Health Insurance Sales Pitch: We Are Our Best Selves

Dec 9, 2022 Christina S. HoAdd a Comment

Christina S. Ho

One source of the cognitive dissonance we feel these days comes from the near-constant demands for individual freedom juxtaposed with the equally pervasive evidence of deep craving for community. Voices from inside and outside the reactionary right invoke autonomy against masking, personal choice in vaccination, and the right to fend off others with guns. This exhausted political rhetoric of liberty disavows any obligations toward one another and threatens bitter backlash against any pro-social claim. This is the discourse we hear, the words on the surface. However, when we look at people’s revealed preferences, we see a different picture. And that is exactly what Wendy Epstein, Christopher Robertson, and their coauthors in their new article, Can Moral Framing Drive Insurance Enrollment in the United States, call us to attend to in health insurance markets. Instead of defaulting to the assumption that we must speak to our selfish fallen selves, we may do better to assume each others’ better generous selves when it comes to, of all things, advertising insurance.

Indeed as the anxieties of this atomized, isolated, every-tub-on-its-own-bottom mentality yawn before us, I find it curious that we don’t see Americans scattering to the winds, toward various individual, idiosyncratic courses of action. If anything, we are all gravitating toward our tribes—ever more polarized communities to be sure, but communities nonetheless. I’m reminded of an earlier quote about the Trump political phenomenon: “It’s Möbius strip politics, Trumpism’s defining oxymoron: a populist elite, a mass movement of “free thinkers” all thinking the same thing.”

The push-pull cognitive dissonance between self and other has everything to do with health policy. The market for health insurance, characterized by collective action dynamics, information asymmetries, externalities, and the problem of public goods, is canonically ill-suited for examination from an individual preference-maximization lens without regard for social solidarity. Health law scholars know all-too-well the adverse selection problems that plague the health insurance market. These dynamics render medical care increasingly unaffordable for those who have preexisting or other health needs as low-risk individuals like the “Young Invincibles” overwhelmingly opt out of buying insurance. For health insurance to be offered at a moderate pooling price depends on getting a balanced population of insureds to enroll in health care. Thus, for health insurance perhaps more than for any other product, any given person’s decision to purchase both affects and is affected by others; the purchase of health insurance is an ineluctably social act.

And yet, as Wendy Epstein, Christopher Robertson and their co-authors show, our practical messaging to get people insured draws overwhelmingly from the surface rhetoric of individual economic rationality. These authors have undertaken an ambitious Robert Wood Johnson-funded project on what drives insurance enrollment in the U.S., and their findings thus far warn against falling for the surface rhetoric without attention to the undertow pulling in the opposite direction, expressing our strong underlying desires to participate in a broader community with ties to others.

Epstein and Robertson have already completed four phases of the project and I eagerly await their findings from the fifth.

In the first phase, they reviewed a large sample of existing advertising for health insurance only to find that it is now sold overwhelmingly using an economic rationality frame with appeals to the affordability of coverage.

In the second phase, they presented online survey takers with hypothetical vignette conditions, and asked their likelihood of enrolling in health insurance. They found that when survey respondents were approached with a “generosity” frame, emphasizing the benefits of buying health insurance not just for the individuals themselves, but for its availability to others, the respondents were nearly 12 percent more likely to say they would enroll! This boost in enrollment propensity exceeded even that achieved if respondents were told they would get $500 more in premium subsidy.

I found the generosity condition quite cleverly and appealingly worded. Respondents were told that “for every healthy person who purchases a policy, the insurer will offer a health plan to an individual with a preexisting condition for the same price.” They also explained that “buying a policy not only insures you against future risk…you would [also] be funding health insurance coverage for a sicker person.”

In the third phase, Epstein and Robertson explored these leads in a more granular way through focus groups, finding receptiveness amongst participants when presented with the concept that “to make insurance affordable for sick people, healthy people need to buy it too.”

In their most recent phase, the authors further implemented these ideas through a field marketing experiment. The authors bought $34,000 worth of Google ads that would randomly show one of four different types of health insurance advertisements. Only one type appealed to the self-oriented frame.  The three other ad types emphasized helping others, helping community, and the responsibility to ensure that your costs when you fall sick do not burden others. They could then measure which ad type prompted more click-throughs to “Shop Now” at healthcare.gov. Lo and behold, the messages that appealed to the three other-directed frames got more click-throughs than the self-oriented messages did. Their data yields noteworthy nuggets. For instance appeals to “helping community” somewhat outperformed generic appeals to “helping others” among Spanish-speakers, an especially crucial population to reach for increased health insurance uptake.

And while this stage could only measure click-throughs without access to the numbers of who actually purchased health insurance after shopping, the fifth phase of that project is geared to supply that answer. The research team is set to run an experiment in partnership with a number of state ACA marketplaces, including Colorado’s and Maryland’s, where they deploy the experimental “helping others” and “helping community” messages to see whether they can boost ACA coverage in these states.

I can’t do this sweeping project justice in just the space here, so I encourage you to read it yourself. The findings suggest a glimpse into a hopeful truth about people’s subjectivities, even in our forsaken times. As one of the subjects of Arlie Russell Hochschild’s Strangers in Their Own Land laments, “Is it just me or does it seem like the only thing ANYONE cares about is themselves and their immediate circumstances?” It turns out the answer is no: what may motivate people even more is a sense of belonging, and a connection to the flourishing of others.

Paid Sick Leave and Health Justice

Nov 11, 2022 Medha Makhlouf1 comment

Medha Makhlouf

The COVID-19 pandemic shone a light on the critical role to the nation’s economy of noncitizen workers performing frontline, essential, low-wage jobs. In this forthcoming article, Shefali Milczarek-Desai focuses on the failure of workers’ rights laws to protect the interests of the “brown collar workforce,” thereby exacerbating individual and public health risks during the pandemic. To remedy this problem, she proposes to reframe paid sick leave as more than just a workplace right; rather, it should be considered a strategy to promote the health and safety of the entire population.

Professor Milczarek-Desai’s work is a timely exploration of a complex issue at the intersection of immigration law and labor and employment law, which is informed by her practice in the Workers’ Rights Clinic at the University of Arizona’s James E. Rogers College of Law. Although numerous other scholars have written about the mistreatment of undocumented noncitizens in the workplace, she notes that no prior proposal addresses the root cause of the problem: that noncitizen workers are considered noncitizens first, workers second. They are “impossible subjects” in our society—vital to America’s success, yet often outside the law’s protection. Her work raises important questions about who gets left behind in a workers’ rights-based framework.

The article begins with an analysis of the ways in which existing paid sick leave laws—which only existed at the state and local level prior to the COVID-19 pandemic—fail noncitizen workers. Professor Milczarek-Desai draws on Critical Race Theory’s literature on the limits of formal equality to demonstrate how even when noncitizen workers are not formally excluded from workplace protection laws, they are unable to take advantage of those rights for reasons relating to their immigration status. Specifically, due to the employer prohibition on hiring undocumented immigrant workers in the Immigration Reform and Control Act of 1986, those with precarious immigration situations must work “off the books,” and reporting violations of their workplace rights may put them at greater risk of employer retaliation and immigration enforcement. Therefore, noncitizens often do not benefit from laws, including paid sick leave laws, that are designed to help all workers.

Professor Milczarek-Desai connects her analysis to a larger theme within immigration law and administrative law scholarship: How should Congress and courts navigate mission mismatch in shared regulatory space? Here, a goal of immigration policy—prohibiting hiring of undocumented immigrants to reduce migrant flows—conflicts with the goals of worker protection policy. And as is often the case, immigration enforcement goals are favored.

Without a realistic hope for immigration reform, Professor Milczarek-Desai looks to paid sick leave laws—one type of worker protection laws—as a promising site for reframing noncitizens’ rights in the workplace so that noncitizens are, at last, considered “possible subjects” of employment and labor laws. To avoid the conflict between the goals of immigration enforcement and the protection of workers’ rights, she proposes that scholars and advocates situate paid sick leave within a public health—as opposed to workers’ rights—framework. The public health rationales for paid sick leave are truly universal, and Professor Milczarek-Desai cites several empirical studies demonstrating the health benefits of paid sick leave laws for individuals and communities. Although the first federal paid sick leave law—which had no explicit immigration status restrictions—was temporary and enacted as part of COVID relief legislation, she suggests that the time is right for legal advocates to work alongside noncitizen worker communities to design paid sick leave laws that actually enable noncitizen workers to benefit from them.

I encourage health law scholars to read this article and view it as an important contribution to the Health Justice legal canon, which engages critical perspectives to illuminate the many forces that shape health and emphasizes subordination as the root cause of health inequity.

Under What Circumstances May a Healthcare Professional Disclose Patient Information in the Public Interest? Few Answers to be Found in Guidance for Healthcare Professionals

Oct 12, 2022 Edward DoveAdd a Comment

Edward Dove

In their recently published article entitled Confidentiality and Public Interest Disclosure, Paul Snelling and Oliver Quick make a persuasive case for how existing healthcare professional regulation in the UK fails to provide clear standards regarding when the duty of confidentiality may lawfully be set aside on the basis of public interest. This regulatory lacuna should trouble patients and the broader public alike. It creates uncertainty for professionals engaged in the health practices a patient may encounter, and it clearly is of concern to professionals, too: Snelling and Quick note that the British Medical Association (the registered trade union for doctors in the UK) has received more queries relating to confidentiality than other areas of ethical concern.

What is going on here, and how do Snelling and Quick advance their observation to point out such problematic anomalies in the healthcare regulatory environment? In what follows, I summarise and engage with their approach and key findings, concluding with several thoughts about future research paths to further explore how and why guidance for healthcare professionals suffers from poor quality, at least insofar as it concerns confidentiality.

In the UK, healthcare professionals are governed by several profession-specific regulators. For example, medical doctors are governed by the General Medical Council (GMC), nurses and midwives by the Nursing and Midwifery Council (NMC), dentists by the General Dental Council (GDC), pharmacists by the General Pharmaceutical Council (GPC), and so on. Since 2012, the Professional Standards Authority for Health and Social Care (PSA) has served as a kind of ‘meta-regulator’ to monitor all health professional regulators and, primarily by way of annual reviews, acts to assess these regulators against standards of good regulation.

As should be well known to many readers of Jotwell, one of the core tenets of proper conduct by healthcare professionals in their relationships with patients – be they doctors, nurses, dentists, osteopaths, pharmacists, or others – is the safeguarding of secrets confided in them by their patients. The law of confidentiality in the UK is largely a creature of the common law but has been influenced by professional regulation and in some cases, legislation as well.

The duty of confidentiality is not absolute, however. It may yield in certain circumstances and this is where much uncertainty arises. Specifically, the duty of confidentiality may yield in three broad circumstances: (1) when the patient consents; (2) when disclosure is required by statute or a statute otherwise lifts the duty; or (3) when there is an overriding public interest. Regarding the latter, to take the GMC guidance as an example, doctors are informed at paragraphs 22 and 63 that “…there can be a public interest in disclosing information if the benefits to an individual or society outweigh both the public and the patient’s interest in keeping the information confidential. For example, disclosure may be justified to protect individuals or society from risks of serious harm, such as from serious communicable diseases or serious crime.”

Snelling and Quick are interested in looking at the specific question of disclosure of confidential information where there is no patient consent. Specifically, they ask whether disclosures by health professionals other than doctors are held to the same standards as in medical practice, or whether different legal and professional standards apply? After all, it is not the case that a nurse can simply rely on standards and guidelines for doctors, or that doctors can rely on standards and guidelines for opticians. As the authors note, “increasingly other healthcare professionals have their own caseloads and powers, including independent prescribing, and are required to make autonomous decisions for which they are alone accountable.”

To undertake their assessment that compares healthcare regulators’ standards and guidance, Snelling and Quick used three sources of benchmarking guidance on the issue of confidentiality: (1) the Department of Health’s NHS Code of Practice on confidentiality, (2) its supplementary guidance on disclosure, and (3) the GMC guidance on confidentiality. While the first two sources clearly apply to all practices within the NHS and therefore apply to any professional working in and around health, it is less clear to me why Snelling and Quick also use the GMC guidance as a benchmarking source, given it applies only to medical doctors. They explain this decision (P. 14) on the grounds that:

The GMC was the first health professional regulator to issue confidentiality guidance, which is more detailed compared to other regulators and has been endorsed in court judgments. Importantly, on the points covered by the framework, these three documents are largely consistent with each other and together articulate an account of the legal position recognized by the courts and clearly apply to all healthcare professionals.

While it is undoubtedly true that the GMC guidance is the most comprehensive of any confidentiality guidance across the regulators, and the most respected and endorsed by the courts, to my knowledge it has not been formally established that it “clearly applies” to all healthcare professionals. In any event, this does not materially diminish the power of Snelling and Quick’s analysis.

From a close reading of these three sources, Snelling and Quick develop a framework of five questions as they concern public interest disclosure and areas of practical importance for health professionals: (1) Is public interest explained? (2) Is the nature and level of harm to be avoided explained? (3) Is intended beneficiary of disclosure explained? (4) Is disclosure to prevent or detect serious crime explained? and (5) Is safeguarding explained?

The authors’ findings are indeed a cause for concern. Across the nine regulators examined (GMC, GDC, NMC, General Chiropractic Council, General Optical Council, General Osteopathic Council, General Pharmaceutical Council, Health and Care Professions Council, Social Work England), Snelling and Quick find that “…the quality of some health professional regulatory guidance is poor” and inconsistency reigns. This inconsistency is bound to confound healthcare professionals and drive further uncertainty and confusion, and could well leave them to second-guess a regulator or the courts. Undoubtedly, this is troubling for professionals and the public alike because no one really knows where they stand until decisions are tested.

Snelling and Quick offer thoughtful ways to overcome this troubling finding of inconsistency and poor quality in guidance. First, they recommend that each statutory regulator of professionals should review their guidance on confidentiality to ensure that it is consistent with the three reference sources Snelling and Quick relied upon (although this does raise questions about reliance on the GMC guidance that apply to doctors only). Second, they recommend that the PSA, as the ‘meta-regulator,, work with appropriate regulatory and professional bodies to undertake a review of professional guidance to drive consistency and greater detail. Finally, they recommend that the UK Government take up the Law Commissions’ suggestion that a new unifying statute for health professional regulators should establish a duty to provide explanatory guidance. This would make the issuing of regulatory guidance an essential, rather than optional, part of the regulatory role, and would serve as a basis to drive better consistency and quality of guidance concerning confidentiality and disclosures in the public interest.

Intriguingly, Snelling and Quick suggest that there may be scope for different standards of practice in disclosing confidential patient information on the grounds of public interest, depending on, for instance, whether the professional treats the whole person rather than a single condition of part of the body. Further research (and as they note, public consultation) is warranted to explore this potential for aspects of confidentiality to differ between professional groups, as well as how this difference it might be perceived by patients and other stakeholders.

In sum, Snelling and Quick have provided rich food for thought on the role of professional regulation and the relationship between common law and regulatory guidance, including the possibility of differing standards for different healthcare professions. Their article also makes one question the law’s current reliance on such an amorphous concept as “the public interest,” with little understanding across regulators as to what it means and when it ought to be lawfully deployed. Finally, their article also makes clear that a wider review of healthcare professional regulation is needed.

Understanding (and Avoiding) Medicare Insolvency

Sep 8, 2022 Amy MonahanAdd a Comment

Amy Monahan

Medicare’s hospital insurance trust fund is projected to reach insolvency by 2026. While looming insolvency is, in a sense, nothing new for Medicare – the hospital trust fund has been within six years of insolvency five times in the last five decades – it has never been closer to insolvency than it is now. In response to prior threats of Medicare insolvency, Congress has always acted to avoid such crises. Yet, as Professor Lawrence explains in Medicare “Bankruptcy”, today’s Congress may be unwilling or unable to do anything more than a short-term fix at best. At worst, Washington’s extreme polarization may create a situation where even politically sacred Medicare runs out of funds.

Medicare “Bankruptcy” makes two key contributions to the literature on Medicare reform. First, it provides a detailed examination of the many legal and practical issues that would be raised by Medicare trust fund insolvency. Second, it proposes a more rational approach to periodic threats of Medicare insolvency than simply crisis/short-term patch/repeat. By setting out the rules for Medicare bankruptcy in law in advance, Professor Lawrence argues, insolvency will be less harmful, less likely, and more likely to promote compromise and cost control.

The first contribution, while perhaps not as intrinsically attention-grabbing as a proposed solution to Medicare’s funding problems, is of vital importance to both policymakers and Medicare stakeholders. Insolvency’s effects would not be limited to Medicare providers and beneficiaries, but would impact the U.S. healthcare system as a whole. As Lawrence explains, the reimbursement disruptions caused by Medicare insolvency likely would trigger provider consolidation, reduce charitable care, increase private insurance premiums, and result in more vigorous bill collection. But sorting out the legal and practical logistics of Medicare insolvency is no easy task. Professor Lawrence relies on his federal budget expertise to explain how much is unknown about the mechanics of insolvency and how the Department of Health and Human Services is likely to respond to a lack of funds. One of the most important take-aways from this part is that fact that Medicare insolvency would not involve a sudden shock to the system. Rather, it is likely to play out as either delayed payments or a pro rata reduction of all hospital trust fund payments. These reductions or delays would initially be modest in amount, but would become increasingly large as the insolvency grows. Because of this slow burning nature of Medicare insolvency, Congress may not feel particularly compelled to react, leaving affected providers with financial and legal uncertainty that could last years.

After establishing the potential shape of insolvency, Professor Lawrence makes the case for being more ambitious in our response to the current insolvency crisis than the sort of short-term fix that has become the norm in a fractured Washington. Specifically, he makes the case for setting forth, in advance, how Medicare trust fund insolvency would be administered. He argues that doing so would make such insolvency less unfair and harmful if it did occur, in large part through reducing the costs of uncertainty and allowing us to consider, in advance, whether certain providers who are particularly reliant on Medicare reimbursement, and who play an important role in providing critical health care access, might warrant protection in that process. Another advantage offered by this approach would be to allow such decisions to be made largely through the democratically accountable legislative process, rather than by an agency operating in crisis mode.

One of the most interesting arguments advanced by the article is that specifying a Medicare bankruptcy framework in advance could help to address some of Medicare’s problematic political economy. After all, the insolvency problem is not new, but the “fixes” enacted by Congress never seem to last and seem to involve a one-way ratchet that increases spending. As Lawrence explains, this outcome is not surprising given that Medicare presents a classic opportunity for rent-seeking by providers. Providers represent a concentrated interest with significant financial interests at play, while those who might seek better cost controls exert at best a diffuse counterpressure.

By enacting Medicare insolvency rules in advance, Congress could help shape future industry lobbying efforts towards ends that benefit the system as a whole. Under the current framework, wherein no rules for insolvency have been specified, large providers may not actually have a reason to push Congress to avoid insolvency or to control costs. As Lawrence explains, many large hospitals and care facilities would be well situated to ride out the effects of Medicare insolvency. In fact, some of these providers might gain further competitive advantages when their less financially stable competitors exit the market in the face of Medicare insolvency. But specifying an insolvency framework in advance allows Congress to choose who would bear the insolvency burden and to what extent. For example, Congress could choose to protect reimbursement levels for safety net or rural care facilities, leaving large healthcare systems to bear a majority of the reduced reimbursements brought on by insolvency. If Congress adopted such a framework, the largest and most powerful industry players would now have an interest in achieving Medicare fiscal sustainability in order to ensure that insolvency does not occur. By creating a clear possibility of future financial harm absent real reform, Lawrence’s specified-in-advance bankruptcy framework harnesses the problem of industry influence on the legislative process and redirects that influence toward productive ends.

The most difficult part of this sensible approach, it seems to me, will be convincing Congress to take action in advance of a true insolvency crisis, but Medicare’s “Bankruptcy” does an excellent job of making the case for why it might be in legislators’ interests to do so. Even for those who are skeptical of the proposed solution, the article makes an incredibly valuable contribution to the Medicare literature by explaining in detail the legal and practical issues that will inevitably arise if the Medicare trust fund reaches insolvency.

Restrictions on Abortion from a Comparative Perspective

Jul 29, 2022 David OrentlicherAdd a Comment

David Orentlicher

With the Supreme Court’s rejection of a constitutional right to abortion in the United States, it is instructive to look overseas for lessons from other countries that have restricted abortion rights. In a fascinating account, How Abortion Laws Do and Don’t Work, Michelle Oberman considers the Israeli experience and what we might learn from a nation that enacted a criminal ban on abortion in 1977.

In Israel, abortion is a crime unless it is approved by a “pregnancy termination committee.” Each three-person committee must include two doctors and a nurse or social worker, at least one member of the committee must be a woman, and the law specifies grounds upon which the committee may approve an abortion. Such an approach is similar to state laws in the pre-Roe era, and in the new post-Dobbs world, many states have decided to criminalize abortions, with different approaches on exceptions and the process to decide whether a pregnant patient can invoke an exception.

As Oberman is quick to observe, we cannot deduce from one other country’s experience with an abortion ban what will happen in the United States. One important limitation is that laws in some states will be more restrictive than the Israeli law. On a spectrum of abortion laws that runs from least restrictive to most restrictive, Oberman places the Israeli law in the middle. (Oberman has previously written about a country at the most restrictive end of the spectrum, El Salvador.)

Still, we can learn valuable lessons from the comparative exercise. Oberman organizes these lessons in terms of six functions of abortion law—criminal sanction, market-structuring force, informal adjudicatory process, shame sanction, expressive function, and truce—and this review touches on some of these functions.

As mentioned, Israel specifies exceptions to its ban on abortion. Abortion is permitted when (1) the patient is younger than the marriage age (currently 18) or older than 40; (2) the pregnancy is the result of criminal, non-marital, or incestuous relations; (3) the fetus is likely to have a physical or mental defect; or (4) the continuation of the pregnancy is likely to endanger the patient’s life or cause physical or mental harm. As one might expect, this last ground allows considerable freedom for a committee to authorize an abortion, and in fact, committees approve 98-99% of requests overall. Yet, the law is well settled and uncontroversial, which takes us to the truce function of abortion law.

While it is often thought that abortion provokes persistent controversy in the United States because of the strong and irreconcilable views on the issue, Israel demonstrates otherwise. As Oberman writes, “there is no abortion war in Israel. Israel’s law represents an enduring truce; no one is happy about it, but everyone is willing to live with it,” even in the ultra-religious community. A key reason for the truce lies in the observations of a former legislator from Israel’s Communist Party,

There are many, many issues shaping the left-right continuum in the Israeli polity. But the whole political arena is concentrated on one axis, which involves security, war, peace, Jews, Arabs, settlements, and occupation. These are the issues that organize politics in Israel; there is no real place for an issue like abortion.

Whether abortion is a major part of the left-right continuum in a country, then, is not simply the result of the highly charged nature of the issue, but the political context. In the United States in the 1970’s and 80’s, abortion became an effective wedge issue for the Republican Party to split socially conservative voters from the Democratic Party, and it has since remained a potent vehicle for mobilizing voters.

The Israel-United States comparison also is instructive in terms of the expressive function of abortion law. As Oberman notes, a law’s expressive function depends on its context and how well the law’s message aligns with other messages that the government sends its citizenry. In Israel, a ban on abortion lines up quite well with the country’s efforts to promote procreation. Israel guarantees paid maternity leave for 26 weeks (compared to our 12 weeks of unpaid leave), parents can easily find high-quality, subsidized day care, and the “government pays everyone — rich and poor alike — a small monthly allowance for each child under 18.” In the United States, the law does very little to help prospective parents deal with the costs of childrearing that they cannot afford. It’s difficult to promote respect for the unborn when one doesn’t also try to promote respect for the born.

As mentioned, pregnancy termination committee approval rates are very high. Perhaps the existence of the law discourages some patients from seeking an exception, and others may not make it past the pre-committee screening. But while Israel’s law may have a limited impact on preventing abortions, it may do more in terms of the shaming function of law. Patients must explain why they want an abortion multiple times to multiple people—their physician, the secretary for the committee, the social worker or nurse on the committee who screens requests for abortion, and in some cases, the full committee. For a number of patients, committee members may respond in a judgmental way to the request for an abortion. As one social worker said,

when it’s a 16-year-old girl that says, ‘You know, I was at a party, and I drank something, and I wasn’t thinking, and I did it.’ You know, I can understand her. I can’t understand a married woman, 35 years old, has her three children that she planned. You’re a grown up? Why didn’t you go to your doctor and put in an IUD, or take some pills! You’re not a little child. I will help her because she needs it, and she wants it, . . . but sometimes, it gets me to be angry with them.

There are other important points in Oberman’s article. Making abortion a crime doesn’t mean there will be prosecutions for violations of the law. Despite the fact that thousands of abortions are performed each year in Israel without committee approval, no one has been prosecuted in the 45 years that the abortion ban has been on the books. Indeed, abortion prosecutions generally are rare, whether one looks at El Salvador today or the United States before Roe. And Texas wants to use lawsuits by private parties to punish those who provide, or facilitate the provision of, abortions.

While we won’t have a complete sense of the impact of Dobbs for some time, Oberman tells us much about the kinds of factors that will matter.

Racism in the Valuation of Disease and the Distribution of Lifesaving Treatments

Jun 29, 2022 Ruqaiijah YearbyAdd a Comment

Ruqaiijah Yearby

The genomic age showed that race is not genetic; it is only a social construct. More specifically, the genome between humans is 99.5%-99.9% identical; the 0.1%-0.5% variation between any two unrelated individuals is greatest between individuals in the same local population; and there are no identifiable continental or racial genomic clusters. Thus, the connection of disease and race is not about science; rather it is a way to support a system of racial hierarchy that devalues the lives of racial and ethnic minority individuals.

The racialization of disease to support a racial hierarchy is not new, as Professor Matiangai Sirleaf discusses in her article, Racial Valuation of Diseases, and does not happen in a vacuum. The United States government and colonial forces have long used laws to limit the rights of racial and ethnic minority individuals based on the racialization of disease. As one example, Professor Sirleaf cites the 1882 Chinese Exclusion Act, which “prevented Chinese laborers from immigrating to the United States in part based on biases and stereotypes that they were more likely to carry cholera and smallpox.” Similarly, Haitian people seeking refuge in the United States were linked to having HIV/AIDS and denied access in 2021.

In this article, Professor Sirleaf uses the Covid-19 pandemic to develop a theoretical framework for racial valuation, building on sociological literature, Critical Race Theory, and Third World Approaches to International Law. The article is significant because it develops the theoretical framework of racial valuation, distinguishing it from the “racial empathy gap” and racism (i.e. illegal racial discrimination). Furthermore, it discusses how this problem is not simply an American problem, but a global problem.

According to sociological literature, “racial valuation” is the value placed on individuals or groups “based on cognitive biases and stereotypes that relate directly to their racial status and position within social hierarchy that this status implies.’” In this article, Professor Sirleaf submits that racial valuation is about “the relative worth, utility, or importance assigned to race in social systems,” and “violates justice at the most fundamental level because it demonstrates that institutions, individuals, and societies have a ‘morally inappropriate disposition’ toward the worth of people of color.”

Within Professor Sirleaf’s theoretical framework, racial valuation goes beyond the “racial empathy gap” that occurs when people show an ingroup bias in empathy that restricts its application to those in the outgroup, because racial valuation determines who deserves empathy, care, and concern. The theory of racial valuation also expands the current notions of racism because it notes that racism is embedded into society. In the United States, Black-owned real estate is often valued less than White-owned real estate. Under the law this is linked to the actions of individual bad actors, instead of connecting it to the social systems and structures that devalue racial and ethnic minority individuals. “By drawing attention to societal structures,” Professor Sirleaf highlights, “racial valuation does not require the explicit or overt deployment of norms” required by racism.

Racial valuation also incorporates the theory of racial capitalism and the global impact of the devaluation of racial and ethnic minority individuals. According to Professor Sirleaf, “the current historical and social construction of racial valuation emerged because of European capitalists’ practice of differentiating and exaggerating ‘regional, subcultural, and dialectical difference amongst peoples into ‘racial’ ones’” as a means to dominate and exploit Black, Indigenous, and other people of color to make money. Under American capitalism, Black people have been treated as property during slavery and the Jim Crow era.

Scientific racism that characterizes racial and ethnic minorities as inferior has been used to support racial valuation. Research has shown that many medical students still believe that “Black people’s nerve endings are less sensitive, and that Black skin is thicker than White skin.” This is further illustrated by the Covid-19 pandemic. Three years ago, the Covid-19 virus was racialized by former President Trump, who labeled it as a “Chinese” disease. As a result, those of Asian descent have been subject to physical attacks from London to New York and individuals that present as Asian are being racially profiled and discriminated against.

Furthermore, during the pandemic, governmental officials have blamed racial and ethnic minority individuals for their higher rates of infection and death, while limiting their equal access to vaccines and treatment. For example, Senate Republicans in Michigan submitted a plan that would have barred the state from using a resident’s race and socioeconomic status to guide the distribution of the Covid-19 vaccine in February 2021, one day after the state released data that White Michigan residents were twice as likely to receive the vaccine compared to Black Michigan residents. Thus, even though White residents were already disproportionately receiving vaccine doses, the government officials wanted to make sure to limit the poor and racial and ethnic minority individual’s access to the vaccine. This is best explained by Professor Sirleaf’s theoretical framework of racial valuation. Because the lives of racial and ethnic minority individuals are not valued, anything that would provide them with access to vaccines or treatment violates the social hierarchy where White individuals are superior and deserve unfettered access to all lifesaving resources.

Professor Sirleaf’s theoretical framework of racial valuation also explains the global failure to provide countries that are disproportionately filled with racial and ethnic minority individuals with equal access to Covid-19 vaccines. Johnson & Johnson sent vaccine doses produced in South Africa to high income countries, like Spain and Germany, while African countries were still waiting to receive their doses of the vaccine. This was compounded by Moderna’s unwillingness to share its technology with African scientists to manufacture its mRNA Covid-19 vaccine, even as mutant strains of Covid-19 spread in large part due to Africa’s lack of equal access to vaccines. Moderna and other companies have made billions of dollars in profit from the vaccine as racial and ethnic minority individuals have lacked access to the vaccine. This article, which includes Professor Sirleaf’s theoretical framework of racial valuation, explains why companies and governments continue to devalue the lives of racial and ethnic minority individuals, which has resulted in the unnecessary loss of life for racial and ethnic minority individuals.

Health Law: A Transatlantic Dialogue

May 26, 2022 André den ExterAdd a Comment

André den Exter

Every field of law has some comparative law studies, including health law. A search in the legal databases gives several hits using the keyword comparative health law; in other words, comparative law is ‘hot’. However, the comparison is often limited to a single topic (medical negligence, euthanasia, patients’ rights, etc.) and a limited number of jurisdictions. The added value of the Oxford Handbook of Comparative Health Law is the comprehensive nature of the study: a wide range of related topics within contemporary health law is addressed (regulating public health, health financing, health services and facilities, pharmaceuticals, the patient-provider relationship, new medical technologies, and end-of-life decision making). The editors opted for a so-called transatlantic approach, specifically comparing the United States and Europe. This choice is justified by the differences and similarities between the legal frameworks of health law in these regions. All in all, this is an ambitious project, partly because the legal rules can differ considerably between states and at the country level.

It is precisely the scope and quality of the legal comparison conducted that allows this Handbook to make a valuable contribution to the understanding and resolution of contemporary issues within health law. Mistakenly, health law issues are often approached exclusively as unique to the legal system in question, but the difference in manifestation does not make the issue any different in other jurisdictions. The question that needs to be asked first is why a particular legal rule is shaped differently in form and substance in different national jurisdictions. With respect to such explanatory research, as described by Dannemann: “Generally speaking, the (comparative) analysis should seek to explain differences and similarities as they arise from the description of the legal systems under consideration, so that whoever has predominantly found similarity, will predominantly have to explain similarity, whereas those who have predominantly found differences, will predominantly have to explain differences”.¹

Viewed in this way, the legal comparative analysis must ultimately lead to an explanation of how the various jurisdictions relate to one another.² This is by no means an easy task, because the health law framework ‘is sensitive to its local environment’ (P. 3), and cannot operate without acknowledging political, cultural, economic and historical considerations. The ideal model is to explain legal phenomena without ignoring the multidisciplinary factors that distinguish countries. In this way, statements can be made about the relationship between legal systems, and about which legal arguments or ‘best practices’ can be adopted with a view to ‘making things better.’ (P. 50.) This functional approach within contemporary comparative law underlies this Handbook. (Pp. 4-5.)

The Handbook is structured according to five themes: a general conversation on paradigms of health care systems, such as individual liberty and solidarity in health care, market competition, state vs. self-regulation, etc. (part One); followed by the law preventing ill health (part Two); treating ill health (part Three); regulating the development and use of medical treatments (part Four); and finally, healthcare at the beginning and end of life (part Five). The choice of this format is determined by the definition of health law and reflects the ongoing discussion on the object of research: health or healthcare? Here, the editors have opted for what they call a combination of ‘pragmatism and principlism.’ (P. 8.) As a consequence, the topics addressed reflect endogenous legal principles (such as human rights) when discussing topics such as public health law, inequalities in health care access, quality of care, information and consent, privacy and medical confidentiality, medical research with human beings, organ donation, procreation, abortion, and end-of-life decision-making.

The Handbook’s approach seems more principlism-driven than pragmatic, however. The pragmatic approach – covering topics affecting healthcare systems, such as antitrust law and regulated competition, health care fraud, regulation of medical devices, and medical malpractice – is incomplete and therefore less convincing. In a way, the editors have struggled with the pragmatic approach, as there are many other branches of law and socioeconomic factors that influence health and healthcare. A more conceptual approach structured according to the patient-provider-financier triangle might have been more helpful in that respect. But one cannot criticize the editors for that choice. What matters is that the Handbook discusses almost all of the most important themes within health law on both sides of the Atlantic Ocean.

Finally, the question: what can we learn from the comparative analysis? Common introductions by topic challenged the authors to think critically about whether there are lessons to be learned from the diverse contexts in which health law is situated and practiced. One of the unsurprising conclusions is that there is no universal concept of health law, but rather a “field of health laws.” (P. 13.) Moreover, there are a number of common principles/values, approaches, and areas of convergence, apart from the differences in jurisdictions. These differences do not so much indicate a conceptual distinction between the US and Europe. Rather, they are mostly explained by the interpretation of state sovereignty and federal unity — i.e. the division of powers at the federal and state levels, respectively, between the EU/Council of Europe and member states. (P. 13.) These lessons confirm that we cannot simply transplant health law concepts to another societal context, but must respect the contextual differences when bringing good ideas home. That is perhaps the most valuable contribution of this voluminous Handbook.

1. G Dannemann, Comparative Law: Study of Similarities or Differences? in: The Oxford Handbook of Cpomparative Law 416 (M Reimann and R Zimmermann eds. 2006), as quoted by M Adams, Wat de rechtsvergelijking vermag (in Dutch), Ars Aequi 192, 192 (March 2011).
2. Id. at 192.

Autonomy as Corporeal, Not Just Cognitive

May 11, 2022 Nadia SawickiAdd a Comment

Nadia Sawicki

Contemporary discussions of the law and ethics of informed consent to medical treatment tend to focus on the process of information communication, including the scope of the disclosures physicians are required to make, and the ability of patients to truly understand those disclosures and integrate them into their medical decision-making. Without dismissing the importance of communication and understanding in securing consent to treatment, Prof. Megan Wright’s article, Resuscitating Consent, directs the reader’s attention to a fundamental concept that seems to have been overlooked as the law and practice of informed consent have developed. Namely, that the principle of patient autonomy upon which informed consent doctrine is based has a corporeal – not just cognitive – component.

Prof. Wright wisely reminds readers that respect for bodily integrity was a foundational principle in the development of autonomy-based legal protections for patients. However, evidence suggests that health care providers in acute care hospitals are willing to violate this principle by imposing medical treatment against contemporaneous patient objections. Prof. Wright argues that all patients – not just those deemed to have decision-making capacity – have an absolute right to refuse treatment as a matter of bodily autonomy. “[P]atients,” according to Prof. Wright, “continue to have bodily integrity interests that should be respected even if they acquire decisional impairments and are deemed incapable of autonomy understood as capacity for rationality.” Contemporary U.S. law, however, fails to adequately protect these interests, and this article offers several compelling recommendations for addressing this issue.

By re-centering bodily integrity at the core of consent to treatment, Prof. Wright challenges the idea that the corollary to “informed consent” must be “informed refusal.” She supports her argument by discussing the theoretical basis for autonomy as a foundational principle of medical ethics; the historical development of informed consent doctrine; the negative impact that treatment over objection has on patients, providers, and the rule of law; and contemporary legal developments in the field of supportive decision-making for patients with cognitive impairments. While recognizing and reinforcing the importance of information and cognition to decisions to proceed with treatment, Prof. Wright argues that the right to maintain one’s bodily integrity by refusing treatment is not conditional on cognitive capacity or understanding. Thus, physicians who require formal or informal competency assessments when patients refuse care are improperly acting as gatekeepers to a right that should be unconditional.

Prof. Wright’s primary recommendation in this article is that any gatekeeping role be left to the judiciary, rather than to individual health care providers. As a model, she points to the New York Family Health Care Decisions Act, which establishes “absolute legal capacity to refuse medical treatment” that can only be overridden if “a court judges the patient to be incompetent.” She also proposes that surrogate decision-makers and agents acting pursuant to health care powers of attorney have similarly limited authority to override a contemporaneous treatment refusal. To provide additional protections for patients, she recommends that health care providers who question a refusing patient’s decisional capacity first prioritize restoring decisional capacity if the patient is amenable, providing assistive communication technology, and inviting family members to engage in persuasive discussion with the patient. However, if these attempts fail, the patient refusal must be respected unless the health care team seeks and secures court approval. Failure to do so, under the model Prof. Wright proposes, would lead to tort liability.

Prof. Wright acknowledges and aptly addresses several challenges to this proposed approach, including arguments about the prioritization of health at all costs, concerns about provider autonomy, potential harms to third parties, and the value of existing exceptions to consent requirements. The one counterargument I believe deserves further discussion is about patient refusals in the context of medical emergencies and time-sensitive decisions. Prof. Wright recognizes the importance of the emergency exception to informed consent in cases where there is no time to secure consent, but argues that in the case of “treatment over objection, it would be perverse to allow providers to lawfully rely on the emergency exception to override their patient’s prior treatment refusal” (as in cases like Werth v. Taylor (Mich. App. 1991), where a pregnant woman’s consistent refusals to accept blood products for religious reasons was overridden when a medical emergency arose). Prof. Wright argues for making the emergency exception “stricter,” but it would be helpful to further explore the practical implications of such a proposal. For example, Prof. Wright advocates for a clearer path for emergency court petitions, a suggestion that would be bolstered by exploration of the timeliness and efficacy of emergency petitions in other contexts, like guardianship.

The issue of tort liability is an essential piece of this puzzle, and Prof. Wright offers valuable insights into how policymakers could best take advantage of tort law’s deterrent effect in these situations. As Prof. Wright acknowledges, it is only recently that courts have started to consistently recognize that unwanted treatment that improves a patient’s condition or extends their life qualifies as a legally cognizable harm. Prof. Wright’s proposal for tort liability when physicians override contemporaneous treatment refusals without a court order is consistent with this developing trend. Notably, she also acknowledges the ongoing challenges of bringing civil actions in such cases, including the difficulty in finding an attorney to take a dignitary harm case on a contingency fee basis. She suggests several ways in which legislation could address this problem, such as by allowing for statutory damages, attorney’s fees, and punitive damages.

Overall, the article reminds us of the importance of bodily integrity as an element of autonomy-based doctrines like informed consent, at a time when much academic discussion focuses primarily on disclosure and understanding. In doing so, Prof. Wright brings informed consent doctrine back to its roots, so to speak, and asks important questions about how it has developed in the context of treatment refusals.

Laurie’s Legacy

Apr 26, 2022 Emma CaveAdd a Comment

Emma Cave

Law and Legacy in Medical Jurisprudence: Essays in Honour of Graeme Laurie, edited by Edward Dove and Niamh Nic Shuibhne, includes 18 essays that explore legacy in its various forms, and in various contexts, drawing on the many impacts and innovations to date of medical jurisprudence pioneer, Graeme Laurie.

The volume does three things particularly well. Firstly, it serves as a Festschrift honouring a great scholar. Laurie recently stepped down from the Chair of Medical Jurisprudence at the University of Edinburgh to pursue other projects. His intellectual legacy is profound, and whilst he has written on almost every medical law issue he is particularly well known for his work on liminality, human tissue, genetic privacy and information governance, and his co-authored text book on medical law. His contribution to the next generation of scholars is equally impressive, and fortunately is set to continue in his role of Professorial Fellow.

Secondly, the volume offers insightful commentary on wide-ranging medico-legal issues. The chapters focus on medical research, biobanking, tissue, ectogenesis, surrogacy, assisted suicide and other substantive issues. This is evidence of the breadth of Laurie’s engagement, and the impressive list of contributors, each renowned in their field, is testament to how well Laurie is respected and admired. The insights are original and far ranging and they are insightfully assimilated by the editors in the Introduction.

Thirdly, the book offers a conceptual analysis of the many dimensions of legacy and uses this as an analytical lens on the evolution of medical jurisprudence. Health law and medical law programmes are flourishing around the world, but their scope and nomenclature is often debated. Laurie championed the importance of interdisciplinarity through engagement with ethics, medicine, humanities and the social sciences, as well as with social, political and economic contexts. The book also sets out some of the limits of medical law, wherein the jurisprudential issue at play is almost always part of a bigger picture. In an Afterword to the book, Lawrence Gostin says:

The field of ‘medical jurisprudence’, to use the University of Edinburgh parlance, has come a long way. It is not just about medicine and what happens in the clinic; it also explores health systems, including public health systems. It is not just about health systems, but also upstream social and commercial determinants of health. And it is not just all-of-government, but also all-of-society.

The volume charts an expansion of medical jurisprudence from a focus on doctors to a focus on health systems, driven in part by an increasingly interdisciplinary focus but also by events such as medical scandals and the COVID-19 pandemic. The volume notes that negative jurisprudential legacies can flow from incremental legal decision-making or event-focused reforms. These, in turn, can encumber medical jurisprudence, preventing its development in line with changing societal values.

Laurie’s work on liminality challenges the regulations that keep the boundaries in place. Where a regulatory provision is no longer fit for purpose, recognition of liminal spaces allows the landscape to be reimagined, the spaces between boundaries explored ,and boundaries to be broken down. A good example is found in laws governing 16–18-year-olds. Recasting them in a shared ‘liminal’ space between adulthood and childhood can help to explain laws that allow them to consent but not necessarily to refuse life-sustaining medical treatment.

Legacy is collective as well as individual; negative as well as positive. The reader is left with an appreciation of Laurie’s individual legacy and his contribution to the collective legacy of medical jurisprudence. Particularly importantly for me, the collection of essays provides valuable insight into how that legacy might be positively developed through Laurie’s example of interdisciplinarity, innovation, collaboration, and boldness.

An Unapologetically Inconsistent Enforcement Regime

Mar 24, 2022 Zack BuckAdd a Comment

Zack Buck

Fraud is a major problem in American health care. It costs American taxpayers and patients from about $70 to $234 billion annually, which accounts for between three and ten percent of total health spending in the United States. It is an area that would be benefited by serious legal scholarly focus and inquiry, and well served by well-supported and implementable policy suggestions based on empirical data. Professor Jacob Elberg, through his serious and important work in this space, has provided just that in his most recently-published piece Health Care Fraud Means Never Having to Say You’re Sorry. Here, Elberg again shows why he is a leading voice in health care fraud and abuse scholarship.

The piece focuses on the civil federal False Claims Act (FCA), a major tool for the federal government that imposes major civil penalties against health care fraud defendants. As has been argued before, use of the FCA and its draconian penalties overwhelmingly leads to settlement, which—without courts’ review of the government’s theory of liability—can stunt the development of the FCA itself. In addition to the lack of meaningful judicial review in these matters, defendants often deny any wrongdoing as they settle FCA allegations, leaving the public and other defendants in the dark about whether the allegations had merit or drew a settlement simply because of expediency or the risk or cost of litigation. As Professor Elberg says, this has “fueled a cost-of-doing-business narrative in which health care entities are required periodically to pay inconsequential settlements to the government regardless of their conduct.”

The basis of Professor Elberg’s article is a review of 195 settlements that resolve FCA allegations between early 2018 and the spring of 2020, and he examines them specifically for whether the FCA defendants publicly admitted responsibility for the government’s loss. Professor Elberg finds that 92 percent of settlements did not include defendants’ acceptance of responsibility, and that 37 percent of defendants actively denied responsibility. Relatedly, he powerfully asks why the Department of Justice (DOJ) does not require defendants to admit responsibility as part of a health care settlement, especially because it requires admissions in virtually all cases in which it settles criminal claims.

In addition to noting the inconsistency in the DOJ’s current practice between civil and criminal resolutions, Professor Elberg also observes (1) recent changes to the DOJ’s FCA policy that seem to indicate that it will reward an acceptance of responsibility, (2) the history and development of the Security and Exchange Commission’s (SEC)’s admission standard (which requires admissions in some cases), and (3) other enforcement goals that seem to be undermined by the DOJ’s failure to require an admission of responsibility. In so doing, Professor Elberg shines a light—through his collection and presentation of hard data—on an area of legal enforcement that suffers from glaring inconsistencies.

Most importantly, Professor Elberg is concerned about kind of behavior the enforcement regime is incentivizing. Indeed, he argues that not requiring an admission of wrongdoing could hamper the DOJ’s main goals, like deterring bad behavior, incentivizing cooperation, and rewarding a culture of compliance in the industry. Given the lack of credit they receive for an admission of responsibility, this could prompt even more health care industry defendants to refuse to cooperate with investigations or to invest in compliance programs altogether, as Elberg observes.

Professor Elberg powerfully identifies some barriers to the DOJ in requiring the admission of responsibility, from a concern over resources to increased litigation risk, and also makes a persuasive case for how the DOJ may want to take a nuanced or targeted approach to requiring settlement admissions. Indeed, one may wonder if, from a fairness perspective, it makes sense to require settling defendants to admit responsibility absent proof at trial, but that question does not detract from Professor Elberg’s main goal, which is injecting some order and consistency into a mysterious enforcement regime that seems to currently lack it.

Ultimately, Professor Elberg is concerned that the DOJ’s enforcement regime may be at risk of losing legitimacy because of how the settlement-dependent mechanism is deployed and how its cases are settled. His findings seem to suggest, as he argues, that the “DOJ pursues, illegitimately, weak cases it cannot prove at trial” and it “lends credence to the widespread belief that civil health care fraud settlements simply do not signal wrongdoing.” Given the scourge of health care fraud and abuse on this country’s health care system, that is a powerful and damning concern, and raises even deeper questions about faith in a fair enforcement mechanism and the rule of law itself.