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Balkinization  

Monday, September 07, 2009

Risk, Health Care, and Red America

Frank Pasquale

I agree with Andrew Koppelman's analysis of resistance to health insurance reform. But Red America's implacable opposition to the plans now debated in Congress has deeper ideological roots in a love of risk. As Thomas Edsall has observed, "A problem for Democrats . . . is the long tradition in the US of . . . venerating risk . . . and of a deep commitment to untrammeled individualism."

Even more frustrating for Democrats, the left's hard-won victories to reduce risk have left many people assuming that they can't gain much from reform. Consider four "backstops" that leave many people unworried about losing insurance:

1) Bankruptcy: The Republican party worked hard to water down bankruptcy protections during the Bush years. Nevertheless, these laws still protect many consumers. As health law expert Tim Jost writes, "Ultimately, the federal bankruptcy code must also be seen as our federal catastrophic health care program."



2) Medicare: Thanks to LBJ and an overwhelming Democratic majority in the 89th Congress, the elderly already have access to federal health insurance, and are wary of any coverage expansion that could drain resources from the program. Here the GOP's anti-spending and family values wings have formed a pincer movement that has whiplashed Democrats. First, fiscal conservatives used CBO's dubious cost estimates to demand "real savings" to pay for reform. Dreaming of bipartisanship, Obama's technocrats seized on the Dartmouth studies to argue that up to a third of all medical spending, including Medicare, is wasted, and that reform of the delivery system could rationalize that spending. At that point the GOP's "family values" wing talked up death panels, rationing, and "pulling the plug on grandma."

3) EMTALA: Can a relatively well off person "rationally choose" to be uninsured? As Jost notes, as of 2004, "many of the uninsured are in fact reasonably well-off—8.4% are from households that earn $75,000 or more per year." To the extent this group is calculating the costs and benefits, it's likely counting on the Emergency Medical Treatment and Active Labor Act of 1986 (EMTALA) to force hospitals to "screen and stabilize" those who come to their emergency rooms. Of course, once you're stabilized, the duty to care is over, but few people think very clearly about what it is like to slowly (and stably) die of cancer while the only effective treatments are too expensive to pay for.*

4) Medicaid: Finally, we come to another element of the social safety net many people think they can fall back on: Medicaid. Benefits aficionados know that only the categorically eligible can rely on it. Some reform proposals would replace the "numerous statutory and regulatory pathways for establishing eligibility" with a simple income test. But for now, those among the populace who just assume that Medicaid covers all the poor may believe they would have little to gain from reform even if they did face crippling medical bills. (They're probably also unaware of Medicaid's pitifully low reimbursement rates--but more on that later.)

None of these so-called backstops will help everyone, all the time. But one can imagine a risk-loving, red-blooded American wanting to roll the dice on them rather than endure the type of bureaucratic assessments and applications that will gradually poke and prod the uninsured making between 133% and 400% of the poverty level toward buying their own coverage on an exchange. Indeed, under the Senate HELP Committee's proposal, a family making 400% of the poverty level could be responsible for paying up to 12.5% of their income in premiums, for insurance that leaves them liable for paying $11,600 in out of pocket expenses. That's a worst case scenario of paying 26% of income for health care--better than bankruptcy, but potentially tantamount to the same thing in a country where the bottom half of the population has virtually no net worth. (And that cost-sharing estimate assumes the medical component of the CPI does not increase.)

The really appealing goal of reform--a strong public option that would be part of an exchange open to all--appears to be more of a bargaining chip than a firm commitment for the Obama Administration. Strategically, if your goal is to get "something" through Congress, this makes a great deal of sense: Republicans and some waivering Democrats think a public option smacks of socialism. But as a political matter, it is draining support for reform. People can understand a public option, and building support for it might have been as decisive to Democrats' fortunes as FDR's reformulation of the American social contract in the 1930s. Sadly, Obama's technocrats appear more attracted to wonk-talk like "bending the cost curve" than the forceful moral case for collective responsibility for health. Only the President can correct that course. It takes an ideology to beat an ideology.

*An earlier version of this post had a typo--I put "affordable" instead of "effective." Many thanks to a reader for catching this. (Now I just need to get the code for a "strikethrough" to note the edit in traditional blog form.)

Saturday, September 05, 2009

You have no idea

Andrew Koppelman

One of the classic justifications for democracy is that an accountable government will do a good job of looking after people’s needs, because the voters will reward the incumbents if they do that. The present health care reform struggles cast some doubt on this theory. It turns out that government can very publicly make a lot of people a lot better off, and it will not be rewarded, and in fact may be punished.

In a characteristically smart posting at the New Republic website, William Galston observes that a major obstacle to President Obama’s aspirations for health care reform is that most Americans are satisfied with the insurance they have:
Seventy-three percent describe the affordability of basic medical care for themselves and their families as “manageable” or even “easy”; 69 percent say that their health insurance company pays for all or most of the treatments and medicines they current need; and fully 76 percent say they are very or somewhat confident that if they were to become seriously injured or ill, their insurance would pay for everything they needed to get better. According to the Kaiser Family Foundation, the share of Americans who believe that they or their families would be worse off under reform has risen by 20 percentage points since February. Today, fully 51 percent are more worried about the health reform bill they expect Congress to pass than by the possibility that reform will be delayed beyond this year.

This data sits uneasily beside a recent study in the American Journal of Medicine of personal bankruptcies in the United States.In 2007, 62% of all personal bankruptcies were driven by medical costs."Nationally, a quarter of firms cancel coverage immediately when an employee suffers a disabling illness; another quarter do so within a year," the report states.Most of the medical debtors were well educated, owned homes, and had middle-class occupations, and three-quarters of them had health insurance. "Unless you're a Warren Buffett or Bill Gates, you're one illness away from financial ruin in this country," lead author Steffie Woolhandler, M.D., of the Harvard Medical School, said in an interview. "If an illness is long enough and expensive enough, private insurance offers very little protection against medical bankruptcy, and that's the major finding in our study."

In other words, all those people who oppose health care reform because they like the coverage they’ve got really have no idea of the real dangers they face, because they have no idea what their insurance companies would really do to them if they got sick.This poses a real political challenge for the proponents of reform.The people who will most benefit from the consumer protections that Obama is advocating – those who will experience serious illness in the future – have no idea that they are benefiting, and so will not politically reward those who deliver the benefits.The Democrats could give most Americans substantially greater security and receive no reward for it.

It’s in the Democrats’ interest to see that these real dangers are better understood.It would be nice if there were some mention of them in President Obama’s national address on health care this Wednesday.

Friday, September 04, 2009

Statistical Slumps

Ian Ayres

Crosspost from Freakonomics:

My dad was a box salesman and once a year he’d take me on an overnight sales trip. My daughter and I continued the tradition recently with a “dad and daughter” trip to Boston. If you are driving on I-84 to Boston, we can recommend The Traveler Restaurant (where you get to choose three free books with your yummy meal), and in Boston, we loved kayaking at Charles River Canoe and Kayak.

But it was during a trip to the Boston Science Museum that I had an idea about calculating statistical slumps. The museum has an excellent example of a Galton Box, an apparatus where balls are dropped at the top at a high board and have to bounce off a grid of evenly spaced pegs. If the pegs are spaced properly, when the ball strikes a peg, it has a 50-50 chance of bouncing to the right or to the left as it travels down. Here’s a YouTube clip of one in action:


The a-ha moment of the demonstration is to see that the balls end up in the bins at the bottom in piles that approximate the perfect bell-curve shape of the normal distribution.

The Galton Box (also known as the Quincunx) is related to Pascal’s Triangle because the triangle tells you the number of ways to reach a particular bin:DESCRIPTION

For example, if a Galton box had four rows of pegs and five bins, there would be six (equally likely) routes to reach the middle bin. But notice that there is always just one way to reach the outermost most bin.

It occurred to me that it would be pretty easy to derive a statistical standard for determining when an athlete was having a “statistically significant slump.” For example, Alex Rodriguez recently went through a homerless drought of 72 at-bats. Over his career, A-Rod has averaged one homer for every 14.2 at bats — suggesting there is about a 93 percent chance that he will not homer on any individual at bat. It would be crazy to say that he was in a home-run slump after failing to homer after just a few at bats. But the question is how many homer-less at bats is enough to be a statistically significant drought?

The answer is 42. There is less than a 5 percent chance that Rodriguez would go homerless 42 times in a row — so we can reject the hypothesis (at a 5 percent level of statistical significance) that he is going homer-less merely as a matter of chance. You can calculate your own drought statistics for any sporting event (for example, how many losses does Tiger have to have before he’s having a statistically significant drought?) just by using the following formula:

Athlete is having a statistical significant drought if:

Total consecutive number of bad events > log(.05)/log(probability of single bad event)

You can copy and paste the right-hand side of this inequality into Google, plugging in the probability of a single bad event (yes, Google is a calculator):

For A-Rod going homer-less, you would Google: log(.05)/log(.93).

If you want to know his statistical drought number for a 1 percent level of significance, you would Google: log(.01)/log(.93).

If you think Tiger Woods has a 25 percent chance of winning any individual tournament, then he would be experiencing a statistically significant drought after: log(.05)/log(.75) = 10.4 consecutive losses.

The revolution of statistics in sports reporting has to date been almost exclusively an increase in descriptive statistics. But these examples show how it might be possible for reporters to usefully include some tests of statistical significance in their reporting. Even now, it would be possible to test whether reporters start using the term “drought” only after a player experiences a statistically significant number of bad events. It might be fun to do a study to back out the implicit level of statistical significance that reporters require before they use “slump” or “drought.” I’d predict that this implicit level varies with how much they like the athlete — so that they would start using the term more quickly with regard to Rodriguez than, say, Jeter.

Calculating the magic numbers for statistically significant droughts is also related to the civil rights problem of the “inexorable zero.” In the landmark 1977 employment discrimination case International Brotherhood of Teamsters v. United States, the United State Supreme Court was concerned because: “Between July 2, 1965, and January 1, 1969, [out of] hundreds of line drivers [hired] systemwide . . . [n]one was a Negro.” Footnote 23 of the opinion introduced a new phrase into the civil rights lexicon: “[T]he company’s inability to rebut the inference of discrimination came not from a misuse of statistics but from ‘the inexorable zero.’”

The same formula for calculating statistical droughts can be used to calculate when zero hires becomes statistically inexorable. In fact, in this old post from the Balkinization blog, I calculate when we should start to feel BOGSAT anxiety from a “bunch of guys sitting around a table.” For me, it often kicks in at five.


Thursday, September 03, 2009

In the Flooded Zone

Deborah Pearlstein

Cross-posted at Opinio Juris

I was all set to zone out this vacation when we happened to stroll past an SUV featuring one bumper sticker (among others) announcing: “Waterboarding: Keep it safe, legal and rare.” Nothing like a little vacation motivation to make me peruse (at an admittedly slower pace) the wave of old OLC memos that came along with the 2004 CIA inspector general’s report and other CIA memos that documented in brutal detail exactly what we were doing to prisoners of that era. While I haven’t come close to reading everything yet, I’d say the most remarkable memo I’ve encountered so far out of DOJ is one of far more recent vintage: a July 20, 2007 memo from then Principal Deputy Assistant Attorney General Steven Bradbury to John Rizzo, Acting CIA General Counsel.

Daphne Eviatar has written about it a bit already. There are a host of features that make this memo remarkable. Can’t decide whether it’s more the timing, or the celebration of Yoo-like lawyering. Here are some thoughts on both.

First, an overview. The 79-page memo is a dazzling explanation as to why there is no legal problem with any of 6 coercive interrogation techniques the CIA would like to continue to perform in service of its no longer secret interrogation program for “high value” detainees. These techniques, we read over and over - and over - again during the ensuing “legal” analysis, are the “minimum necessary to maintain an effective program for obtaining the type of critical intelligence from a high value detainee that the program is designed to elicit.” What’s on the list? Two “conditioning” techniques, and 4 “corrective” techniques we’ve seen elsewhere in the just released docs: (1) “dietary manipulation”; (2) “extended sleep deprivation”; (3) the “facial hold”; (4) the “attention grasp”; (5) the “abdominal slap”; and (6) the “insult (or facial) slap.” Each comes with several pages of descriptions of exactly what is allowed and not, all worth a read. (The 1,000 kcal/daily caloric intake restriction, for instance, can continue until the detainee has lost 10% of their body weight; for a 200-lb. man, that’s 20 lbs.) More on the sleep deprivation scheme in particular below.

By 2007, of course, Abu Ghraib and the bipartisan, international outrage it provoked was well understood, and its effects continued to be felt in diminished counterterrorism cooperation with our allies and a recruiting boon for the Iraq insurgency. (For more on this, see, e.g., here or here.) The Administration had thrice lost badly in the Supreme Court, which kept rejecting its claims of sweeping executive authority in the realm of detention, and had just in the previous year (in Hamdan) made singularly clear that Common Article 3 of the Geneva Conventions and its protections against cruelty applied to the conflict with Al Qaeda. Congress had passed the Detainee Treatment Act making clear that prisoners held anywhere by any agent of the United States could not only not be subject to “torture,” but were also protected from “cruel, inhuman or degrading treatment.” And the Military Commissions Act of 2006 (MCA) clarified that cruel or inhuman treatment was indeed a war crime – a crime encompassing treatment that could be at least in some respects less severe than the treatment constituting “torture” per se. More on that below, too.

In any case, one really might have thought that at least one of these developments might lead OLC to revise or amend its legal analysis, even a little bit, from the John Yoo-type torture memo logic circa 2002 in determining whether the CIA’s proposal violated either the War Crimes Act, the new Detainee Treatment Act (DTA), or Common Article 3. Or from DOJ memos on the same topic from 2005. As it turns out, not so much.

Let’s take sleep deprivation. Here are parts of how the memo describes how the CIA plans to keep detainees awake for 4 days in a row (or longer if there is sufficiently high level approval):

[T]he CIA uses physical restraints to prevent the detainee from falling asleep. The detainee is shackled in a standing position with his hands in front of his body, which prevents him from falling asleep but allows him to move around within a two- to three-foot diameter area. The detainee's hands are generally positioned below his chin and above his heart. Standing for such an extended period of time can cause the physical effects that we describe below. We are told, and we understand that medical studies confirm, that clinically significant edema (an excessive swelling of the legs and feet due to the building up of excess fluid) may occur after an extended period of standing. [Much later in the memo, it is noted that “if edema becomes sufficiently serious, it can increase the risk of a blood clot and stroke.”] ….

We understand that detainees undergoing extended sleep deprivation might experience "unpleasant physical sensations from prolonged fatigue, including a slight drop in body temperature, difficulty with coordinated body movement and with speech, nausea, and blurred vision." Extended sleep deprivation may cause diminished cognitive functioning and, in a few isolated cases, has caused the detainee to experience hallucinations…. Because releasing a detainee from the shackles to utilize toilet facilities would present a significant security risk and would interfere with the effectiveness of the technique, a detainee undergoing extended sleep deprivation frequently wears a disposable undergarment designed for adults with incontinence or enuresis.

There are various caveats sprinkled through this section. In forcing a detainee to remain standing for hours or days on end in order to keep him awake, letting the detainee hang from his wrists was evidently not permitted. (It’s speculation, but I wonder if this was a lesson learned from the officially designated “homicide” of Manadel al-Jamadi, the detainee who died in U.S. custody (reportedly including at least one CIA interrogator) hanging from his wrists at Abu Ghraib?) And medical personnel were to monitor the whole thing closely, stopping or shifting stress position techniques (from forced standing, to shackled to a stool) if “clinically significant edema” developed. Wonder, too, what the odds are of a situation in which the doctor doesn’t time intervention quite right and detainee loses his mind or has a stroke before operations cease?

On to the lawyering. The War Crimes Act (for example) makes criminal (among other) acts of “cruel or inhuman treatment” that are “intended to inflict severe or serious physical or mental pain or suffering …, including serious physical abuse, upon another within his custody or control.” What constitutes, say, “serious mental suffering”? As amended by the MCA in 2006, and as most relevant here, the term is defined for conduct occurring before 2006 as “the prolonged mental harm caused by or resulting from-- (A) the intentional infliction or threatened infliction of severe physical pain or suffering; (B) the administration or application, or threatened administration or application, of … procedures calculated to disrupt profoundly the senses or the personality…” Critically, for conduct occurring after the MCA’s enactment – i.e. for any conduct addressed by the forward-looking 2007 memo – “prolonged mental harm” was no longer required. Instead, “serious mental suffering” is to include “non-transitory mental harm (which need not be prolonged).” The MCA was rightly criticized by human rights lawyers and others as effectively equating the terms “torture” and “cruel and inhuman treatment” by defining the “serious mental harm” necessary for cruel treatment to be the same as the “severe mental harm” necessary to constitute torture. One might naively imagine “severe” to be worse than (or at least different from) “serious” (and torture to be worse than cruel treatment). And one would find substantial support in international law for the latter distinction especially. But there it is. At least the statute seemed to establish that for conduct going forward, the harm itself need not be carried out over a prolonged period.

So why doesn’t the administration of hallucination-inducing sleep deprivation and humiliation-necessitating diapering plan amount to, for example, a procedure “calculated to disrupt profoundly the senses”? An especially tricky conclusion given that a previous Bush OLC memo had already held that hallucination could constitute a profound disruption of the senses if it was of sufficient duration. But as the memo explains: “Whether or not a hallucination of the duration at issue here were to constitute a profound disruption of the senses,” DOJ had already concluded that this kind of hallucination doesn’t last long enough to amount to ‘prolonged mental harm’ under the pre-2006 anti-torture provision of the War Crimes Act. That the statute was amended to change the definition of cruel treatment from one requiring “prolonged mental harm” to requiring “serious and non-transitory mental harm (which need not be prolonged)” has, as it turns out, no effect on this conclusion. “The modification is a refocusing of the definition on severity – some combination of duration and intensity – instead of its prior reliance on duration alone.” I’m honestly not sure what that means, given the definitions of both torture and cruel treatment are all about the seriousness or severity of the treatment (i.e. intensity), but there you have it. In any case, the memo explains, sleep deprivation can’t be “calculated” to “profoundly disrupt the senses” because the CIA doesn’t mean to “confuse” the detainee into inadvertently disclosing information. The CIA just wants to “wear down the detainee’s resistance” enough to “secure his agreement to talk.” Kind of like intensive contract negotiation.

You might now begin to understand why the memo takes 79 pages to make its case. The image that kept coming to mind as I tried to sort through the reasoning was one of those dizzying Escher paintings, where one’s eyes try in vain to follow a staircase to its logical conclusion, and yet keep being tricked when it turns out the staircase turns back upon itself, or otherwise enters into a parallel and upside down universe in which no rules of gravity, logic, or meaning apply. It’s not that this memo in these respects are so different in that respect from the famous Yoo memos c.2002. It’s that it builds on those memos’ logic, doubles down on their policies, and runs right over the intervening changes in the law that should have made it at least modestly harder, by 2007, to keep barreling down this road. As it turns out, not so much.

Wednesday, September 02, 2009

The Stevens Speculation

Deborah Pearlstein

I really did intend to be on vacation this last week, but I wanted to respond at least in some form, FWIW, to all the speculation about Justice Stevens' likely plans. My former co-clerks and I have of course been reading the recent reporting about his plans with interest (see, e.g., here), and it is true that hiring only one clerk (instead of his more typical 3-4) is unusual. I honestly don't know what his plans are, but I would not be surprised if they included retirement in the near term. It's a decision that would of course be understandable. He's served with extraordinary distinction for an extraordinary length of time. For those interested in reading more, UC Davis Law Review recently sponsored a symposium event honoring Justice Stevens and reflecting on the impact of his decisions on questions of equality, liberty, and security (Chevron and the like were certainly addressed by our security panel, but were of course noted throughout). In all events, his retirement will be a sad loss for the Court and the country whenever it comes. Still, I can think of few who deserve some uninterrupted rounds of golf (and tennis and swimming) more.

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