Defragmenting the Fragmentation Critique
I am grateful to Frank Pasquale and Glenn Cohen for the opportunity to comment on The Fragmentation of U.S. Health Care(Einer Elhauge ed., 2010). This book is the first of its kind, and I believe it will influence scholarly debate about the best way to organize, regulate, and fund health care for the next decade.
In Chapter One, Einer Elhauge provides the frame through which readers are to understand fragmentation. Fragmentation occurs as “multiple decision makers make a set of health care decisions that would be made better though unified decision making” (p. 1). The tension, as he views it, is between forms of desirable integration and undesirable disintegration (p. 2). He discusses a spectrum of fragmentation, moving from the narrowest conception—treating a patient for a particular illness (lack of coordinated care)—to treating a patient over time (breaks in access to health care at various life stages) (p. 1). He also considers patients in groups, from small patient groupings (also breaks in access to care), to patients within a broader population, such as the state or nation (p. 1). Elhauge acknowledges that the book focuses on fragmentation at the individual patient level because “probably it is less controversial that the care received by an individual patient should reflect some sort of coherent common plan” (p. 2). Elhauge argues that in order to best reform health care, policy– and law–makers will require first either “a theory about optimal integration of decision making . . . or evidence of the sort of bad results that must reflect excessive disintegration” (p. 3). The book focuses on identifying, and responding to, the latter, and it does so admirably.
My critique pertains to the narrow view of fragmentation. By framing the fragmentation discussion as a desirable integration–undesirable disintegration dichotomy, the problems of fragmentation cannot be seen to their fullest extent. The integration–disintegration dichotomy assumes that existing legal structures are appropriate and seeks to work within them. As a result, assumptions and beliefs upon which these structures are built are taken as sound. The most troubling assumption is that illness is viewed as exceptional, rather than as part of the human condition. We are all universally vulnerable to illness and the subsequent disadvantage it creates. Further, few people fall into a concrete “sick” or “well” category—most of us fall somewhere along a continuum of wellness.
Framing the fragmentation debate in terms of existing legal structures has two significant consequences. First, it deeply entrenches a fallacy within current laws (and many of the reforms addressed in the book) that individuals are fully-functioning over a life-time, capable of laboring for wages (which may provide health care), and able to form and order certain preferences that allow them to participate actively and efficiently in the market. Dominant legal, political, and economic theories embrace a concept of the “liberal subject” that assumes that individuals are able to enter society and participate on equal ground. This view does not appreciate and respond to our universal vulnerability to illness, particularly to catastrophic illness.
This point is illustrated by an example offered by Elhauge comparing the hotel to the health care industry. Elhauge states that some fragmentation can be good: “[O]ne can select among various hotel restaurants or activities with various prices . . . the hotel services are not integrated with the company that provides the air travel that contributes to the common vacation ‘episode’ . . . nor does it seem problematic that services provided by one hotel are not integrated over time with the hotel one uses on the next vacation” (pp. 2-3). While “good” fragmentation may exist in other industries, it is beside the point. In considering fragmentation and its consequences, one must not look only to the industry and its level of integration, but also to what is at stake. It is true that legal structures fragment protections across almost every field of law. However, legal fragmentation is perhaps most consequential in the context of health law. In this context, an individual’s health status—their human condition—is at stake. Some individuals who are ill may not be able to enter or participate in the public realm, depriving them of the protections and privileges that exist in that domain.
The second significant consequence of working within existing legal structures is that health care is provided, reimbursed, and regulated with focus on individuals, rather than the population as a whole. I agree with David Johnson and Nancy Kane in Chapter Fourteen that our unique form of individualism fragments health care by focusing on personal rather than collective responsibility for health (pp. 325-27). I would, however, extend their critique to argue that this approach has resulted in a patchwork of administratively inefficient programs—such as Medicare, Medicaid, CHIP, and their respective expansions under recent health care reform—that do not coalesce to allow meaningful access to health care.
To best address fragmentation, it is first necessary to interrogate the foundational assumptions of our current system. The book scratches the surface, but we need to dig deeper. Illness must be viewed as an inevitable part of the human condition, rather than as a phenomenon affecting the unfortunate. This focus forces us to revisit the assumptions of human functionality that underlie current laws. It may ultimately force restructuring of our legal institutions. Once we reach a state in which health care is provided in a manner that responds to universal vulnerability, then I believe it makes sense to address residual problems of integration.