Journal of Health Politics, Policy and Law
National Health Insurance and Noncovered Services Michael D . Bayles, University of Kentucky
Abstract. This paper analyzes the political justifiability of not covering services under national health insurance. Policies are justified by what reasonable, informed, and self-interested persons with limited benevolence would accept. Three basic justifiable purposes of national health insurance are (a) to distribute health care costs over time, (b) to protect against rare but expensive illness, and (c) to provide everyone basic health care. Both cost sharing and maximum limits to coverage to contain costs fails to satisfy all three purposes. The following principle of noncovered services is proposed: services for specific conditions under medically determined circumstances should not be covered by national health insurance if a substantial number of reasonable persons (more than 50 percent) would not choose them for themselves were they in similar situations, taking into consideration the proportional increase in the cost of insurance. Compulsory payment for coverage of such services appears to require that people have more concern for others’ health than for their own. The principle’s application to cosmetic, extraordinary, and diagnostic or preventive services is illustrated. It is suggested that the principle should be implemented by regional panels of representative citizens determining what services should be covered in their regions, given a proportional share of health insurance revenues. Other difficulties of implementation are considered.
Most major organizations in the health field have proposed national health insurance (NHI) plans. Although these proposals generally are rather comprehensive, some seek to contain costs by not fully covering small expenses and a few others attempt to do so by limiting maximum benefits. This paper is concerned with the political justifiability of not covering services under NHI. The first section sketches a justification which roughly coincides with others that have been frequently offered. Then some questions are raised about two suggested types of limitations on coverage. The second section presents a theoretical justification for one of these principles of limitation and illustrates its application. The third section addresses some practical difficulties in implementing it. The theoretical and practical problems of containing costs and limiting coverage of national health insurance are many and complex. This paper raises more issues than it tries to resolve, and only the outlines of resolutions are suggested.
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Problems of Justification
There is no generally accepted method of political justification. The one used here is to consider what reasonable, informed, and self-interested persons with limited benevolence have good reasons to accept. The method requires an ideal type much like the “reasonable, prudent person” standard used in law; the characteristics of such ideal persons cannot differ too greatly from those of actual human beings. By “limited benevolence” I mean a person’s concern for others that is less than he feels for himself. If one postulates, for example, a greater concern for others than for self, the justifications would be for a society of saints. Throughout the paper, when I discuss what people have reasons for doing, I mean persons of this ideal type. Actual persons approximate the ideal to varying degrees, though often they are not completely informed and may be less benevolent. Elsewhere I have explained this method in some detail and have argued that reasonable persons should accept that government has a welfare function.’ Such persons also have reasons for accepting NHI as part of that function. Their reasons coincide with the basic purposes of NHI. It would serve their self-interest by: (a) distributing costs of their health care over time so as to avoid heavy expenses when they are ill and their income is likely to be lower than normal; and (b) providing protection against rare but exceedingly expensive illness or injury, i.e., catastrophic illness. On the basis of their limited benevolence they would want (c) to provide at least basic health care to those such as the poor and the chronically ill who might otherwise receive inadequate care or none, and to supply such care at costs that do not threaten their own minimum welfare. There is evidence that people in the U.S. do have sufficient benevolence to believe that everyone should be guaranteed at least basic health care.2 Reasonable persons would prefer that NHI would fulfill all three purposes. However, since contributions would be compulsory, they would not want to see the self-interested purposes sacrificed for that of limited benevolence. Moreover, they would not want to pay more for NHI than necessary to fulfill the three purposes. Should they have to pay for NHI without themselves receiving more or better care, their selfinterests obviously would conflict with their limited benevolence, and they would find the system less acceptable. Everyone who will bear the cost of NHI has incentives to contain costs as much as possible that are consistent with the purposes of NHI. Two general types of proposals have been made for limiting coverage of services in order to contain costs. Both types appear ultimately to fail either in their direct intent or in adequately fulfilling the purposes of NHI.
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One type does not fully cover small expenditures; the other does not cover large expenditures. Some NHI proposals attempt to contain costs by eliminating “unnecessary services,” usually by cost sharing, i.e., deductibles and coinsurance. Theoretically, cost sharing makes people cost conscious and there is some evidence that people seriously underestimate the cost of health care.3 Under a comprehensive NHI in which no payments were made at the time of care, people might underestimate costs by an even greater amount. Cost sharing does not seem justifiable4 for at least five reasons. (1) It is questionable that it discourages “unnecessary” requests for services, if one assumes that psychological needs are legitimate concerns of a national health insurance system. (2) Copayments and deductibles may discourage necessary requests for service so that people may forgo the treatment that NHI is intended to provide. (3) The burden of cost sharing weighs most heavily on low income people, although one purpose of NHI is to enable the poor to have adequate health care. Of course, cost sharing could be made proportional to income; however, the chronically ill would still bear a significant burden, which might discourage them from obtaining adequate care. s (4) Preventive medicine requires early treatment of symptoms, and cost sharing may encourage people to postpone treatment. Early treatment often is economical, not only financially, but in terms of anxiety and suffering, although some forms of preventive medicine, such as multiphasic screening and annual physician visits, may not be of significant benefit, at least with respect to life expectancy.6 (5) Finally, and most important, evidence indicates that at least small deductibles have little effect on the utilization of health care personnel and facilities’ and so can only be defended as a method of raising money. Thus, they defeat one selfinterested purpose of NHI, that of advance payment for health care. And, if relatively high deductibles and coinsurance levels would be more imposing restraints on demand and utilization, and especially in the case of ambulatory services,* they would conflict with the goals of NHI in ways already mentioned. The other means of limiting coverage is to reduce maximum benefits such as the number of days of or dollars spent for hospital care.9 These limits are usually constant regardless of a person’s disease or income. This method of containing costs undercuts the other self-interested reason for endorsing NHI, namely, financial protection against the unlikely event of a catastrophic illness. Therefore, coverage limitations not only place a heavy burden on the poor, but would work against the self-interest motivations for support of NHI by those with higher incomes. A proposal could reduce the impact on the poor of coverage limitations by providing catastrophic insurance for these persons. However, as the
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non-poor can purchase private insurance without such maximum limits at about the cost of NHI, they have no self-interested reason to favor this proposal. In short, either there is a maximum limit for everyone-in which case one self-interested purpose is not fulfilled-or catastrophic coverage is also provided for the poor, so that the limit affects only the non-poor, and that purpose is still unfulfilled for them. Since the non-poor would probably purchase private insurance to cover services beyond the set maximum, total public and private health expenditures would not be affected. In sum, from the perspective of reasonable, informed, self-interested persons with limited benevolence, both these approaches to cost containment are unsatisfactory. If there is small cost sharing there will be little limitation upon utilization and costs (assuming the system can provide services to meet demand). If there is large cost sharing, then the pwpose of providing services to those who do not now have them will not be fulfilled. If there are maximum day or dollar limits, then the selfinterested motivations for catastrophic coverage will not be satisfied. If catastrophic coverage is added for the poor, that purpose still will not be fulfilled for the non-poor, and there will be no significant containment of costs. A third approach to cost containment would be to make a judicious choice among services to be covered. Much of the increased cost due to NHI will probably stem from providing services, especially ambulatory services, to those who cannot now afford them. It follows that others will have to help pay for them. Thus, the fundamental problem is which services reasonable persons believe ought to be provided others, or as it is sometimes stated, ‘‘what constitutes basic health care?” Unfortunately, basic services do not come neatly labeled but are those with which all people ought to be provided even if only some have to pay for them. The question is whether there is a principle for restricting services provided under NHI that reasonable, informed, self-interested persons with limited benevolence would accept. Most advocates of comprehensive NHl do not mention limits of this sort; indeed, they usually advocate coverage of all medical services or all catastrophic illnesses. l o At best, the suggested controls on types of services are professional judgment or exclusion of broad classifications such as dental and psychiatric care. Professional judgment is not an effective limitation since physicians are inclined to provide any service that may benefit their patients.’’ On this score one could cite numerous illustrations of how large sums can be spent on marginally (if that) beneficial covered items, e.g., the expenditure by the British National Health Service of more than a million pounds a year on wigs for elderly ladies with thinning hair. l 2 Nor do exclusions by broad categories appear
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acceptable. For example, the New York legislature recently eliminated coverage for services of podiatrists and orthopedists under Medicaid, although it is implausible that no service for a foot ailment would be considered basic by reasonable persons. Instead of relying on professional judgment or eliminating all services of certain classes, a principle and a method are needed for eliminating specific types of services. A proposed principle
The argument for NHI provides the basis for such a principle in the ideas of self-interest and limited benevolence. One form of limited benevolence is the attitude that others should receive only basic health care, while more than basic care is desired for oneself. Another form would be as great a concern for others’ health as for one’s own, but for oneself a desire for things in addition to health care which one does not care to provide for others. Although it probably is characteristic of fewer persons, for purposes of the present argument, the second form is sufficient. It must be distinguished from altruism with respect to health care, a higher regard for others’ health than for one’s own. On this rationale one cannot justify compulsory payments for a national health insurance which presupposes that reasonable people have greater concern for others’ health than they do for their own. On the basis of the foregoing assumptions, it follows that a health insurance program providing services, for specific conditions in medically determined circumstances, which a substantial number of reasonable people would not desire or choose for themselves cannot be justified. This is the principle of noncovered services. If people would not opt for the services for themselves, had they the conditions in those circumstances, then making them pay for such services for others postulates a greater concern for others than they have for themselves-altruism with respect to health care. Several general points must be noted about this principle. First, the question is not whether most reasonable people now want the services, but whether they would want them if they were to be afflicted by the conditions in the specified circumstances. The likelihood of their being so afflicted is not to be considered, because that appeals to self-interest and the present concern is with the extent of limited benevolence. Second, there is the consideration of cost, not the full cost of the service but the proportional increase in health insurance for coverage of such services. (What a just proportion would be is not considered here). If people would not consider the coverage worth the extra cost, then it is not something they would choose for themselves. Third, the number of people without a desire for a service that is to be excluded must be
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substantial, otherwise blood transfusions would not be justifiably covered since Jehovah’s Witnesses do not desire them. At least 50 percent of the population should be prepared to forgo the services. It is assumed that reasonable people may differ as to whether they would want services or coverage. If NHI were to provide services that most reasonable people would forgo, then making them pay for those services for a minority would amount to coercion. If the underlying political principles were democracy and benevolence with respect to health care, then such coercion would be unjustifiable since it would presuppose altruism rather than benevolence. There are other political principles that would support such coercion; however, these would themselves have to be justified. Of course, with the principle of benevolence assumed here, some people will be coerced to pay for services they would not choose. Christian Scientists, for example, would not choose any services. Coercion will always be involved, but it becomes less justifiable as more reasonable people reject the principle on which it is based. There are two ways one might try to avoid this conclusion. First, one might assume more than limited benevolence underlying the welfare function of government, However, the argument above already assumes complete benevolence with respect to health care; a stronger assumption of altruism would not serve for a society of ordinary human beings, Second, one might construe benevolence as a desire that others receive whatever medical care they might want. The benefit would be constant-wanted health care-as reasonable men could also be expected to want care that is not desired by others. However, this argument will not do. The concern people most often actually express is that others receive the treatment they need, not what they desire. The concept of need ultimately rests upon a conception of a minimum welfare others ought to be provided. It certainly does not encompass more than what reasonable people would choose for themselves in similar situations. People in fact rank the provision of unnecessary services which drive up costs as the third most serious problem in health care.I3 Before going on to consider some problems of implementing the principle of noncovered services in a national health insurance system, a few illustrations of its possible implications may be useful. The principle would apply to much cosmetic treatment, as follows: most people have some “cosmetic” defect they would prefer not to have (e.g., moles, a long nose, or thinning hair); everyone who lives long enough shows the signs of age, which prompt some people to have face lifts. Yet most presumably reasonable people do not have moles removed, noses shortened, hair transplanted, or faces lifted for cosmetic reasons. Since NHI distributes the costs of medical services over the entire population, coverage of such
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treatment would require that persons who do not seek it for themselves pay for others’ having it. This would be altruism rather than benevolence with respect to health care. Hence, such treatment should not be covered by NHI. The principle of noncovered services might also be applied to “extraordinary treatment.” Such treatment is often quite expensive and its noncoverage might be significant in containing the costs of health care. The first problem is to determine exactly what extraordinary treatment is. Definitions have been poor. Sometimes treatment is considered extraordinary if it is “very costly” to the patient.I4 However, under NHI the marginal cost to a patient for coverage of such treatment would be small, so this criterion is not workable. Extraordinary treatments, or means, are also defined in contradistinction to ordinary ones. Ordinary means can be defined as those which “offer a reasonable hope of benefit, and which can be obtained and used without excessive expense, pain or other inconvenience.” l 5 The use of “excessive” and “reasonable hope” void this definition of any usefulness. Indeed, some theorists have concluded that one should not speak of ordinclry and extraordinary treatments or means but of required and permissible, justifiable and u n j u s t ~ u b l eor , necessary and elective means or treatments. Yet, even if one shifts terminology one must still analyze which factors make treatment required or only permissible. One needs criteria for determining what pain and inconvenience is excessive and a better specification of reasonable hope. The definitions above have primarily been from a moralist’s viewpoint. Physicians tend to use different concepts and view ordinary treatment as that which is customary or usual for a disease. l 6 In a survey of physicians, Diana Crane found that they emphasized prognosis and deficit or dysfunction in making decisions about withholding or terminating treatment. By prognosis they meant chance of survival for a considerable time. The chief distinction between types of deficit or dysfunction was between physical and mental. When the prognosis is good and there will be little or no deficit, as in treating pneumonia in an otherwise healthy person, then the treatment is ordinary. However, if the prognosis is poor-e.g., a one in fifty chance of a week’s survival with a high likelihood of total mental incapacity-then the treatment is extraordinary. The well publicized case of Karen Quinlan involved, among other things, the extraordinary/ordinary distinction. Quinlan had been in a coma for a number of months, and the examining physicians agreed she was in a persistent vegetative state, had irreversible brain damage, no cerebral functioning, and had only a remote chance for a useful, sapient life or a return of discriminative functioning. Despite this diagnosis and prognosis, she was kept in an intensive care unit on an artificial respirator for
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approximately one year before being removed from it and transferred to another hospital. A little discussed fact is that all of her medical bills were (and are) being paid by Medicaid.'* According to the principle of noncovered services, if most reasonable people would not choose such treatment for themselves in similar situations, then its costs should not be covered by NHI. Had there been a clear understanding of such a limit in the case, it is doubtful the hospital and attending physicians would have been so strongly inclined to continue the extraordinary treatment. Perhaps the crucial area at the moment is extraordinary treatment provided to infants. Practices in neonatal intensive care units vary considerably: in some, almost all infants whose lives may be prolonged are placed on ventilators, etc.; in others, if long-term survival seems clearly hopeless the infants are not admitted. As the mortality rate of infants under 1500 gm is 70 to 95 percent and the long-term morbidity of those who do survive is not very encouraging,19 it is not clear what reasonable persons would decide about such treatment. However, given the high cost of neonatal intensive care, reducing extraordinary ei:orts in hopeless cases might significantly help contain the costs of such units. The general argument for not covering extraordinary treatment under NHI follows basically the same lines as that for cosmetic treatments. Many reasonable persons do not desire such treatment for themselves or for their children. Hence, they would not find it acceptable to pay for such treatment for others, as this would require altruism. Moreover, extraordinary treatment, by definition, concerns those situations in which either there is little chance of survival for any extended period, or a survivor will be severely incapacitated. Consequently it cannot make a significant contribution to people's health. Much has been written in recent years on the ethics of not attempting to extend life in such situations. Only three general points may be made here. First, the proposal is that services not be covered when the prognosis is poor, the expected deficit great, and most reasonable people would not choose the treatment. Hence, it only pertains to situations in which most reasonable people would decide it was ethically permissible not to prolong life. Second, the proposal is not to deny such medical services but merely not to cover them under NHI. Those who wanted coverage for them could purchase private insurance. Of course, if a substantial number of reasonable people desired to purchase private insurance for such services, then the principle of noncovered services would not justify their exclusion. Third, noncoverage of extraordinary treatments does not imply that nothing is to be done for patients. Mos: reasonable persons would want care to relieve them of pain and ensure as high a quality of life as possible. Consequently the costs of such care, which are comparatively small, should be included in NHI.
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Finally, the principle provides a basis for determining how much at medical risk a person must be for diagnostic and preventive measures to be covered. Tennessee and Nebraska both pay the costs of prenatal diagnosis for Down’s syndrome for women over 35 years of age. Suppose a 22-year-old woman claims she should also be provided prenatal diagnosis if she wants it. If to most reasonable people the benefits of such diagnosis for a 22-year-old would not seem worth the increase in costs, whereas for a woman of 35 they would, then there is good reason to limit coverage to older women or those otherwise having a comparable risk. A similar approach could be used to determine whether fetal monitoring should be covered for all pregnant women or only those with high-risk pregnancies. Both prenatal diagnosis for Down’s syndrome and fetal monitoring of all pregnant women have been proposed.20The principle of noncovered services provides an alternative basis to costbenefit analyses for deciding these questions. Difficulties of implementation
Even if there is theoretical justification for the proposed principle of noncovered services, without a practical method of implementation it cannot be used in a national health insurance system. The purpose of this last section is to address some difficulties in this regard. The principle is not an acceptable one for physicians to use on a case by case basis. Reasonable persons would not accept their physicians’ determining whether, say, to resuscitate them on the basis of what a majority of reasonable persons might think about the effect on the cost of health care. People would want general rules on what was covered. I would suggest that the decision as to which services would be covered should be made by panels of laypersons, scholars of ethics, and physicians.21Since the principle rests on the attitudes cf reasonable, informed, and self-interested persons, these decisions should be made by persons approximating that ideal as closely as possible. The public at large is not sufficiently well informed, whereas such a panel, representing diverse sections of the public, could be informed about the prognoses of different conditions and the effectiveness of various treatment modalities. Some people would entirely exclude physicians from such a panel. On the other side, Clark Havighurst, for example, believes such decisions should be made primarily by physicians and that Professional Standards and Review Organizations (PSROs) should reconceive their task as rationing federal payments. 22 However, Havighurst himself points out that physicians should not approach individual patients with an attitude of rationing care. It may be asking too much for them to change their mind sets when leaving the clinic to serve on such panels. Moreover, some evidence indicates physicians have a greater fear of death than the
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average person, which might incline them to use and cover services of marginal value which most citizens would not choose.23Nonetheless, a small representation of physicians on panels would provide the necessary medical expertise. The basic composition of the panels should represent the consumers of health care, who have the relevant political and moral expertise and who ultimately bear the burdens of the decisions. One question is whether there should be a single national panel or various regional ones. If there were only one national panel, coverage would be uniform throughout the country. However, such a panel would be subject to considerable pressure to cover this or that service. Regional panels would probably be less exposed to pressures from interest groups, but differing decisions would result in variations in coverage. Still, the variation would be less than at present with private health insurance and, the panelists might be in closer contact with the public. If the costs of NHI are to be distributed evenly nationwide there would be no reason for any panel to restrict coverage more than the most generous panel. A panel that did so would be depriving citizens in its region of services they had paid for. As an alternative, rates of NHI could be allowed to vary by region. Such a system might be difficult to administer, and it would not entirely remove the problem if part of the funding came from general tax revenues. A second possibility would be to allocate proportional shares of the revenues of NHI to be expended as the panels determined. There would, of course, be problems in determining the appropriate share for each region-whether it should be calculated solely on a per capita basis or with factors affecting the costs of services considered as well. These issues cannot be discussed here, but they will be familiar from other contexts, e.g., allocating subscription fees to health maintenance organizations. Allocating sums of money to regional organizations to cover services as their panels determine would provide the opportunity for other methods of cost containment. By setting tax rates and allocations, Congress could control total federal expenditures on health services. Another difficulty in implementing the principle is that for at least some conditions physicians are not able to agree about prognoses. In those instances panels would have no sure basis for determining whether a reasonable person would want a service. However, this is a difficulty that patients and physicians already face. Sometimes judgments must be made on the basis of incomplete or unreliable information. The problem is one of the level of risk a person is willing to take, and the panels would have to decide for themselves what this would be for reasonable persons with various conditions. Practically, they would decide this condition by condition. The issue of payment might spur research to develop more reliable prognoses.
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Another difficulty is that the panels might use unacceptable criteria, such as a patient’s social position, to determine whether services are covered. However, this problem can be avoided. The principle is whether or not reasonable persons with given medical conditions would want a service. The economic, social, and familial situation of patients can and should be excluded from the criteria on grounds of justice, which reasonable persons also have good reason to accept. Such a requirement is probably constitutionally mandated. Further, decisions would have to be made as to which patients would qualify under the rules. One helpful procedure which is coming into use around the country in other applications is to consult hospital ethics committees, chiefly composed of physicians, for advice on hard cases.24 These committees might judge whether particular patients fall under specific rules, but would not set those rules. Hospitals, too, are beginning to develop guidelines about the use of life sustaining equipment such as resuscitators. While some of these guidelines are procedural and allow the patient or his family to make the final decisions, their existence should make it easier to decide about specific cases, to incorporate substantive rules about noncovered services, and to gain acceptance of the rules among physicians. The New Jersey Supreme Court’s decision in the Quinlan case has given a strong impetus to the formation of such committees in New Jersey, although the Court saw the function of hospital ethics committees primarily as confirming prognoses. 2 3 While these committees should base their decisions on medical criteria, since insurance coverage would also be at stake they might be unduly influenced by that consideration. Moreover, they would not be available to rule on services provided in private practice. However, there might be committee review of physicians, and if physicians were found to be reasonably classifying cases as covered, financial sanctions might be applied. In short, retrospective rather than prospective committee review might be a more effective alternative. As the principle of noncovered services applies to all types of medical services, one highly controversial area that should be mentioned is abortion. Clearly, since most presumably reasonable people do approve of, and presumably would elect, abortions in certain circumstances? the principle of noncovered services does not justify excluding all abortions from NHI coverage. However, surveys indicate that less than half the population approves of abortions that are performed solely because the woman is unmarried or does not desire any more children.26It is likely that a smaller percentage would approve of abortion for sex selection. Assuming these people are reasonable and would not elect for themselves abortions of which they disapproved, the proposed principle would justify excluding some abortions from NHI.
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There are, however, other reasons for including all abortions under NHI. First, the cost of administering such an exclusion, and its ineffectiveness, might not be worth the gain. Doctors might simply cite covered reasons for abortions, as many did in the past, under laws limiting the legality of abortions to specified reasons. A review process might be very difficult. Second, there are reasons other than minimum welfare for the government to fund abortion services-e.g., equality and concern about population control. Equality was the substantive basis on which a court prevented implementation of Congress’ prohibition of the use of federal funds for abortions under Medicaid.27 The principle of noncovered services can only be implemented within a framework of other constitutional and nonconstitutional principles which may be relevant to the provision of services under NHI. There is one aspect of the proposed principle which may seriously limit its effectiveness in containing costs. This is the fact that it includes services that most reasonable people would elect, and hence for which a significant-and cost-demand could be expected. Conversely, the services it excludes, because most reasonable people would not choose them, could for that reason be covered at no great cost. Three points may be made in reply to this objection. First, even though savings from noncoverage of individual treatments might be small, the aggregate savings might still be substantial. There may be many services that most reasonable persons would not choose. Excluding all of them might save a large amount. Restrictions on cosmetic, extraordinary, and other services might eliminate further significant costs. Second, the principle of noncovered services is not proposed as the sole method of cost containment. Other principles and methods are also needed and appropriate, e.g., funding in allocations of fixed sums. Third, even if there were no significant effects on costs, unless an alternative rationale can be found, it still would not be politically justifiable to include services most reasonable people would not choose for themselves in the relevant situations. There are further possible difficulties, but it is not the purpose of this paper to resolve all foreseeable problems in limiting coverage of NHI. Instead, it is to raise issues of justification and to propose one plausible principle: services for specific conditions under medically determined circumstances should not be covered by NHI if a substantial number of reasonable persons (more than 50 percent) would not choose these services for themselves were they in similar situations, taking into consideration the proportional increase in the cost of insurance. It may be that difficulties in implementing this principle will ultimately prove unresolvable or render it uneconomical. Further inquiry may show that problems with other proposed limits can be resolved. In either case, the
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issues of political justifiability should be discussed before smoke from the battle of interest groups completely obscures them. This paper has tried to contribute to that discussion. Notes I wish to thank Robert Veatch and an unknown reader for helpful comments on earlier drafts of this paper. 1. Principles of Legislation (Detroit: Wayne State University Press, forthcoming), sections 7, 20. 2. See Stephen P. Stickland, U S . Health Care (New York: Universe Books, 1972), p. 40. 3. For example, while the average cost for a family of four in the U.S. is $2600, people estimate such expenses at an average of $1000 a year. 4. Milton I . Roemer. The Organization of Medical Care Under Social Security (Geneva: International Labour Office, 1969), p. 205. 5. See Robert M. Veatch, “What is a ‘Just’ Health Care Delivery?” in Ethics and Health Policy, eds: Robert M. Veatch and Roy Branson (Cambridge, Mass.: Ballinger, 1976), p. 151. 6. Joseph P. Newhouse, Charles E. Phelps, and William B. Schwartz, “Policy Options and the Impact of National Health Insurance,” New England Journal of Medicine 290 (1974): 1352. 7. Ibid., p. 1348; Roemer, Organization of Medical Care, p. 205. 8. Ibid., pp. 1347-48. 9. Veatch, “What is a ‘Just’ Health Care Delivery?” pp. 143-149. 10. Senator Abraham Ribicoff with Paul Danaceau, The American Medical Machine (New York: Saturday Review Press, 1972), p. 147; Edward M. Kennedy, In Critical Condition (New York: Simon andshuster, 1972), pp. 239-40; Isidore S. Falk, “Beyond Medicare,” in National Health Care, ed. Ray H. Elling (Chicago: Aldine-Atherton, 1971), p. 145. See Generally, Veatch, ‘‘ ‘Just‘ Health Care,” p. 149. 1 1 . See Clark C. Havighurst, “The Ethics of Cost Control in Health Care,” Soundings 60 (Spring, 1977): 26-29, 36. 12. Marvin Henry Edwards, Hazardous to Your Health (New Rochelle, N.Y.: Arlington House, 1972), pp. 172-73. 13. Strickland, U.S. Health Care, pp. 36, 37, 14. Edwin F. Healey, S. J., Medical Ethics (Chicago: Loyola University Press, 1956), p. 67. Indeed, Healey goes so far as to suggest that a treatment costing more than $2000 would be extraordinary for the average person. Even allowing for inflation and rising incomes, that is exceedingly low. Expense is part of the standard definition of extraordinary treatment; see Paid Ramsey, The Patient as Person (New Haven: Yale University Press, 1970), p. 122. 15. Pope Pius XU, NeM* York Times, 25 November 1957, p. 1. 16. Ramsey, Patient U S Person, p. 120. 17. “Physicians’ Attitudes Toward the Treatment of Critically I11 Patients,” in The Dilemmas of Euthanasia, eds: John H. Behnke and Sissela Bok (Garden City, N.Y.: Doubleday. Anchor, 1975), pp. 112, 114. 18. I n The Matter of Karen Quinlan (Arlington, Va.: University Publications of America. 1975), p. 549. 19. P. M. Fitzhardinge et al., “Mechanical Ventilation of Infants of Less Than 1,501gm Birth Weight: Health, Growth, and Neurologic Sequelae,” Journal of Pediatrics 88 (1976): 531. 20. See Zena Stein. Mervyn Susser, and Andrea V. Guterman, “Screening Programme for Prevention of Down’s Syndrome,” Lancet, 10 (February 1973): 305-09; Edward J. Quilligan and Richard H . Paul, “Fetal Monitoring: Is It Worth It?” Obstretics and Gynecology 45 (1975): 96- 100. 21. See Veatch, ‘Just’ Health Care,” p. 149. 22. “Ethics of Cost Control,” p. 35. “
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23. Herman Feifel et al., “Physicians Consider Death ,” Proceedings, American Psychofogical Association Convention, 1967, pp. 201-02. 24. Thomas A. Shannon, “What Guidance from the Guidelines?” Hustings Center Report 7 (June 1977): 28-30. 25. Matter of Quinlan, 70 N.J. 10, 355 A.2d 647 (1976). 26. “Abortion Views Stable During 1972-75, Study Finds,” Intercom 4 (November 1976): 4. 27. McRae v . Mathews, 421 F. Supp. 533 (E.D.N.Y. 1976); application for stay of order denied, Buckley v . McRae, 97 S.Ct. 347 (1976).
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National Health Insurance and Noncovered Services Michael D . Bayles, University of Kentucky
Abstract. This paper analyzes the political justifiability of not covering services under national health insurance. Policies are justified by what reasonable, informed, and self-interested persons with limited benevolence would accept. Three basic justifiable purposes of national health insurance are (a) to distribute health care costs over time, (b) to protect against rare but expensive illness, and (c) to provide everyone basic health care. Both cost sharing and maximum limits to coverage to contain costs fails to satisfy all three purposes. The following principle of noncovered services is proposed: services for specific conditions under medically determined circumstances should not be covered by national health insurance if a substantial number of reasonable persons (more than 50 percent) would not choose them for themselves were they in similar situations, taking into consideration the proportional increase in the cost of insurance. Compulsory payment for coverage of such services appears to require that people have more concern for others’ health than for their own. The principle’s application to cosmetic, extraordinary, and diagnostic or preventive services is illustrated. It is suggested that the principle should be implemented by regional panels of representative citizens determining what services should be covered in their regions, given a proportional share of health insurance revenues. Other difficulties of implementation are considered.
Most major organizations in the health field have proposed national health insurance (NHI) plans. Although these proposals generally are rather comprehensive, some seek to contain costs by not fully covering small expenses and a few others attempt to do so by limiting maximum benefits. This paper is concerned with the political justifiability of not covering services under NHI. The first section sketches a justification which roughly coincides with others that have been frequently offered. Then some questions are raised about two suggested types of limitations on coverage. The second section presents a theoretical justification for one of these principles of limitation and illustrates its application. The third section addresses some practical difficulties in implementing it. The theoretical and practical problems of containing costs and limiting coverage of national health insurance are many and complex. This paper raises more issues than it tries to resolve, and only the outlines of resolutions are suggested.
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Problems of Justification
There is no generally accepted method of political justification. The one used here is to consider what reasonable, informed, and self-interested persons with limited benevolence have good reasons to accept. The method requires an ideal type much like the “reasonable, prudent person” standard used in law; the characteristics of such ideal persons cannot differ too greatly from those of actual human beings. By “limited benevolence” I mean a person’s concern for others that is less than he feels for himself. If one postulates, for example, a greater concern for others than for self, the justifications would be for a society of saints. Throughout the paper, when I discuss what people have reasons for doing, I mean persons of this ideal type. Actual persons approximate the ideal to varying degrees, though often they are not completely informed and may be less benevolent. Elsewhere I have explained this method in some detail and have argued that reasonable persons should accept that government has a welfare function.’ Such persons also have reasons for accepting NHI as part of that function. Their reasons coincide with the basic purposes of NHI. It would serve their self-interest by: (a) distributing costs of their health care over time so as to avoid heavy expenses when they are ill and their income is likely to be lower than normal; and (b) providing protection against rare but exceedingly expensive illness or injury, i.e., catastrophic illness. On the basis of their limited benevolence they would want (c) to provide at least basic health care to those such as the poor and the chronically ill who might otherwise receive inadequate care or none, and to supply such care at costs that do not threaten their own minimum welfare. There is evidence that people in the U.S. do have sufficient benevolence to believe that everyone should be guaranteed at least basic health care.2 Reasonable persons would prefer that NHI would fulfill all three purposes. However, since contributions would be compulsory, they would not want to see the self-interested purposes sacrificed for that of limited benevolence. Moreover, they would not want to pay more for NHI than necessary to fulfill the three purposes. Should they have to pay for NHI without themselves receiving more or better care, their selfinterests obviously would conflict with their limited benevolence, and they would find the system less acceptable. Everyone who will bear the cost of NHI has incentives to contain costs as much as possible that are consistent with the purposes of NHI. Two general types of proposals have been made for limiting coverage of services in order to contain costs. Both types appear ultimately to fail either in their direct intent or in adequately fulfilling the purposes of NHI.
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One type does not fully cover small expenditures; the other does not cover large expenditures. Some NHI proposals attempt to contain costs by eliminating “unnecessary services,” usually by cost sharing, i.e., deductibles and coinsurance. Theoretically, cost sharing makes people cost conscious and there is some evidence that people seriously underestimate the cost of health care.3 Under a comprehensive NHI in which no payments were made at the time of care, people might underestimate costs by an even greater amount. Cost sharing does not seem justifiable4 for at least five reasons. (1) It is questionable that it discourages “unnecessary” requests for services, if one assumes that psychological needs are legitimate concerns of a national health insurance system. (2) Copayments and deductibles may discourage necessary requests for service so that people may forgo the treatment that NHI is intended to provide. (3) The burden of cost sharing weighs most heavily on low income people, although one purpose of NHI is to enable the poor to have adequate health care. Of course, cost sharing could be made proportional to income; however, the chronically ill would still bear a significant burden, which might discourage them from obtaining adequate care. s (4) Preventive medicine requires early treatment of symptoms, and cost sharing may encourage people to postpone treatment. Early treatment often is economical, not only financially, but in terms of anxiety and suffering, although some forms of preventive medicine, such as multiphasic screening and annual physician visits, may not be of significant benefit, at least with respect to life expectancy.6 (5) Finally, and most important, evidence indicates that at least small deductibles have little effect on the utilization of health care personnel and facilities’ and so can only be defended as a method of raising money. Thus, they defeat one selfinterested purpose of NHI, that of advance payment for health care. And, if relatively high deductibles and coinsurance levels would be more imposing restraints on demand and utilization, and especially in the case of ambulatory services,* they would conflict with the goals of NHI in ways already mentioned. The other means of limiting coverage is to reduce maximum benefits such as the number of days of or dollars spent for hospital care.9 These limits are usually constant regardless of a person’s disease or income. This method of containing costs undercuts the other self-interested reason for endorsing NHI, namely, financial protection against the unlikely event of a catastrophic illness. Therefore, coverage limitations not only place a heavy burden on the poor, but would work against the self-interest motivations for support of NHI by those with higher incomes. A proposal could reduce the impact on the poor of coverage limitations by providing catastrophic insurance for these persons. However, as the
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non-poor can purchase private insurance without such maximum limits at about the cost of NHI, they have no self-interested reason to favor this proposal. In short, either there is a maximum limit for everyone-in which case one self-interested purpose is not fulfilled-or catastrophic coverage is also provided for the poor, so that the limit affects only the non-poor, and that purpose is still unfulfilled for them. Since the non-poor would probably purchase private insurance to cover services beyond the set maximum, total public and private health expenditures would not be affected. In sum, from the perspective of reasonable, informed, self-interested persons with limited benevolence, both these approaches to cost containment are unsatisfactory. If there is small cost sharing there will be little limitation upon utilization and costs (assuming the system can provide services to meet demand). If there is large cost sharing, then the pwpose of providing services to those who do not now have them will not be fulfilled. If there are maximum day or dollar limits, then the selfinterested motivations for catastrophic coverage will not be satisfied. If catastrophic coverage is added for the poor, that purpose still will not be fulfilled for the non-poor, and there will be no significant containment of costs. A third approach to cost containment would be to make a judicious choice among services to be covered. Much of the increased cost due to NHI will probably stem from providing services, especially ambulatory services, to those who cannot now afford them. It follows that others will have to help pay for them. Thus, the fundamental problem is which services reasonable persons believe ought to be provided others, or as it is sometimes stated, ‘‘what constitutes basic health care?” Unfortunately, basic services do not come neatly labeled but are those with which all people ought to be provided even if only some have to pay for them. The question is whether there is a principle for restricting services provided under NHI that reasonable, informed, self-interested persons with limited benevolence would accept. Most advocates of comprehensive NHl do not mention limits of this sort; indeed, they usually advocate coverage of all medical services or all catastrophic illnesses. l o At best, the suggested controls on types of services are professional judgment or exclusion of broad classifications such as dental and psychiatric care. Professional judgment is not an effective limitation since physicians are inclined to provide any service that may benefit their patients.’’ On this score one could cite numerous illustrations of how large sums can be spent on marginally (if that) beneficial covered items, e.g., the expenditure by the British National Health Service of more than a million pounds a year on wigs for elderly ladies with thinning hair. l 2 Nor do exclusions by broad categories appear
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acceptable. For example, the New York legislature recently eliminated coverage for services of podiatrists and orthopedists under Medicaid, although it is implausible that no service for a foot ailment would be considered basic by reasonable persons. Instead of relying on professional judgment or eliminating all services of certain classes, a principle and a method are needed for eliminating specific types of services. A proposed principle
The argument for NHI provides the basis for such a principle in the ideas of self-interest and limited benevolence. One form of limited benevolence is the attitude that others should receive only basic health care, while more than basic care is desired for oneself. Another form would be as great a concern for others’ health as for one’s own, but for oneself a desire for things in addition to health care which one does not care to provide for others. Although it probably is characteristic of fewer persons, for purposes of the present argument, the second form is sufficient. It must be distinguished from altruism with respect to health care, a higher regard for others’ health than for one’s own. On this rationale one cannot justify compulsory payments for a national health insurance which presupposes that reasonable people have greater concern for others’ health than they do for their own. On the basis of the foregoing assumptions, it follows that a health insurance program providing services, for specific conditions in medically determined circumstances, which a substantial number of reasonable people would not desire or choose for themselves cannot be justified. This is the principle of noncovered services. If people would not opt for the services for themselves, had they the conditions in those circumstances, then making them pay for such services for others postulates a greater concern for others than they have for themselves-altruism with respect to health care. Several general points must be noted about this principle. First, the question is not whether most reasonable people now want the services, but whether they would want them if they were to be afflicted by the conditions in the specified circumstances. The likelihood of their being so afflicted is not to be considered, because that appeals to self-interest and the present concern is with the extent of limited benevolence. Second, there is the consideration of cost, not the full cost of the service but the proportional increase in health insurance for coverage of such services. (What a just proportion would be is not considered here). If people would not consider the coverage worth the extra cost, then it is not something they would choose for themselves. Third, the number of people without a desire for a service that is to be excluded must be
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substantial, otherwise blood transfusions would not be justifiably covered since Jehovah’s Witnesses do not desire them. At least 50 percent of the population should be prepared to forgo the services. It is assumed that reasonable people may differ as to whether they would want services or coverage. If NHI were to provide services that most reasonable people would forgo, then making them pay for those services for a minority would amount to coercion. If the underlying political principles were democracy and benevolence with respect to health care, then such coercion would be unjustifiable since it would presuppose altruism rather than benevolence. There are other political principles that would support such coercion; however, these would themselves have to be justified. Of course, with the principle of benevolence assumed here, some people will be coerced to pay for services they would not choose. Christian Scientists, for example, would not choose any services. Coercion will always be involved, but it becomes less justifiable as more reasonable people reject the principle on which it is based. There are two ways one might try to avoid this conclusion. First, one might assume more than limited benevolence underlying the welfare function of government, However, the argument above already assumes complete benevolence with respect to health care; a stronger assumption of altruism would not serve for a society of ordinary human beings, Second, one might construe benevolence as a desire that others receive whatever medical care they might want. The benefit would be constant-wanted health care-as reasonable men could also be expected to want care that is not desired by others. However, this argument will not do. The concern people most often actually express is that others receive the treatment they need, not what they desire. The concept of need ultimately rests upon a conception of a minimum welfare others ought to be provided. It certainly does not encompass more than what reasonable people would choose for themselves in similar situations. People in fact rank the provision of unnecessary services which drive up costs as the third most serious problem in health care.I3 Before going on to consider some problems of implementing the principle of noncovered services in a national health insurance system, a few illustrations of its possible implications may be useful. The principle would apply to much cosmetic treatment, as follows: most people have some “cosmetic” defect they would prefer not to have (e.g., moles, a long nose, or thinning hair); everyone who lives long enough shows the signs of age, which prompt some people to have face lifts. Yet most presumably reasonable people do not have moles removed, noses shortened, hair transplanted, or faces lifted for cosmetic reasons. Since NHI distributes the costs of medical services over the entire population, coverage of such
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treatment would require that persons who do not seek it for themselves pay for others’ having it. This would be altruism rather than benevolence with respect to health care. Hence, such treatment should not be covered by NHI. The principle of noncovered services might also be applied to “extraordinary treatment.” Such treatment is often quite expensive and its noncoverage might be significant in containing the costs of health care. The first problem is to determine exactly what extraordinary treatment is. Definitions have been poor. Sometimes treatment is considered extraordinary if it is “very costly” to the patient.I4 However, under NHI the marginal cost to a patient for coverage of such treatment would be small, so this criterion is not workable. Extraordinary treatments, or means, are also defined in contradistinction to ordinary ones. Ordinary means can be defined as those which “offer a reasonable hope of benefit, and which can be obtained and used without excessive expense, pain or other inconvenience.” l 5 The use of “excessive” and “reasonable hope” void this definition of any usefulness. Indeed, some theorists have concluded that one should not speak of ordinclry and extraordinary treatments or means but of required and permissible, justifiable and u n j u s t ~ u b l eor , necessary and elective means or treatments. Yet, even if one shifts terminology one must still analyze which factors make treatment required or only permissible. One needs criteria for determining what pain and inconvenience is excessive and a better specification of reasonable hope. The definitions above have primarily been from a moralist’s viewpoint. Physicians tend to use different concepts and view ordinary treatment as that which is customary or usual for a disease. l 6 In a survey of physicians, Diana Crane found that they emphasized prognosis and deficit or dysfunction in making decisions about withholding or terminating treatment. By prognosis they meant chance of survival for a considerable time. The chief distinction between types of deficit or dysfunction was between physical and mental. When the prognosis is good and there will be little or no deficit, as in treating pneumonia in an otherwise healthy person, then the treatment is ordinary. However, if the prognosis is poor-e.g., a one in fifty chance of a week’s survival with a high likelihood of total mental incapacity-then the treatment is extraordinary. The well publicized case of Karen Quinlan involved, among other things, the extraordinary/ordinary distinction. Quinlan had been in a coma for a number of months, and the examining physicians agreed she was in a persistent vegetative state, had irreversible brain damage, no cerebral functioning, and had only a remote chance for a useful, sapient life or a return of discriminative functioning. Despite this diagnosis and prognosis, she was kept in an intensive care unit on an artificial respirator for
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approximately one year before being removed from it and transferred to another hospital. A little discussed fact is that all of her medical bills were (and are) being paid by Medicaid.'* According to the principle of noncovered services, if most reasonable people would not choose such treatment for themselves in similar situations, then its costs should not be covered by NHI. Had there been a clear understanding of such a limit in the case, it is doubtful the hospital and attending physicians would have been so strongly inclined to continue the extraordinary treatment. Perhaps the crucial area at the moment is extraordinary treatment provided to infants. Practices in neonatal intensive care units vary considerably: in some, almost all infants whose lives may be prolonged are placed on ventilators, etc.; in others, if long-term survival seems clearly hopeless the infants are not admitted. As the mortality rate of infants under 1500 gm is 70 to 95 percent and the long-term morbidity of those who do survive is not very encouraging,19 it is not clear what reasonable persons would decide about such treatment. However, given the high cost of neonatal intensive care, reducing extraordinary ei:orts in hopeless cases might significantly help contain the costs of such units. The general argument for not covering extraordinary treatment under NHI follows basically the same lines as that for cosmetic treatments. Many reasonable persons do not desire such treatment for themselves or for their children. Hence, they would not find it acceptable to pay for such treatment for others, as this would require altruism. Moreover, extraordinary treatment, by definition, concerns those situations in which either there is little chance of survival for any extended period, or a survivor will be severely incapacitated. Consequently it cannot make a significant contribution to people's health. Much has been written in recent years on the ethics of not attempting to extend life in such situations. Only three general points may be made here. First, the proposal is that services not be covered when the prognosis is poor, the expected deficit great, and most reasonable people would not choose the treatment. Hence, it only pertains to situations in which most reasonable people would decide it was ethically permissible not to prolong life. Second, the proposal is not to deny such medical services but merely not to cover them under NHI. Those who wanted coverage for them could purchase private insurance. Of course, if a substantial number of reasonable people desired to purchase private insurance for such services, then the principle of noncovered services would not justify their exclusion. Third, noncoverage of extraordinary treatments does not imply that nothing is to be done for patients. Mos: reasonable persons would want care to relieve them of pain and ensure as high a quality of life as possible. Consequently the costs of such care, which are comparatively small, should be included in NHI.
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Finally, the principle provides a basis for determining how much at medical risk a person must be for diagnostic and preventive measures to be covered. Tennessee and Nebraska both pay the costs of prenatal diagnosis for Down’s syndrome for women over 35 years of age. Suppose a 22-year-old woman claims she should also be provided prenatal diagnosis if she wants it. If to most reasonable people the benefits of such diagnosis for a 22-year-old would not seem worth the increase in costs, whereas for a woman of 35 they would, then there is good reason to limit coverage to older women or those otherwise having a comparable risk. A similar approach could be used to determine whether fetal monitoring should be covered for all pregnant women or only those with high-risk pregnancies. Both prenatal diagnosis for Down’s syndrome and fetal monitoring of all pregnant women have been proposed.20The principle of noncovered services provides an alternative basis to costbenefit analyses for deciding these questions. Difficulties of implementation
Even if there is theoretical justification for the proposed principle of noncovered services, without a practical method of implementation it cannot be used in a national health insurance system. The purpose of this last section is to address some difficulties in this regard. The principle is not an acceptable one for physicians to use on a case by case basis. Reasonable persons would not accept their physicians’ determining whether, say, to resuscitate them on the basis of what a majority of reasonable persons might think about the effect on the cost of health care. People would want general rules on what was covered. I would suggest that the decision as to which services would be covered should be made by panels of laypersons, scholars of ethics, and physicians.21Since the principle rests on the attitudes cf reasonable, informed, and self-interested persons, these decisions should be made by persons approximating that ideal as closely as possible. The public at large is not sufficiently well informed, whereas such a panel, representing diverse sections of the public, could be informed about the prognoses of different conditions and the effectiveness of various treatment modalities. Some people would entirely exclude physicians from such a panel. On the other side, Clark Havighurst, for example, believes such decisions should be made primarily by physicians and that Professional Standards and Review Organizations (PSROs) should reconceive their task as rationing federal payments. 22 However, Havighurst himself points out that physicians should not approach individual patients with an attitude of rationing care. It may be asking too much for them to change their mind sets when leaving the clinic to serve on such panels. Moreover, some evidence indicates physicians have a greater fear of death than the
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average person, which might incline them to use and cover services of marginal value which most citizens would not choose.23Nonetheless, a small representation of physicians on panels would provide the necessary medical expertise. The basic composition of the panels should represent the consumers of health care, who have the relevant political and moral expertise and who ultimately bear the burdens of the decisions. One question is whether there should be a single national panel or various regional ones. If there were only one national panel, coverage would be uniform throughout the country. However, such a panel would be subject to considerable pressure to cover this or that service. Regional panels would probably be less exposed to pressures from interest groups, but differing decisions would result in variations in coverage. Still, the variation would be less than at present with private health insurance and, the panelists might be in closer contact with the public. If the costs of NHI are to be distributed evenly nationwide there would be no reason for any panel to restrict coverage more than the most generous panel. A panel that did so would be depriving citizens in its region of services they had paid for. As an alternative, rates of NHI could be allowed to vary by region. Such a system might be difficult to administer, and it would not entirely remove the problem if part of the funding came from general tax revenues. A second possibility would be to allocate proportional shares of the revenues of NHI to be expended as the panels determined. There would, of course, be problems in determining the appropriate share for each region-whether it should be calculated solely on a per capita basis or with factors affecting the costs of services considered as well. These issues cannot be discussed here, but they will be familiar from other contexts, e.g., allocating subscription fees to health maintenance organizations. Allocating sums of money to regional organizations to cover services as their panels determine would provide the opportunity for other methods of cost containment. By setting tax rates and allocations, Congress could control total federal expenditures on health services. Another difficulty in implementing the principle is that for at least some conditions physicians are not able to agree about prognoses. In those instances panels would have no sure basis for determining whether a reasonable person would want a service. However, this is a difficulty that patients and physicians already face. Sometimes judgments must be made on the basis of incomplete or unreliable information. The problem is one of the level of risk a person is willing to take, and the panels would have to decide for themselves what this would be for reasonable persons with various conditions. Practically, they would decide this condition by condition. The issue of payment might spur research to develop more reliable prognoses.
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Another difficulty is that the panels might use unacceptable criteria, such as a patient’s social position, to determine whether services are covered. However, this problem can be avoided. The principle is whether or not reasonable persons with given medical conditions would want a service. The economic, social, and familial situation of patients can and should be excluded from the criteria on grounds of justice, which reasonable persons also have good reason to accept. Such a requirement is probably constitutionally mandated. Further, decisions would have to be made as to which patients would qualify under the rules. One helpful procedure which is coming into use around the country in other applications is to consult hospital ethics committees, chiefly composed of physicians, for advice on hard cases.24 These committees might judge whether particular patients fall under specific rules, but would not set those rules. Hospitals, too, are beginning to develop guidelines about the use of life sustaining equipment such as resuscitators. While some of these guidelines are procedural and allow the patient or his family to make the final decisions, their existence should make it easier to decide about specific cases, to incorporate substantive rules about noncovered services, and to gain acceptance of the rules among physicians. The New Jersey Supreme Court’s decision in the Quinlan case has given a strong impetus to the formation of such committees in New Jersey, although the Court saw the function of hospital ethics committees primarily as confirming prognoses. 2 3 While these committees should base their decisions on medical criteria, since insurance coverage would also be at stake they might be unduly influenced by that consideration. Moreover, they would not be available to rule on services provided in private practice. However, there might be committee review of physicians, and if physicians were found to be reasonably classifying cases as covered, financial sanctions might be applied. In short, retrospective rather than prospective committee review might be a more effective alternative. As the principle of noncovered services applies to all types of medical services, one highly controversial area that should be mentioned is abortion. Clearly, since most presumably reasonable people do approve of, and presumably would elect, abortions in certain circumstances? the principle of noncovered services does not justify excluding all abortions from NHI coverage. However, surveys indicate that less than half the population approves of abortions that are performed solely because the woman is unmarried or does not desire any more children.26It is likely that a smaller percentage would approve of abortion for sex selection. Assuming these people are reasonable and would not elect for themselves abortions of which they disapproved, the proposed principle would justify excluding some abortions from NHI.
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There are, however, other reasons for including all abortions under NHI. First, the cost of administering such an exclusion, and its ineffectiveness, might not be worth the gain. Doctors might simply cite covered reasons for abortions, as many did in the past, under laws limiting the legality of abortions to specified reasons. A review process might be very difficult. Second, there are reasons other than minimum welfare for the government to fund abortion services-e.g., equality and concern about population control. Equality was the substantive basis on which a court prevented implementation of Congress’ prohibition of the use of federal funds for abortions under Medicaid.27 The principle of noncovered services can only be implemented within a framework of other constitutional and nonconstitutional principles which may be relevant to the provision of services under NHI. There is one aspect of the proposed principle which may seriously limit its effectiveness in containing costs. This is the fact that it includes services that most reasonable people would elect, and hence for which a significant-and cost-demand could be expected. Conversely, the services it excludes, because most reasonable people would not choose them, could for that reason be covered at no great cost. Three points may be made in reply to this objection. First, even though savings from noncoverage of individual treatments might be small, the aggregate savings might still be substantial. There may be many services that most reasonable persons would not choose. Excluding all of them might save a large amount. Restrictions on cosmetic, extraordinary, and other services might eliminate further significant costs. Second, the principle of noncovered services is not proposed as the sole method of cost containment. Other principles and methods are also needed and appropriate, e.g., funding in allocations of fixed sums. Third, even if there were no significant effects on costs, unless an alternative rationale can be found, it still would not be politically justifiable to include services most reasonable people would not choose for themselves in the relevant situations. There are further possible difficulties, but it is not the purpose of this paper to resolve all foreseeable problems in limiting coverage of NHI. Instead, it is to raise issues of justification and to propose one plausible principle: services for specific conditions under medically determined circumstances should not be covered by NHI if a substantial number of reasonable persons (more than 50 percent) would not choose these services for themselves were they in similar situations, taking into consideration the proportional increase in the cost of insurance. It may be that difficulties in implementing this principle will ultimately prove unresolvable or render it uneconomical. Further inquiry may show that problems with other proposed limits can be resolved. In either case, the
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issues of political justifiability should be discussed before smoke from the battle of interest groups completely obscures them. This paper has tried to contribute to that discussion. Notes I wish to thank Robert Veatch and an unknown reader for helpful comments on earlier drafts of this paper. 1. Principles of Legislation (Detroit: Wayne State University Press, forthcoming), sections 7, 20. 2. See Stephen P. Stickland, U S . Health Care (New York: Universe Books, 1972), p. 40. 3. For example, while the average cost for a family of four in the U.S. is $2600, people estimate such expenses at an average of $1000 a year. 4. Milton I . Roemer. The Organization of Medical Care Under Social Security (Geneva: International Labour Office, 1969), p. 205. 5. See Robert M. Veatch, “What is a ‘Just’ Health Care Delivery?” in Ethics and Health Policy, eds: Robert M. Veatch and Roy Branson (Cambridge, Mass.: Ballinger, 1976), p. 151. 6. Joseph P. Newhouse, Charles E. Phelps, and William B. Schwartz, “Policy Options and the Impact of National Health Insurance,” New England Journal of Medicine 290 (1974): 1352. 7. Ibid., p. 1348; Roemer, Organization of Medical Care, p. 205. 8. Ibid., pp. 1347-48. 9. Veatch, “What is a ‘Just’ Health Care Delivery?” pp. 143-149. 10. Senator Abraham Ribicoff with Paul Danaceau, The American Medical Machine (New York: Saturday Review Press, 1972), p. 147; Edward M. Kennedy, In Critical Condition (New York: Simon andshuster, 1972), pp. 239-40; Isidore S. Falk, “Beyond Medicare,” in National Health Care, ed. Ray H. Elling (Chicago: Aldine-Atherton, 1971), p. 145. See Generally, Veatch, ‘‘ ‘Just‘ Health Care,” p. 149. 1 1 . See Clark C. Havighurst, “The Ethics of Cost Control in Health Care,” Soundings 60 (Spring, 1977): 26-29, 36. 12. Marvin Henry Edwards, Hazardous to Your Health (New Rochelle, N.Y.: Arlington House, 1972), pp. 172-73. 13. Strickland, U.S. Health Care, pp. 36, 37, 14. Edwin F. Healey, S. J., Medical Ethics (Chicago: Loyola University Press, 1956), p. 67. Indeed, Healey goes so far as to suggest that a treatment costing more than $2000 would be extraordinary for the average person. Even allowing for inflation and rising incomes, that is exceedingly low. Expense is part of the standard definition of extraordinary treatment; see Paid Ramsey, The Patient as Person (New Haven: Yale University Press, 1970), p. 122. 15. Pope Pius XU, NeM* York Times, 25 November 1957, p. 1. 16. Ramsey, Patient U S Person, p. 120. 17. “Physicians’ Attitudes Toward the Treatment of Critically I11 Patients,” in The Dilemmas of Euthanasia, eds: John H. Behnke and Sissela Bok (Garden City, N.Y.: Doubleday. Anchor, 1975), pp. 112, 114. 18. I n The Matter of Karen Quinlan (Arlington, Va.: University Publications of America. 1975), p. 549. 19. P. M. Fitzhardinge et al., “Mechanical Ventilation of Infants of Less Than 1,501gm Birth Weight: Health, Growth, and Neurologic Sequelae,” Journal of Pediatrics 88 (1976): 531. 20. See Zena Stein. Mervyn Susser, and Andrea V. Guterman, “Screening Programme for Prevention of Down’s Syndrome,” Lancet, 10 (February 1973): 305-09; Edward J. Quilligan and Richard H . Paul, “Fetal Monitoring: Is It Worth It?” Obstretics and Gynecology 45 (1975): 96- 100. 21. See Veatch, ‘Just’ Health Care,” p. 149. 22. “Ethics of Cost Control,” p. 35. “
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23. Herman Feifel et al., “Physicians Consider Death ,” Proceedings, American Psychofogical Association Convention, 1967, pp. 201-02. 24. Thomas A. Shannon, “What Guidance from the Guidelines?” Hustings Center Report 7 (June 1977): 28-30. 25. Matter of Quinlan, 70 N.J. 10, 355 A.2d 647 (1976). 26. “Abortion Views Stable During 1972-75, Study Finds,” Intercom 4 (November 1976): 4. 27. McRae v . Mathews, 421 F. Supp. 533 (E.D.N.Y. 1976); application for stay of order denied, Buckley v . McRae, 97 S.Ct. 347 (1976).
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