A Realistic Moral Right in the U.S. to Basic Health Care: Where Do Children Fit In?

1. A Realistic Moral Right in the U.S. to Basic Health Care:Where Do Children Fit In? Paul Menzel, PhD Pacific Lutheran University Pediatric Bioethics Conference Seattle Children’s Hospital, July 22-23, 2011

2. Central Claims • Case for a moral right of universal access rests on existing facts/values in U.S. culture: • “market failure” of insurance • obligatory emergency care (“rescue”) • unfairness of free-riding • just sharing of the costs of illness • Shared by conservatives & liberals alike. • Though children 1-14 are healthiest segment of population, they have an equally strong (but not stronger) right to basic health care.

3. First Argument Strategy: the “Market Failure” of Insurance • Competitive markets for voluntary private health insurance segment into “high risk” and “low risk” pools. The ill and likely ill then get priced out of the market by exclusions and/or much higher premiums. • Yet they are the people who most need insurance. A market for a good that fails to deliver the good to those who most need it constitutes a failed market.

4. 3 Remedies for Market Failure • Everyone belongs to one common pool (whole society insured in one plan). • Bar insurers from charging widely different premiums by likelihood of illness (that is, require “community rating”). But then the healthiest bow out of insurance, and premiums for others rise further …. Eventual solution: mandate insurance. • Hefty subsidies of high-risk pools ($100b).

5. Second Argument Strategy: Rescue, Free-Riding, Just Sharing • The EMTALA: obligations to rescue. • Costs are shifted largely to those who insure. Some who do not insure free-ride. • Solution: mandate insurance. To be affordable, premiums must be “community rated” and (for some) subsidized. • Common premiums constitute a Just Sharing of costs between well and ill.

6. Step 1: Universal Access to Emergency Care • EMTALA (1989) requires emergency care regardless of ability to pay. Reduces the incentive of people and their employers to insure. Inevitably, some do not. • Emergency care for the uninsured increases others’ costs. It is funded primarily by “cost-shifting” to those who are insured, raising their annual premiums an average of $1000 for family of 4.

7. Step 2: Inefficiency & Free-Riding • Use of ER care as a substitute for primary care is costly, in money and health. Makes the burden of involuntary cost-shifting all the more objectionable. • Some who are in situations economically similar to the situations of people who insure, do not insure. They get the benefits of emergency care without paying – they free-ride. Some employers also free-ride. • The solution to both inefficiency and free-riding is to require broader insurance.

8. Step 3: Mandated Affordable Insurance • For mandated insurance to be fair, it must be affordable. • To make insurance affordable to the likely ill, regulate insurance: ban pre-existing condition exclusions and most experience rating. [Option: establish large “high risk pools” totaling $100-150b.] • To make insurance affordable for the economically disadvantaged, provide graduated subsidies for insurance.

9. Just Sharing of the Costs of Illness • Barring insurers from pre-existing condition exclusions, premiums that vary widely by risk of illness, and other market segmenting devices is justified not only to avoid market failure, but to achieve a more just sharing of the expense of illness. • The principle of Just Sharing: financial burdens of medical misfortune ought to be shared by well and ill alike unless the ill created the burdens by their own choices.

10. Equality as Just Sharing Convictions re equality vary. Libertarian: not obligated to help someone in a misfortune I’ve not caused. Egalitarian extreme: equal resources for all; if I have more, help others. Vast middle ground: Equal Opportunity for Welfare: It is unjust for individuals to be worse off than others due to outcomes it would be unreasonable to expect them to avoid (Segall, 2010). EOW implies the principle of Just Sharing in regard to the financial burdens of illness.

11. How Widely Shared are the Values that Generate This Argument? • Obligatory rescue (EMTALA): Very few advocate repeal. Effective head-line threats. • Countering free-riding is central in conservative philosophies (“public goods” of educ., nat. def., police, etc.). Justifies coercion by mini-mal state. Central to individual responsibility. • Just sharing between well & ill: conservative support for banning pre-existing condition exclusions and for “high risk” subsidy pools.

12. Wide Applicability of the Argument These values – rescue, avoidance of free-riding, and just sharing – require universal insurance for basic care. They do not dictate the form of the system that delivers that care. The system can take the form of either single-payer insurance or a mandate to have insurance, choosing among multiple qualified insurers.

13. Insurance for Children All the values used in the argument above apply to insurance for children: • Rescue & emergency care • Efficiency of primary care for children • Children aren’t free-riders, but parents can free-ride with their children just as adults can with themselves. • Just Sharing applies to differences in parents’ expenses for their children.

14. Is the Right Stronger for Children, or Wider in Its Scope? • Children are typically more dependent on others for access and for actual care. Children can’t fairly be made responsible for their own insurance. (Yes.) • Children have more life-opportunity at stake in health care than adults do. (No, not generally, but the opportunity at stake in “old age” does decline.)

15. But Children Are Healthier…. • The death rate of children 1-14 is the lowest of all groups. • Indeed, but primary/preventive care for children is relatively inexpensive and effective, often with very long-term effects. • If the last point is persuasive, note implications for prioritizing care in general: effectiveness and expense can be used to set limits, and prevention = treatment.

16. Mandates Make Setting Limits for Basic Care All the More Important • Requiring people to purchase insurance makes it particularly important that the care covered by that insurance be effective, efficient, and worth its expense. (Neg. ex.: arthroscopic surgery for arthritic knees.) • Care that is sufficiently effective and “cost worthy” is care for which people would choose to insure when knowledgeable and imaginative (the Prudent Insurer model).

17. The Prudent Insurer Model for Limiting the Scope of Covered Care The “insurance effect”: neither patient nor provider is a good judge of cost/value. If insurance is the source of distortion, the perspective of a person subscribing to insurance is the most appropriate perspective for making cost/value decisions. Therefore, the prior consent of knowledge-able, imaginative subscribers is the best conceptual guide for setting limits on care.

18. Applying the Prudent Insurer Model • To achieve fairness between likely well and likely ill, choice of insurance coverage for “basic care” cannot be left entirely to individual choice. (For care above the “basic minimum” it can.) Some collective sense of a “basic minimum” is required. • “Basic care” is care that a society may use its coercive power to make universally accessible and collective resources (in part) to fund.

19. A Fair Process for Setting Limits* • Decisions on coverage and limits, including those made after a member subscribes to a plan, must be publicly accessible. • Rationale for such decisions must be reasonable in regard to value-for-money. Decisions must be marked by accountability for reasonableness. • A fair process for challenge and appeal must be provided – most importantly, one not inherently colored by conflict of interest.* N Daniels & J Sabin, “Last-Chance Therapies…,” HCR 28: 2 (1998): 27-41.

20. WA’s Health Technology Assessment Program • Some collective process needed to decide limits on “basic care” funded by WA state. • Given the contentiousness of limit-setting decisions, H Tech Clinical Com making recommend’s on specific coverage is comprised of 11 practicing HC professionals. • 21 coverage decisions since 2007: 10 mostly positive, 11 largely negative. Almost all carried detailed qualifications.

21. Glucose Monitoring for Insulin Dependent Children <19 • Based on an “evidence report” of 299 pp. • Prospective recommendation reported 2 months in advance for comment. • Decision: (1) Cover self monitoring of blood glucose (test strips). Without good evidence re optimal frequency, no quantity limits set. (2) Continuous glucose monitoring devices not covered except for those with severe hypoglycemia, in trials.

22. Conclusion • For moderate, multi-payer versions of universal access, liberals and conservatives should be in great agreement. • Children’s right of univ. access to basic care (UABC) is as strong, and in some respects stronger, than general right. • In one respect it may appear weaker: children are healthier. But it is not weaker: effectiveness and relatively low expense provide a response. That, however, sets a precedent for broader right of UABC: limits…. • Scope of basic care must keep mandatory aspect in mind.