Chapter 9.D.1 (3.D.1) --Health Insurance Coverage and Rationing

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Health Care Rationing and Disability Rights
Philip G. Peters, Jr.
70 Ind. L.J. 491 (1995)

. . . It seems strained to argue that a patient whose disease is especially difficult to treat (such as advanced breast cancer) is not "qualified" for the only treatment that offers any hope of success (such as a bone marrow transplant).... The most important [example of] this generalization is the Baby K case recently litigated in Virginia. In the case of Baby K, the trial court denied a hospital's request to withhold ventilator care from an anencephalic baby. [This is a severe birth defect in which a major portion of the brain is missing, which results in being born in a permanently vegetative condition, with a very short life expectany]. In concluding that nontreatment would violate the disability rights laws, the district court appeared to assume both that life is always beneficial and that a patient capable of benefitting from treatment is presumptively "qualified" to receive it. "Dismal health prospects" were not, in the court's eyes, a proper disqualifying factor. But the trial court never considered whether a discriminatory eligibility criterion might sometimes be necessary or essential to the program which uses it.... Unfortunately, the Fourth Circuit did not review the trial court's conclusions when it affirmed the decision on other grounds. As a result, the trial court's opinion stands alone. It is too soon to discern whether other courts will accept or reject its conclusions....

Indeed, other courts have reached precisely the opposite conclusion. These courts have found that disabled patients denied potentially life-extending care were not "qualified" within the meaning of the statute. The Second Circuit explained its position in this way: "In common parlance, one would not ordinarily think of a newborn infant suffering from multiple birth defects as being 'otherwise qualified' to have corrective surgery performed . . . . If congress intended section 504 to apply in this manner, it chose strange language indeed." ...B. [Fatal versus Nonfatal Conditions]

Judicial resolution of this debate is likely to depend upon the level of scrutiny that courts are inclined to give to challenged eligibility criteria. If courts are inclined to reject only those criteria which reinforce or rely upon proscribed stereotypes, then effectiveness criteria such as survival or success rates will survive the test of legitimacy. But if courts look more closely to determine the consistency of survival rates with the statutory goal of equal opportunity, then the fate of survival rates is much less certain....

The differences between survival rates and quality of life considerations are sufficient to permit courts to sanction one while prohibiting the other. First, assigning a lower value to the life of a disabled person is inconsistent with the presumption of equal worth. Second, the use of quality of life measurements is arguably less essential than the use of success rates.... This general rule would preclude the use of methodologies, such as those used in the 1991 Oregon plan, which disfavor all life-saving treatments that leave patients with residual disabilities. Instead, health planners would have to rely on survival rates and underwriting considerations.

Against the framework of this general rule, ... courts could then consider exceptions (such as [a heart transplant for a vegetative patient]) which attempt to identify those cases in which the goal of maximizing health care outcomes with finite resources outweighs the principle of equal worth....

On the surface, the use of quality of life to rank the treatments for nonfatal conditions such as arthritis, infertility, and dental disease appears to raise precisely the same issues posed by the ranking of fatal conditions, ... [but] the similarity is only superficial.... When nonfatal treatments are ranked, a value need not be placed upon the worth of the patient's life because avoida ce of death is not one of the benefits attributed to the treatment.... In the context of noncritical care, QALYs instead help ... measure the net change in the [future] quality of life offered by a treatment rather than the point-in-time quality of life of the patient [at present]. Critics of quality of life considerations have typically ignored this distinction between critical care and noncritical care....

In many cases, quality of life considerations will favor both currently disabled patients and patients with the greatest risk of becoming disabled. Because patients who face severe disability have the most to gain from successful treatments, they will often profit from a system which ranks treatments by their impact on quality of life. In addition, quality of life measurements permit plans to consider whether "small" improvements in a terrible condition are more significant (as a matter of marginal utility) than "larger" changes in the condition of the person whose health is nearly perfect.... All of these advantages would be lost if quality of life could not be taken into account.

Quality of life considerations could still disfavor patients under some circumstances, however.... Quality of life considerations will disfavor persons whose disabilities impair their recovery from other illnesses (comorbidity) as well as those whose disabilities can be only minimally relieved by existing therapies. As a result, the net impact of quality of life considerations on disabled persons is unclear....CONCLUSION

The defensibility of effectiveness measurements depends upon the criteria used to measure effectiveness. Quality of life considerations are more objectionable than other measures of success because they treat the lives of disabled persons as less valuable than the lives of others. As a result, courts are likely to conclude that any broad-based use of quality of life considerations to measure the benefits of life-saving care is illegal. But the threat that quality of life considerations pose to the principle of equal worth when life-extending care is being evaluated does not exist when noncritical care is being ranked. As a result, quality of life can properly be used to rank noncritical care as long as the quality of life scales are accurate and unbiased....

                The Oregon Health Plan's Prioritized List of Health Services, 1995.

The five top items
Line 1 Diagnosis: severe or moderate head injury, hematoma or edema with loss of consciousness.
Treatment: medical and surgical treatment.
Line 2 Diagnosis: insulin-dependent diabetes mellitus.
Treatment: medical therapy.
Line 3 Diagnosis: peritonitis.
Treatment: medical and surgical treatment.
Line 4 Diagnosis: acute glomerulonephritis, with lesion of rapidly progressive glomerulonephritis.
Treatment: medical therapy, including dialysis.
Line 5 Diagnosis: pneumothorax and hemothorax.
Treatment: tube thoracostomy or thoracotomy, medical therapy.

The five bottom items

Line 741 Diagnosis: mental disorders with no effective treatments.
Treatment: evaluation.
Line 742 Diagnosis: tubal dysfunction and other causes of infertility.
Treatment: in vitro fertilization, gamete intrafallopian transfer.
Line 743 Diagnosis: hepatorenal syndrome.
Treatment: medical therapy.
Line 744 Diagnosis: spastic dysphonia.
Treatment: medical therapy.
Line 745 Diagnosis: disorders of refraction and accommodation.
Treatment: radial keratotomy.

Six items near the 1997 cutoff line

Line 576 Diagnosis: internal derangement of the knee and ligamentous disruptions of the knee, grade III or IV.
Treatment: repair, medical therapy.
Line 577 Diagnosis: keratoconjunctivitis sicca, not specified as Sjogren's syndrome.
Treatment: punctal occlusion, tarsorrhaphy.
Line 578 Diagnosis: noncervical warts, including condyloma acuminatum and venereal warts.
Treatment: medical therapy.
Line 579 Diagnosis: anal fistula.
Treatment: fistulectomy.
Line 580 Diagnosis: relaxed anal sphincter.
Treatment: medical and surgical treatment.
Line 581 Diagnosis:dental conditions (e.g., broken appliances).
Treatment: repairs.


Regarding general criteria for insurance coverage, see Sharona Hoffman, Unmanaged Care: Towards Moral Fairness in Health Care Coverage, 78 Ind. L. J. 659 (200x).  Defending the use of QALYs, see Matthew D. Adler, QALYs and Policy Evaluation: A New Perspective, Yale J. Health Policy, L. & Ethics (forthcoming 2006).

The American Cancer Society recently revised its guidelines for cervical cancer screening (Pap smears), recommending anywhere from one to three years, depending on several factors such as age and past screening results.  For instance, annual screening is no longer considered necessary after three consecutive normal annual Pap smears.  For these women, annual screening would detect only 1 additional case of cancer per about 70,000 tests in women under 45, and 1 case per about 200,000 tests for women 45 and older.  Sarah Feldman, How Often Should we Screen for Cervical Cancer?, 349 New Eng. J. Med. 1495 (2003).

Taking a sympathetic view of covering sex-reassignment surgery, see Note, 77 N.Y.U.L. Rev. 1738 (2003).

Regarding coverage of reproductive technologies, see Carl Coleman, Conceiving Harm: Disability Discrimination in Assisted Reproductive Technologies, 50 UCLA L. Rev. 17 (2002); Sharona Hoffman, AIDS Caps, Contraceptive Coverage, and the Law, 23 Cardozo L. Rev. 1315 (2002); Katherine T. Pratt, Inconceivable? Deducting the costs of fertility treatment, 89 Cornell L. Rev. 1121-1200 (2004); Elizabeth A. Pendo, The Politics of Infertility: Recognizing Coverage Exclusions as Discrimination, 11 Conn. Ins. L. J. 42 (2005); Saks v. Franklin Covey Co., 316 F.3d 337 (2nd Cir. 2003) (no violation of Title VII or Pregnancy Discrimination Act for insurer to deny coverage of infertility treatment).

Discussing Medicare's inability to consider costs in its coverage criteria, see Jacqueline Fox, Medicare should, but cannot, consider cost: legal impediments to a sound policy,  53 Buff. L. Rev. 577 (2005).

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