Widespread anxiety mounts over the looming second SCOTUS decision ("King v Burwell") regarding the latest challenge to the PPACA. I found this interesting little eBook by Einer Elhauge on Amazon. Only $2.99. Good stuff therein regarding the June 28th, 2012 "NFIB v Sebelius" decision that narrowly upheld the law (5-4) on "taxing power" grounds.
My interest goes to my continuing assertion that all of the snazzy technology and progressive process QI in the world (including Just Culture) are ultimately bound by (and can be adversely impacted by) decisions of policy.
Elhauge in 2012:
The Killer Precedent for Today’s Decision Einer Elhauge
The New Republic (June 28, 2012)"Einer Elhauge is the Petrie Professor of Law at Harvard Law School and the Founding Director of the Petrie-Flom Center in Health Law Policy, Biotechnology and Bioethics."
Today’s Supreme Court decision isn’t just a victory for Obama and his health plan: It’s a triumph of substance over formalism. The challengers’ argument all along rested on a curious claim that linguistics should trump reality. They treated the mandate as a fundamental change in Congressional power, but conceded that precisely the same financial effects could have been imposed if the mandate had been called a tax. Likewise, for all their alarm about a broccoli mandate, their argument implied that Congress could impose it if it just called it a broccoli tax.
As a result, the challenger argument was never really about the scope of Congressional power, which would not have been changed even if they had won, but just about the words Congress must use to exercise it. It was just a one-off argument that would enable them to strike down Obamacare because, they argued, it used the wrong wording.
The Supreme Court, quite sensibly, rejected this position, holding that substance trumps linguistics. This was clearly correct. Tax precedents have long held that whether a levy is within Congress’ taxing power depends not on labels, but on whether it has the same functional effect as a tax. There are many such cases, but the killer precedent, which Chief Justice Roberts cited, was 1992’ s New York v. United States. That case involved a federal law mandating that states “shall” be responsible for disposing of their nuclear waste, enforced by what the statute said was a “penalty” of having to pay a higher surcharge on out-of-state nuclear waste shipments. The Court nonetheless held this was within the taxing power because the surcharge functioned as a tax— even though it didn’t call itself a tax.
The Court’s decision was not only based on clear precedent, it was also politically deft. By upholding Obamacare, but doing so as a tax rather than under the Commerce Clause, the Court probably minimized the effects of its decision on the upcoming Presidential election. The Republicans lose their claim that Obama acted unconstitutionally. They also lose the argument, which recent Romney comments suggest they were hoping to make, that Obama spent too much of his presidency securing a statute that ended up stricken. So the decision is certainly a net positive for Obama.
On the other hand, the Republicans will get to campaign on the fact that Obamacare was only upheld because it was a tax. This was a reality that the Democrats liked to minimize, but it will be hard to deny after the Supreme Court decision.
The upshot is that the decision improves our political process, rather than interferes with it. The campaign can focus on the reality: that Obamacare imposed a tax in order to try to secure health insurance for nearly everyone. People reasonably disagree about whether this goal was worth the tax. Now that disagreement can be resolved by our ultimate authority— which is not the Court, but the electorate...
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Roberts' Real Long Game?
Einer Elhauge, The Atlantic (July 20 2012)
Many are saying Chief Justice Robert's decision to sustain Obamacare was designed to preserve the long-term political capital of the Court. I think he simply made the decision he ultimately decided was right on the tax issue, which the precedent strongly supported. But to the extent a long-term political angle may have subconsciously motivated him, there is a large one that commentators have so far missed.
The unseen long game is that sustaining Obamacare as a tax helps preserve the Republicans' ability to adopt two items on their own political wish list: the Paul Ryan plan to privatize Medicare and George W. Bush's plan to privatize Social Security.
Consider the Ryan plan. It would convert Medicare into a voucher that seniors could use toward buying medical insurance from either Medicare or private insurers. The voucher amount would equal the cost of the second-cheapest plan, so if traditional Medicare is not one of the two cheapest plans, individuals would have to buy a private plan to avoid paying extra.
In short, under the Ryan plan, Medicare would become a mandate to make contributions into a Medicare trust that you would later draw from to buy yourself medical insurance, which could be from a private insurer, and might have to be so in order to avoid paying a penalty. This looks a lot like Obamacare's mandate to buy yourself medical insurance. There are two seeming differences, but neither is telling.
First, under the Ryan plan, the government would hold the mandatory contribution as a middleman. But it is hard to see why that should make a difference given that the Ryan plan requires the government to hold at least some of that money in trust for you, and you get to direct which insurer receives it. Nor does this feature distinguish Obamacare, under which government exchanges will also hold mandated contributions as a middleman for many people.
Second, under the Ryan plan, individuals can use their mandatory contributions to buy their insurance from a public provider. But that is the very public option that Republicans refused to allow in Obamacare, so it would seem odd to say that such a public option is constitutionally required. Nor does adding such a public option lessen any concern with mandating the purchase of insurance. No one argued that the feared "broccoli mandate" would have been fine if one had the option to buy that broccoli from a government store.
So, if Roberts had held that Obamacare was an unconstitutional mandate that could not be sustained under the taxing power, that would have created a serious risk that some later court would say the same about the Ryan plan. The same risk would have also imperiled any revival of the Bush plan, which effectively converts Social Security into an individual mandate to invest your Social Security contributions into a private retirement plan.
True, the Ryan and revived Bush plans could have tried to avoid this risk by using the word "tax" over and over to describe our mandatory contributions to their plans. But the one thing that is crystal clear from the tax power case-law is that it relies on function, not labels, to decide what counts as a tax.
So Roberts could have held Obamacare outside the taxing power only if he held that functionally it could not be treated as a tax. If so, then the Ryan or Bush plans are even less like a tax (no matter what label they bear) because if you don't make your required Medicare or Social Security contributions, you are subject to the full panoply of coercive IRS penalties, including criminal punishment. In contrast, Obamacare merely requires those with significant earned income to either obtain insurance or pay a small tax.
Maybe Roberts was not thinking about any of this. But a traditional judicial tool involves considering how any holding would affect a range of future possible cases. So this possibility strikes me as far more plausible than imaging he caved to political pressure, especially since Obamacare has (so far) not been that popular with the public anyway.
Whatever Roberts was thinking, one important effect of his decision is to preserve our nation's flexibility to try these sorts of mixed public-private approaches, rather than being limited to only statist solutions to our national problems.
Elhauge, Einer (2012-08-03). Obamacare on Trial (pp. 66-67, 75-77). Kindle Edition.
"The challengers’ argument all along rested on a curious claim that linguistics should trump reality."Yeah, like as in "established by the state" in the fatuous current King v Burwell case. Different Day, Same Mendacity.
I've been onto Einer Elhuauge for a long time. I've repeatedly cited his 1994 law review article "Allocating Health Care Morally."
Health law policy suffers from an identifiable pathology. The pathology is not that it employs four different paradigms for how decisions to allocate resources should be made: the market paradigm, the professional paradigm, the moral paradigm, and the political paradigm. The pathology is that, rather than coordinate these decisionmaking paradigms, health law policy employs them inconsistently, such that the combination operates at cross-purposes.This paper is 21 years old. Policy progress remains frustratingly slow and halting -- and acrimoniously contentious. Recall my June 12th update citing Trudy Lieberman's Harper's article "Wrong Prescription? The failed promise of the Affordable Care Act."
This inconsistency results in part because, intellectually, health care law borrows haphazardly from other fields of law, each of which has its own internally coherent conceptual logic, but which in combination results in an incoherent legal framework and perverse incentive structures. In other words, health care law has not-at least not yet-established itself to be a field of law with its own coherent conceptual logic, as opposed to a collection of issues and cases from other legal fields connected only by the happenstance that they all involve patients and health care providers.
In other part, the pathology results because the various scholarly disciplines focus excessively on their favorite paradigms. Scholars operating in the disciplines of economics, medicine, political science, and philosophy each tend to assume that their discipline offers a privileged perspective. This leads them either to press their favored paradigm too far or to conceptualize policy issues solely in terms of what their paradigm can and cannot solve.
Instead, health law policy issues should be conceived in terms of comparative paradigm analysis. Such analysis focuses on the strengths and weaknesses of the various decisionmaking paradigms, determining which is relatively better suited to resolving various decisions, and then assigning each paradigm to the roles for which it is best suited. It is from this comparative perspective that this Article analyzes the promise and limits of the moral paradigm for allocating health care resources.
The moral paradigm denies that the questions of what resources should be devoted to and within health care are matters that should be resolved by the market, professional judgment, or political forces. Instead, decisions about when health care should be provided call for moral inquiry because they affect profound matters of life, death, and health. As we will see, the principles guiding this moral inquiry are varied, including the immorality of allowing death and suffering, the obligation to treat everyone as equals, and the importance of respecting individual autonomy. Often these principles conflict. Moreover, different moral philosophers emphasize different principles and reach different conclusions about their interpretation. One thus cannot speak of a moral paradigm in the sense of one monolithic set of universally agreed moral principles for guiding medical resource allocation. What unites the various positions I will group under the moral paradigm is not their uniformity but their insistence that allocation decisions should be derived from moral analysis, rather than dictated by market forces, professional judgment, or political accountability.
What role should such a moral paradigm have in allocating health care resources? Conclusions on such questions can often be hopelessly abstract and slippery. To ground my analysis, let me assert up front a concrete proposal, one toward which I believe the national health care systems of the world are (from different directions) slowly converging. The analysis of the moral paradigm offered here supports, when coupled with the strengths and weaknesses of the other paradigms, a health care system having the following elements.
(1) A politically set annual health care budget with an associated tax not linked to employment.
(2) Free access for all individuals to a care-allocating plan.
(3) Individual choice about which plan they wish to join for some significant period (I suggest three years).
(4) Competition among care-allocating plans that each receive a share of the government budget based on the number of individuals they enroll, adjusted for each person's health risk, and that cannot retain profits from their budget (other than a possible bonus linked to total number of enrollees) but must instead spend it on those enrollees. Plans must accept all who wish to enroll.
(5) Management of those care-allocating plans by professionals who have the range of diagnostic expertise to evaluate the health care needs of plan enrollees, who have salaries unaffected by spending decisions (other than a possible bonus per enrollee), and who have a duty to decide how to allocate each plan's budget to purchase those health services that maximize health benefits for the unit’s enrollees. Their sole incentive should thus be to do a good enough job at rationing to keep and attract enrollees.
(6) Maintenance of the vast majority of health care providers as private suppliers of procedures, tests, and technologies that compete with each other to sell to the care-allocating plans. This should create incentives for cost-effective innovation because suppliers will now face purchasers who have both the knowledge and incentives to trade off the costs and benefits of care.
(7) A politically appointed agency, the members of which are insulated from removal, that has only two tasks: setting risk adjustments and licensing care-allocating plans by verifying their diagnostic expertise and fiscal soundness. In particular, this agency would not dictate a uniform schedule of covered services because that would be up to each care-allocating plan.
(8) The individual right to purchase additional care outside these plans on the open market.
A full analysis of why the market, professional, and political paradigms support these conclusions is beyond the scope of this Article. Our present task is more modest, but hardly minor. Does moral analysis support this sort of allocative system? I begin by exploring two versions of what it might mean to have a moral belief in a societal obligation to provide, or an individual right to receive, health care.
The first is the absolutist position that health care must be provided whenever it has any positive health benefit. As Part I discusses, this position is obviously untenable: at some point tradeoffs must be made between health care and other social goods even if health were our only or ultimate goal. While this may seem obvious to many, the point requires some elaboration because this is by far the moral norm most pervasive in actual health law policy debate and most commonly invoked in actual allocative decisionmaking. Thus, one lesson of the analysis in Part I is that the moral paradigm cannot succeed unless it incorporates, or is limited by the external imposition of, some tradeoff between health care and other goods in life. Another lesson, no less important, is that any system that frames ongoing allocation decisions as a choice between individual health care needs and the monetary cost of that care will inevitably prove unstable.
The second version of the belief in a moral obligation to provide, or a right to receive, health care is the more modest claim that society must provide everyone with at least a minimum of adequate (or decent) health care. Part II examines this claim, concluding that the concept of “adequate care" has no coherent affirmative meaning capable of guiding decisions about what to allocate either to health care generally or among different health care needs. Rather, at bottom this moral claim reflects a belief that one particular factor-ability to pay-should not significantly affect the health care received.
While this belief seems perfectly consistent with moral claims to distributive justice generally, the oddity is why the redistributive claim is limited to in-kind provisions of health care. After reviewing and rejecting the traditional arguments for targeting health care, Part HI concludes that such targeting has less to do with the special positive characteristics of health care than with the absence of some potent negative reasons for pragmatically refraining from the redistribution generally supported by the aims of distributive justice.
This analysis has various implications. An individual's ability to pay should indeed be irrelevant to determining that individual's access to the minimum of adequate care. Moreover, the redistributive nature of this claim allows us to provide rough content to the "adequate care" standard: it means approximately the same level of care as that obtained by the middle class in their society. The right to adequate care, in other words, is the right of equal access to middle-class health care. This does not, however, help us in deciding what level of care the middle class should obtain; the adequate care standard does not determine any particular level of aggregate health care spending or otherwise make the tradeoff between health care and other social goods. Nor does the adequate care standard help us decide how to allocate the aggregate spending among health care needs-other than foreclosing allocative criteria based on ability to pay… [pp 1452-5]
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Kahneman and Tversky's famous psychological experiments, example, demonstrate that individuals tend to systematically misweigh small-probability events, are unduly influenced by easily available information and their own past estimates, and falsely take small samples derived from present experience as representative of future probabilities. Philosopher Derek Parfit argues that we undervalue our future selves because they are to some extent different persons from our present selves. If so, then even if we do accurately evaluate the relevant information, we may consent to allocation methods that are not in our long-term best interests.
Even pure economic analysis casts doubt on whether individuals will adequately value their long-term interests. Suppose, to put aside the problems of the last paragraph, we assume perfect foresight and continuity of identity over time: i.e., individuals accurately gauge the risks and also care as much about their future selves as they do about their present selves. It would still be true that the amount of money a rational individual would pay up front to have her life saved, on the 1% chance it is endangered by illness, will likely be far less than 1% of the amount that same individual would pay to have her life saved once ill. The reason is simple: the opportunity costs differ at the two moments. When the individual faces the 1% risk, the opportunity cost of spending money on lifesaving equals the cost of foregoing all she could buy and enjoy in the 99% likelihood she does not fall ill. However, when the individual has contracted the illness, the opportunity cost of not buying the treatment equals (assuming she has no strong wish to leave her money to others) zero: if she does not buy the treatment, she will not live to buy and enjoy anything else anyway. As a result, the person once ill will be willing to pay far more in other goods for treatment than the same person facing the 1% risk would be willing to spend. Neither valuation of the opportunity costs is "correct": both reflect an accurate assessment at the time. [pp 1528-9]
While not a huge PPACA fan, I'm hoping there will be at least a 5-4 vote upholding Burwell, preferably 6-3 (both Robert and Kennedy in the affirming majority), which would send the message to these myriad obstructionist hyperpartisan litigants "enough, already!"
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TECH UPDATE
From Dr. Jerome Carter's always excellent EHR Science site:
Usability Research, User-Centered Design, and EHR Systems—Closing the Loop
by JEROME CARTER on JUNE 15, 2015
Since starting EHR Science, there have been many times when I lamented the lack of research of sufficient quality and breadth to guide clinical software development. When building software for a specific domain, such as clinical care, research is needed that discusses a range of outcomes: end-user effects, performance, reliability, maintainability and other software quality metrics. For EHR systems, the interplay between software design, usability, safety, extensibility, and implementation ease have garnered the most criticism and attention. For software designers then, how to tie design decisions to specific downstream metrics is a fundamental problem.
The arrival of HITECH brought with it a national conversation on EHR systems. Fortunately, research on the impact of EHR system use on clinicians has been a major component of that discussion. Documentation of workflow disruptions, workarounds, safety problems, and productivity losses is becoming more abundant. The quality of the studies is also improving.
Research on usability issues is particularly welcome because usability is not an easy concept to transform from user complaints to 0s and 1s. What one user finds difficult and obtuse, another may have no problem with.
My first encounter with Unix back in the mid-80s was a miserable affair. The Unix guru who insisted that I would “love” it seemed to think that spending hours learning how to use vi was somehow fun—no, not even close.Usability is not a one-size-fits-all proposition. Knowing this, how does one actually make software more usable as is currently being demanded?
User-centered design (UCD) is the prevailing approach to creating usable software. Ideally, UCD occurs within a structured environment created to assure that a consistent, high-quality feedback loop exists between users and software designers. When properly executed, UCD (usually) results in a better product. (I say usually, because user feedback cannot overcome inappropriate architectural design choices such as hard-coded workflows.)...Lordy, "vi," Unix. Been there, done that.
ON DECK
Senator Lamar Alexander's HELP Committee:
FULL COMMITTEE HEARINGI intend to watch the live hearing video, and download and read the transcripts.
Achieving the Promise of Health Information Technology: What Can Providers and the U.S. Department of Health and Human Services Do To Improve the Electronic Health Record User Experience?
Date: Tuesday, June 16, 2015
Time: 10:00 AM
Location: 430 Dirksen Senate Office Building
OFF-TOPIC ERRATUM
Just updated my Western U.S. drought page. Wealthy Californians are not amused at being asked to curtail their water consumption. Imagine my surprise.
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MORE EINER ELHAUGE
A 2010 title. I'd love to get it, but it's $70 hardbound, and $55 for the Kindle edition. I used Dragon to read in an introductory excerpt.
1. Why we should care about healthcare fragmentation and how to fix it
Einer ElhaugeI may yet get a copy. Would love to see what the various "integration" reform proposals are. Most of us who have spent a lot of time in the healthcare space are acutely aware of the "fragmentation" issue. As I wrote in May, 2009:
The meaning and dimensions of fragmentation
What does healthcare fragmentation mean? I take the term to mean having multiple decision-makers make a set of healthcare decisions that would be made better through unified decision-making. Just as too many cooks can spoil the broth, too many decision-makers can spoil healthcare. Individual decision-makers responsible for only one fragment of a relevant set of healthcare decisions may fail to understand the full picture, may lack the power to take all of the appropriate actions given what they know, or may even have affirmative incentives to shift costs onto others. All these forms of fragmentation can lead to bad health care decisions. It is my privilege to introduce a terrific series of chapters by leading scholars on this topic. In this chapter, I hope to elucidate some common themes in their work, build on them by connecting them to general theories of firm integration and team production, outline some areas of difference, and recommend some reforms.
As the chapters of this book show, fragmentation can occur along many dimensions. Looking at the most narrow dimension, we might be concerned about fragmentation in treating particular illnesses, such as the lack of coordination among various professionals involved in treating a patient during a single hospital stay. This might occur if, for example, a patient tells one nurse she is allergic to some medicine, but the nurse does not communicate this information, so the nurse on the next shift administers that medicine. A somewhat broader conception would focus on fragmentation in treatments for particular patients at any given time, such as a lack of coordination between different providers that a patient might see for different illnesses. This might occur if, say, a surgeon used a high sugar intravenous therapy after an operation on a diabetic patient without consulting with the diabetic specialist treating the patient. Even more broadly, we might worry about fragmentation for patients over time, such as when a private health insurer under funds preventive care because costs will be born later by Medicare. Most broadly of all, we might worry about fragmentation for a patient group. This would be the case if disintegration resulted in care being misallocated to patients in the group who needed it less than others. The last dimension also invites the question of whether the appropriate group should be broadened to include others in the state, nation, or even world.
Under my definition, the fragmentation concept presupposes some normative content, because determining when fragmentation exists turns on baseline assumptions about when we think integrated decision-making would produce better decisions. Likewise, positions regarding the proper dimensions of fragmentation to worry about depend on which healthcare decisions we think should be made in a unified fashion. Worries about fragmentation at the community level raise controversial issues about the extent to which we should have unified decision-making about healthcare allocations across patients. It is less controversial that the care received by an individual patient should reflect some sort of coherent common plan. It is probably for this reason that the chapters of this book focus on the latter dimensions of fragmentation; because there is more consensus about the desirability of more unified decision-making regarding these dimensions, there is more consensus about what counts as fragmentation along these dimensions.
However, even if the patient level there may be controversy or trade-offs about which set of decisions are best integrated. As Prof. Hyman’s chapter points out, retail health clinics separate some routine healthcare from other healthcare, but if we think retail clinics are desirable because they deliver quality care with lower-cost, hassle, or delay (the last of which can have important health effects), we would not want to object to retail clinics as “fragmenting” inconsistent with the care provided by primary physicians in a way that harmed patient health, then we would likely regard retail clinics as a form of harmful fragmentation.
With us cannot simply assume that all reductions in healthcare integration are bad and worthy of the pejorative label “fragmentation.” This should not be surprising. After all, other markets feature mixes of integration and disintegration that raised no necessary hackles. Many services provided by, say, a hotel are integrated into a common company; after checking into the hotel, one does not have to select the housekeeper, concierge, or phone service for one’s stay. On the other hand, other hotel services are disintegrated: one can select among various hotel restaurants are activities with various prices, or choose non-hotel substitutes for either. Further, it seems unproblematic that hotel services are not integrated with the company that provides the air travel that contributes to the common vacation “episode,” or with the wireless carrier that provides mobile phones to a common individual. Nor does it seem problematic to services provided by one hotel are not integrated over time with the hotel one uses on the next vacation. For many services aggregation by a series of separate individual consumer decisions seems preferable.
Thus, in order to know which disintegration’s to object to as “fragmenting” health care in an undesirable fashion, we need either (1) a theory about the optimal integration of decision-making, or (2) evidence of the sort of bad results that must reflect excessive disintegration. The latter unfortunately tells us only which direction in which to travel, rather than what our destination should be: that is, it tells us to fragment less than we do now, but not necessarily what level of integration is best. However, the latter may well be easier to come by than a convincing theory of optimal disintegration. And even a convincing theory may well focus on providing guidance on the process used to set integration levels, rather than establishing a basis for favoring a particular integration result...
THE U.S. "HEALTH CARE" "SYSTEM"?"More or less."
I will by no means be the first to note that our medical industry is not really a "system," nor is it predominantly about "health care." It is more aptly described as a patchwork post hoc disease and injury management and remediation enterprise, one that is more or less "systematic" in any true sense only at the clinical level. Beyond that it comprises a confounding perplex of endlessly contending for-profit and not-for-profit entities acting far too often at ruinously expensive cross-purposes.
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More to come...
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