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June 2005 (Volume 83)
June 2005 | Bradford H. Gray
The first two articles in this issue of the Milbank Quarterly demonstrate the importance of analogy and precedent as sources of guidance for policymakers and as a basis for criticism of past decisions.
The first article focuses on the decisions that third-party payers must frequently make regarding whether to cover new technologies. In “One of These Things Is Not Like the Others: The Idea of Precedence in Health Technology Assessment and Coverage Decisions,” Mita Giacomini argues that analogical reasoning and arguments from precedent are central to evidence-based decision processes regarding new technologies and should be employed more consciously, systematically, and critically.
Coverage decisions commonly turn heavily on arguments about how a new technology compares with established technologies whose value is accepted. Giacomini illustrates the role of precedent and analogy in coverage decisions regarding in-vitro fertilization, genetic testing, and Viagra. Then, drawing on ideas from law, philosophy, ethics, and the social sciences, she proposes a framework for case-based evaluations of whether new technologies should be covered by payment systems. This framework includes “taking stock” and formulating precedents, deciding cases, and assimilating decisions into existing commitments. She concludes with a broad assessment of analogical reasoning focused on precedents.
Precedent is, of course, important to the application of law. Following precedent enhances consistency and predictability when new cases arise, so decisions that seem inconsistent with precedent can raise concerns. An example, addressed in the second article in this issue, is the governmental decisions in New York State regarding the disposition of the charitable assets after the nonprofit Empire Blue Cross was reorganized as a for-profit company. Empire first proposed the reorganization in 1996 (Stocker 1997), and it was facilitated by state legislation in 2002 (Robinson 2003). It remains in litigation, although the reorganization has taken place. The legislation, which was heavily influenced by a hospital association and the hospital workers’ union, which had both previously opposed the conversion, provided that 95 percent of the charitable assets (the value of the nonprofit entity) would go into the state’s budget when Empire was reorganized and would be used, through Medicaid reimbursement, to provide salary increases for health care workers.
The decision process, legislation, and outcome raised concerns among many observers. Conversions of hospitals and health plans were generally overseen and directed by the courts, not legislatures, and the charitable assets have almost always remained in the nonprofit sector, usually under the control of a new foundation (Fremont-Smith 1999). A series of reports about such foundations has been published by Grantmakers in Health (GIH.org). New York’s law seemed to ignore the distinction between public funds and charitable assets and to set a precedent for a process that gave policymakers incentives to encourage the for-profit conversion of nonprofit organizations. If legislatures can convert charitable assets into funds to meet current budgetary needs, state governments could move from regulating to promoting conversions. In some states, including New York, budgetary processes have begun to anticipate the availability of funds from potential future conversions.
In “The Common Law Power of the Legislature: Insurer Conversions and Charitable Funds,” Jill Horwitz and Marion Fremont-Smith offer a learned opinion regarding the legal issues related to Empire’s conversion. Horwitz is an economist and legal scholar, and Fremont-Smith is a leading authority on the law of charities (Fremont-Smith 1964, 1966, 2004). They provide a legal assessment of three aspects of Empire’s conversion: the legislature’s role in directing the disposition of the conversion assets, the fact that the legislature “made itself the primary beneficiary of those assets,” and the fact that the attorney general, the sole public official charged with oversight of charitable assets, chose to defend the state’s action rather than the public’s interest in the charitable assets. Their arguments concerning these issues draw on both common law dating back to 16th-century England and the U.S. Constitution. They conclude that the actions that took place in New York State are inconsistent with an important body of established law.
The third article in this issue is also concerned with historical events that resonate today: the end of official segregation in the American South four decades ago. In “The Politics of Racial Disparities: Desegregating the Hospitals in Jackson, Mississippi,” David Smith uses a rare primary source—the archives of the Mississippi State Sovereignty Commission—to document events that until now have been understood only in general terms. This commission was created by the Mississippi legislature in 1956 to maintain segregation and defend against federal “intrusion.” Its files have become available to scholars only in recent years and provide a unique record that Smith uses to describe the strategies and events that led to hospital desegregation in Jackson.
Smith describes three instances of desegregation in Jackson. The first involved the local Veterans Hospital. Desegregation was the Veterans Administration’s price for a new hospital in 1956. The second concerned the University of Mississippi Medical Center, for which desegregation became the price of maintaining eligibility for federal research funding in the early 1960s. The third involved Jackson’s two private nonprofit hospitals, for which desegregation became the price of Medicare eligibility in 1965. In order to remain segregated, one of the hospitals initially decided to refuse to accept Medicare funds. But after the competing Catholic hospital desegregated, the loss of Medicare patients (and funding) convinced it to follow suit.
Forty years later, there still are substantial racial differences in access to, and the quality of, health care in the United States (Institute of Medicine 2003), and health care remains segregated to some degree (Bach et al. 2004; Smith 1998). Today’s segregation is not official, however, and may even be less common in the South than elsewhere. Even so, Smith argues that lessons from Jackson in the 1950s and 1960s remain relevant to both how steps taken by institutions can create or maintain segregation and the many ways that governmental power can be used to end it.
In “Mental Health Policy and Psychotropic Drugs,” Richard Frank, Rena Conti, and Howard Goldman provide a broad overview of the increasing reliance in recent decades on pharmaceutical agents to treat mental disorders. Frank, Conti, and Goldman identify the new classes of drugs, explain why their use has increased, document their implications for the cost of care, and examine related policy issues. They show why changes in the use of psychotropic drugs have implications for access to, and the cost and quality of, mental health treatment.
Of particular interest is Medicaid’s dominance as purchaser of these drugs. The procurement policies of state Medicaid programs thus have had important implications for companies’ investment decisions regarding the development of new pharmaceutical agents. It is noteworthy, therefore, that states have been cautious about applying cost-containment methods to psychotropic drugs. This raises an important implication of the Medicare Modernization Act. People with mental disorders are disproportionately represented in the population covered by both Medicaid and Medicare. When coverage under the Medicare Modernization Act begins, their medication costs will shift from Medicaid to the Medicare program. Thus much of the coverage of psychotropic drugs will move from a program that has had few restrictions to one that may have stronger controls on coverage and utilization.
The final article in this issue is “Consulting as a Strategy for Knowledge Transfer,” by Nora Jacobson, Dale Butterill, and Paula Goering. Researchers and their funders have become increasingly interested in how the products of research can have greater impact. In health care, the difficulty of getting decision makers to use the results of research is an oft-expressed source of frustration. Different strategies for researchers to deal with this problem have been suggested in these pages and elsewhere (Lavis et al. 2002, 2003, 2004; Lomas et al. 2003).
Jacobson and her colleagues explore consulting as a way in which researchers can facilitate decision makers’ use of their knowledge and expertise. In an analysis informed by Weiss’s (1979) seven “meanings of research utilization” in public policy, they present three case studies of consulting projects by the University of Toronto’s Centre for Addiction and Mental Health. The authors discuss the stages of consulting projects and the types of work that are involved (business, project management, substantive, and political). They conclude with some thoughts about factors that promote the use of knowledge in the consulting context.
Bradford H. Gray
Editor, Milbank Quarterly
Bach, P.B., H.H. Pham, D. Schrag, R.C. Tate, and J.L. Hargraves. 2004. Primary Care Physicians Who Treat Blacks and Whites. New England Journal of Medicine 351:575–84.
Fremont-Smith, M.R. 1964. Foundations and Government: State and Federal Law and Regulation. New York: Russell Sage Foundation.
Fremont-Smith, M.R. 1966. Philanthropy and the Business Corporation. New York: Russell Sage Foundation.
Fremont-Smith, M.R. 1999. The Role of Government Regulation in the Creation and Operation of Conversion Foundations. Exempt Organization Tax Review 23(1):37.
Fremont-Smith, M.R. 2004. Governing Nonprofit Organizations: Federal and State Law and Regulation. Cambridge, Mass.: Harvard University Press.
Institute of Medicine. 2003. Unequal Treatment: Confronting Racial and Ethnic Disparities in Health Care. Washington, D.C.: National Academies Press.
Lavis, J.N., F.B. Posada, A. Haines, and E. Osei. 2004. Use of Research to Inform Public Policymaking. Lancet 364:1615–21.
Lavis, J.N., D. Robertson, J.M. Woodside, C.B. McLeod, J. Abelson, and Knowledge Transfer Study Group. 2003. How Can Research Organizations More Effectively Transfer Research Knowledge to Decision Makers? Milbank Quarterly 81(2):221–48.
Lavis, J.N., S.E. Ross, J.E. Hurley, J.M. Hohenadel, G.L. Stoddart, C.A. Woodward, and J. Abelson. 2002. Examining the Role of Health Services Research in Public Policymaking. Milbank Quarterly 80(1):125–54.
Lomas, J., N. Fulop, D. Gagnon, and P. Allen. 2003. On Being a Good Listener: Setting Priorities for Applied Health Services Research.Milbank Quarterly 81(3):363–88.
Robinson, J.C. 2003. The Curious Conversion of Empire Blue Cross. Health Affairs 22:100–18.
Smith, D.B. 1998. The Racial Segregation of Hospital Care Revisited: Medicare Discharge Patterns and Their Implications. American Journal of Public Health 88:461–3.
Stocker, M.A. 1997. Empire Blue Cross and Blue Shield’s Proposal to Restructure as a For-Profit Company and Establish an Independent Charitable Foundation. Bulletin of the New York Academy of Medicine 74:180–205.
Weiss, C.W. 1979. The Many Meanings of Research Utilization. Public Administration Review 39:426–31.
Author(s): Bradford H. Gray
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Volume 83, Issue 2 (pages 187–191)
Published in 2005
One of These Things Is Not Like the Others: The Idea of Precedence in Health Technology Assessment and Coverage Decisions
Notes on Contributors