Law Commons^™

Ideology Meets Reality: What Works And What Doesn't In Patient Exposure To Health Care Costs, Christopher Robertson, Victor Laurion

Faculty Scholarship

U.S. policymakers, scholars, and advocates have long displayed an ideological commitment to exposing insured patients to substantial out-of-pocket expenses. These commitments derive from both overt political ideologies, which favor individual responsibility and oppose redistribution of wealth and risks, as well as more-subtle ideological commitments of academic economists, which link observed patterns of consumption to value-claims about welfare. In this symposium contribution, we document those ideological commitments and juxtapose them with a review of the scientific evidence about the actual effects of patient cost-sharing. We find, as economic theory predicts, that patients exposed to healthcare costs consume less healthcare. However, a …

After Tackett: Incomplete Contracts For Post-Employment Healthcare, Maria O'Brien

Faculty Scholarship

This paper examines the recent U.S. Supreme Court retiree health care decision in Tackett v. M & G Polymers and focuses, in particular, on the ostensibly odd silence with respect to a critical contract term — whether the parties in fact agreed that these benefits were vested. Although the union in Tackett insisted these welfare benefits were clearly intended to vest and the employer now asserts they can be modified at any time, the collective bargaining agreement and supporting documents are ambiguous on this question. This paper examines how and why this “silence” persisted for so many decades and concludes …

Should Patient Responsibility For Costs Change The Doctor-Patient Relationship?, Christopher Robertson

Faculty Scholarship

Copays, deductibles, coinsurance, and reference prices all now expose patients to increasingly larger shares of the costs of health care. Extant research on cost sharing has primarily focused on its impact on patients, their health care spending, and their health outcomes. Scholars have paid much less attention to the question of how patient exposure to health care costs may impact physicians and their relationships with their patients. This Essay is given on the occasion of a symposium motivated by two recent books by David Schenck, Larry Churchill, and Joseph Fanning that highlight the relational aspects of health care ethics. Accordingly, …

The Affordable Care Act And Health Promotion: The Role Of Insurance In Defining Responsibility For Health Risks And Costs, Wendy K. Mariner

Faculty Scholarship

This article examines whether insurance is an appropriate mechanism for improving individual health or reducing the cost of health care for payers. The Affordable Care Act contains implicit standards for allocating responsibility for health, especially in provisions encouraging health promotion and wellness programs. A summary of the accumulating evidence of the effects of such programs suggests that wellness programs have been somewhat more effective in making people feel better than in reducing costs. Health promotion should be encouraged, because health is valuable for its own sake. Insurance is not well suited to improve health or manage behavioral risks to health; …

Health Reform: What's Insurance Got To Do With It? Recognizing Health Insurance As A Separate Species Of Insurance, Wendy K. Mariner

Faculty Scholarship

Health insurance can be, and to a large extent already is, a separate species of insurance. This article describes the different views of insurance that made health reform contentious. It argues that the goals of health reform are incompatible with conventional views of insurance. Nonetheless, reforming health insurance to achieve those goals does not require as dramatic shift as some might think, because health insurance has already become primarily a means of paying for health care, rather than a simple risk spreading device for specified losses.

The Supreme Court's Limitation Of Managed-Care Liability, Wendy K. Mariner

Faculty Scholarship

This article summarizes and critiques the U.S. Supreme Court's decision in Aetna Health Inc. v. Davila, which limited managed care organizations' liability for negligent decisions about the care of patients in private employer-sponsored health plans governed by ERISA. It contrasts the Court's dichotomous view of health benefit plans, in which insurers administer contracts and treating physicians make medical judgments, with the more complicated relationships that affect decisions about both coverage and treatment.

Some Preliminary Thoughts On The Deregulation Of Insurance To Advantage The Working Poor, Maria O'Brien

Faculty Scholarship

The regulatory framework in which employee benefits products are marketed and consumed by individuals and groups seeking to reduce exposure to covered events creates a set of background rules. These rules influence the way in which insurance products are developed and impact the number of people who will enjoy the protection these insurance products afford. This means that every proposal to regulate an employment related insurance product likely will affect both the quality and quantity of insurance available to consumers. For example, over the past decade, as the public and professionally-interested parties have grappled with the insurance implications of the …

The Economics And Politics Of Emergency Health Care For The Poor: The Patient Dumping Dilemma, Maria O'Brien

Faculty Scholarship

As the numbers of uninsured mount⁴ because of job dislocations, exhaustion of benefits, and unaffordably high premiums, the incidence of "dumping" by private hospitals is, predictably, on the rise. Dumping occurs when a hospital, in violation of federal or state law, transfers an emergency patient to another (usually public) hospital or simply refuses any treatment based on the patient's inability to pay.5 In addition to the completely uninsured, favorite dumping targets include Medicare and Medicaid patients, AIDS patients, and cancer patients whose therapy may cost more than the maximum reimbursement under private insurance.

Dumping is merely a part of …