CEA and Fair Process: Specifying the MEDICARE Benefit Package

1. CEA and Fair Process: Specifying the MEDICARE Benefit Package Norman Daniels Harvard School of Public Health Toronto, December 10, 2004 Ndaniels@hsph.harvard.edu

2. Overview • Justice: requires meeting needs fairly under resource constraints-- involves limit setting decisions at various levels despite moral disagreements • CEA: maximizing strategy (net aggregate benefits) open to well-rehearsed ethical objections • Two strategies: a) ethically weighted CEA vs b) CEA as one input to fair deliberative process • Argue for (b) plus other inputs into process that is Accountable For Reasonableness

3. Three Questions of Justice • Why is health specially important? • When are health inequalities unjust? • How can we meet health needs fairly when we cannot meet them all? I concentrate here on third, but set stage by talking briefly about first two

4. FEO Account of Moral Importance of health/health care • Disease and disability are departures from normal functioning • Departures from normal functioning impair opportunity • Meeting health needs promotes/protects normal functioning • Principle governing meeting of health needs is fair equality of opportunity principle

5. Justice as Fairness • Hypothetical contract (Original Position) • Simplifying Assumption • Normal functioning over lifespan • Index of Primary Social Goods • Three Principles • Equal basic liberties; fair value of political liberties • Fair equality of opportunity • Difference principle

6. Extending JAF to Health/HC • JAF simplified to case where there is no disease, disability or premature death • Open to criticism -- Arrow, Sen, others -- that theory cannot accommodate important variations among people that create inequalities • FEO account permits theory to handle departures from normal functioning • Use Other opportunity-focused theories

7. Health inequalities and inequities • Knowing that meeting health needs is of special importance does not tell us when health inequalities are inequities • Not apparent if we only think about health care -- then inequalities in access to care might seem to tell us all we need to know about when inequalities become unjust • Health inequalities are result of many socially controllable factors, not just medicine or even traditional public health

8. Extending FEO to Social Determinants • Health Care needs: what we need to promote, maintain, restore normal functioning • Includes adequate nutrition, shelter, save living and working environment, exercise, rest -- as well as medical services (traditional public health) • What distribution of social determinants is needed to promote normal functioning? • Justice is good for our health: conformance to Rawls’s principles of justice as fairness flattens SES/health gradient to extent justice requires (residual gradient still an issue)

9. Justice and Medicare Benefit Package • Assume reasonable resource constraints (health care not only important good) • Just Health (FEO): all people entitled to make contingent claims on reasonable array of medical and ancillary services that meet health care needs regardless of ability to pay (right to health care) • Some medical services do not meet health care needs but meet other social obligations (e.g., non-therapeutic abortion) • Reasonable people may disagree about contents of benefit package on empirical and especially ethical grounds

10. Reasonable Disagreements about Benefit Package • How much priority to sickest patients? (Swedish and Dutch commissions) • When do aggregated most benefits to more patients outweigh larger benefits to fewer patients? (remember Oregon?) • When do we give people some “fair” chance at benefit rather that favor those who will have best outcomes? • When do we yield to public opinion about priorities even when that may not produce most health or fairly distributed health?

11. Legitimacy Problem and Procedural Justice • Limit-setting decisions (including benefit package) are morally controversial, have winners and losers, fundamentally affect well being • No prior agreement on principles capable of resolving disputes about benefit package • Under what conditions (who and how) are these decisions accepted as fair and legitimate? • If no prior agreement on principles of distribution, need fair process to yield decisions people can regard as fair

12. Promise of CEA “Objective” Tool: Reflects public valuation of health states, counts each person We owe what works: Aims to be measure of effectiveness of health interventions We must weigh opportunity cost of alternatives: Weighs opportunity cost -- broadly if against league table of CEA ratios Considers both life extension and quality

13. Ethical Problems with CEA • Foundational: confuses social values with preferences or utilities (Nord, Hausman, others) • Maximizing methodology vs fairness (Harris, Brock, Daniels, Nord, Ubel, others) • General: not even fiction about potential pareto improvement as in CBA, to offset fairness worry • Best outcomes vs fair chances (age, disabilities) • Priorties problem ( worst off health or SES) • Aggregation problem (Oregon example)

14. CEA vs Fairness

15. Construct Ethically Sensitive CEA • Nord and others: use surveys (person trade offs) to better capture social values involved in alternative uses of health care interventions • Resulting transformations compress weights given to utility based health states • Corrected CEA (CVA not CUA) better captures societal values and gives better input into decision-making • Result is better democratic proxy than CEA (“public policy should reflect public’s values”)

17. Problems with weighted CEA • Lack of Transparency: stakeholders won’t understand the weights and how they were derived • Methodological problems: considerable variance (framing, anchoring) and no way to explain whether this is random or systematic (matters of taste vs constellations of values) • Legitimacy??? -- first two problems make this no substitute for fair deliberation; look for process that mirrors moral deliberation, not given by weighted function

18. Accountability for Reasonableness (A4R) • Publicity (transparency including reasons) • Relevant reasons (as judged by appropriate stakeholders) • Revisability (in light of new evidence, arguments, appeals) • Enforceability (assurance that other conditions are met)

19. Game of Health Care Delivery • Common good of the game: • Meeting diverse health care needs fairly under resource constraints • Rules of the game: • Reasons that we agree are relevant to pursuing common good or goal of the game • “Fair-minded” people: • Eschew “mere advantage” in favor of conformity to rules or reasons all can agree are aimed at common good of the game • Managers: “Can patients be fair minded”? • Patients: “Can managers or purchasers be fair minded”?

20. Background to A4R • Study of managed care decision-making (aimed at feasible model in hardest setting) • Applied to technology assessment, pharmacy benefit design, physician incentives, and scaling up ARTs in developing countries • Research agenda in Canada, Norway, New Zealand, various other developed and developing countries • Included in WHO/UNAIDS guidelines on equity in 3 by 5.

21. Case Law Counters Distrust • Presumption of similar treatment for similar cases • Commitment to coherent use of reasons • “Similarity” defined by reference to reasons and principles • Rebuttal • Show relevant difference in cases • Show rationale for revising principle • Public record of commitments - behavior matches pronouncements

22. Losers in A4R • Relevant reasons -- but still disagreement on weights • Losers in procedural democracy: any reasons held by majority outweigh reasons advanced by minority • Losers in democratic deliberation (A4R): only relevant reasons play role in deliberation, so losers feel less that might makes right

23. MIDDLE PATHBETWEEN EXPLICIT AND IMPLICIT • Explicit • Transparency about reasons • Case Law accumulation of precedents • Implicit • Not all reasons agreed upon prior to fair process • Decisions made at various levels with expert input • Best of Both Worlds • Justifiability • Flexibility

24. Inputs to Benefit Package deliberation • CEA: some pairwise comparisons, get ethically acceptable answer; useful information about aggregate effects • Nord transformation to CVA (or other survey inputs showing public attitudes); more clarity about public attitudes departing from standard CEA • Philosophical argument about relevant reasons and best conclusions • Empirical evidence about safety, efficacy • Inputs from from deliberation at different institutional levels

25. Publicity:Does decision-maker (at whatever level): • Provide public access to full rationales • Hold public hearings, wide consultations • Make rationales comprehensible • Use stakeholder involvement in generating rationales to promote transparency • Make public objections from other levels

26. Relevant Reasons: Does Decision-maker: Gather relevant evidence, Distinguish ethical issues Welcome relevant stakeholders to deliberation Support, empower stakeholders with info, respect Respect disagreements, seek agreement Deliberate about process for resolving disputes Develop rationales inclusive of points of disagreement Give adequate room for local discretion and authority Insist on fair process at other levels

27. Revisability:Does decision-maker: • Invite disagreements from other levels • Respect need for iterative decision-making • Assure decision-makers at other levels they have responsibility to raise objections, provide opportunity to do so • Assure appropriate stakeholders involved in revising decisions • Provide mechanism for appeals • Use appeals to improve quality of decision-making?

28. Enforcement:Does decision-maker: • Make itself accountable to lower levels for carrying out fair process? • Challenge decisions when fair process missing? • Seek international agreements and national regulations on elements of fair process • Seek agreements across levels of decision-making on components of fair process

29. Improving Fair Process • Training for fair process • Research for fair process • Descriptive record of processes used • Research questions developed for assessing compliance with fair process • Research questions for drawing lessons from benefit package decision-making, including effects • Specific time frame and funding for such research