Trust between patients and providers, and in the healthcare system at large, is essential for effective care delivery and positive health outcomes. Yet today’s complex healthcare landscape poses significant challenges to cultivating and maintaining this trust. In her thought-provoking essay Building Trust in Health Care Through Regulation and Payment Systems, Professor Katrice Bridges Copeland offers an insightful examination of the government’s crucial role in building and maintaining trust through its dual roles of regulator-enforcer and participant-payer.
Copeland explores the intricate interplay between trust and regulation, enforcement, and payment policies, demonstrating how government actions profoundly shape trust in healthcare. For instance, the ongoing shift towards value-based payment (VBP) models promises to revolutionize healthcare delivery and could be a tool to increase trust as it moves providers away from being rewarded for quantity over quality. But it also introduces new complexities in maintaining trust, particularly as it might incentivize providers to do things like improperly manipulate quality data to maximize compensation. Copeland makes a persuasive case for modernizing the healthcare fraud and abuse laws to address the unique risks posed by VBP and ensure patient trust in the new healthcare landscape.
Copeland’s article is structured in three parts, each addressing a crucial aspect of trust in healthcare. In Part I, she elucidates the two dimensions of this trust: interpersonal trust between patients and providers, and institutional trust in the health care system as a whole. Interpersonal trust is essential for effective diagnosis and treatment, as patients need to feel confident in disclosing intimate health details to their providers. This trust relies on the belief that providers act in patients’ best interests, free from undue financial incentives. Copeland emphasizes that patients often trust their providers implicitly, unaware of when their provider has conflicting financial incentives. Unfortunately, this can lead to patients overtrusting providers and assuming that they act solely in patients’ best interest. Moreover, as Copeland observes, overtrusting patients are ineffective monitors of providers, which increases the risk of fraud.
Institutional trust, on the other hand, relates to the broader healthcare system, encompassing hospitals, insurance companies, and pharmaceutical firms. This trust is crucial for ensuring that patients engage with, and adhere to, medical advice and treatments. Unlike interpersonal trust, institutional trust is built over time and is easily damaged if patients believe institutions are driven by profit considerations rather than patients’ welfare. Unfortunately, Gallup surveys show a significant decline in public confidence in the medical system, from 80% in 1975 to just 38% in 2019.
The combination of patients’ overtrust in their providers and declining institutional trust underscores the critical role that government must play in promoting and safeguarding trust within the healthcare system. In Parts II and III, Copeland explores how the government can effectively address these concerns by combating fraud and reforming payment systems.
Part II delves into the government’s role as regulator-enforcer, examining how healthcare fraud enforcement impacts trust. Copeland provides a comprehensive overview of key laws such as the Anti-Kickback Statute (AKS) and the Physician Self-Referral Law (Stark Law) that target financial incentives that may corrupt medical decision-making. She argues that while these laws can promote trustworthy conditions, their enforcement has been inconsistent. Copeland further explains that their enforcement under the False Claims Act (FCA) shifts the focus from policing conflicts that undermine trust to recovering federal funds. In particular, the substitution of civil penalties under the FCA for criminal sanctions under the AKS and the Stark Law dilutes the deterrent effect of these laws and does little to address trust erosion.
In Part III, Copeland turns her attention to the government’s role as participant-payer, exploring how different payment systems under Medicare and Medicaid affect trust in healthcare. The discussion begins with a nuanced exploration of how the government’s reliance on fee-for-service reimbursement models incentivizes providers to exploit patients’ belief in their fidelity and increase the volume and cost of services. Moreover, fee-for-service creates opportunities for unscrupulous doctors and institutions to fraudulently bill the government for items and services never received by patients. These fraudulent billing schemes contribute to declining institutional trust by exposing a lack of fidelity on the part of providers. Copeland then shows how the structure and financial constraints of managed care can cast suspicion on providers’ fidelity to patients and damage institutional trust by limiting patients’ choices and subjecting their providers to payer oversight.
Part III concludes with a forward-looking examination of value-based care, a discussion I consider the Article’s most important contribution. Copeland rightly contends that the government’s shift to value-based payment models has tremendous potential to enhance trust by balancing financial incentives for cost-conscious care with incentives that reward high-quality care and improved patient outcomes. Yet Copeland also cautions that VBP introduces new fraud risks that could harm trust, such as providers falsifying data on quality measures. She therefore calls for the government, in its role as regulator-enforcer, to proactively develop and rigorously enforce criminal fraud and abuse laws specifically tailored to the VBP context.
In sum, Copeland’s article makes a significant contribution to the field of health law with its nuanced analysis of trust in healthcare. In particular, her examination of how the government’s dual role as regulator-enforcer and participant-payer impacts trust provides crucial insights for policymakers. Particularly valuable is her examination of VBP models and both their potential to enhance trust and the new fraud risks they create. These insights offer critical guidance for government regulators navigating the transition to VBP, emphasizing the need to strengthen patients’ trust in their providers and the larger healthcare system. Failure to address these issues, Copeland warns, could undermine the potential benefits of VBP and further erode patient’s trust.
