Jennifer Prah Ruger is an associate professor in the Yale School of Public Health division of Health Policy and Administration and associate professor (adjunct) at the Yale Law School. Her recent work has been cited in the legal briefs filed by the U.S. Department of Health and Human Services to the U.S. Supreme Court in support of the Patient Protection and Affordable Care Act (ACA) and in legal proceedings in California, Florida, Michigan and Virginia. She is a member of the Ethics Subcommittee of the Advisory Committee to the Director at the U.S. Centers for Disease Control and Prevention (CDC) and a Greenwall Faculty Scholar in Bioethics.
Ruger, MSc, PhD, has worked as a health economist at the World Bank and as one of two non-partisan health policy analysts for Massachusetts Gov. William Weld’s Task Force on the Health Care Industry, Governor’s Council on Economic Growth and Technology and co-authored the Task Force Report with policy recommendations for health financing and insurance reform in Massachusetts. Her research and scholarship focuses on the intersection of ethics, economics, and politics in health and health care.
How important is health care reform to the future of the United States?
JPR: This is a critical juncture in American health policy. While the ACA is not a perfect law, it is a significant step toward a more equitable and efficient health system in the United States. Health care reform is needed to address problems of access, quality, cost, equity, efficiency and stewardship in health care.
Can you compare health care costs, coverage and outcomes in the United States to other countries? How do we fare?
JPR: The United States spends more per person on health care than any other country, yet America is ranked 50th in the world in life expectancy at birth. Roughly 50 million Americans are uninsured and many others are underinsured; every other high-income Organisation for Economic Co-operation and Development (OECD) country, except Israel, provides near universal health insurance coverage for its population. The US ranked last among seven industrialized countries on health system performance as indicated by access, quality, efficiency, equity, and healthy lives.
If the law as written has a major flaw, what is?
JPR: The law has a lot of strengths and some drawbacks, too. In an effort to assuage potential opponents of the law, its crafters decided on a minimum coverage provision, also known as the “individual mandate,” which requires individuals to purchase health insurance or pay a fine. This policy mechanism was chosen over an across-the-board tax increase. While politically palatable at the time, since the law’s passage, the mandate has provoked significant legal criticism and public outcry.
You are trained in law as well as in public health. Based on the recent hearings held by the U.S. Supreme Court on the constitutionality of President Obama’s health care reform, do you think that the law is in trouble?
JPR: ACA’s minimum coverage requirement is a legitimate use of Congress’ commerce power to promote individual and general welfare. The Constitution’s commerce clause gives Congress broad power to regulate interstate commerce and activities that substantially affect commerce among states. The necessary and proper clause gives Congress authority to enact laws necessary for exercising its powers. Regulating the “terms and timing of health care financing” to achieve ACA’s ends is within these stated powers, and Congress, not the Courts, is empowered by Article I to make such policy choices.
Legal challengers argue that the decision not to buy health insurance is “inactivity” or “noneconomic” conduct, regulation of which exceeds Congress’ commerce authority and infringes on individual liberties. But the decision to self-insure rather than buy commercial insurance is an economic decision about managing financial risk and who and when one pays in the event of illness. Unfortunately, individuals are rarely able to save enough to cover uncertain losses or they simply don’t have the money to do so, when they self-insure. These financial decisions have economic consequences for individuals, families, communities and our country – they affect us all.
Do most Americans understand what the law will and will not do?
JPR: The experience of Mary Brown, one of the plaintiffs suing the government over the individual mandate, helps shed light on what many Americans might be thinking about this law. Mary Brown is a 56-year-old woman from Florida and former owner of an auto repair business who argued that being required to buy health insurance would be a financial hardship on her small business and an affront to her individual liberty. The irony is that during the course of her legal challenge to the law, she and her husband were forced into bankruptcy, due in part to medical bills. Brown not only lost her auto repair business, she reportedly now lives on $275 a month in unemployment benefits. Research shows that 62percent of personal bankruptcies in America are due in part to medical bills. Mary Brown’s situation can help all Americans understand why we need universal health insurance and how the government can work for our own interests.
Looking back, could the legislation have been crafted and/or packaged better to avoid at least some of the turmoil that has ensued?
JPR: Health policy debates require deliberation and agreement and because health is a special social good (it cannot be bought and sold like many other goods like tables and chairs, computers and phones) it requires a deeper level of reflective and considered judgments about the types of social objectives we want from our health policies and the trade-offs those goals require.
At the same time, political consensus through the legislative process requires a majority and coalitions built among professional interests and stakeholders. Passing legislation often means finding common ground where agreement is possible (for example, on an individual mandate that offered a new and expanded market to a disinclined insurance industry) and eschewing agreement where it is more difficult (for example, the ACA does infringe on individual liberties, but no more than other accepted government activity, like requirements to contribute to Medicare and other social goods the federal government provides).
When this type of incompletely theorized agreement occurs on particular policy proposals, as was the case with ACA, the need to address more fundamental, abstract values and principles doesn’t go away, it just doesn’t get in the way. That’s why we’re hearing more about individual liberties now, in the aftermath of the law’s passage.
How much of the GDP in the United States goes toward health care as opposed to countries with universal care?
JPR: In 2009, the OECD health expenditure as a percentage of GDP estimate for the United States is 17 percent and 10 percent to 12 percent for other OECD countries with universal health coverage.
There has been discussion and debate about health care reform in the United States for many, many years by lawmakers and administrations from both parties. Why has an effective system that promotes the well-being and health of the individual been so controversial, difficult and visceral here? Is there something unique to America’s culture or economy at play here?
JPR: There seems to be a great deal of misunderstanding and miscommunication about health and health care among the public and those who represent us in America. And the stakeholders’ financial and professional interests are huge. Yet if you ask any parent in America whether he or she would want health care for an ailing child even if unable to pay for it, the answer would be an unequivocal yes. And Mary Brown’s situation is not unique, this scenario is played out millions of times across America, as individuals who can’t afford health insurance or decide they don’t need it find themselves confronting an unexpected health problem. What begins as a health crisis often grows into a financial one, as individuals lose their savings, their jobs, their houses, and their businesses.
What people don’t realize is that the costs of these crises are not borne by the uninsured alone. Taxpayers pay for increased dependence on social service programs Hospitals, banks, and other creditors are not able to collect the debts owed to them. Such hidden costs mean that everyone pays more for health care, and that individuals who are insured pay more for their coverage. It’s estimated that insured families’ annual premiums are more than $1,000 higher because of uncompensated care for the uninsured. And when employers face higher premiums they shift the costs to workers, employees pay more out of their pockets for health care, even with the same health coverage and often with less. The costs of health care for people who don’t have insurance don’t simply disappear; they’re paid for by the rest of us.
Do you believe the Act can be effective in reining in escalating health care costs?
JPR: ACA is a good start on the road to cost control. However, improved methods for controlling costs and fundamental changes to the ethos underlying health care organization and provision are needed. Conventional economic analysis of, and policy prescriptions to address, costs have failed to control costs. Excessively and unnecessarily high health care costs reflect fundamental ethical flaws in the health system. Ethical analysis illuminates important aspects of the cost problem and can improve policy prescriptions.
The moral salience of costs should be recognized and internalized to enhance prospects for widespread cost control. For example, health expenditure wasted or misspent on one individual or group of individuals becomes unavailable for others and excessive costs force rationing decisions that deny beneficial care to us all. Excessive costs and utilization represent inefficiencies in the entire system; they are associated with lower quality and access to health care, thus undermining individuals’ opportunities for good health outcomes.
While there is no shortage of policy instruments designed to tackle costs, the existing toolkit, based on the premise of conventional economic analysis, falls significantly short.
How so?
JPR: Typical efforts to control costs -- tinkering with the usual suspects among supply and demand side instruments based on the standard economic model -- have provided useful empirical evidence on how individuals respond to incentives. But these measures have not affected the fundamental ethical reorientation essential to crafting a better way. For example, demand-side measures to introduce co-payments, deductibles, user charges, and other point-of-service payments have worked to reduce utilization, but they do not discriminate between medically necessary and unnecessary care. Often patients will “control” costs by avoiding care or decreasing medications they need, leading to more expensive complications later. Additionally, such measures appear to have little traction with very high health care utilizers — who account for the bulk of total costs.
On the supply side, efforts to make providers, especially doctors, more cost conscious (e.g. through capitated payments, fixed budgets, and utilization review) have offered only temporary solutions by shifting financial risks to the provider level. Macro systems-level approaches provide minimal relief when more fundamental changes in underlying root causes and ethics do not accompany them. These measures simply tinker with a broken system. We need to dig deeper. As policy makers in the United States implement the ACA or another alternative, it is a vital time for an ethical analysis of costs.
You wrote a book recently on the ethics of health and health care. Was the Patient Protection and Affordable Care Act a moral step forward for the United States?
JPR: Illness creates vulnerabilities by threatening health, loss of income, medical debt, lost opportunities at work or school and lost assets. Without insurance, individuals must self-insure, use informal risk-sharing arrangements, diversify or sell assets, draw down savings, borrow, or go into debt to cover needed services. These economic activities offer little effective income smoothing over time. Often, individuals who lack health insurance go without necessary medical care and when they do seek care, it is typically of lower quality than that provided the insured. The irreversibility of worst-case scenarios – severe disability or death – heightens individuals’ insecurity and vulnerability.
ACA puts forth a comprehensive reform that recognizes these flaws. It focuses on individuals’ exposure to risk and their ability to manage it. Universal health insurance is morally justified; it ensures the conditions for people to be healthy, to mitigate and cope with ill health’s risks and its resulting vulnerability and economic insecurity. Legally guaranteed health insurance is both essential and the rational choice in a just society.
Morally speaking, what does all this mean?
JPR: Universal health coverage is not just a legal issue, but an ethical one. Health care, and health insurance, should be available to Americans on the basis of need, not ability to pay. America already recognizes this moral norm in state and federal laws that require hospitals to provide emergency care even to those who cannot afford to pay for it. But providing health care for the uninsured through emergency rooms across the country is expensive and inefficient. Avoiding shifting the costs of the uninsured entails a minimum level of coverage for everyone, which also reorients our health system toward coverage of preventative and treatment services.
The fact is, none of us knows when we will be struck by illness or injury. This is a situation in which government must play a role in protecting citizens and their communities from often devastating health and economic consequences. While we’ve heard a lot about why the ACA and its individual mandate are unconstitutional, unfair and even un-American, we’d do well to keep in mind that caring for each other in the face of life’s unpredictability is a deeply held American value.