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“This first-rate study should interest everyone concerned with health-care law and policy. Kinney provides a rich description of individuals’ complaints about health care, the law governing such complaints, the structure of health insurance, and the process of health care policymaking. She argues compellingly for more public and responsive procedures for handling consumer complaints. This major book illuminates a leading topic of our time.”—Thomas O. Sargentich, American University, Washington College of Law
Following tremendous changes in health-care financing and delivery in the United States in recent years, the protection of the interests of individuals who need and seek affordable, high quality health care services is a critical and controversial issue. Two factors have precipitated the fierce debate on this issue. First, many more Americans get health insurance coverage and health care through capitated managed care plans that, by definition, affirmatively and aggressively manage the cost and utilization of enrollees' health-care services. Second, the number and proportion of Americans who do not have health insurance coverage remains a major problem following a period of unprecedented economic growth.
Clearly, many Americans do not like managed care and fear that the quality of their health care suffers as a consequence of the movement toward managed care in the American health-care sector. Numerous recent polls suggest that Americans are more concerned about their health care and its quality, price, and availability today than in previous times. For example, in a recent poll for the Kaiser Family Foundation, a majority of respondents believed that managed care plans would be more concerned with saving money than providing high quality care to plan enrollees. Journalistic reports and widely publicized court decisions about coveragedenials for gravely ill people in prepaid managed care plans have fueled concerns as well. In sum, the issue of patient protection in managed care plans resonates deeply with the American public. One upshot of this trend is pressure on employers to offer looser forms of managed care plans. Another has been calls for the reform of managed care plans and the expansion of health insurance coverage to protect the interests of all consumers.
Despite the attention that consumer concerns about managed care plans and health care generally have received, there is little consensus on what should be done politically or otherwise to address these problems. Many states have enacted various types of consumer protection measures targeted at managed care plans. However, Congress, despite serious consideration of multiple proposals in the 105th and 106th Congresses, could not pass patient protection legislation. As this book goes to press, the 107th is considering similar legislation.
This inability to reach consensus, particularly at the federal level, may be due to several factors that often come into play with efforts to address systemic problems in the health-care sector. First, there is no agreement on the nature of the problem to be solved or on whether there is, in fact, a problem. Many would argue that managed care plans are operating in a desirable manner and that disappointed consumers have unreasonable expectations about the amount and quality of health care that plans should provide. Second, even assuming agreement on the nature of the problem, many would part company when it comes to designing solutions. Some would argue that solutions should be private and market oriented. Others might concede that government has a regulatory role. This latter group would probably divide on whether states and/or the federal government should take the lead, whether the federal government should act in concert with the states, or whether either should be involved at all in crafting such regulatory solutions. Finally, well-financed health sector constituencies have vigorously advocated their version of patient protection legislation, preventing the development of compromise positions necessary for legislation and other reform.
Unfortunately, the current debate over patient protection has failed to address the concerns of certain individuals with an interest in health care in need of protection-namely, people without health insurance coverage. The vigorous debate on how and whether government should provide health insurance coverage for the poor and uninsured in the early years of the Clinton administration waned with the failure of President Clinton's health care reform initiative. The mid-1900s saw two federal initiatives to expand coverage-first, tighter regulation of private insurer underwriting and marketing practices and, second, expanded federal-state coverage for poor children. These measures have not assured complete coverage for all Americans or enhanced procedural protections of health-care interests for the uninsured. Yet the number of uninsured in the population continues to grow. Like a thunderhead on the horizon, the growing number of uninsured portends a serious future threat to the security of health insurance coverage for all Americans.
The subject addressed in this book is procedural protection of the healthcare interests of all Americans within the institutions that provide and pay for that health care. The current patient protection debate has focused in large part on procedural measures as primary strategies for protecting the interests of consumers in managed care plans. The focus of these procedural reforms has been on adjudicative procedures targeted at resolving patient concerns and publication of plan information including coverage policy, plan and provider performance in providing high quality care, and contractual incentives for providers to save costs. This book takes a much more global perspective and focuses on all types of health-care concerns of all types of consumers, including the uninsured. For the debate to date over patient protection and procedural reform has been incomplete. It has only addressed concerns of members of health plans and not the concerns of the uninsured or concerns, such as medical malpractice, that may involve a provider rather than a health plan.
Further, the debate has largely ignored the procedural protections for individuals in the processes for making policies that define the content, quality, and cost of health-care services as well as access to health-care services. A central thesis of this book asserts that reform of policymaking procedures is the key procedural reform for protecting the interests of American health-care consumers. For policies defining the content, quality, and cost of health-care services are often at the heart of Americans' concerns about their health care. Policies often govern the outcome of adjudicative procedures before courts, agencies, and private alternative dispute resolution tribunals.
THE THEORETICAL CONTEXT FOR PROCEDURAL PROTECTIONS
Procedural protections for individuals who need, seek, and use health-care services should be placed in a theoretical context that informs choices for the design and implementation of such protections both now and in the future. This theoretical context boils down to the question of what procedures treat health-care consumers justly and also produce just results.
What is justice is a philosophical question that has challenged moral and legal philosophers throughout history. Daily, this question challenges lesser figures-such as lawyers, judges, legislators, administrators, and citizens-as they grapple with making policies and decisions in limited contexts that inevitably affect the overall allocation of health-care resources.
This book does not take on the jurisprudential task of developing a theory of justice for the allocation of health-care services in a developed society. Other scholars have thoughtfully examined this question more systematically and completely. Specifically, since the 1960s, when government became more involved in the financing and delivery of health-care services, scholars have addressed the question of whether and how to ration health-care services in a just manner in the face of escalating health sector costs that consume ever greater proportions of the nation's resources. In the early 1980s, the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavior Research convened experts in philosophy, health policy, and law to explore the ethical dimensions of securing access to health-care services. The published work of this commission provides a wealth of scholarship on the underlying philosophical questions regarding justice and health care. Subsequent excellent work has ably summarized and developed different theories of justice and health care.
Most philosophical theories of justice proceed from the principle attributed to Aristotle that equals must be treated equally and unequals treated unequally and then specify material principles that determine just how equals and unequals, respectively, should be treated to achieve justice.
Also, most theories of justice distinguish between distributive and procedural justice. This distinction is important for understanding justice and health care and the issue of consumer protection explored in this book. Distributive justice pertains to the distribution of benefits and burdens among members of a society. Procedural justice pertains to the characteristics of the process by which decisions about the allocation of benefits and burdens in a society are made.
Fairness is a central criterion for both procedural and distributive justice. John Rawls's seminal work, A Theory of Justice, which has dominated liberal political philosophy in the United States in the last decades of the twentieth century, posits justice as fairness and then explicates how the principle of fairness plays out to achieve justice. The philosopher Norman Daniels aptly describes the concept of fairness in prevailing views of justice in liberal political philosophy as essentially equality of opportunity: "Liberal political philosophy has relied on what is essentially a procedural notion, equality of opportunity, to justify a system in which unequal outcomes are thought morally acceptable. It is morally acceptable that there be winners and losers, even in races where the prize is a share of important social goods, provided the race is fair to all participants." This definition of fairness is particularly useful for the inquiry of this book, which is primarily concerned with procedural justice. It also captures the prevailing understanding of fairness in the social mores of American society today.
Of note, disparate visions of distributive justice lie at the root of the current health policy debate in the United States. Depending on the material principles invoked to govern the treatment of all individuals in a particular theory of justice, visions of distributive justice can be quite different. For example, a governing principle that promotes equality yields far different conclusions than does a governing principle promoting liberty.
Distributive justice is not easily conceived when it comes to health care. Whether a society, or entities within a society, decides to provide health insurance coverage for those unable to pay for coverage or care is a complex political and moral judgment. Decisions whether and how to expand public health insurance coverage for needy populations are generally policy decisions that legislatures make in democratic societies. Legislatures can use a variety of approaches to expand coverage, including public programs that offer incentives encouraging private entities to provide the needed goods and services. Further, the individual and collective decisions of private purchasers of health care, such as individuals, employers, insurers, and managed care organizations, and government agencies, as stewards of public health insurance programs, have enormous implications for the allocation of health-care services to individuals in need and thus for distributive justice regarding health care.
Further, the issue of distributive justice and health care is strongly influenced by judgments of the medical profession about the content and quality of appropriate health-care services. Physicians determine the appropriate amount and content of health-care services for individuals in clinical contexts. Further, the medical profession, both collectively (as formally organized) and individually, shapes the decisionmaking of health plan sponsors about health plan benefits and coverage. All these decisions are predicated on collective professional judgments about appropriate clinical care. These judgments, in turn, are heavily influenced by the professional norms and the culture of medical practice as well as by economic incentives.
This book is chiefly concerned with procedural justice. Procedural justice promises only that important policies and decisions will be made in processes striving for procedural regularity and fairness. Specifically, how should institutional arrangements and procedures for making and publicizing relevant policies and adjudicating disputes over health care be designed to ensure fairness for consumers in protecting their legitimate interests in health care?
However, procedural justice is inherently limited. No amount of procedural justice will assure that the uninsured will get health-care services for which they are unable to pay. Fair procedures do not and cannot address either the underlying problems of structural inequities in current systems for financing and delivering health-care services or the content of substantive entitlements that generally determine who should get public or private health insurance coverage. Procedural justice affects the "fair" allocation of resources or other substantive outcomes only when such results are enhanced by fair procedures for making policies and decisions about these matters. Nevertheless, these limitations of procedural justice do not justify ignoring the issue of how to design and implement procedural protections for the legitimate and real interests of uninsured individuals in health care.
Further, the dominant role of the medical profession in determining the content and quality of medical care has crucial implications for procedural justice as well. As explained in this book, physicians and other health-care professionals develop the medical standards that are applied in health-care decisionmaking about coverage and quality and, in particular, adjudicating disputes over health-care services. Only genuine understanding of this role of the medical profession in defining the content and quality of medical care will elicit the true nature of procedural justice for health care.
THE SCOPE OF THE BOOK
The book addresses the entire range of procedural protections for consumers in the American health-care sector. It focuses chiefly on consumer concerns about access to and quality and cost of health-care services as they represent the majority of consumer concerns of interest to public policy. Also, owing to the importance of policies regarding the content, quality, and cost of health-care services, a full treatment of procedural protections must include a consideration of making and publicizing relevant policy. Thus, this book considers the procedures for making policies that define the content, quality, and cost of health-care services.
This book proceeds from the theory that complete and effective patient protection flows not just from better hearing and appeal procedures for individual cases. Rather, true protection, in today's rapidly changing healthcare sector, is best accomplished through sound policies that define the content and quality of health-care services appropriately and set prices fairly.
Excerpted from Protecting American health care consumers by Eleanor D. Kinney Excerpted by permission.
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1: Introduction I
The Theoretical Contextfor Procedural Protections / The Scope of the Book
2: The Patient Protection Debate
Private Reform Proposals / Government Initiatives / Making Sense of the Debate
3: Health Insurance Coverage in the United States 23
Historical Development of the American Health Insurance System / The
Universe of Private Health Insurance Coverage / The Universe of Public
Health Insurance Programs / The Problem of the Uninsured
4: Relevant Law and Theory 4I
Regulatory Law / Corporate and Tax Law Administrative Law I
Contract Law / Tort Law
5: The Universe of Consumer Concerns about Health Care 67
A Typology of Consumer Concerns / Tapping and Resolving Consumer
Concerns about Health Care / Institutional Mechanisms for Tapping
6: The Universe of Medical Standards and Other Policies
Regarding Health Care 85
The Health-Care Quality Revolution and Medical Standardsetting /
Organizations That Make Health-Care Policies /A Taxonomy of Health-
7: Processes for Making Policies Regarding Health Care Io9
Processesfor Making Policies Regarding the Content and Quality of
Health Care I Policymaking RegardingAccess to Health-Care Services /
Policymaking Regarding the Cost of Health-Care Services / Policymaking and Dissemination: The Example of Diabetes
8: Regimes for Tapping and Resolving Consumer Concerns about Health Care I27
Extralegal Institutionsfor Tapping and Resolving Consumer Concerns /
Internal, External, andAdministrative Review /Judicial Review / Tort
Causes ofAction / Contract Causes ofAction / Statutory Causes of
9: Principles of Sound Procedural Protections I50
Principles of Sound Policymaking Procedures /Principlesfor Better Ways to Tap and Resolve Consumer Concerns about Health Care IA Callfor
Better Empirical Information about Consumer Concerns
10: AVision of Reform 175
More Definite Allocation of Regulatory Responsibility / Policymaking
Reforms / Reforms for Tapping and Resolving Consumer Concerns about
Health Care / The Limits of Procedural Justice without Distributive