Health Affairs, 22, no. 3 (2003): 241-242 doi: 10.1377/hlthaff.22.3.241 © 2003 by Project HOPE	New Online   Obama's Success & Next Steps   3 Health Policy Options for President Obama   A Hybrid Proposal   Bipartisan Compromise

This Article Extract Reprint (PDF) Submit a response to this article Alert me when this article is cited Alert me when Comments are posted Alert me if a correction is posted Services E-mail this article to a friend Similar articles in this journal Alert me to new issues of the journal Add to My Personal Archive Download to Citation Manager Reprints & Permissions Citing Articles Citing Articles via Google Scholar Google Scholar Articles by Sage, W. M. Search for Related Content PubMed Articles by Sage, W. M.

Book Reviews

Overdue Process

Lawyers make much of the distinction between procedure and substance. Procedural rights help people determine, in organized fashion, whether a substantive right exists and whether it has been violated. Labeling issues as procedural or substantive also demarcates zones of responsibility, separating lawyers’ authority from clients’ and courts’ responsibility from legislatures’. But skilled lawyers understand that the distinction between procedure and substance is artificial and can be modified or discarded when it seems to do more harm than good.

Enter Eleanor Kinney, not only a skilled lawyer but also a professor and codirector of the Center for Law and Health at Indiana University School of Law–Indianapolis. Kinney’s book, Protecting American Health Care Consumers, takes on the challenge of explaining how procedure should be used to identify and defend consumers’ and patients’ rights. What makes the question so difficult is that no single answer could possibly exist. The U.S. health care system is a thicket of contradictions: public and private financing, federal and state policy making, business and professional governance, rationality and raw emotion, virtually unlimited entitlement and no entitlement at all. Readers hoping for a quick fix from Kinney therefore will be disappointed. But because Kinney has both outstanding technical knowledge and strong personal convictions, the book succeeds anyway.

The book’s greatest strength is its comprehensiveness. Kinney has a fondness for classification, and several chapters contain either a "typology" or "taxonomy," or an annotated list of "processes," "regimes," or "principles." But she does it well, and many of the facts she reveals may surprise you. One learns, for example, that the Administrative Procedure Act, which specifies the processes that administrative agencies must use to set policy, expressly exempts federal programs such as Medicare from its requirements. The charts and lists also help one appreciate the scope and scale of health care disputes: ten distinct "consumer concerns" about health care, eleven forms of "policy" governing those consumer concerns, and fifteen or so ways that disputes are addressed within or outside the courts. Kinney critiques and distills these categories into four principles of sound policy making: having a designated procedure for adopting policy, incorporating relevant scientific and clinical information, giving consumers a voice, and publicizing the result.

Kinney frames her book around the Patients’ Bill of Rights debate that preoccupied Congress for several years before medical malpractice overtook managed care on the crisis meter. Although Kinney supports stronger managed care regulation, the book is saved from being yesterday’s news because she clearly sees both the rigidity and the incompleteness of "patient protection" as it evolved politically: sound-bite regulatory requirements (such as drive-through deliveries and gag clauses), disconnected rights to sue, and nothing whatsoever for the uninsured.

Kinney’s principal insight is that seemingly independent systems for setting overall policy and resolving specific disputes will work more smoothly when governed by a common procedural framework. An integrated approach, Kinney observes, has both practical and philosophical advantages for health care. First, it adds a preventive dimension to dispute resolution, moderating the pathological conflict and hindsight that often beset courts in litigated cases. Second, it matches process to design within today’s varied provider and payer organizations. Third, it summons legislators to seek justice in the health care entitlements they create as well as in the manner that existing entitlements are administered. In this last respect—advancing the cause of universal health coverage—Kinney wears her heart on her sleeve. But many others who have railed against managed care as if taking the slightest privilege from insured patients and their physicians were a supreme crime against nature seem to have no heart at all.

Despite its comprehensiveness, the book elides several important topics. Kinney seems uncomfortable with aggregate policy making in health care. Her view of procedure is focused on individual rights, and she criticizes "statist" views of administrative law that center procedural protections on society as a whole. This may be perceptive of her—the quasi-identified lives who receive health care services make unusual demands on policymakers—but the problem should be dealt with explicitly in a book ostensibly about population-based managed care. Kinney also seems oblivious to cost, whether the direct cost of the procedural protections she recommends or the indirect cost of forgoing decision criteria she considers illegitimate, most of which invoke economics. Particularly because of her strong belief in expanding health coverage, the tension between cost and access should be acknowledged and explored. Neither does she fully develop models of consumer protection that depend on loyalty rather than exit or voice, perhaps because fiduciary obligations are an uncommon feature of administrative law (her forte). As a result, she ignores or shortchanges values such as trust and compassion, which seem obvious arguments for melding process with substance in health care. As Kenneth Arrow observed forty years ago, "Medical care belongs to the category of commodities for which the product and the activity of production are identical."¹

Consider external review procedures for managed care, which subject health plan denials of coverage—usually for lack of "medical necessity"—to independent oversight. Nearly all states have adopted external review laws, and they enjoy widespread public and industry support. But their sponsors and drafters would have benefited from reading Kinney’s analysis. External review laws should further four objectives for medical decision making: avoiding bias, improving quality, engaging patients, and strengthening therapeutic relationships. In design and operation, most have tended diligently to the first, paid little more than lip service to the second, and not even considered the third and fourth. Moreover, few external review programs have heeded Kinney’s lesson of synchronizing procedures with clinical and management systems. Their one-size-fits-all structure appears fair because it is uniform, but whether they are triggered effectively or triggered at all depends on vagaries of scope and application.

Maybe Kinney and I are both wishful thinkers. Legal procedures in the real world are seldom as rational or as humane as academics want them to be. That is one reason why the courts, despite their shortcomings, show no sign of atrophying. But Kinney’s book is still a valuable reference. The next time health policymakers venture inside the sausage factory, they’ll know more about how meat should be processed.

William M. Sage

Editor's Notes

Bill Sage is a professor of law at Columbia University in New York City and serves as principal investigator for the Project on Medical Liability in Pennsylvania, funded by the Pew Charitable Trusts.

NOTE

1. K.J. Arrow, "Uncertainty and the Welfare Economics of Medical Care," American Economic Review 53, no. 5 (1963): 941–973.

                      What's this?