Monday, February 28, 2011

Retiree Health Care and the Struggle in Wisconsin

The struggle over Governor Walker's attack on public sector unions in Wisconsin sent me to a report - "Retiree Health Care: The Brick that Broke Municipalities' Backs" - recently issued by the Massachusetts Taxpayers Foundation.

I'm entirely with the protesters in Wisconsin with regard to the Governor's effort to curtail the process of collective bargaining. I compare his assault on bargaining rights to the major ethical accomplishment in health care in the past decades - heightened respect for patient autonomy, embodied in informed consent and the quest for a collaborative patient-doctor relationship. When it works well, collective bargaining can advance the interests of workers and management, just as patient "empowerment" can advance the physician's interest in better health outcomes.

But in all too many venues, the outcome of public sector collective bargaining has been destructive. The fault lies with both sides of the bargaining process. The Massachusetts Taxpayer Foundation report examines the implications of agreements about retiree health benefits in the 50 largest communities in Massachusetts. Their findings are horrifying!

The 50 communities have an aggregate liability of $20 billion, 99% of which is unfunded! For most of the municipalities, the health care liability is greater than liability for pensions. The report concludes:
"the Legislature and municipalities face a clear and critical choice: cut back retiree health care benefits to an affordable and sustainable level or see cities and towns sink farther and farther into debt while decimating local services."
What's happening in Wisconsin (and other states) reflects the public sector version of changes that have been going on in the private sector since the Financial Accounting Standards Board (FASB) ruled, in 1990, that employers had to report retiree health liabilities in their annual financial reports. This requirement had a dramatic effect on a company's reported profits and losses. The result of the reporting requirement is clear. Among private employers with 500 or more employees, health benefits to Medicare eligible retirees fell from 40 percent in 1993 to 21 percent in 2009.

In 2004 the Government Accounting Standards Board (GASB), which establishes accounting standards for state and local government promulgated a similar reporting requirement. The aim is transparency - to make taxpayers, state and municipal governments, and public sector employees, aware of the financial commitments being made each year. Trading reductions in current wages for future retirement benefits has seemed like a good deal for employees and an appealing kick-the-can-down-the-road approach for government. But now that the true cost of this Faustian bargain are becoming clearer it is rapidly becoming much more difficult to use accounting flim flam to balance budgets.

The second recommendation made by in the Massachusetts report is similar to the Wisconsin proposal, though presented in more moderate language:
"One of the most important steps to control the costs of municipal health care for both employees and retirees is to give local officials the authority to change plan design outside of collective bargaining. Unlike the state and private sector employers, municipal officials' hands are tied by having to go through collective bargaining to make even minor plan changes. The result is overly rich plans..."
In my view, municipalities should not be in the business of providing retiree health benefits. We have an excellent, and highly popular federal program to do that. Neither municipalities nor unions are experts in insurance management, and requiring each venue to manage retirement insurance creates avoidable administrative overhead. Retiree care is the business Medicare is designed for, and we should let it do its job.

(My information about FASB and GASB comes from Paul Fronstin's excellent report - "Implications of Health Reform for Retiree Health Benefits" - published by the Employee Benefit Research Institute.)

Sunday, February 27, 2011

Alcoholism and Personal Responsibility

I'll soon be consulting about a fascinating clinical situation involving an elderly person with alcoholism, other medical problems, and a VERY disruptive behavior pattern. (For reasons of confidentiality, I'm presenting very limited details.)

The patient develops recurrent alcohol-related medical problems, leading to repeated hospitalization. The person has refused placement in any kind of nursing home, but a pattern of belligerence drives away household help and has made agencies reluctant to get involved. Remaining at home will almost certainly lead to recurrent medical emergencies or even death, but a psychiatric hospital concluded that the person could not be committed on an involuntary basis.

From the perspective of clinical ethics, what should the care team do? What can it do?

Alcoholism is a hugely important global health issue and a fascinating philosophical paradox. Society has moved from a purely moralistic view of alcoholism to seeing it as a disease for which management strategies can be devised. The first of AA's twelve steps embodies this view - "We admitted we were powerless over alcohol—that our lives had become unmanageable." The first step in dealing with any condition is acknowledging that the problematic condition is really present!

The clinical team feels caught. Without abstinence from alcohol the patient is likely to spiral downward, causing ever more havoc for self and others as the process unfolds. As caring clinicians they want to prevent harm and promote health, but the patient doesn't cooperate. As clinicians who are out and about in the community, they are also pressured to deal with the patient's socially problematic behavior. And as citizens in a society strongly devoted to liberty, they don't have recourse to forcing any form of intervention unless the patient were to meet the high bar for psychiatric commitment.

Medical benefit - restoration of health to the maximum possible degree is and should be the primary goal. But there are also social control concerns, since the patient's behavior has caused significant problems, including physical injury (luckily relatively minor so far), to others.

Given the valid social control components of the situation, I was struck by the absence of reference to the law in the clinical material. Medical policy and medical ethics directs us to be "patient centered," but patient-centeredness can include serious attention to patients' responsibilities for their own behavior. The tenth step moves from the powerlessness of the first step to asking the person "to take personal inventory and when we [are] wrong promptly admit it."

I'll bring up this this issue of personal responsibility and the role of the legal system when I meet with the team, and may write about the situation again after that.

(Evaluating the degree to which a person is competent to make his own decisions and should accordingly be held responsible for his actions is especially difficult with elderly folks who have alcoholism, since both aging and alcoholism can be associated with declining mental function and capacity for self governance. A 2003 article in General Hospital Psychiatry on "Decision-making capacity and alcohol abuse: clinical and ethical considerations in personal care choices" provides helpful useful insights.)

Friday, February 18, 2011

A Personal Medical Experience

I recently had a personal medical experience that showed me (a) how the health system can function well when its components, including the "consumer" (here, me) collaborate, (b) how simple technologies can make care more efficient and convenient, and (c) how some common sense ideas could make it even better.

On and off for a few years I've had pain in my hands. Not bad pain, but even minor hand pain can disrupt activities. The diagnosis seems pretty clear. An enlargement of the distal joint of my little finger fits the pattern of nodes that William Heberden described in the 18th century. (The nodes are now named after him.) They're part of osteoarthritis, typically caused by wear and tear.

Perhaps because of the cold winter and the nasty snow piles that demand shoveling that we've had in the Northeast, the hand pain was MUCH worse. I went onto the web and learned that osteoarthritis pain can fluctuate. That reassured me a bit. The web gave me some ideas about what to do, but the advice was confusing.

I didn't think I needed to see my primary care doctor, so I sent him an email on the secure system the medical group uses (I've edited it a bit and added some comments):
Dear X

I hope all is well with and for you and [your wife].

I've talked with you before about the on and off hand pain I've had. For the past month or so I've had what I surmise to be mild (but persistent) osteoarthritis pain, luckily, just in the left hand, since I'm right handed, so I've been able to continue playing tennis, etc. [The pain was actually rather severe, but I don't like to whine. In retrospect I see that I minimized it.] If I were still part of the [medical group] I would wander by to talk informally with one of the OT [hand therapy] folks in the orthopedic area to get some advice about exercise and other self management techniques. Do you think I should make a primary care appointment, or would having an OT appointment do the job?


My primary care physician wrote back that he'd made a referral to the hand therapist. Next thing I knew the secretary there called me to set an appointment.

I told the OT clinician that I wanted guidance about how to care for what I assumed would be an ongoing "challenge." She examined my hands to make sure I wasn't way off base in my assessment (I wasn't), made some baseline measurements, showed me a series of exercises I could do and ways of protecting the joints, gave me her card, and told me I could come back if needed. She explained it all and left me with some printed materials. I was a thoroughly satisfied "consumer."

But the health care wonk in me couldn't keep quiet. I thanked her for helping me, but said that my problem was probably not uncommon, and if her department had a class it gave every so often I would have gone to it. Hearing from others with a similar condition could be an additional benefit. I added that "you've explained things to me very well, but you may get tired of repeating yourself!" We agreed that a class was indeed a good idea, and she added that her department was discussing putting some of the materials she gave me onto the web.

Improving health care isn't rocket science. We want "consumers" to be engaged with self management. If they are, all sorts of resources are available on the web. We want everyone to have a primary care physician who knows them and who they trust. If that relationship exists, it provides oversight and guidance, even for a physician-patient. If the primary care physician is available on email, questions can often be answered without requiring an appointment. If the specialist is comfortable being an advisor and educator, the patient's self-management skills will be enhanced. When these pieces are in place, no one is tempted to order unnecessary tests. That's how an efficient, high quality, ethically guided health system, works.

Monday, February 14, 2011

Treating Patients with Respect

Readers of this blog know that I admire Randy Cohen's "The Ethicist" column in the New York Times Magazine. Yesterday Randy responded to a question that connects to confidentiality, the topic of this week's seminar in the first year Harvard Medical School "Medical Ethics and Professionalism" course that I'm part of the faculty for. What follows is the question and Randy's response, with my own additional comments interlaced in bold italics:
Some of my Facebook friends are medical students who post cellphone pictures of patients with what these friends believe to be comical maladies, with captions like “A 5-foot-9 Hispanic male walks into a bar . . .” under a picture of a patient with a piece of rebar piercing his abdomen. The postings don’t include faces or names but still seem questionable. Doesn’t this violate patient privacy? NAME WITHHELD, NEW YORK

Were these soon-to-be doctors engaging in such gallows humor only among themselves, it might be seen as a harmless way to cope with deeply disturbing situations. But although these med students rightly strive to disguise their human punch lines — no, sorry, their patients — that is insufficient. It is essential that those photographed are not identifiable to others, of course, but it is also important that the patient does not recognize himself online. It's not necessarily harmful for the patient to recognize himself in print or online. A current patient should have been asked for permission to use his "story" and ideally should have reviewed and commented the proposed material in draft. But for former patients this may not be possible. The rule of thumb I've used over the years is that a patient's next door neighbor shouldn't be able to recognize who is being described, and the patient himself should feel respected by what he reads.

A doctor should not embarrass a patient or otherwise add to his discomfort, a likely outcome should the patient encounter such an image. The chances of that happening increase as the injuries depicted grow more grotesque and less commonplace. How many 5-foot-9 Hispanic males are impaled with reinforcing rod? It will not improve the doctor-patient relationship when that Facebook image goes viral and the patient learns the doctor treats him like a cartoon. Randy hits the nail on the head here. This injury is one-of-a-kind. In addition to the potential distress from being used as a joke, the photograph could be seen by millions within days, or even hours - and the patient's name is likely to come out.

A doctor that I consulted acknowledges that battlefield humor can be a benign response to harrowing circumstances but tells me in an e-mail that “public displays of such humor on the Internet, along with photos that even if not identified could be identifiable, are inappropriate and unprofessional.” Randy's informant is exactly right. Gallows humor among the peer group can potentially discharge tension and, by relieving anxiety, allow the group to pay the right kind of attention to the patient. I'm most comfortable with this kind of humor when we clinicians apply it to ourselves rather than to our patients. But there's no way whatsoever that this photo should be put onto Facebook, especially as part of a joke.

There is a deeper problem. Rather than simply giving doctors sufficient emotional distance to function effectively, this sort of horsing around might harden their hearts, making them less able to regard a patient as fully human. Such a transformation is not inevitable, but it is worth considering, particularly in a doctor’s training. Unfortunately, we know that on average, idealistic first year students lose much of their idealism, and imbibe a hefty dose of cynicism, by the time they finish their residency. But the student's "inappropriate and unprofessional" posting of the photo creates the potential for an important teachable moment. The anxiety and perhaps horror triggered by the patient's injury represents a reaction physicians must learn to handle constructively. Making inappropriate laughter into a teachable moment is nothing new. In Genesis 18:13-14, Sarah, who is 90 at the time, laughs when God tells her she will have a child. God makes this into a learning opportunity - "why did Sarah laugh?...Is anything too hard for the Lord?" And many med schools do consider that, says the doctor I consulted: “At my own institution, our anatomy professor has paid great attention to this issue right from Year One, when students confront their cadavers in the gross anatomy lab, with a series of well-conceived educational efforts.” As I discussed in a post last year about cadaver ceremonies, this form of teaching about respect is now widespread. Experiential education of this kind reflects an important advance in how we teach about ethics!

Wednesday, February 9, 2011

Can Patients Trust Accountable Care Organizations?

The 1990s version of managed care 1.0 crashed and burned because of distrust. Physicians distrusted the utilization review systems and payment schemes imposed on them by insurers. Patients feared the care they needed would be withheld for reasons of cost, and they wouldn't even be told what was going on. When Helen Hunt riffed about "bleeping HMO bastard pieces of shit" in the 1997 movie "As Good As It Gets," audiences cheered! (You can see the segment on YouTube here.)

Prior to talking with a group of physicians, insurers, and other stakeholders involved in a pilot ACO program, I reviewed literature about trust to see how managed care 2.0 could avoid the backlash that felled managed care 1.0 in the 1990s. Two empirical studies seemed especially useful: "The Effect of Physician Disclosure of Financial Incentives on Trust," by Wendy Levinson and colleagues, and "A Trial of Disclosing Physicians' Financial Incentives to Patients," by Steve Pearson and colleagues.

Dr. Levinson surveyed the reactions of almost 3,000 interviewees chosen to reflect U.S. households, on their reactions to this vignette:
Imagine you've been experiencing headaches. You visit your doctor and talk to him about your symptoms. You also tell the doctor that you've been feeling a lot of stress lately. After doing a complete examination the doctor decides that the headaches are probably due to stress. The doctor wants to work with you over the next month to reduce your stress. You want to have an MRI to make sure everything is okay. Remember that after your complete examination the doctor thinks you don't need the MRI. Then imagine that you have the following conversation with the doctor about the MRI and financial incentives.
After hearing the scenario, one of six possible strategies was played, each beginning with this patient statement: "I'd feel better if I had an MRI. I'm worried that you won't order it because it's too expensive."

Three physician communication strategies were primarily "cognitive" - giving direct information, stressing expertise, and denying that incentives had any influence. Three were primarily "affective" - addressing the patient's emotions, badmouthing managed care as a common enemy, and negotiating with the patient for a mutually acceptable plan.

The article includes many fascinating details, but the overall conclusion is simple and clear. The interviewees overwhelmingly wanted to know about the incentives. Their preference was to be told about them at the time of enrollment in their health plan. Two physician communication strategies - addressing patient emotions and negotiating for a mutually acceptable plan - worked best to convey information and preserve trust. The authors' bottom line was that "physicians should acquire the skills needed to openly discuss if, and how, they are influenced by financial constraints and cost containment programs."

Dr. Pearson conducted an experiment in two medical groups. The chief medical officers sent letters to randomly selected patients describing the compensation arrangements for physicians in the group. Neither group put physicians at risk for cost overruns or rewarded individual physicians for withholding services. Three months later the patients to whom letters had been sent and a matched control group were surveyed.

The intervention of a one-time letter significantly improved knowledge of how physicians in the group were compensated. Nearly a quarter of the patients who remembered receiving a letter reported that it had increased trust in their primary care physician. The disclosure letter did not decrease trust that PCPs would patients' interests above concern about costs. The authors' bottom line was that "regulators, policy makers, and physician groups themselves should renew their consideration of disclosure as an instrument to advance the best interests of patients and physicians."

Some policy makers anticipate that patients will be "attributed" to ACOs without being told, hoping that being part of an ACO will be invisible. This is wishful thinking. It won't take Wikileaks and Julian Assange to reveal the ACO structure. And if, as I believe, properly run ACOs represent an ideal way of providing and receiving care, lack of transparency will breed unnecessary suspicion and distrust.

It remains to be seen if we (physicians, patients, health plans, and other stakeholders) will be able to make managed care 2.0 work better than the earlier version. But unless physicians and health plans engage patients in an open, educative, and collaborative manner, 2.0 will go down the tubes just as 1.0 did.

Tuesday, February 8, 2011

The U.S. Psyche Meets the Individual Mandate

As a psychiatrist working in the area of ethics, I find the mandate for individuals to buy health insurance - with financial support as needed - infinitely interesting.

From the perspective of constitutional law, there's wide concurrence among constitutional scholars, both conservative and liberal, that the mandate requirement is consistent with legal precedents and the constitution itself. But in the four federal district court cases decided so far, two Clinton appointees have sided with this perspective and the two Republican appointees have found against it.

What's going on here? Is the law really so ambiguous, or is our psychology - in the form of political values - driving us?

In an important op ed in today's New York Times - "On Health Care, Justice Will Prevail" - Laurence Tribe, distinguished professor of constitutional law, takes the optimistic position that our commitment to rationality and fair play will ultimately hold our passions in check:
The justices aren’t likely to be misled by the reasoning that prompted two of the four federal courts that have ruled on this legislation to invalidate it on the theory that Congress is entitled to regulate only economic “activity,” not “inactivity,” like the decision not to purchase insurance. This distinction is illusory. Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system. They know that if they need emergency-room care that they can’t pay for, the public will pick up the tab. This conscious choice carries serious economic consequences for the national health care market, which makes it a proper subject for federal regulation.

...Only a crude prediction that justices will vote based on politics rather than principle would lead anybody to imagine that Chief Justice John Roberts or Justice Samuel Alito would agree with the judges in Florida and Virginia who have ruled against the health care law. Those judges made the confused assertion that what is at stake here is a matter of personal liberty — the right not to purchase what one wishes not to purchase — rather than the reach of national legislative power in a world where no man is an island.

...There is every reason to believe that a strong, nonpartisan majority of justices will do their constitutional duty, set aside how they might have voted had they been members of Congress and treat this constitutional challenge for what it is — a political objection in legal garb.
I wish I shared Professor Tribe's optimism. But I fear that his "prediction" is actually a "warning" and a "plea."

The "plea" is for the justices to do their duty by rising above their personal political values.

The "warning" is that what is on trial is the legitimacy of the judicial process, not the mandate. Judge Vinson's decision is ostensibly scholarly, but his gratuitous invoking of the Boston Tea Party reads as a signal to his libertarian pals - "I may be wearing a judge's robes, but I'm with you in the fight against tyranny!"

The mandate isn't popular, and it shouldn't be. It's a cumbersome effort to avoid the dreaded step of openly using the tax system to support access to health care. But in avoiding direct reliance on taxation, it has pushed an even more sensitive emotional button - our hatred of being told what to do. (Overseas readers can learn about this component of the U.S. psyche by Googling the song "Don't Fence Me In.")

The U.S. population isn't ungenerous. But we prefer to make personal choices to respond to individuals and make personal gifts to charities. We're increasingly reluctant to see government as the agent of social solidarity and our communitarian impulses. In 1989, when the first President Bush, in his inaugural address, wanted to invoke our spirit of community, he invoked "a thousand points of light, of all the community organizations that are spread like stars throughout the Nation, doing good," not government action. Here he was following the lead of President Reagan, who in his 1981 inaugural famously said "government is not the solution to our problem; government is the problem."

If Professor Tribe's prediction is correct, and the Supreme Court finds in favor of the Affordable Care Act and the individual mandate, it will create a "teachable moment" for our national psyche. Especially if at least some of the conservative justices are in the majority, there will no way to see the decision as political correctness. The judges will be inviting us to see that our admirable passion for freedom does not necessarily entail mindless hatred of government. That's a lesson we badly need!

Monday, February 7, 2011

Academic Medical Centers, ACOs, and Medical Ethics

The February 3 issue of the New England Journal of Medicine features two articles about Accountable Care Organizations at Academic Medical Centers - one coming from Johns Hopkins and the other from the University of Maryland.

The effort to marry "town" (community medicine/community psychiatry) and "gown" (academic medicine/academic psychiatry) has been the heart of my career since I finished training. "Gown" represented the ethic of excellence. "Town" represented the ethic of care. The old joke - "the operation was a success, but unfortunately the patient died" - pointed to the absurdity of separating them.

Early on I pursued my dream of town and gown clinically, first in public sector community mental health and then at the not for profit Harvard Community Health Plan (HCHP) HMO. At HCHP, we referred to ourselves, with pride, as "academically minded LMDs." At the time, "LMD" was the dismissive term academic centers used for the community physician (the "local MD") - as in, "the LMD thought the problem was ABC, but we knew it was really XYZ."

More recently I've worked on town/gown integration via ethics - the question of how a society and health system can embrace, at the same time, a commitment to provide excellent care to meet the needs of individuals and to prudent stewardship of the available resources so as to meet the needs of the population. Since health care is not the only important social good, containing costs is an ethical responsibility, not an exercise in bean counting!

The New England Journal articles make clear just how challenging it will be for Academic Medical Centers to enter the ACO world:

  1. ACOs stand and fall on the basis of clinical integration. Academic Medical Centers are typically built around strong departments, which function as independent silos.

  2. Prestige and promotion at Academic Medical Centers typically track with publications and grants, not clinical care - especially community medicine. The system conveys the message that best and the brightest aren't primarily committed to making the health system work.

  3. Non Academic Medical Center physicians typically get most or all of their income from clinical care, whereas academic physicians often aim for an 80% research (grant supported) 20% practice split. It's hard to build a functioning care system around clinicians who practice one day a week!

  4. A well functioning care system develops standardized processes and seeks to eliminate unintended variation. Academic physicians take pride in their individual talents and idiosyncratic approaches. In medical school we imagined an academic teacher and a student walking alongside a wall. They hear galloping hoofbeats from the other side. The student asks "what's that"? The professor replies "it must be a zebra."

  5. ACOs depend on robust primary care. At most academic centers, specialties are the cat's meow. I recall one of my medical school teachers telling me that primary care was inevitably boring. I asked him why the thyroid gland was more interesting. His answer wasn't very persuasive.

It won't be easy for Academic Medical Centers to take on the ACO challenge of coordinating care within an overall budget. But because of (a) the impact academic centers have on regional medical culture and (b) future medical generations, (c) those that take on the challenge will be disproportionately important relative to their size.

This was Harvard Medical School Dean Robert Ebert's vision when he fostered formation of the Harvard Community Health Plan in 1969. He envisioned a care organization with a primary commitment to effective and efficient medical care, but with strong secondary commitments to teaching and research. (It was my privilege to practice at the organization - now known as Harvard Vanguard Medical Associates - for 33 years.)

To succeed, academically affiliated ACOs will have to marry the ethic of excellence with the ethic of care. Not many will try, and among those that try, not all will succeed. But the soul of our health system depends on the effort!

Wednesday, February 2, 2011

How to Defend Resistance to the Health Insurance Mandate

For decades, the U.S. has seen the number of uninsured as a national disgrace. We've wrung our policy hands together to address the problem, entirely ineffectively.

But in the context of resistance to the Patient Protection and Affordable Care Act, Judges Hudson and Vinson, and the health insurance mandate resisters, have turned the issue of not being insured on its head. For them the ethical issue is their right to choose not to be insured, not society's obligation to ensure that all citizens have access to decent health care.

Conflict over the mandate rests on Isaiah Berlin's distinction (in his 1958 essay "Two Concepts of Liberty") between negative and positive liberty, defined as follows in the Stanford Encyclopedia of Philosophy:
Negative liberty is the absence of obstacles, barriers or constraints. One has negative liberty to the extent that actions are available to one in this negative sense. Positive liberty is the possibility of acting — or the fact of acting — in such a way as to take control of one's life and realize one's fundamental purposes. While negative liberty is usually attributed to individual agents, positive liberty is sometimes attributed to collectivities, or to individuals considered primarily as members of given collectivities.
The health reform law promotes positive liberty - the possibility of pursuing our "fundamental objectives" through good health. The mandate resisters are asserting negative liberty - the right to make their own choices.

Both forms of liberty are fundamental goods. But in large part the two "sides" are talking (or, to be more accurate, shouting) past each other.

I strongly support the Patient Protection and Affordable Care Act. It's far from perfect, but it's the best we could accomplish. But like the mandate resisters and most other human beings, I don't like to be told what to do.

The problem with my insisting on my right to be uninsured is that if I or my uninsured family incur a major expense, unless I pay the bill myself, you'll pay it for me by paying more for your own insurance and more in tax.

In other words, my liberty is your coercion.

Proposals that individuals who refuse insurance should sign a pledge not to make claims on health care paid for by others are ridiculous. When my child develops a treatable but otherwise fatal cancer, and I say - "I've come to my senses - I repent my foolish decision - please help my innocent child!" - society won't, and shouldn't, say "tough luck."

Here's what a responsible mandate resister should propose:
"I have considered the options and conclude that I do not want to purchase health insurance. I realize that I may incur health care costs in the future. I intend to pay out of my own resources, but to ensure that I do not impose my costs on others, I am putting $XXX into escrow to cover the inevitable uncertainties."
The escrow amount should be large enough to pay for, say, the tenth percentile of costs incurred by uninsured people. A poor mandate resister could perhaps be required to pay a pro-rated sum into escrow. Wily insurers would probably figure out ways to make money by providing stop loss coverage for the voluntary refusers of health insurance, just as bail bondsmen make money by putting up bail payment.

Simply insisting on the right to be uninsured is an unethical stance. It recognizes my right to negative liberty, but does so at your expense. Requiring me to put a sum into escrow allows me to follow my own drummer, but protects you from having to bear the consequences.

Tuesday, February 1, 2011

Judge Vinson's Ruling

I've spent several fascinating hours reading the decision handed down yesterday by Judge Roger Vinson of the U.S. District Court for Northern Florida. Judge Vinson concluded (1) that the individual mandate on which the Patient Protection and Affordable Care Act rests is unconstitutional and that (2) because, in his view, the entire law depends on the mechanism of the mandate, the law is itself unconstitutional. While I totally disagree with both parts of his conclusion, the opinion is well written and - at least to someone like me with limited knowledge of constitutional law - wonderfully educative.

In Judge Vinson's analysis, the case turns on seven words in Section 8 of the U.S. Constitution. Section 8 enumerates the powers of Congress. The third enumeration gives Congress power "To regulate Commerce...among the several states." What I found most educative in his opinion is the history he gives of the debate between more restrictive and more expansive interpretations of the commerce clause:
"...this case is not about whether the Act is wise or unwise legislation, or whether it will solve or exacerbate the myriad problems in our health care system. In fact, it, is not really about our health care system at all. It is principally about our federalist system, and it raises very important issues regarding the Constitutional role of the federal government."
My response to the decision comes from (a) my understanding of the health care system and (b) my understanding of the ethical basis for universal coverage, and not from (c) any skill at arcane debate about the multiple court precedents.

It's hard for anyone who has worked in an emergency room or hospital to regard being uninsured as unrelated to "commerce." If I am not insured and am hit by a car, the Emergency Medical Treatment and Active Labor Act (EMTALA) requires the emergency room to treat me. And if I require surgery the hospital will swallow my debt unless I can pay the enormous bill. You will cover the bill I don't pay via your taxes and the increase in your own insurance premium my bad debt contributes to. If I have good manners I will thank you for your generous act of commerce! But if I'm focused on my own liberty, I'll be attuned to my right not to be insured, not your right not to have to pick up my tab. Commerce be damned!

Even if Judge Vinson agreed that lack of health insurance is a problem affecting "Commerce...among the several states," he comes down hard on the mandate as an unprecedented penalty for "inaction." Here are two key comments:
Never before has Congress required that everyone buy a product from a private company (essentially for life) just for being alive and residing in the United States. (p 38)

A statute mandating that everyone purchase a product from a private company or be penalized (merely by virtue of being alive and a lawful citizen) is not a “modest” addition to federal involvement in the national health care market, nor is it “narrow [in] scope.” (p 57)
As I and others have commented, the conservative attack on mandating purchase of private insurance, if successful, pushes the country towards the very thing the mandate is designed to avoid - tax supported universal coverage, whether by a single payer or a voucher system. In psychiatry that would be called "return of the repressed"!

For health professionals, having access to care rest on arcane arguments about commerce seems bizarre. The Preamble to the Constitution and the first enumeration in Section 8 both proclaim our responsibility, through the government, to "promote the general Welfare." Health is a core component of our "Welfare," and without health liberty rights mean nothing - we can't pursue or use our liberty from the sickbed. The Patient Protection and Affordable Care Act represents a serious effort to "promote the general Welfare" in the domain of health.

The fate of the reform law will ultimately play out in the Supreme Court. In addition to the dizzying interplay of precedents the justices will brandish against each other, I hope they give more recognition to the fundamental moral obligations for our society the Preamble to our Constitution asserts:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.