CHICAGO — DePaul University associate law professor Wendy Netter Epstein, an expert in the Affordable Care Act and Republican proposals to repeal and replace it, suggests that as the Trump administration and congressional leaders move forward with a focus on market-based mechanisms and financial incentives, that they consider a contract law solution.
“Market-based health reform solutions dominate the post-Affordable Care Act landscape. Under these plans, competition is supposed to bring down ballooning prices, and patients are to act more like consumers, refusing low value, medically unnecessary care,” explains Epstein, faculty director of the Jaharis Health Law Institute at the DePaul University College of Law.
“Whether or not one embraces these solutions, one thing is clear. These solutions cannot work absent price transparency — and the U.S. system does not have it. To the contrary, the law explicitly enforces open price term contracts between patients and providers,” Epstein writes in a forthcoming article in the Emory Law Journal (“Price Transparency and Incomplete Contracts in Health Care”).
“Market-based mechanisms won’t work effectively without transparency and comparative quality information. Patients don’t know how much care costs and can’t make decisions to reduce unnecessary care without better data,” she says. ”If courts keep enforcing contracts between patients and providers that don’t disclose a price, patients will never get that data. But courts can fix the price transparency problem. We don’t need Congress or state legislatures to do it.”
Areas of expertise
In addition to being an expert on the Affordable Care Act, particularly as to its impact on vulnerable populations, Epstein is well-versed on current Republican proposals to replace it. She has expertise in the individual mandate, the premium tax credits and cost sharing reduction subsidies, Medicaid expansion, payment reforms like accountable care organizations, bundled payments, and value-based compensation, and also health savings accounts and consumer-driven health care.
Epstein is keen to talk about the move from the individual mandate to the continuous coverage positions and is concerned about adverse impact on poorer and sicker people and believes it discourages people from re-entering the insurance market unless they are sick. She is particularly interested in talking about the proposed halt to Medicaid expansion and the move to per capita funding, which is essentially a move back to the way HMOs were funded in the 1980s and 1990s.
Epstein has written extensively about her views, including these areas:
- “Financial incentives are misaligned throughout the health care industry. Doctors historically have been paid for delivering more, higher cost care. The new industry trend is to instead pay doctors for value and not quantity of care. The Trump administration is likely to roll this back. But what it should do is figure out where we want doctors to just comply with standard of care and where we want them to be creative and innovative. Value-based compensation is more likely to prompt compliance than creativity.” (“Revisiting Incentive-Based Contracts,” Yale Journal of Health Policy, Law, and Ethics, 2017.)
- “Patients often don’t make good health care decisions. Data can help determine what decisions are most likely to make patients better off. We should use this data to nudge patients towards the decisions that would be best for them by establishing treatment defaults.” (“Nudging Patient Decision-Making,” Washington Law Review, forthcoming 2017.)
Epstein is a graduate of Harvard Law School and a former litigation partner at Kirkland & Ellis LLP. Her teaching and research interests focus on health policy and the law and contract law. Her work has most recently appeared or is forthcoming in the Yale Journal of Health Policy, Law, and Ethics; Emory Law Journal; Washington Law Review; and Cardozo Law Review. She clerked for the Hon. Michael Daly Hawkins, U.S. Court of Appeals for the 9th Circuit.
Follow her on Twitter at @ProfWEpstein.