Legal Commentary

A great draft paper I just read by my colleague Norm Daniels on the issue of responsibility for health, a topic which was also the focus of a fantastic conference we had here at Harvard last year, made me think that these issues would be of interest to a generalist legal audience as well.

The basic set up of the problem is that states have experimented with mechanisms that cause people to take steps to improve their own health. 

The first notable example was West Virginia, which in 2006 received permission to offer Medicaid patients an "enhanced benefit" plan (including greater prescription drug coverage, mental health coverage, etc) for them and their children if they sign an agreement to take more responsibility for health in specific ways, such as showing up for appointments on time, following drug regimens, etc.  If they refuse to sign or if they fail to comply they get only a "basic" plan which, for example, only provides for 4 prescriptions per month rather than unlimited prescriptions.

Well, Florida has now got into the act with its own plan.  For engaging in "approved healthy behavior" such as keeping an appointment, taking your child to the dentist, getting a pap smear (as a woman) you earn credits up to $125 per year.  That credit can then be used to buy certain health-related items such as first aid supplies, cough and cold medicines, dental supplies, etc.

And as Adam Kolber helpfully linked to a couple of days ago, the World Bank, the William and Flora Hewlett Foundation, the Population Reference Bureau and the Spanish Impact Evaluation Fund, have sponsored a trial to use financial rewards to discourage unsafe sex behavior. They will pay 3000 men ages 15-30 in rural Tanzania $45 (a quarter of the annual income of some of the participants) on condition that periodic laboratory test results prove they have not contracted sexually transmitted infections.

What should we think of these efforts?

The West Virginia plan was the subject of significant criticisms.  That it targeted the poor and vulnerable as the situs of imposing responsibility for health, arguably the group least well suited.  That it's use of sanctions was inappropriate.  That it created conflicts of interest on the part of the treating physician who now also served as big brother as to health behavior. And, (in my eyes the most warranted) that its pairing of adult and children, both on the benefits side and on the responsibility side, was troubling.

The Florida plan seems to have gone over smoother.  Is that because the incentive system ($125/yr) seems so weak as to be ineffectual? Or is it the triumph of form over substance, the cagey distinction between an "offer" and "threat" or a carrot and stick, which we legal academics are fond of showing to often be a baseline problem?

Much of the blogopshere discussion so far of the Tanzanian program has centered on the question of whether it will actually produce the desired result (but, of course, that's why we run trials of public health interventions) or whether similar or better outcomes could be used by investing the same capital in other ways.

I have to say that my own priors (subject to development and change from further discussion) are sympathetic to these programs. To the extent we believe that people really can control their health behavior and improve outcomes, some kind of system of incentives may necessary to get them to do so.  And in a fixed budget system (like Medicaid), where one cannot fully satify everyone's health needs, one individual failing to take steps to improve his health and minimize his health care needs means less left over for the next person. 

One kind of push back come from those who think we have an unconditional duty to provide health care to everyone, such that tying it to responsibility is the wrong way to go.  I am sympathetic to this critique and, perhaps relecting my Canadian roots, am a proponent of universal health care.  But until we reach that day, we are faced with a regime where we cannot help everyone and choices have to be made.  To be sure, even under the current system there is some "core" of health benefits I would want everyone to have (emergency care, care for communicable diseases, care for children, maternal health care, etc), and setting out the boundaries of where this ends is both very difficult and possibly moot (it may be that the current Medicaid system is not even adequately meeting the "core").  But to the extent we think the "core" can be satisfied and yet we still have health resources left over to distribute, it seems to me more sensible to distribute those resources to those making efforts on health rather than lottery, if we think doing so is going to ultimately increase the amount of health care resources we have to distribute (because better health behavior leads to less needs), and I grant that this is an empirical question which has to be resolved.

There is much more one could say about these programs, their relationship to luck egalitarianism, whether there is a meaningful distinction betwee forward-looking incentive theories and backward-looking dessert theories, etc.  But for now I'll just leave it at these very tentative thoughts (fully subject to revision) and see what other people think...