Regulatory rationing: a solution to health care resource allocation.

• Author: Blank, Robert H.
• Position: The Law and Policy of Health Care Rationing: Models and Accountability

Despite all the recent controversy, rationing has always been a part of medical decision making. Figure I presents a spectrum of ways in which health care can be rationed. Whether imposed by a market system in which price determines access, a triage system where care is distributed on the basis of need defined largely by the medical community, or a queue system in which time and the waiting process become the major rationing device, medical resources have always been distributed according to criteria that contain varying degrees of subjectivity. In almost all instances, rationing criteria are grounded in a particular value context that results in an inequitable distribution of resources based on social as well as strictly medical considerations.

In addition to illustrating the range of rationing options for health care, Figure I introduces yet another complexion in defining the concept. Some forms of rationing infer or necessitate government involvement, either direct or indirect, while others fail to distinguish between private and public sector choices. This distinction is critical to a clarification of how current health care options differ from past ones. Less explicit forms of rationing toward the top of the figure are no longer sufficient to resolve health care dilemmas in this era. As a result, we are now witnessing a shift toward the bottom end of the spectrum, possibly culminating in a central role for the government in the rationing of increasingly authority of the government is but one form of rationing, there appear to be many forces that, concurrently, are moving American society in that direction. At the same time, however, explicit public rationing is feared by some observers, who suggest that rationing is unnecessary or an anathema to be avoided at all costs.(1)

Instead of focusing on whether some form of rationing is necessary, the debate should be directed toward the extent to which the government and its agents ought to take a direct role in establishing rationing procedures and structure. Should the haphazard, inequitable, and often contradictory private rationing continue, or should the government accept responsibility for the allocation and use of medical resources and take active steps to design and implement a comprehensive rationing system? I argue that the government has this responsibility and must soon act upon it if a health care crisis is to be averted.

Despite the strong antipathy toward the concept of rationing in the United States, the rationing of medical technologies will become more prevalent and explicit.(2) George Annas is correct in suggesting that the customary approach to rationing medicine, which is practiced by health care providers but not explicitly acknowledged, gives us the illusion that we do not have to make these choices, but it does so only at the cost of mass deception.(3) This deception, in turn, has contributed to the misconception that as a society we can avoid explicit rationing decisions because we have managed to do so thus far. Some observers still argue that there is no need to deny even the best medical technology to anyone if only we eliminate unnecessary services and facilities.(4) It is natural, when faced with such painful choices, to take solace in approaches that appear to free us from those decisions. It is becoming increasingly clear, however, that American society can no longer dodge the problems of rationing. Although some persons remain content with the Illusions of the customary approach, high technology medicine accompanied by the array of demographic and social trends, including an aging population and heightened public demands, make that impossible.(5)

The most appropriate question today is not whether rationing ought to be done (it always has been) but, rather, what form it should take and how we can establish equitable and reasonable procedures. To this end, a public dialogue over societal goals and priorities that includes consideration of the preferred agents for rationing medical resources must be initiated. This initial enterprise could take the form of Lester Milbrath's Council for Long Range Societal Guidance, a standing government commission, or other proposed mechanisms.(6)

Although a consensus on how medical resources ought to be distributed is unlikely, it may be possible to reach general agreement on the procedures through which society will approach these problems. If we can agree that the decisional criteria are fair and understand that we are bound by them, specific applications, although difficult, might be perceived as unfortunate rather than unfair. One of the reasons individuals and health care providers tend to reject the notion of rationing or any attempt to withhold treatment is that there is no guarantee that the resources not allocated will be used fairly or even more efficiently. If one person forgoes a needed liver transplant, the beneficiary of the rationing will probably be someone else who will have the transplant-someone perhaps who is less "deserving."(7)

This Article proceeds by first examining the value context which includes a strong emphasis on individual lifestyle choice even when it leads to ill health, the right to unlimited health care, and the unrealistic dependence on technology to fix our health problems. Because this value system so effectively works against setting limits, constraints must be imposed from outside. This Article then reviews the marketplace approach which many observers support and finds it lacking. The intensifying health care crisis within the context of this fragmented combination of private-public funding, it is argued, calls for a more systematic regulatory approach if we are to have an equitable, efficient, and workable rationing system. Although it is unlikely that the single payer regulatory model presented here will fully resolve this crisis, the time is ripe for a comprehensive, and controversial, move toward a national-level, regulatory appraoch.

1. THE LIBERAL VALUES SYSTEM: RIGHTS VS. RESPONSIBILITY

   1. Individual Rights

      Among the major difficulties in establishing a workable rationing system in the United States are the deeply imbedded values that oppose setting limits to health care. Americans depend heavily on the liberal tradition and emphasize individual autonomy, self-determination, and a shared belief in the value of the individual; individuals ought to be free to determine their preferred lifestyle and then, as long as they do not directly harm others, to live it, even if it is self-destructive. Within this value context, even the suggestion that individuals have a responsibility to live a healthy life for their own good and that of the community is attacked as "victim blaming" or "blatant paternalism" and contrary to individual choice. The shift in the burden of disease, from infectious diseases that required major societal efforts to control toward diseases linked to individual behavior, presents a serious challenge to this value of lifestyle choice, however. For instance, the Secretary of the Health and Human Services, Louis Sullivan, concludes that "[b]etter control of fewer than ten risk factors...could prevent between 40 and 70 percent of all premature deaths, a third of all cases of acute disability, and two thirds of all cases of chronic disability."(8) The obstacle that any strategy of risk control faces is the radical change that would be required in many individuals' behavior.

      In addition to placing a high priority on individual lifestyle choice, American society heavily emphasizes the individual's right to medical care. Even if in the aggregate we are willing to cut costs, when it comes to the individual patient, we often expend all available resources without consideration of cost. There is a not-so-implicit assumption that every person has a right to unlimited expenditure on his/her behalf, despite our knowledge that in the aggregate this is not feasible.(9) The problem of unlimited individual claims in the context of limited societal resources has produced the present health care dilemma.

      Further complications arise because the distribution of medical resources is skewed toward a very small proportion of the population. Increasingly, medical resources have been concentrated on a relatively small number of patients in acute care settings. In 1980, 13% of the patients in a study accounted for as much hospital billing as the other 87%, and the most costly 10% of patients consumed between 42% and 47% of total billings.(10) Substantial questions about the just distribution of scarce societal resources are thereby accentuated in the establishment of biomedical priorities.

      The emphasis on the individual's right to medical care is also reflected in the patient-physician relationship, which is viewed largely as a private one, beyond the public realm. Supposedly, this relationship is immune from economics and reflects a technological imperative, where technologies are to be used even if they are of marginal or questionable benefit to the patient. This relationship, combined with the value of individual rights and a great faith in the power of technology, makes patients likely to go to court when anything goes wrong. In turn, this pattern leads to the practice of defensive medicine and an even greater reliance and utilization of sophisticated and expensive diagnostic tests, some of which offer little proven efficacy. Moreover, a few highly publicized mega-settlements reinforce expectations and escalate this cycle.

   2. Technology: High Demand & High Cost

      Americans are also predisposed toward progress through technological means. We have developed an unrealistic dependence on technology to fix our health problems at the expense of preventive health care approaches. In our value system it is arguably easier to look for the quick technological fix than it is to alter individual behavior to prevent disease, or at least to reduce the risk, in the...