Blustein, Jan

Marmor, Theodore R.

English

Penn Law: Legal Scholarship Repository

MODELS OF RATIONINGINTRODUCTION TO RATIONINGTHEODORE R. MARMOR & JAN BLUSTEiN-A good deal of the popular commentary on rationing, relying onimages of the meager medical care portions that are given outabroad, portrays it as a fearsome but inevitable alternative to ourpresent medical care arrangements. The British National HealthService ("NHS") provides the doomsayers' favorite illustration.Indeed, the prevailing conception of the NHS among hostileAmerican critics is of "a monster, painted on a pole," a system inwhich patients sufferendless waits to see overworked and undertrained staff in obsoleteand undermaintained facilities. Patients may even be denied life-saving treatment if they are old or for other reasons fail to receivehigh enough priority for scarce services whose availability iscontrolled by heartless, or at least unaccountable, bureaucrats.1A remarkable feature of such caricatures is their incongruitywith the more formal notions of rationing developed by manyeconomists and policy analysts. Economists take a particularlybenign view of "rationing," equating it with "allocation." In theirview, market economies ration access to goods and services by price(ability or willingness to pay). Our present medical care system isa marketplace where private and social insurance allow both costsharing and risk pooling, permitting allocation to those who mightnot otherwise have purchased goods and services at their full price.From this perspective, our present system of "rationing" is hardly amonster. If it is a monster, it is, at least, one with which we areintimately familiar.Policy analysts exhibit less agreement about the meaning of"rationing." Most of them distinguish between macroallocation(referring to decisions about how resources are distributed tot Professor Theodore Marmor teaches politics, policy, and law at Yale University'sSchool of Organization and Management. Dr.Jan Blustein is a physician and a fellowin health policy at New York University's Robert F. Wagner School.1 Robert G. Evans, "Rationing"Health Care: The Loaded Alternative, FRONTIERS OFHEALTH SERV. MGMT., Fall 1987, at 31, 31.(1539)1540 UNIVERSITYOFPENNSYLVANIALAWREVIEW [Vol. 140:1539institutions or types of services-for example, decisions about howmany open heart surgery beds there will be in a region) andmicroallocation (referring to decisions about how resources are to bedistributed to individuals-for example, decisions about who is toreceive open heart surgery). And most would assign the label"rationing" to microallocational decision making.2 But of course,"rationing" in this more restricted sense can only be a monster ifhealth services are scarce. If there are enough to go around, thereis no reason to fear microallocational rulemaking. Indeed, theproposal to cut waste by using "clinical guidelines" or "practiceparameters," which we describe in detail in our own contribution tothis Symposium,8 has been immensely appealing precisely becauseit has been promoted as a way of making microallocational ruleswithout denying anyone anything of benefits: It is rationing withoutpain.Claims about the inevitability of rationing begin with theassumption that the present crisis has its roots in financial scarcity.From this premise it is inferred that hard choices are inevitable. Wetake exception to such arguments because they fail .to distinguishbetween the "tragic choices" of true scarcity-for example, the casewhere there is one transplantable organ and two potential recipi-ents4-and the garden variety scarcity that arises from shortcomingsin existing arrangements-for instance, the case in which there isonly one mammography machine and patients must book anappointment for routine screening examinations a month inadvance.5 The failure to attend to these fundamentally differentforms of scarcity leads pundits to assert that Oregon's rationingplan is sadly inevitable because its present Medicaid budget can nolonger be expanded-rather than because the state's wealth cannotsupport a decent level of medical care for the poor.6 In makingthis distinction, we do not mean to imply that the politics ofmodifying budgetary constraints are trivial. We do mean to suggest,2 See ROBERT H. BLANK, RATIONING MEDICINE 78 (1988); Roger W. Evans, HealthCare Technology and the Inevitability of Resource Allocation and Rationing Decisions, 249JAMA 2047, 2048 (1983); Michael D. Reagan, Health Care Rationing: What Does itMean?, 319 NEw ENG.J. MED. 1149, 1151 (1988).3 SeeJan Blustein & Theodore R. Marmor, CUrING WASTE BY MAKING RULES:PROMISES, PITFALLS, AND REALISTIC PROSPECTS, 140 U. PA. L. REV. 1543 (1992).4 See GUIDO CALABRESI & PHIIP BOBBIT, TRAGIC CHOICES 21 (1978).5 See id. at 22.6 Numerous instances of such punditry (and critics' replies) can be found inLawrence D. Brown, The National Politics of Oregon's Rationing Plan, HEALTH AFF.,Summer 1991, at 28.INTRODUCTION TO RATIONINGhowever, that claims about the inevitability of rationing must becritically evaluated in light of the real facts of service availability andfinancial strain.In the pages that follow, our colleagues expand on many ofthese issues. In so doing they will necessarily address questions ofthe allocation of medical resources, and some will develop modelsof its appropriate form. Whether termed "rationing" or, as somepolicy analysts, we among them, would prefer, the "microallocationof medical services," several broad issues are pertinent andimportant.The first has to do with the dynamics of resource allocation inthis contentious field. What methods are best suited to addressingwho gets what, when, and where? There is no avoiding thisquestion of allocation, but there is ample dispute about the rightanswer. What, for example, are the predictable strengths andweaknesses of such decisionmaking through government? Whatabout doing so through market transactions? In the case ofgovernmental allocation, what is to be said about the expectedfeatures of using administrative agencies, of depending upon courts,of relying on a mix of separate "powers?" These questions, thoughexceedingly controversial, are unavoidable. To the extent they havenot been regularly raised in American health policy, they have beenanswered by default.The second broad class of issues concerns the standards thatshould be applied to allocational rules by any institution. Shouldthe relevant standards be largely professional ones: what the doctor(or nurse, or physiotherapist) thinks is appropriate? Oughtorganizations of medical professionals set the standards not only"for what works" but what allocational rules "make scientific sense?"Should governmental authorities control budgets alone or oughtthey actively engage in this setting of micro-allocational standards?What about direct public involvement in standard-setting? Is thisan arena for direct democracy? That is, should there be openparticipation in the sense of various publics deciding what thestandards ought to be, how loose or slack, and with what avenuesfor dispute and review?Finally, there is the central question of to whom the contemplat-ed rationing ought to apply. Should it be egalitarian; must therules apply to all cases if applied to any? For example, weregovernments to restrict the supply of some new technology and topay for the technology's use only when deemed professionally"necessary," should it be permissible to buy such services "in the19921 15411542 UNIVERSITYOFPENNSYLVANIALAWREVIEW [Vol. 140:1539market?" If supplements are allowed, ought they be insurable undertax deductible private health insurance? Is there one set of rules forthose covered by public plans and another for those not covered?What happens if the United States turns to universal healthinsurance? How "universalistic" are our rules in their application?Are there grounds for treating some groups specially? Who are theyand on what basis?77 To make these questions less abstract, note that Canada explicitly forbadeprivate insurance for publicly financed services when its universal program of medicalinsurance began. No group was permitted to "top up" payment for any particularservice with private insurance. This restriction limited severely the market for"extras." It represented an egalitarian conception of health care access and anunderstanding of how cost containment was related to having a universal plan thatwas really comprehensive in its application. Seegenerally ROBERT G. EvANs, STRAINEDMERCY: THE ECONOMICS OF CANADIAN HEALTH CARE 34-52 (1984).

Introduction to Rationing Models of Rationing

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Introduction to Rationing Models of Rationing

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