health care spending.