Journal of Corporation Law, Vol. 36, No. 4, 2011
16 Pages Posted: 28 Mar 2011 Last revised: 18 Feb 2012
Date Written: March 24, 2011
Assessments of the Patient Protection and Affordable Care Act echo a common theme: the legislation does much to provide health care coverage for the uninsured, but it does far less to contain health care spending.
The option of kicking the cost problem down the road cannot continue indefinitely, and policy experts have given much thought to options for containing health care spending. As I argue in this paper, a key element of leading proposals for cost containment is morally important but socially infeasible.
Specifically, scholars regularly – and rightly – recommend a public, transparent process for deciding when health care will not be covered by public or private insurance. If people are going to be denied medical tests or treatments that might preserve their life or maintain their health, we ought to ensure that all members of society have a voice in the decision making process.
However, while broad public participation serves important principles of justice, it also breeds intolerable public conflict. When Americans try to make choices about access to life-preserving medical care, public, transparent processes fail. Either the process never makes the difficult choices that are needed, the difficult decisions that are made unravel and are abandoned, or the decision making process itself is discarded.
Accordingly, we need to identify alternative strategies for cost-containment that can succeed and that can satisfy as best as possible the principles of justice. In other words, we need to pay greater attention to social constraints on rationing in deciding which rationing policies to adopt.
Keywords: cost containment, rationing, health care reform
JEL Classification: I10, I18
Suggested Citation: Suggested Citation
Orentlicher, David, Controlling Health Care Costs Through Public, Transparent Processes: The Conflict Between the Morally Right and the Socially Feasible (March 24, 2011). Journal of Corporation Law, Vol. 36, No. 4, 2011; U Iowa Legal Studies Research Paper No. 11-17. Available at SSRN: https://ssrn.com/abstract=1794583