10.31.09

“We Have Met the Enemy and He is Us.”

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Mark makes some excellent points, particularly regarding the limited benefits likely to be derived from removing health insurers’ antitrust exemption. Although health insurers are convenient targets for expressing dissatisfaction with the health care delivery system (indeed, I’ve taken my share of pot-shots), reforming health insurance markets is simply one aspect of a much more intractable problem.

To be sure, health insurers have exacerbated their image problems with ill-conceived rescission practices, preexisting conditions provisions, and the generally unafordable individual and small group markets. To a certain extent, nonetheless, health insurers are blamed for practices that may only, as Mark notes, reflect what large employers demand. For example, large employers often delegate responsibility for insurance coverage decisions to health insurers as third party administrators. If the claim is denied, patients usually focus their ire on the insurer rather than the employer. Rightly or wrongly, therefore, health insurers are now the public face of what ails our health delivery system. (As an aside, Shannon Bownlee and I wrote an article titled The Health Insurance Industry and the Media: Why the Insurers Are Not Always Wrong, Houston Journal of Health Law and Policy 2005; 5:235-269.)

While it’s always nice to have a convenient, and largely unsympathetic target in the struggle for health care reform, the famous Walt Kelly Pogo cartoon “We have met the enemy and he is us” captures the essence of the problem. Far more than health insurers’ sometimes misguided policies, Americans’ continuing refusal to accept limits lies at the heart of the cost control debate. The technological imperative defines our attitudes toward health care. There’s always a new technology or a new procedure that is better than the current treatment, even if it lacks scientific evidence of its effectiveness.

Previous attempts to curtail the new technology or procedure have been politically unsustainable. How else to explain the near hysteria over comparative effectiveness research (CER)? CER is a sensible effort to control the diffusion of procedures and technologies that are neither more effective nor more cost-effective than what’s currently available. CER alone won’t reduce health care costs, but it is certainly a necessary aspect of cost containment strategies that should be at the forefront of health reform legislation. To its credit, America’s Health Insurance Plans (AHIP) has supported CER.

The insurers’ dilemma over benefit claims denials illustrates the need for CER. As the debacle of high-dose chemotherapy with autologous bone marrow transplantation (HDC-ABMT) demonstrated, many clinical procedures diffuse rapidly before their efficacy is scientifically proven. With HDC-ABMT as a last hope for Stage IV breast cancer patients, many physicians recommended the treatment, even though there was no evidence that it was superior to conventional therapy.

The inability to control HDC-ABMT and similar procedures is why a robust CER is needed. By robust, I mean that the research must be independent (i.e., insulated from political interference) and there must be a mechanism to implement the results. The key problem will be to develop approaches to ensure that state policymakers do not ignore CER’s results. Indeed, despite clear evidence that the procedure was actually harming women (shortening, rather than extending lives) and imposing huge costs on the health care system, 13 states mandated that health insurers cover the procedure. For CER to be effective, state legislatures will need to consider new strategies for supporting and implementing CER. One model might be an independent entity with responsibility for overseeing the research and making recommendations to the legislature. Similar to the congressional base closing commissions, legislators would then be required to vote up or down on the recommendations.

If successful, CER would begin to address the technological imperative and perhaps stimulate a public debate over what the acceptable limits are in providing health care. Until then, we are certainly free to blame health insurers, physicians, pharmaceutical manufacturers, politicians, or any other suspicious characters for the health care mess. But I think Walt Kelly, as usual, had it right.

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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.

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