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Should we tax unhealthy food and drink?

1 Oxford University Medical School, Medical Sciences Division, University of Oxford, Level 3, John Radcliffe Hospital, Oxford. OX3 9DU. UK

Peter Scarborough

2 Centre on Population Approaches for Non-Communicable Disease Prevention, Nuffield Department of Population Health, University of Oxford, Old Road Campus, Headington, Oxford. OX3 7BN. UK

Mike Rayner

Adam d m briggs.

3 The Dartmouth Institute for Health Policy and Clinical Practice, Level 5, Williamson Translational Research Building, One, Medical Centre Drive, Lebanon, NH. 03756. USA

The global burden of obesity leads to significant morbidity and has major economic implications. In April 2018, Britain will join a growing number of countries attempting to tackle this using fiscal measures when the UK Soft Drinks Industry Levy is introduced. We review recent evidence from natural experiments of the impact of health related food and drink taxes on consumer behaviour, and discuss the possible consequences of these approaches on purchases and health. We highlight some of the potential indirect consequences and the importance of robust prospective evaluation.

Introduction

In recent decades, the global burden of obesity and related conditions has surged. In 2014, 13% of the world's population were obese( 1 ), with an estimated cost to the global economy of $2 trillion( 2 ). Britain will join a growing number of countries attempting to tackle the consequences of obesity using fiscal measures when the Soft Drinks Industry Levy (SDIL) is introduced in April, 2018( 3 ). Recent data on the impact of health related food and drink taxes from natural experimental evaluations are allowing us to better understand how fiscal measures affect behaviour. In this review, we draw on this new evidence and discuss how health related food and drink taxes might change purchasing habits and improve health.

Why implement food and drink taxes?

Unhealthy diets are the second leading behavioural risk factor behind tobacco for all cause morbidity and mortality in the UK( 4 ). A poor diet can cause disease both directly and via mediating factors such as weight gain and high blood pressure. As well as the caloric contributions of energy dense food and drinks, saturated fat leads to cardiovascular disease( 5 ), salt increases the risk of hypertension( 6 , 7 ), and as discussed in more detail below, sugary drink consumption is related to diabetes independently of weight gain( 8 ).

Health related food and drink taxes implemented internationally commonly aim to reduce the burden of obesity. In the UK, 20% of four to five year olds and 33% of 10-11 year olds are either overweight or obese( 9 ). Furthermore, children from the most deprived backgrounds are twice as likely to be obese than those from the least deprived( 10 ); a disparity that only serves to entrench inequality as these children are more likely to become obese adults( 11 ). Childhood obesity, alongside an adult obesity prevalence of more than 25%( 12 ), is estimated to cost the UK over £6bn per year in direct healthcare costs( 13 ), and £27bn when losses to productivity are included( 14 ).

Reducing the consumption of unhealthy food and drinks would benefit health, and taxes are a powerful lever by which to achieve this( 15 , 16 ). As such, the UK government is introducing the SDIL, a key component of the childhood obesity plan. Internationally, sugary drinks are the food or drink product most commonly taxed to improve health, and this is with good reason. Both observational studies( 17 – 20 ) and randomised control trials demonstrate that sugar and sugary drinks lead to increased weight among children( 21 , 22 ) and adults( 23 – 26 ). Sugary drinks are also directly associated with diabetes independent of adiposity; their high glycaemic load means that consumption results in spikes in blood glucose and insulin concentrations, which may lead to insulin resistance and beta cell dysfunction( 27 ). In a recent meta-analysis, Imamura et al . estimated a 13% increase in the incidence of type two diabetes for each additional daily serving of sugary drink after adjusting for obesity, and predicted that 79,000 cases of the disease (3.6% of all cases) over the next ten years would be attributable to these drinks at current consumption levels( 8 ). In addition to diabetes, sugary drinks are associated with dental caries( 28 ), cardiovascular disease( 29 ), and lipid dysfunction( 30 , 31 ).

Beyond data relating their consumption to ill health, sugary drinks are an appealing target for taxation because they contain no nutritional benefit beyond calories. Their liquid substitutes (such as diet soft drinks and water) are generally healthier, and there is little evidence that people react by increasing the amount of unhealthy food they eat. Sugary drink taxes may also in part correct the negative externality that results from the price of these products not encompassing the full cost they impose on society due to ill health and reduced productivity. Finally, they are relatively straightforward to define from an administrative perspective( 32 ).

In recent years, taxes on sugary drinks have been implemented by numerous countries, in addition to a smaller number of health related food taxes. Table 1 (adapted from the World Cancer Research Fund[ 33 ]) lists the measures already in place, but many more are on the horizon: for example in South Africa, Estonia, Portugal, Ireland, and the UK.

Health related food and drink taxes around the world, adapted and updated from the World Cancer Research Fund[ 33 ]

Whilst sugary drink taxes are becoming increasingly common and accepted both politically and publicly( 34 ), health-related food taxes remain relatively rare. This is likely to be because they are both politically and administratively more challenging to implement( 35 , 36 ), and because it is harder to predict what people will switch to consuming instead. Unlike soft drinks, many foods are essential, so the selection of foods for taxation and design of fiscal strategies to improve population diet is challenging. Nutrient-based taxes can be bureaucratically intensive due to the need to quantify the amount of the taxed nutrient in both domestically produced and imported foods and, in the case of the Danish saturated fat tax, different cuts of unpackaged meats; however, many countries now have nutrient labelling requirements of different foods, making it easier to quantify nutrient-based tax rates. Furthermore, any health-related food tax needs to be careful not to inadvertently worsen health because of people switching to less healthy substitutes. For example, Denmark’s saturated fat tax is estimated to have led to a small rise in salt consumption, partly countering the benefit derived from reduced saturated fat consumption( 37 ).

Evidence for taxing unhealthy foods and drinks

The majority of published evidence suggesting that taxing unhealthy food and drinks will lead to a change in behaviour and improved health comes from simulation (modelling) studies. To quantify the potential health impact of a tax, models generally estimate how the tax will impact on price and then how the new price will affect purchases and subsequent consumption. The effect of the new diet on health is then quantified using risk factor-disease associations generally taken from published studies in the peer-reviewed literature. While this can give an indication of the likely impact of a tax, there are many unquantified factors that have the potential to influence the outcome, some of which are illustrated in figure 1 . These include factors relating to the industry, such as how marketing and pricing will change for both taxed and untaxed drinks, and whether recipes change (reformulation) or new products emerge. Also some possible consumer responses are unquantified, such as the educational impact of knowing that a food or drink has been taxed due to it being unhealthy, the potential that people might waste less, and the possibility of shopping in nearby untaxed jurisdictions. In contrast to modelling alone, natural experiments provide a mechanism by which some of these non-economic factors can be quantified and understood.

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Flowchart illustrating how a health related food and drink tax might impact health (update of Figure 1 “Implicit framework for how food taxes may influence health”, with permission of Springer, from Mytton, Eyles and Ogilvie. Evaluating the health impacts of food and beverage taxes. Current Obesity Reports. 2014;3(4):432-439[ 16 ])

Sugary drink tax evaluations

Empirical evidence of the effect of health related food and drinks taxes in real settings is increasingly available, allowing us to gain an insight into how these measures work in practice. Industry sales figures for taxed drinks in Finland, France, and Hungary all reported a decrease in demand following an increase in price (see Cornelsen & Carreido, 2015( 38 )).

Independent peer-reviewed evaluations of these policies are also emerging. In Mexico, Colchero et al . have published several papers assessing the effects of the sugary drink and unhealthy food tax in place since January 2014. Prospectively collected data on drink prices from the first year of the policy allowed the authors to analyse the consumer pass-on rate of the tax. They found that on average, the price of taxed drinks rose by one peso per litre, equivalent to a pass-on rate of 100%. More detailed evaluation showed that this rate was greater for taxed carbonated drinks than non-carbonated, though the relative price of smaller serving sizes of both these drink types increased more than larger servings( 39 ). Figures on the sugary drink tax in Berkeley, California also revealed interesting outcomes in this respect. Supermarkets passed on more than 100% of the tax, whereas pharmacies passed on 45% and drink prices in corner shops decreased slightly( 40 ). Whether this was due to corner shops being less prepared for the tax than the larger stores, or whether they were attempting to out-compete their rivals is unknown.

Further analyses of consumer data have shown that the taxes in Mexico and Berkeley were successful in reducing purchases. Using detailed records from a consumer panel involving over 6,000 households, Colchero et al. modelled expected 2014 drink sales without the tax, had purchasing trends continued. Comparison between these modelled figures and the consumer-reported purchases for that year revealed an average fall in post-tax purchasing of 6% for 2014. In fact, the difference increased throughout the year to reach a 12% reduction by December( 41 ). Rather than being a short-term effect, analysis of 2015 data showed a sustained decrease in purchasing of taxed beverages, averaging 9.7% for the second year of the policy( 42 ). The figures also revealed that the tax consistently resulted in larger sales decreases amongst lower socioeconomic groups. Given that the study sample was biased towards urban areas, which tend to be wealthier, these studies may have underestimated the tax’s overall effect size.

Similarly, the first year following the introduction of the Berkeley soft drink tax resulted in a 10% reduction in sales of targeted drinks, with no change in total drink spending due to an increase in water sales. However, purchases in neighbouring towns without a tax rose by 7% indicating some cross-border shopping which partly mitigated the tax’s effect( 40 ).

It is important to note, however, that since data from both Mexico and Berkeley are from natural experimental evaluations, results cannot be attributed solely to the tax. Parallel public health campaigns publicising the risks associated with sugary drinks and advertising restrictions on high-calorie food and drink in Mexico may have also influenced sales, making it impossible to isolate the independent effect of the tax.

While these studies suggest that sugary drink taxes are indeed effective in reducing purchases, further work is required to understand whether these potential consumption changes lead to better health outcomes.

Food tax evaluations

There are also published data on the effects of health related food taxes. A paper studying the Danish saturated fat tax measured how the policy had changed consumption of saturated fats and other nutrients( 37 ). The price changes following the policy’s introduction were varied and, in some cases, substantial: for example, the price of a standard pack of butter rose by 20%. Despite only being in place for 15 months, the authors found that the tax reduced consumption of saturated fat by 4.0% and increased consumption of vegetables and fibre by 7.9% and 3.7% respectively. However, the changes in diet were not all good for health: a 0.4% rise in salt intake was observed alongside a 0.2% fall in fruit consumption. The authors also modelled the effects of these dietary changes on mortality from non-communicable diseases and estimated that the changes in fat, fruit and vegetable, and fibre intake would prevent 165 deaths per year. However, the increase in salt consumption would lead to 41 additional deaths due to the increased risks of hypertension and CVD, leaving the total number of deaths averted by the policy at 123[ 37 ]. This highlights the potential danger of substitutions when fiscal measures targeting foods are used. Indeed, a previous UK study modelling the effects of a 17.5% tax on saturated fats found that this would worsen population health due to increased salt intake.( 43 ).

Along with its tax on sugary drinks, Mexico has an 8% tax on non-essential foods with an energy density of greater than 275kcal/100g. Analysis of its effects on packaged foods showed that in its first year, purchases of taxed products fell by an average of 5%. The greatest purchasing reductions were seen in the lowest socioeconomic tertile, with a fall of 10%, and no change in purchasing was observed in the highest tertile( 44 ). These data may be relevant to the UK, where the greatest burden of diet-related disease is in the most deprived groups. However, at this stage the effect of the tax on the entire diet is unknown.

The failure of Denmark to maintain their saturated fat tax for more than 15 months shows the challenges of implementing health related food taxes. Denmark’s tax received very little input from public health professionals during its formulation, while the food industry had substantial influence on the design and revision of the policy( 35 ). Moreover, the stated aim of tax was to generate revenue, rather than to improve population health, which may have compromised its ability to maximize health outcomes( 36 ).

Overall, empirical data from health related food and drink taxes suggest that almost all have been effective in reducing consumption of the targeted product or nutrient. For sugary drinks, this will likely lead to health benefits, though the scale of these is as yet unknown. The evidence is less compelling for health related food taxes, and there is a danger of poorly designed taxes causing harm through unforeseen substitution effects.

What does this mean for the UK?

In April 2018, the UK is due to introduce the SDIL to tackle obesity. While observing the effects of policies in other countries is useful when predicting what might happen, the SDIL is distinct from sugary drink taxes introduced elsewhere. Rather than a single tax rate applied to the product, the SDIL is a two-tiered industry levy where producers are taxed according to a drink’s sugar concentration. Drinks containing more than 8g of sugar per 100ml face a 24p tax per litre, 5-8g sugar/100ml will be taxed at 18p/l, and drinks containing less than 5g/100ml sugar will not be taxed( 3 ). The levy is explicitly designed to encourage changes to industry behaviour rather than to directly affect consumer behaviour. Aside from passing on the tax to consumers, industry could reduce their tax burden by reformulating drinks to decrease sugar content, changing their advertising to encourage consumers to switch to untaxed alternatives, or changing their portion sizes such that taxed drinks are sold for the same price but at a lower volume. Indeed, reformulation is already occurring, with producers including Tesco and Ribena-Lucozade-Suntory either pledging to or already reformulating their products to below 5g sugar per 100ml( 45 , 46 ).

Recent modelling of the SDIL estimated how different industry responses may affect sugary drink consumption and health in the UK. The authors compared three possible scenarios: reformulation of high and mid-sugar drinks to reduce sugar by 30% and 15% respectively, a price change based on 50% of the levy being passed on to consumers, and changes to marketing strategies such that there is a 20% reduction in sugar consumption from high and mid-sugar drinks. The largest reductions in disease burden were estimated to occur following reformulation, with the greatest relative health benefits accruing among children compared with adults. The reformulation scenario was estimated to lead to an overall fall in obesity prevalence of 144,000 people (equivalent to 0.9% of the obese population), to reduce annual diabetes incidence by 19,000, and to result in 270,000 fewer decayed, missing, or filled teeth per year( 47 ).

However, some of the wider potential impacts of sugary drink taxes (shown in figure 1 ) have not yet been quantified. In order to understand the range of possible consequences of the SDIL, prospective evaluation is crucial. Such a study is already underway, funded by the National Institute of Health Research and involving the Universities of Cambridge and Oxford, and the London School of Hygiene and Tropical Medicine. The study adopts a systems perspective covering three major areas: whether the levy has an effect on health (and for whom), the process underlying how the levy was introduced, and how wider attitudes to the levy change over time( 48 ). Data on the price, sugar levels, purchases, and consumption of sugary drinks and their substitutes and complements are being collected and analysed. Short term health outcomes will be estimated where possible, with longer term outcomes (beyond 2020) being modelled. Industry costs and government revenues will be measured, as well as wider consequences for the economy, and there is ongoing in-depth analysis of how the levy is changing consumer attitudes and behaviours using both qualitative and quantitative methods.

Criticisms of the SDIL

Despite the success of sugary drink taxes abroad, as well as modelling suggesting the UK levy will improve public health, the policy still faces criticism. One of the most common objections is that it will cause job losses. An industry-funded report predicted that 4,000 posts would be lost as a result of the levy( 49 ), however the calculations performed failed to adjust for employment gains resulting from increased sales of non-taxed drinks, and jobs created in the administration of the policy itself. Indeed, researchers found no reduction in employment in relevant manufacturing and commercial industries associated with the introduction of the Mexican sugary drink tax( 50 ), while modelling from the US estimates that sugary drink taxes could even lead to a net gain in employment( 51 ).

Opponents of the SDIL also rightly point out that it is regressive. However, like other taxed products including alcohol and tobacco, these drinks are non-essential and the levy may be progressive for health. This is because more deprived populations generally have a higher prevalence of obesity( 9 ). Furthermore, as seen with the Mexican data, those from lower socioeconomic groups may also be more price sensitive. Finally, the SDIL comes alongside a commitment to use the revenue to increase funding for breakfast clubs and after school activities, which may offer greater benefits to those who are less well off.

Conclusions

Health related food and drink taxes have the capability to modify population diets and reduce disease. Both modelling studies and a growing number of natural experiments indicate that fiscal measures are likely to be effective in bringing about desired price and purchasing changes, while the weight of published data on sugary drink taxes suggests that they will improve population health. However, the evidence is less clear for health related food taxes, where the consequences of unforeseen changes in substitutions and complementary foods are not as easy to predict and could mitigate any health gain if the tax is poorly designed. This is more likely to happen with taxes on specific nutrients rather than broader food categories because the complexity of a nutrient tax makes it harder to model and evaluate how the overall diet will be affected. Any health related food tax should, therefore, be both carefully designed and closely evaluated to minimise these unintended consequences and maximise population health.

In this review, we outline the potential for unhealthy food and drink taxes to improve health, and highlight where their possible consequences remain uncertain. In addition to their direct effects, the use of these policies alongside other public health strategies could further increase their impact and the revenue generated could be channelled into other health-related interventions. Taxes alone will not solve the burden of diet-related ill health, but they will make an important contribution to shifting both industry and consumer behaviour in the right direction.

Acknowledgements

We thank our colleagues at the Universities of Cambridge and Oxford, and at the London School of Hygiene and Tropical Medicine who form the UK Soft Drinks Industry Levy Evaluation Study team, listed here: http://www.cedar.iph.cam.ac.uk/research/dietary-public-health/food-behaviours-public-health-interventions/sdil/ , for discussions about evaluating the SDIL which have directly informed the evaluation section of this review. We are particularly grateful to the team’s Principal Investigator, Prof Martin White, for his detailed comments and suggestions on the manuscript.

Financial Support

PS is funded by a BHF Intermediate Basic Science Research Fellowship (FS/15/34/31656). MR is funded by the British Heart Foundation (006/PSS/CORE/2016/OXFORD). AB, PS and MR are co-investigators on NIHR Public Health Research funded grants 16/130/01 and 16/49/01 to evaluate the health impacts of UK Soft Drinks Industry Levy. No other specific grant from any funding agency, commercial, or not-for-profit sector was received for this work.

Conflicts of interest

ADMB is a member of the Faculty of Public Health and the UK Health Forum. MR is Chair of Sustain: the alliance for better food and farming and is a member of the UK Health Forum. These three organisations have position statements supporting taxes on sugar sweetened beverages. There are no other conflicts of interest.

‘Gut Health’ Has a Fatal Flaw

The obsession with digestion has gone too far.

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In my childhood home, an often-repeated phrase was “All disease begins in the gut.” My dad, a health nut, used this mantra to justify his insistence that our family eat rice-heavy meals, at the exact same time every day, to promote regularity and thus overall health. I would roll my eyes, dubious that his enthusiasm for this practice was anything more than fussiness.

Now, to my chagrin, his obsession has become mainstream. Social-media testimonials claim that improving your “gut health” not only helps with stomach issues such as bloating and pain but also leads to benefits beyond the gastrointestinal system (easing problems including, but not limited to, itching , puffy face, slow-growing hair, low energy , acne , weight gain , and anxiety ). You can now find a staggering range of products claiming to support digestive health: Joining traditionally gut-friendly fermented foods such as yogurt and sauerkraut are “probiotic” or “prebiotic” teas, cookies, gummies, supplements, powders, and even sodas.

The reality is less straightforward. Maintaining the health of the gastrointestinal tract, like the health of any body part, is always a good idea. But expecting certain foods and products to overhaul gut health is unrealistic, as is believing that they will guarantee greater overall well-being. Those claims are “a little bit premature,” Karen Corbin, an investigator at the AdventHealth Research Institute of Metabolism and Diabetes, told me. Obsessing over it just isn’t worth the trouble, and can even do more harm than good. “Gut health” cookies, after all, are still cookies.

In my dad’s defense, your gut does matter for your health. A massive microbial civilization lives mostly along the large intestine , helping the body get the most out of food. Broadly, a healthy gut is one where the different segments of this population—numerous species of bacteria, fungi, and viruses—live in harmony. An unhealthy one implies a disturbance of the peace: One group may grow too powerful, or an invading microbe may throw things off-balance, leading to problems including gastroenteritis and a compromised immune system .

Diet in particular has a profound impact on the gut—and how it subsequently makes you feel. “Food can have effects on the microbiome, which can then secondarily affect the host,” Purna Kashyap, a gastroenterologist at the Mayo Clinic, told me. The effects of food on a person and their microbes, he added, are generally congruent; fast food, for example, is “bad for both of us.” Neglect to feed your microbiome and the balance of microbes could tip into disarray, resulting in an imbalanced gut and corresponding bloating, stomach pain, and problems with bowel movements.

Fermented foods such as yogurt and kimchi, long considered good for digestive health, are known as “probiotics” because they contain live bacteria that take up residence in your gut. Other foods are considered “prebiotic” because they feed the microbes already in your gut—mostly fiber, because it isn’t digested in the stomach. Getting more fiber improves regularity and supports a more normal GI system, Corbin said.

But the fundamental problem with the gut-health obsession is that “there’s no clear definition of a healthy gut microbiome,” Corbin said. The makeup and balance of people’s microbiomes vary based on numerous factors, including genes, diet, environment, and even pets. This means that a treatment that works to rebalance one gut might not work for another. It also means that a product promoting a healthy gut doesn’t mean anything concrete. The idea that achieving gut health, however it’s defined, can solve stomach-related issues is misguided; many diseases can cause abdominal distress.

Less certain is how much gut health is responsible for benefits beyond the gastrointestinal tract. No doubt the microbiome is connected to other parts of the body; recent research has suggested that it has a role in weight gain , depression , and even cancer , supporting the idea that having a healthy gut could lead to other benefits. But the mechanisms underpinning them are largely unknown. Which microbes are involved? What are they doing? There are “a lot of tall claims based on animal studies that the microbiome influences diabetes or obesity or whatever,” and the translatability of those studies to humans is “really unlikely,” Daniel Freedberg, a gastroenterologist at Columbia University, told me. Until scientists can show definitively that microbe X leads to outcome Y, Corbin said, any relationships between the gut and overall health are “just correlations.”

None of this is to say that paying more attention to your digestive health is a bad idea. Especially for people diagnosed with gastrointestinal problems like IBS or Crohn’s disease, it can be essential. For everyone else, pursuing a healthy gut with food and supplements can be a nonspecific process with poorly defined goals. The food industry has capitalized on interest in probiotics and prebiotics—as well as lesser-known postbiotics and synbiotics —making products such as “insanely probiotic” yogurt , probiotic-fortified chocolate and spaghetti, and prebiotic sodas. Particularly with probiotics, the specifics are lacking. Which bacteria, and how many of them, actually make it past the stomach into the colon isn’t well understood. “A lot of probiotics are unlikely to contain viable bacteria, and probably very few of them are really making it through to the colon,” Freedberg said.

Prebiotics are generally more important, although the source matters. Prebiotic fiber is “one of the most important things that determines what bacteria are there,” Freedberg told me, but getting small amounts from fiber-fortified products isn't going to make a huge difference. The soda brands Poppi and Olipop largely contain inulin, a type of fiber that’s common in food manufacturing for its slightly sweet taste, Freedberg explained, though it probably doesn’t contain a lot, otherwise it would become “sludgy.” Olipop contains about nine grams of fiber per can, roughly the same amount as one cup of cooked lima beans .

Of course, any product that is inherently unhealthy won’t magically become good for you the moment fiber or live bacteria are added to it. With desserts and salty snacks, no amount of fiber “is going to overcome the issue” that they are full of sugar or salt, Corbin said. Concerns about medium aside, though, gut-health products elicited a shrug from her: Buying foods containing additional prebiotic fiber is a “reasonable approach,” so long as they’re healthy to begin with. If probiotics make a patient feel “fantastic,” Freedberg said, “I’m not going to rock the boat.” Prebiotic and probiotic products may help to a degree, but don’t expect them to overhaul an unhealthy gut one soda at a time. All of the experts I spoke with said that people concerned about their gut health should eat a lot of fruits, vegetables, whole grains, and legumes, and cut out junk that won’t feed their microbiome. In other words, a basic healthy diet is more than enough to achieve good gut health.

My dad’s gut-health mantra was apparently borrowed from Hippocrates , suggesting that people have been obsessing over the digestive system for thousands of years with the belief that it is the key to overall health. The draw of this idea is its simplicity: Proposing that the body’s many ills can be collapsed into a single mega-ailment makes treatment seem refreshingly uncomplicated compared with the medical interventions needed to address individual problems. That the proposed treatments are easy and self-administrable—sipping fibrous soda, popping bacteria-packed pills—adds to the appeal.

But perhaps what is most compelling about the idea is that there is some truth to it. Lately, research on the microbiome has seen some promising advances. A large study published in 2022 showed significantly elevated levels of certain bacteria in people with depressive symptoms. Another study , co-authored by Corbin in 2023, was one of the first to show, in a human clinical trial, that a high-fiber diet shifts the microbiome in a way that could promote weight loss. This moment is especially confusing because we are finally beginning to understand the gut’s connections to the rest of the body, and how eating certain foods can soothe it. Much more is known about the gut than in the days of Hippocrates, but still far less than the gut influencers on social media would have you believe.

Essential Health Benefits and the Affordable Care Act: Law and Process

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Nicholas Bagley , Helen Levy; Essential Health Benefits and the Affordable Care Act: Law and Process. J Health Polit Policy Law 1 April 2014; 39 (2): 441–465. doi: https://doi.org/10.1215/03616878-2416325

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Starting in 2014, the Affordable Care Act (ACA) will require private insurance plans sold in the individual and small-group markets to cover a roster of “essential health benefits.” Precisely which benefits should count as essential, however, was left to the discretion of the Department of Health and Human Services (HHS). The matter was both important and controversial. Nonetheless, HHS announced its policy by posting on the Internet a thirteen-page bulletin stating that it would allow each state to define essential benefits for itself. On both substance and procedure, the move was surprising. The state-by-state approach departed from the uniform, federal standard that the ACA appears to anticipate and that informed observers expected HHS to adopt. And announcing the policy through an Internet bulletin appeared to allow HHS to sidestep traditional administrative procedures, including notice and comment, immediate review in the courts, and White House oversight. This article explores two questions. First, is the state-by-state approach a lawful exercise of HHS's authority? Second, did HHS in fact evade the procedural obligations that are meant to shape the exercise of its discretion?

Editor's Note: Thanks to funding from the Blue Shield of California Foundation and the Robert Wood Johnson Foundation, JHPPL has begun the coordination of an Engaged State Health Reform Research Network to bring together people from different backgrounds (practitioners, stakeholders, and researchers) involved in state-level health reform implementation to inform and extend health reform across the United States. A network website will document implementation projects across the country, workshops will be held, and JHPPL will publish essays under this new section based on findings emerging from network participants. All essays in the section will be published open access. —Colleen M. Grogran

The Affordable Care Act (ACA) creates dozens of new programs that require some kind of implementation at the agency level. By and large, the regulations governing these new programs have been promulgated through relatively formal notice-and-comment procedures and subjected to review coordinated by the Office of Information and Regulatory Affairs (OIRA). But the federal agencies implementing the ACA have at times eschewed notice-and-comment rulemaking even where it might have seemed appropriate. They have instead announced a number of critically important policies through guidance documents — a broad category that encompasses bulletins, memoranda, and letters to state officials. These guidance documents are typically published not in Federal Register notices but on agency websites.

This implementation strategy raises questions — perennials in administrative law — about the virtues and vices of substituting guidance for notice-and-comment rulemaking. Does the use of guidance reflect the zealous pursuit of good policy by government officials reluctant to get bogged down in ritualistic bureaucratic exercises? Or does it represent an effort to avoid the rough-and-tumble of public deliberation over the merits of particular rules?

We consider this question in the context of a case study. Beginning in 2014, the ACA will require private insurance plans sold in the individual and small-group markets to cover a roster of “essential health benefits.” Precisely which benefits should count as essential, however, was left to the discretion of the Department of Health and Human Services (HHS). The matter was delicate. An expansive bundle of mandatory services would assure comprehensive coverage, but would also raise the cost of insurance and could impede efforts to achieve near-universal coverage. Whatever HHS eventually decided, its choice would “influence the nature of coverage available to millions of people in the United States” (IOM 2011b : 17).

In December 2011, HHS released its first official communication on essential health benefits: a thirteen-page bulletin posted on the agency's website. The bulletin announced HHS's intention of allowing each state to define essential benefits for itself by choosing a “benchmark” plan modeled on existing plans in the state. The benefits included in that benchmark plan (subject to some adjustments) would be considered essential within the state.

On both substance and procedure, the move was surprising. The benchmark approach departed from the uniform, federal standard that the ACA appears to anticipate and that many informed observers expected HHS to adopt. And announcing the policy through an Internet bulletin came under immediate criticism because it allowed the agency to sidestep conventional administrative procedures — including notice and comment, immediate review in the courts, and OIRA oversight — notwithstanding the ACA's command that HHS “provide notice and an opportunity for public comment” on the definition of essential health benefits (section 1302). By the time HHS issued a notice of proposed rulemaking (NPRM) on essential health benefits in November 2012, the deadline for states to submit their proposed benchmark plans to the agency was already two months in the past.

What are we to make of this? The story of essential health benefits offers insight into the merits of using guidance documents; it is also interesting in its own right, both because of the importance of the policy question and because of HHS's unexpected decision. In this essay, we explore two questions. First, is the benchmark approach a lawful exercise of HHS's authority under the ACA? Although HHS has brushed up against the limits of its discretionary authority, we conclude that the approach likely will (and, in our view, should) be upheld in the event of a challenge. Second, did HHS's announcement of the benchmark approach through an Internet bulletin allow the agency to sidestep the administrative procedures that are meant to shape the exercise of its discretion? The answer, we believe, is no. In fact, the agency's unconventional process was more open to public scrutiny and external oversight than conventional rulemaking would have been.

  • Defining Essential Health Benefits

Ambulatory patient services

Emergency services

Hospitalization

Maternity and newborn care

Mental health and substance use disorder services, including behavioral health treatment

Prescription drugs

Rehabilitative and habilitative services and devices

Laboratory services

Preventive and wellness services and chronic disease management

Pediatric services, including oral and vision care

Many of these inclusions are significant — for example, a more bare-bones approach might have excluded prescription drugs and pediatric dental care — but the list, by design, leaves much detail to be specified by subsequent regulation. For example, does the “habilitative services” category include behavioral treatment for autism, an expensive therapy with mixed evidence of effectiveness (Reichow 2012 )? What do “preventive and wellness services” encompass beyond the ones that another provision of the ACA requires all plans to cover without cost sharing (sections 1001, 2713)?

Sensitive to the need for greater detail, the ACA instructs the secretary of HHS to flesh out the definition of essential health benefits. Specifically, the statute directs her to “ensure that the scope of the essential health benefits … is equal to the scope of benefits provided under a typical employer plan, as determined by the Secretary.” Congress also instructed the secretary of the Department of Labor to survey insurance plans “to determine the benefits typically covered by employers” and report back to the secretary of HHS. “In defining the essential health benefits,” the statute further provides, “the Secretary shall provide notice and an opportunity for public comment” (section 1302).

In the normal course of regulatory events, HHS might have been expected to launch an orderly rulemaking process not long after the ACA's enactment. It is hard to say exactly what a reasonable time frame for this might have been, but the ACA required states to demonstrate to HHS by January 2013 that they would have health insurance exchanges up and running within a year. To make such a demonstration, states would have to know well in advance about the scope of benefits that plans on the exchanges would have to cover. Working backward, a notice of proposed rulemaking would probably have had to issue by the end of 2011, followed by a final rule in mid-2012, to have any hope of giving states the certainty they needed to create their exchanges. That is not, however, what happened.

Shortly after the ACA's enactment, HHS turned to the Institute of Medicine (IOM) for “advice on a process and considerations the Department needs to take into account in its initial establishment of [essential health benefits] and in updating them over time” (IOM 2011a ). In other words, HHS asked the IOM not to define essential benefits but to offer suggestions on how HHS might do so. The IOM report was expected to be completed in the fall of 2011. Enlisting help from the IOM bought HHS time during which it might reasonably do nothing. Assuming the agency was prepared to issue a notice of proposed rulemaking soon after the release of the IOM report, the formal rulemaking process could proceed on a time frame that would allow for meaningful interaction with states and other interested parties — including insurers, health care providers, and consumer-advocacy groups — before bumping into deadlines for health insurance exchanges.

The IOM tackled its assignment with dispatch, quickly convening an expert panel to write a report recommending methods for determining and updating essential benefits. It also invited members of the public to submit comments online, and held two public conferences, one in Washington, DC, in January 2011 and another in Costa Mesa, California, in March 2011. Featuring presentations from an impressive range of experts and stakeholders, these conferences were later summarized in a volume that the IOM ( 2011b ) released to the public.

Meanwhile, in April 2011, the Department of Labor delivered its report on employer-sponsored coverage to HHS (Department of Labor 2011 ). Unfortunately, the Department of Labor surveys on which the report was based relied on “summary plan descriptions” that employers provide to their workers — and those descriptions lack detailed information about the scope of coverage for specific services. The report therefore gave HHS little to guide its decision; it certainly provided no help on whether, say, a “typical” employer plan covered behavioral treatment for autism.

The IOM went considerably further. On October 6, 2011, the expert panel released a 256-page report recommending a method for determining essential benefits (IOM 2011a ). Somewhat controversially, the report proposed a “premium target” approach in which a single national package of essential benefits would be tied to the cost of a typical benefits package in the small-group market. That national package would then be updated over time to reflect innovation and public deliberation.

Following the release of the IOM report, the agency announced that it would hold a series of “listening sessions” over the subsequent months. These sessions — two-hour meetings at which members of the public could share their opinions with HHS officials — were conducted in each of ten HHS-defined regions. Sessions took place in Chicago, Boston, Philadelphia, Dallas, New York, Kansas City, Atlanta, Seattle, Denver, and, finally, on the Monday before Thanksgiving, San Francisco.

Three and a half weeks later, reports began to circulate that HHS intended to release a “prerule” on essential health benefits, although the term prerule created confusion. “Not even the most seasoned Washingtonians seem to know what it means,” reported Politico (Feder and Millman 2011 ). Finally, on December 16, 2011, the prerule was posted on HHS's website with the title “Essential Health Benefits Bulletin” (CCIIO 2011 ).

Although the medium may have created some confusion, the bulletin's message was both concise and surprising. Rather than specify a uniform national benefits package, the bulletin proposed to allow states to choose a “benchmark plan” to define essential health benefits. This approach was modeled on how states choose benefits under the State Children's Health Insurance Program, also known as SCHIP (KFF 2007 ). A modified version of the same policy was introduced into Medicaid by the Deficit Reduction Act of 2005. Under the Medicaid version of the benchmark approach, states were allowed to offer a modified set of benefits, linked to a state-selected benchmark, to some groups of adult Medicaid enrollees (KFF 2010 ).

Adapting the benchmark approach for essential health benefits, the bulletin proposed allowing each state to choose a “benchmark plan” from a menu of options, including the three largest insurance plans in the state's small-group market and the three largest plans available to state employees. The default benchmark, for states that failed to select one, would be the largest small-group plan in the state. Subject to adjustments to assure their conformity with the ACA's list of coverage requirements, these benchmark plans would define essential benefits within the states. At just thirteen pages long, the bulletin provided few details. Additional information, the bulletin suggested, would be forthcoming in the full-dress rulemaking proceeding.

  • Responses to the Bulletin

The benchmark approach was front-page news, described by the New York Times as a “major surprise” (Pear 2011 ). As we explain in greater detail below, the ACA was drafted on the assumption that HHS would choose a single, national definition of essential health benefits. The Congressional Budget Office (CBO 2012 : 8), for one important example, had scored it on that assumption. Most expert observers had not seriously considered a state-specific benchmark prior to the bulletin. And the IOM report never mentioned the benchmark approach that the bulletin ultimately proposed, although it did offer a limited endorsement of the idea that states might deviate from the national definition of essential benefits, subject to approval by HHS (IOM 2011a : 129).

Why did HHS take such an unanticipated approach to essential health benefits? Politics certainly played a role. The benchmark approach gave states flexibility at a time when many were complaining about the lack of it. In addition — and although we lack the space here to thoroughly examine the question — smart politics may have made for smart policy. Because most health insurance plans “do not differ significantly in the range of services they cover” and “generally cover health care services in virtually all of the 10 statutory categories,” no state could select a threadbare benchmark plan that would thwart the ACA's effort to guarantee the availability of comprehensive coverage (CCIIO 2011 : 4). And tying local benefits to local market conditions would probably result in less distortion (i.e., greater efficiency) than if benefits were required to be uniform.

The benchmark approach does create winners and losers. Because of the way premium subsidies and tax-sharing credits are calculated, recipients of subsidized coverage in states with generous benefits will receive modestly more federal support than those in less generous states. But many policies give rise to that kind of differential treatment; variation across states is simply a feature of our federal system. Even John Ball, the chair of the IOM panel that recommended tying essential health benefits to a premium target, offered only gentle criticism of the benchmark approach. “Given where the department is coming from, giving flexibility to the states is a good thing,” he told Politico . “But I do think they missed an opportunity to take a crack at getting costs under control” (Millman 2011b ).

By issuing a “bulletin” rather than a proposed rule, the administration has sidestepped the requirement to publish a cost-benefit analysis estimating the impact these mandates will have on health insurance premiums and the increased costs to the federal government. … The administration is not required to respond to comments received regarding this “bulletin.” Publishing a “bulletin” rather than a proposed rule is the antithesis of an “open and transparent” process.  …  The bulletin also does not have the force of law and cannot, therefore, be considered an indication of what the proposed or final rule will decree. Thus, states still have many unanswered questions and no more certainty than they had before the “bulletin” was released. … It is unreasonable to expect states to be ready to implement such draconian changes by 2014, if the Administration is not even ready to issue a proposed rule on such an integral part of the functioning of the law. (Enzi et al. 2012 )

These concerns notwithstanding, the bulletin prompted many states to launch their own administrative processes for selecting benchmark plans. And that was the point: “By releasing the bulletin now,” the secretary of HHS explained, “we're giving families, employers and states plenty of time to take this information into account as they plan for the big improvements the health care law will make to the insurance market in 2014” (Sebelius 2011 ). With very little time to go before the January 2013 deadline for demonstrating readiness to run an exchange, and other reform-related tasks to complete at the same time, any state interested in running its own exchange could not really afford to wait.

Your office released essential health benefits guidance on December 16, 2011, with the promise of more to come. It has yet to arrive. It has become clear to me that the states have been left to decide the fate of their insurance marketplaces with no additional guidance or regulations on essential health benefits. This places governors and other leaders in the untenable position of making a critical decision based on little more than vague guidance and guesswork. … I decline to make a decision on the essential health benefits benchmark plan. There is simply not enough valid information available now to make an informed choice for such an important decision.

Ultimately, twenty-seven states held a public comment period on the subject of the benchmark plan as part of the selection process, and twenty-four states submitted their proposed benchmark plans to HHS by the October 1, 2012, deadline (Avalere Health 2012 ; Schwartz 2012 ). Alabama and Pennsylvania were not among them.

On November 26, 2012 — twenty days after the reelection of President Barack Obama and almost a year after the release of the bulletin — HHS published in the Federal Register a notice of proposed rulemaking on essential health benefits. The NPRM formally proposed the benchmark approach that the bulletin had previewed. In its discussion of regulatory alternatives, the NPRM ( 2012 : 70,665) said,

At the request of some commenters, HHS considered one national definition of [essential health benefits] that would have applicable issuers offer a uniform list of benefits. However, this approach would not allow for state flexibility and issuer innovation in benefit design, would require a burdensome overhaul for issuers, and would disrupt the market.

These two sentences represent the entirety of the NPRM's discussion of the policy wisdom of the benchmark approach. The final rule, issued on February 25, 2013, deviated little, if at all, from the NPRM. On the possibility of a single national definition of essential health benefits, the final rule repeated the two sentences from the NPRM that are quoted above, without further elaboration (Final Rule 2013 : 12,861).

  • Legality of the Benchmark Approach

Because the ACA does not explicitly contemplate a state-based benchmark approach to essential health benefits, the question arises whether the approach is consistent with statute. In other words, has the secretary exceeded the bounds of her discretionary authority? Notwithstanding its considerable importance, the question has received scant public attention.

HHS has not yet offered a legal defense of the benchmark approach, but its argument will probably run something like this: where agencies interpret open-ended phrases through notice-and-comment rulemaking, courts typically give agencies a lot of leeway. This practice is known as “ Chevron deference,” after the landmark case establishing it ( Chevron U.S.A. v. Natural Res. Def. Council , 467 U.S. 837 [1984]). Here Congress delegated to the secretary of HHS broad authority to flesh out the meaning of “essential health benefits.” Under Chevron , the secretary's interpretation of the statutory phrase will be upheld so long as that interpretation offers a reasonable construction of the ACA. Nothing in the statute precludes the secretary either from linking those benefits to state health plans or from giving the states the flexibility to select benchmark plans. Given congressional silence on those points, the secretary's exercise of her authority is fully consistent with the ACA.

This argument is a powerful one. There are, however, two ways in which the benchmark approach is arguably difficult to square with the text of the ACA. The first is obvious. In a statute that attends carefully to the division of regulatory labor between the federal government and the states, the ACA repeatedly confirms that “ the Secretary shall define the essential health benefits” (section 1302). This is not casual language: in three separate places in the same statutory section, the act contemplates that the secretary would be the one “defining” and then “revising” what counts as essential health benefits. The ACA even instructs the secretary to “ensure that the scope of essential health benefits … is equal to the scope of benefits provided under a typical employer plan, as determined by the Secretary .” The phrase “as determined by the Secretary” would do no work unless it was the secretary — not the states — doing the determining.

This objection, however, is not terribly persuasive. Although a federal agency cannot delegate its powers to the states, it “may turn to an outside entity for advice and policy recommendations, provided the agency makes the final decisions itself” ( U.S. Telecom Ass'n v. F.C.C. , 359 F.3d 554 [D.C. Cir. 2004]). Here the secretary gave the states a constrained set of options (e.g., choose a benchmark plan from among the three largest small-group plans in the state) and retained the authority to select a benchmark for any state that either does not pick a benchmark or chooses an inappropriate one (NPRM 2012 : 70,667). As such, the secretary remains firmly in control. Nothing in the ACA prevents her from deferring to states that select benchmark plans from among the few options she has provided. That choice to defer is itself an exercise of her delegated powers.

The second potential objection to the benchmark approach is both less obvious and more substantial. Notwithstanding the secretary's wide discretion to define essential health benefits, there are limits to the deference that courts afford to agencies that interpret open-ended statutory language. As the D.C. Circuit has explained, the notion that an agency interpretation is permissible just because the statute in question “does not expressly negate the existence of a claimed administrative power (i.e. when the statute is not written in ‘thou shalt not’ terms), is both flatly unfaithful to the principles of administrative law … and refuted by precedent” ( Ry. Labor Executives' Ass'n v. Nat'l Mediation Bd. , 29 F.3d 655 [D.C. Cir. 1994]). “The question,” the Supreme Court has recently emphasized, “is always whether the agency has gone beyond what Congress has permitted it to do” ( City of Arlington v. FCC , 133 S.Ct. 1863 [2013]). In other words, agencies may fill in statutory gaps — but only up to a point. Where an agency's interpretation of an open-ended provision clashes with the statutory scheme as a whole, the courts will not presume that Congress meant to authorize the agency to so interpret the statute ( Brown v. Gardner , 513 U.S. 115 [1994]).

As we have discussed, the ACA was enacted on the assumption that HHS would establish a nationally uniform slate of essential health benefits. Under the benchmark approach, however, there will now be dozens of state-specific sets of essential health benefits. Many provisions of the ACA are inscrutable, extraneous, or impossible to implement in the face of that kind of variation. Consider again, for example, the requirement that essential health benefits must be “equivalent to the scope of benefits provided under a typical employer plan” (section 1302). How can a variable roster of state-specific essential health benefits be equivalent to the scope of benefits provided under “an” (which is to say, one) employer plan?

Nowhere is the problem more apparent than in provisions governing state coverage mandates. Some states require insurers to cover specific benefits — for example, applied behavior analysis for autism or in vitro fertilization services — that Congress anticipated might exceed what the secretary would deem essential. Congress, however, did not want to devote the tax credits and cost-sharing payments available on the exchanges to the coverage of these state-mandated benefits. The ACA therefore limits federal subsidies to defraying the costs of essential health benefits (section 1401). States must pick up the rest of the tab to assure that exchange plans that include extra state-mandated benefits remain affordable (section 1311).

Under the benchmark approach, however, this cost-sharing arrangement becomes irrelevant. A state's benchmark plan will inevitably cover the treatments or services that the state has mandated. As such, a state's essential health benefits will by definition include all of the benefits for which the state mandates coverage. State coverage mandates can therefore never exceed essential health benefits, and states with extensive coverage mandates will never assume the additional costs that the ACA anticipates they will assume. Did Congress really intend its cost-sharing provisions to do no work at all?

The benchmark approach also raises questions about certain specialized insurance plans that will be sold on the exchanges. For the most significant example, the ACA instructs the Office of Personnel Management (OPM) to enter into contracts with health insurers to sell at least two “multi-state plans” on each state exchange. Those insurers must “offe[r] a benefits package that is uniform in each State and consists of the essential [health] benefits” (section 10104). Where essential health benefits vary from state to state, however, a multistate plan cannot both be uniform and cover only the essential health benefits.

In proposing regulations for multistate plans, the OPM recognized this problem. Its solution was to read the “uniform in each State” language to require that “the benefits for each [multistate plan] must be uniform within a State, but not necessarily uniform among States” (NPRM 2012 : 72,589). The bare language of the uniformity provision is perhaps amenable to this interpretation. Other statutory clues, however, suggest that Congress meant uniformity among states. Congress specified, for example, that a state can require a multistate plan to cover state-mandated benefits, but only if the state picks up the increased expense (section 10104). There would have been no need for Congress to bless that limited inroad on uniformity among the states if the ACA required uniformity only within each state.

In short, the benchmark approach to essential health benefits fits poorly with a number of provisions of the ACA. That poor fit raises the prospect of a legal challenge: perhaps it suggests that HHS exceeded its delegated powers in adopting the benchmark approach. In this, the claim is reminiscent of FDA v. Brown & Williamson Tobacco Corp. (529 U.S. 120 [2000]), where the Supreme Court rejected the FDA's effort to assert jurisdiction over tobacco. If the FDA could regulate tobacco products, the Court reasoned, the agency's statutory mandate to assure that such products were “safe” would require the FDA to ban cigarettes outright. The Court thought it unimaginable that Congress meant to arm the FDA with that sweeping power. The agency countered by arguing that it could continue to allow cigarettes to be sold because banning them would cause a shift to dangerous black-market cigarettes, harming overall public health. The Court rejected this public health interpretation as “incompatible” with several other provisions of the statute that asked the agency to weigh the therapeutic benefits and potential harms of individual products — not to address general questions of public health. The benchmark approach is subject to similar criticism for its incompatibility with provisions of the ACA that anticipate a single, uniform standard for essential health benefits.

In the final estimation, however, demonstrating the unlawfulness of HHS's approach requires more than showing that its interpretation aligns awkwardly with scattered provisions of the ACA. The question remains whether the fit is so poor that it justifies the inference that Congress could not have meant to allow HHS to interpret the ACA in the manner that it did ( California Indep. Sys. Operator Corp. v. F.E.R.C. , 372 F.3d 395 [D.C. Cir. 2004]). We think not, although the question is close. Unlike Brown & Williamson , this is not a case where HHS has exploited statutory ambiguity in an effort to intrude into regulatory domains that Congress never intended it to enter ( American Bar Ass'n v. F.T.C. , 430 F.3d 457 [D.C. Cir. 2005]). The agency has just chosen to involve the states in defining a statutory term that Congress gave it wide latitude to define. Congress may not have contemplated that HHS would adopt a benchmark approach, but so what? Agencies routinely discharge their statutory obligations in ways that Congress never anticipated, particularly in complex and fast-changing regulatory environments.

While HHS's interpretation does fit uneasily with several provisions of the ACA, the agency could always shift course, and provisions that do no work today may be crucial tomorrow. More importantly, the interpretation of a complex statute is a messy business. Some statutory provisions will inevitably prove less significant than they would have been under alternative readings. An agency's choice is not usually deficient for that reason alone ( Babbitt v. Sweet Home Chapter, Communities for Great Ore. , 515 U.S. 687 [1995]). Something more than the statutory tension that the secretary's interpretation creates — something closer to the incompatibility found in Brown & Williamson  — would be necessary to conclude that Congress meant to preclude HHS from establishing essential health benefits with reference to state benchmarks.

  • Process-Based Concerns

Setting aside the legality of the benchmark approach, the fact remains that HHS used a guidance document — a thirteen-page bulletin posted on its website — to announce its new policy. As is typically the case with such a policy statement, the bulletin nowhere committed the agency to the approach that it outlined. As a formal legal matter, it had no more significance than an advance notice of proposed rulemaking or a press release.

Why, then, was this “atypical approach” so “widely criticized” (Cassidy 2011 )? Given the looming deadlines for the exchanges, states and insurers understood that the benchmark approach outlined in the bulletin was not just one possibility among many. It was almost certainly the rule. HHS said as much when, in a call with reporters on the day the bulletin issued, agency officials categorically rejected any suggestion that they might change their mind and bluntly said, “This is our intended regulatory approach” (Glied 2011 ). More significantly, the agency began the traditional rulemaking process required under the Administrative Procedure Act (APA) after the states' deadline for selecting benchmark plans had passed and after insurers started developing new insurance products for the exchanges.

The federal courts have a practice of asking whether policy statements, although they nominally lack the force of law, are nonetheless binding as a practical matter ( Community Nutrition Inst. v. Young , 818 F.2d 943 [D.C. Cir. 1987]). Where policy statements have such binding effect, they can be deemed “legislative rules” and, if challenged, invalidated for failure to go through notice-and-comment rulemaking. Although the line separating policy statements from legislative rules is not crisp (Gersen 2007 : 1712), two factors are especially important in suggesting that the line has been crossed: first, when the policy statement has “present effect” by imposing “obligations” on the regulated community; and second, when the policy statement does not “genuinely” afford the agency the opportunity to change its mind ( American Bus Assoc. v. United States , 627 F.2d 525 [D.C. Cir. 1980]). Judged by this standard, the bulletin arguably became a legislative rule once states, insurers, and employers realized that they had no choice but to conform to it and HHS had no time left to rethink it.

The bulletin, however, did not go through the formal rulemaking process. From this perspective, HHS's procedural approach — a bulletin, followed by a long wait and then a hurried notice-and-comment session — seems to confirm the fears of those who worry that agencies will use guidance to avoid administrative procedures and, at low cost and with relative ease, dictate to regulated entities how they must order their affairs (Anthony 1992 ).

But what, exactly, did the use of guidance allow HHS to avoid? We consider three procedural requirements that would have applied in a conventional rulemaking setting, but to which the bulletin, as a guidance document, was not subject: notice and comment, immediate judicial review, and OIRA review. What is most notable about HHS's unorthodox process, however, is not that the agency avoided these procedures. It is that the agency voluntarily subjected itself to most of the obligations that adherence to the procedures would have entailed.

Notice and Comment

The APA's notice-and-comment process is meant to allow for public feedback on proposed rules, to supply agencies with information that can aid them in revising those rules, and to publicly legitimate the rules they finally adopt (Breyer et al. 2002 : 658). Notice and comment, however, can serve those purposes only if agencies are open to revisiting their proposed rules when they receive feedback. In the case of essential benefits, HHS committed itself to the benchmark approach long before issuing its notice of proposed rulemaking. That transformed the comment period — at least with respect to the high-level policy choice of whether to adopt the state-based benchmark approach — into an empty formality. HHS's curt dismissal in the final rule of comments suggesting a single, nationwide standard may have signaled its unwillingness at that late stage even to entertain the possibility.

Still, it does not appear that HHS used the bulletin to avoid public feedback on the benchmark approach. Well before issuing the bulletin, HHS held a number of well-attended “listening sessions” where it sought views from states, insurers, providers, and consumer representatives. Additionally, starting in April 2010, HHS held weekly calls with state officials about implementation of the ACA, calls that informed its thinking about essential health benefits (NPRM 2012 : 70,667). Around the same time, HHS also made it known to outside groups that it was toying with the idea of delegating authority to the states to establish their own essential health benefits. That provoked a consortium of about six dozen public interest groups, led by the National Health Law Program (NHeLP), to submit a lengthy letter to HHS — four months before the bulletin was issued — objecting preemptively to any sort of state-based approach (NHeLP 2011 ). These public discussions and the responses they engendered came on top of both the conferences that the IOM had organized and the notice-and-comment processes that twenty-seven states used to select their benchmark plans.

The agency had no obligation to do any of this public outreach. Without informing anyone of its thinking, HHS could simply have issued a notice of proposed rulemaking announcing the benchmark approach. After receiving comments and issuing a final rule, HHS would then have complied with all of the APA's notice-and-comment requirements. Paradoxically, however, formal compliance might have undermined HHS's effort to seek and receive meaningful public input on its proposed approach. Because courts insist that agencies provide a fulsome explanation of the basis for their proposed rules, HHS would have had to elaborate its benchmark approach in a lengthy notice of considerable specificity (Elliott 1992 : 1494). HHS could then have discarded that approach only if it went through the laborious process of issuing a new notice of proposed rulemaking ( Int'l Union, United Mine Workers of Am. v. Mine Safety & Health Admin. , 407 F.3d 1250 [D.C. Cir. 2005]). But with statutory deadlines looming, the agency could have ill afforded the delay associated with restarting the notice-and-comment process.

Instead, HHS used the bulletin to secure public input during the brief window where it could have reconsidered the benchmark approach. Although agencies do not have to solicit feedback on guidance documents, the bulletin's very first sentence explicitly invited comments from the public. In response, the agency received more than eleven thousand comments (NPRM 2012 : 70,646). HHS did not respond publicly to those comments, as the APA would have required in connection with a rulemaking. But HHS surely understood that the comments it received would preview the concerns voiced during the official notice-and-comment process — and that it would have to address those comments in issuing a final rule. Nor does it seem that the absence of a requirement to publish comments received in response to the bulletin silenced any criticism. Just as the Internet allowed HHS to make the bulletin immediately available to the public, the Internet allowed commenters to publicize their concerns. A number of advocacy groups and state governments — like NHeLP and the officials in Alabama and Pennsylvania — did just that.

Posting the bulletin was an ingenious way to invite public comment without irrevocably committing the agency to the benchmark approach. The bulletin served as a trial balloon — an effort to see if the approach would provoke the sort of outcry or incisive criticism that called for a change in thinking. If there was cause for serious concern, the informality of the prenotice process — in contrast to the rigidity of notice-and-comment rulemaking — would have afforded the agency an opportunity to quickly shift course. When reports surfaced just a week after the bulletin issued that “there was no backlash” to speak of, HHS learned something valuable about the acceptability of its chosen approach (Millman 2011a ).

From the perspective of meaningfully involving the public in agency decision making, then, the bulletin-followed-by-rulemaking approach was superior to a routine process of APA notice-and-comment rulemaking. Significantly, it cleared a route for the agency to receive public comment at the critical prenotice phase of agency rulemaking. Commentators regularly lament that well-organized groups with concentrated interests have better access than diffuse public interest groups to this prenotice process where most important choices are made (Elliott 1992 : 1492). The bulletin addressed this imbalance by telling everyone that the agency was open to hearing from them.

Judicial Review

By using a guidance document to announce the benchmark approach, HHS also arguably circumvented judicial review. Per section 702 of the APA, final rules issued through notice-and-comment rulemaking can usually be challenged in court by those whose conduct the rule affects. In contrast, challenging guidance is much more difficult. Courts often conclude either that guidance is not final agency action or that it is not ripe for review (Mendelson 2007 : 411). Perhaps the perceived difficulty with challenging guidance — and the expectation that the agency would soon resort to rulemaking, mooting any challenge that might be brought to the guidance — explains why no one tried to invalidate the bulletin.

One purpose of judicial review is to assure that agencies do not force regulated interests to comply with rules that agencies lack the authority to issue ( Abbott Laboratories v. Gardner , 387 U.S. 136 [1967]). It is therefore arguably worrisome that states, employers, and insurers did not have an opportunity to challenge HHS's benchmark approach before making costly efforts to conform to that approach. Had HHS issued a proposed rule instead of the bulletin, the agency could have finalized the rule sometime in 2012 or early 2013. A more regular process would therefore have given affected interests an opportunity to challenge the final rule before the requirement to cover essential health benefits sprang into force in January 2014.

There is something to this — but not much. The benchmark approach embodied in the bulletin will not evade preenforcement review altogether. At most, HHS's decision to outline its approach in a bulletin allowed the agency to delay the date on which it issued a final rule. Now that the final rule has issued, someone will probably bring a preenforcement challenge. Perhaps the plaintiff will be the mother of an autistic child who can find no insurance plan in her state that covers needed services but who believes that, had the agency gone through the process of establishing a uniform federal standard, HHS might have included such services in the package of essential health benefits. Or perhaps it will be a California insurance company complaining that it must cover acupuncture services. The important point is that HHS knew when it issued the bulletin that any final rule adopting the benchmark approach would eventually be challenged. The agency's choice was therefore disciplined by the near-certainty that the courts would one day scrutinize that choice. HHS's reliance on the bulletin just delayed when judicial review would occur.

Nor is it especially worrisome that some states and insurers had to take immediate steps to comply with the approach HHS outlined in the bulletin. Even in the absence of final agency action, parties often structure their affairs in anticipation of governmental action. Earlier review might have avoided some sunk costs: if the benchmark approach is invalidated, the efforts of states to select benchmark plans and of insurers to fashion new insurance products will have been wasted. Yet states and insurers could always have challenged the bulletin on the ground that it was a legally binding legislative rule. More significantly, there is no guarantee that HHS would have finalized its rule any more promptly had it issued a notice of proposed rulemaking instead of a bulletin. The agency might still have waited until the eleventh hour, devoting scarce resources to other pressing problems associated with implementation of the ACA. Against this backdrop, the notion that HHS used the bulletin to avoid judicial scrutiny is something of a stretch.

OIRA Review

Pursuant to Executive Order 12866, most important agency regulations are subject to OIRA review. Guidance documents are not. Late in his administration, President George W. Bush did issue an order subjecting guidance documents to OIRA review because they might otherwise “not receive the benefit of careful consideration accorded under the procedures for regulatory development and review” (OMB 2007 : 3432). President Obama ( 2009 ), however, rescinded that order shortly after taking office. Although a memorandum from his budget director clarified that significant guidance documents remain subject to review (Orszag 2009 ), review of guidance is in practice unsystematic and spotty (Nou 2013 ).

Perhaps, then, HHS used a guidance document to sidestep the centralized oversight that is supposed to enhance the rationality and democratic legitimacy of agency decision making. In particular, because OIRA enforces the requirement that agencies undertake a rigorous, transparent regulatory impact analysis prior to taking significant actions, resorting to guidance allowed the agency to delay for more than a year any public effort to assess the costs and benefits of the benchmark approach.

But did the delay of the regulatory impact analysis matter in practice? Some scholars have questioned whether such analysis has much effect at all on regulation (Hahn and Tetlock 2008 ). In the case of essential benefits, the delay in releasing the analysis may have been particularly inconsequential. Neither the analysis accompanying the NPRM in November 2012 nor the one accompanying the final rule in February 2013 even bothered to estimate how costs and benefits might have differed if HHS had chosen a national, uniform definition of essential health benefits. Had it done so, that would probably not have made much of a difference to the estimated impacts. Because the scope of benefits under employer plans varies little across states, giving states the authority to select benchmark plans does not greatly affect the scope of the obligation to cover essential health benefits. The delay in providing a regulatory impact analysis, then, seems of little consequence.

More generally, considerable evidence suggests that HHS did not “go rogue” and use guidance to evade presidential oversight. For one thing, HHS did share its bulletin with the White House. OIRA's website reports that it received the bulletin from HHS on December 14, 2011, and cleared it (with some revisions) two days later — the same day HHS released it (OIRA 2011 ). Sources inside the administration have confirmed that White House involvement ran much deeper. Administration officials were consulted about the benchmark approach as early as the summer of 2011, more than five months before the bulletin was issued. This close involvement is unsurprising. Deciding what counts as essential health benefits is perhaps the single most consequential policy choice that HHS will make in connection with the implementation of President Obama's signal legislative achievement. As a matter of practical politics, HHS had no choice but to vet the bulletin at the very highest levels.

At first blush, HHS's release of a terse bulletin to announce a major regulatory decision looks unusual, even improper. It seems to reinforce the concern that agencies routinely use guidance documents to establish binding rules while evading the procedural obstacles that might otherwise deter them from acting (House Committee on Government Reform 2000 ). And it appears to confirm the wisdom of the academic consensus that guidance documents should be tolerated only grudgingly. Banning all guidance would be imprudent — better that regulated entities have some inkling of how agencies will carry out their duties than that they have none — but too much guidance risks undermining the procedural regularity of the administrative state (Mendelson 2007 : 413; Raso 2010 : 787).

This consensus, however, rests on an unflattering view of administrative motivation. On this view, agencies are staffed not by public officials anxious to ensure that their choices are workable and publicly legitimate but by bureaucrats trying to avoid procedural obstacles that stand in the way of doing what they think is best. Guidance is tempting precisely because it allows those bureaucrats to avoid the sort of public input, judicial review, and executive oversight that, by fostering accountability to a broader public, could impede their efforts. To put it in terms more familiar to political scientists: to the extent that administrative procedures allow political principals to better control their agents (McCubbins et al. 1987 ), agencies will use guidance to evade those procedures and exploit the slack between them and their principals.

Doubtless this accurately describes some agencies some of the time. But what then should we make of the fact that HHS voluntarily replicated the very procedures that guidance is supposed to let it avoid? The agency may not have been driven only by a desire to secure public input on the benchmark approach — other motivations surely shaped the unusual regulatory process — but it is hard to conclude that the turn to guidance was a ploy to avoid accountability. What is more, HHS is hardly alone in adopting more administrative procedures than strictly necessary. Croley documents a series of important rulemakings from the late 1990s and early 2000s, including the EPA's imposition of stringent controls on ozone and particulate matter, the FDA's attempt to regulate tobacco products, and the Forest Service's efforts to curtail road building in national forests. Although not a representative sampling, Croley's ( 2008 : 160) examples “would all unquestionably make a short list of some of the most significant regulatory activity in more than a decade.” And in every case, the agency “provided more notice, data, and opportunities for participation tha[n] the APA (or any other legal authority) demanded” (ibid.). Mendelson ( 2007 : 425) similarly identifies a number of agencies that make a habit of soliciting public input on guidance documents in the absence of legal compulsion to do so.

In other words, there is nothing especially unusual about what HHS has done here. Far from ducking procedural obligations wherever possible, agencies sometimes embrace them. Why? At least for salient policy questions of substantial importance — a small but critical slice of agency action — agencies have a number of incentives having little or nothing to do with formal legal requirements to secure public input and ensure political oversight. Doing so provides the agencies with technical information that might otherwise be difficult to obtain about how to craft policies that are capable of implementation. It arms them with scientific data that can help them better calibrate their rules. It teaches them about the political acceptability — and hence long-term sustainability — of the regulatory initiative. It identifies wellsprings of potential political support for (and opposition to) the rulemaking. It lends legitimacy to the regulatory initiative by ensuring that all interested parties have had the opportunity to be heard both at the agency and in the courts. And it eases the concerns of those who worry that the agency is regulating by fiat. In sum, procedures can improve the workability and legitimacy of agency rules while protecting them from judicial or political attack (Croley 2008 : 259).

What, if anything, does this essential health benefits case study teach us about the future process of ACA implementation? We close with three observations.

First, the intensely politicized nature of health reform will color anything and everything connected to implementing health care reform. The essential health benefits rule, for example, was issued against a backdrop of fierce partisan tension. The Supreme Court had agreed just a month before HHS posted the bulletin that it would consider a constitutional challenge to the so-called individual mandate — a challenge that, if successful, could have brought down the rest of the law with it. At the same time, governors and other state officials hostile to health reform were bridling at what many perceived as heavy-handed federal implementation efforts. Although we have chosen not to dwell on this political conflict, it would be naive to suggest that politics played no role in HHS's decision making. It would be equally naive to think it will play no role going forward.

Second, ACA implementation will continue to depend on guidance. Part of the reason is the sheer volume of regulation that implementing the ACA requires. The Department of Health and Human Services, the Treasury Department, the Labor Department, and the other implementing agencies face daunting challenges rolling out the various programs that the ACA establishes. It is unrealistic to expect that each regulation will chart a clean course through the APA rulemaking process. Equally important, the digital revolution may itself encourage a turn to guidance. Long gone are the days when proposed rules were only put “on display” at the Office of the Federal Register — when there was a single point of official interaction between the regulators and the regulated. Agencies can now communicate directly with the public in ways that the formal regulatory process never envisioned. A vast literature considers how technology is transforming the relationship between government and its citizens (Mendelson 2011 ). Using the Internet to publicize guidance is an excellent example of this phenomenon.

Third, the case study illuminates the larger debate about agency guidance. If agencies sometimes have powerful incentives to adhere voluntarily to administrative procedures, the distrust of guidance that runs like a leitmotif through much of the literature on administrative law seems misplaced. This is not to deny that agencies use guidance to avoid the costs of adhering to burdensome procedural requirements. Of course they do. That is why issuing guidance is attractive to begin with. But do agencies systematically use guidance to avoid scrutiny from the public, the courts, and the president? The story of essential health benefits suggests that such evasion is far from inevitable. Nor does the available empirical evidence — slim as it is — lend support to the story. A recent review of significant guidance documents issued by five agencies over the span of a decade finds no indication that agencies routinely use guidance to shirk public accountability (Raso 2010 ). Perhaps, then, administrative lawyers should temper the reflexive assumption that agencies turn to guidance to avoid answering for their actions. It may be worth exploring the possibility that agencies are often sincere about what they use guidance for: to give regulated entities insight into their thinking, to shape how line officials carry out their duties, and even — as with essential health benefits — to spur a public debate about the wisdom of a regulatory approach.

1. Large-group plans, such as those provided by large employers, are not required to provide essential health benefits, although they are subject to a different set of requirements governing the actuarial value of coverage.

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Kansas City Seeks To Extend Health Levy

In 2005, city leaders in Kansas City sought and received a temporary property tax levy to fund health services. Eight years later, as the nine-year tax is set to expire, city leaders and health care executives want to extend it. Kansas City’s Northeast News reported that the levy helps fund:

. . . two hospitals, Truman Medical Centers and Children’s Mercy, along with six area non-profit health care providers like Samuel U. Rodgers Health Center, Northland Health Care Access, KC Care Clinic, among others, to offset the cost of indigent health care. In addition, approximately $10 million of the levy goes toward the city’s ambulance service. Truman Medical Centers receives the bulk of the levy, about $26.4 million.

The tax, amounting to about $43 on each $100,000 of assessed property, is in addition to an existing health care tax that runs about $94 on each $100,000 of assessed property. However, The Kansas City Star reports that the tax may not be necessary because of the Affordable Care Act. The Star reported earlier this year that Obamacare:

. . . is supposed to improve health coverage for thousands of the city’s poor, they say. By next year, most Americans must carry health insurance or face a tax penalty, a mandate that should mean Truman and the health centers will get an infusion of cash from newly insured patients.

The city is probably correct to be skeptical that Obamacare will live up to its ambitions —  it seems to be falling short on its promises — but Kansas Citians are hardly able to foot the bill for a long and growing list of taxes.

Voters’ mailboxes are being filled with mailers about why we should vote to extend the tax. Perhaps that money could be spent on an audit that identifies how to more efficiently spend existing funds. Instead of spending $10 million in tax dollars on ambulances, perhaps some of that service can be privatized, as is the case elsewhere in Missouri. Without being “smarter with the money,” does anyone doubt that in nine years the city will seek to extend this temporary tax again?

essay on health levy

Patrick Tuohey

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Harmful effects of ageism on older persons’ health found in 45 countries.

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In the largest examination to date of the health consequences of ageism, or age-based bias, researchers at the Yale School of Public Health have found evidence that it harms the health of older people in 45 countries and across 5 continents. The study included over 7 million participants.

Yale Professor Becca Levy was asked by the World Health Organization to lead the analysis as part of its newly launched Global Campaign to Combat Ageism , which is supported by 194 countries. Levy is a professor at the Yale School of Public Health and in the Yale Psychology Department.

The analysis was based on a systematic review of 422 studies around the world. There was evidence of the adverse effects of ageism on older persons in 96% of the studies.

“ The injurious reach of ageism that our team documented demonstrates the need for initiatives to overcome ageism,” said Levy, the study’s senior author. The study appears in the current PLOS ONE journal.

The Yale School of Public Health study is the first systematic review of ageism that simultaneously considered structural-level ageism, such as denied access to health care, and individual-level ageism, such as the power of stress-inducing negative age stereotypes assimilated from culture to affect the health of older persons.

The Yale team found evidence that ageism led to worse outcomes in a number of mental health conditions, including depression, and a number of physical health conditions, including shorter life expectancy. Ten studies showed that when older persons assimilate negative age stereotypes from the culture, they have a shorter life expectancy. This survival finding, which was originally identified by Levy in previous research, was later found by the studies of others in multiple countries, including Australia, Germany, and China.

In the current study, Levy and her team found that ageism adversely affected whether or not older patients received medical treatment and, if they received the treatment, the duration, frequency, and appropriateness of the treatment provided. Evidence of denied access to health care treatments was found in 85% of all relevant studies. In 92% of the international studies of health care students and professionals, there were indications of ageism in medical decisions, and this trend has increased over time, said the researchers.

This systematic review also found ageism affected older persons regardless of their age, sex, and racial/ethnic membership.

“ Our research highlights the importance of recognizing the influence of ageism on health,” said first author E-Shien Chang , a Ph.D. candidate in the Department of Social and Behavioral Sciences at the Yale School of Public Health. “Policies to improve older persons’ health must take ageism into account.”

Other members of the research team included Yale School of Public Health Professor Shi-Yi Wang , Sneha Kannoth, Samantha Levy, and John E. Lee .

  • Health costs of ageism calculated at $63 billion annually, study finds
  • Positive attitudes about aging reduce risk of dementia in older adults

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Health Care in the United States, Essay Example

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In the United States, there has long been discussion about the quality and nature of the delivery of healthcare.  The debates have included who may receive such services, whether or not healthcare is a privilege or an entitlement, whether and how to make patient care affordable to all segments of the population, and the ways in which the government should, or should not, be involved in the provision of such services.  Indeed, many people feel that the healthcare in this country is the best in the world; others believe tha (The Free Dictionary)t our health delivery system is broken.  This paper shall examine different aspects of the healthcare system in our country, discussing whether it has been successful in providing essential services to American citizens.

The delivery of healthcare services is considered to be a system; according to the Free Diction- ary (Farlex, 2010), a system is defined as “a group of interacting, interrelated, or interdependent elements forming a complex whole.” This is an apt description of our healthcare structure, as it is compiled of patients, medical and mental health providers, hospitals, clinics, laboratories, insurance companies, and many other parties that are reliant on each other and that, when combined, make up the entity known as our healthcare system.

Those who believe that our healthcare system is the best in the world often point to the fact that leaders as well as private citizens from countries throughout the world frequently come to the United States to have surgeries and other treatments that they require for survival.  A more cynical view of this phenomenon is that if people have the money, they are able to purchase quality care in the U.S., a “survival of the fittest” situation.  Those who lack the resources to travel to the U.S. for medical treatment are simply out of luck, and often will die without the needed care.

In fact, reports by the World Health Organization and other groups consistently indicate that while the United States spends more than any other country on healthcare costs, Americans receive lower quality, less efficient and less fairness from the system.  These conclusions come as a result of studying quality of care, access to care, equity and the ability to lead long, productive lives.  (World Health Organization,2001.) What cannot be disputed is that the cost of healthcare is constantly rising, a fact which was the precipitant to the large movement to reform healthcare in our country in 2010.  More than 10 years ago, the goal of managed care was to drive down the costs of healthcare, but those promises did not materialize (Garsten, 2010.) A large segment of the population is either uninsured or underinsured, and it is speculated that over the next decade, these problems will only increase while other difficulties will arise (Garson, 2010.)

When examining the healthcare system, there are three aspects of care that call for evaluation: the impact of delivering care on the patient, the benefits and harms of that treatment, and the functioning of the healthcare system, as described in an article by Adrian Levy.  Levy argues that each of these outcomes should be assessed and should include both the successes and the limitations of each aspect.  The idea is that there should be operational measurements of patients’ interactions with the healthcare system that would include patients’ experiences in hospitals, using measurements of their functional abilities and their qualities of life following discharge.  The results of patients’ interactions with the healthcare system should be utilized to develop and improve the delivery of healthcare treatment, as well as to develop policy changes that would affect the entire field of healthcare in the United States.

One view of the state of American healthcare is that the system is fragmented; there have been many failed attempts by several presidents to introduce the idea of universal healthcare.  Instead, American citizens are saddled with a system in which government pays either directly or indirectly for over 50% of the healthcare in our country, but the actual delivery of insurance and of care is undertaken by an assortment of private insurers, for-profit hospitals, and other parties who raise costs without increasing quality of service (Wells, Krugman, 2006.) If the United States were to switch to a single-payer system such as that provided in Canada, the government would directly provide insurance which would most likely be less expensive and provide better results than our current system.

It is clear that throwing money at a problem does not necessarily resolve it; the fact that the United States spends more than twice as much on healthcare provision as any other country in the world only makes it more ironic that when it comes to evaluating the service, Americans fall appallingly flat.  In my opinion, if the new healthcare reform bill had included a public option which would have taken the profit margin out of the equation, the nation and its citizens would have been in a much better position to receive quality healthcare.  The fact that people die every day from preventable illnesses and conditions simply because they do not have affordable insurance is a national disgrace.  In addition, many of the people who have been the most adamantly against government “intrusion” into their healthcare are actually on Medicaid or Medicare, federally-funded programs.  Their lack of understanding of what the debate actually involves is striking, and they are rallying against what is in their own best interests.  These are people that equate Federal involvement in healthcare as socialism.  Unless and until our healthcare system is able to provide what is needed to all of its citizens, all claims that we have the best healthcare system in the world are, sadly, utterly hollow.

Adrian R Levy (2005, December). Categorizing outcomes of Health Care delivery. Clinical and investigative medicine, pp. 347-351.

Arthur Garson (2000). The U.S. Healthcare System 2010: Problems Principles and Potential Solutions. Retrieved July 3, 2010, from Circulation: The Journal of the American Heart Association: http://circ.ahajournals.org/cgi/reprint/101/16/2015

The Free Dictionary. (n.d.). Farlex. Retrieved July 3, 2010. http://www.thefreedictionary.com/system

World Health Organization. (2003, July). WHO World Health Report 2000. Retrieved July 3, 2010, from State of World Health: http://faculty.washington.edu/ely/Report2000.htm

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Social Injustice and Public Health. Barry S Levy and Victor W Sidel (eds). Oxford University Press, £35.99, 2006, ISBN: 0-19 517185-3.

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CAROLYN STEPHENS, Social Injustice and Public Health. Barry S Levy and Victor W Sidel (eds). Oxford University Press, £35.99, 2006, ISBN: 0-19 517185-3. , International Journal of Epidemiology , Volume 35, Issue 4, August 2006, Pages 1108–1109, https://doi.org/10.1093/ije/dyl119

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This is a weighty book on social injustice and public health with 50 contributors and chapters covering many aspects of the links between social injustice and health. The editors are both well known and highly respected writers on the issues of injustice and health—particularly around issues of human rights and war. Their aim here is ‘to provide a comprehensive approach to understanding social injustice and its impacts on health’.

The book is organized in four parts: Part I deals with conceptual issues related to the links of social injustice and health—this introduces the two main ways in which social injustice is defined by the editors within the book: the first is ‘denial or violation of economic, socio-cultural, political or civil rights’ by certain population groups within a society; the second definition is a ‘set of policies or actions that adversely affect the societal conditions in which people live’. The rest of the book is organized into sections that reflect these definitions: Part II has chapters focused on different population groups whose health is affected by social injustice. There are chapters on the socially disadvantaged; racial and ethnic minorities; women; children; older people; lesbian, gay bisexual, and transgender/transsexual individuals; people with disabilities; incarcerated people; homeless people; and forced migrants (refugees and internally displaced persons). Part III focuses on different areas of public health with chapters on medical care; infectious diseases; nutrition; chronic diseases; mental health; assaultive violence and war; environmental health; occupational safety; oral health and international health. The final part of the book is devoted to ‘what needs to be done’ and has chapters on human rights; public health policies; the role of communities and individuals; education; research; the role of international and national law; and equity and sustainability.

In Social Justice and Public Health, the editors have brought together a range of writers and perspectives to an important theme, and the book makes a useful contribution to a critical field of public health. This book will be another resource for teaching and brings together many important themes of social justice and public health. Some chapters go over the older ground of social inequality and some are fairly fresh—particularly those dealing with under-explored population groups or under discussed themes such as the role of international law. It is a shame that this book follows so closely in the footsteps of a 2003 book with a very similar title and brief: Health and Social Justice: Politics, Ideology, and Inequity in the Distribution of Disease edited by Richard Hofrichter. Sadly, there is quite an overlap with the 2003 reader, but where Levy and Sidel's book differs is in its emphasis on different population groups and their experience of injustice. Almost every population group is given a chapter in Social Justice and Public Health—to the extent that the only population group not discussed is younger, white, able-bodied, heterosexual men with jobs and homes—which, I suppose, is a nice reminder of how the world of social injustice works.

The structure and focus of this book should have given the editors and authors the means to achieve their aim of a ‘comprehensive’ discussion of social injustice and health. The problem is how one defines comprehensive. To my frustration, the main limitation of Social Injustice and Public Health is that the themes are comprehensive, and are global, but the discussion is often not. Unfortunately, many of the authors draw on a very limited body of knowledge, citing principally evidence and policy examples from one country—the United States. It could be argued that a focus on one country, the US, makes sense for some chapters, such as Ernest Drucker's excellent chapter on incarcerated peoples—the US has the highest incarceration rate in the world. But the United States slant makes less sense in discussions of social injustice and nutrition, or children's health, or access to medical care—where problems are of a different scale altogether to those in poorer countries of the world. This slant is still more problematic in Part IV where ‘what needs to be done’ is discussed in a very interesting but parochial way, in three of the six chapters.

To an extent, the editors have tried to acknowledge and redress this geographic and political bias: a chapter by the editors on international health puts the discussion somewhat in context, the final chapter by Richard Jolly has a larger perspective, and some authors have drawn on more international evidence. Yet I could not help feeling that the editors had missed a huge opportunity to put the important topic of social injustice into international public health policy and that they could have drawn on more international writers. In the end, this makes it an important contribution—but many chapters will be most valuable for the country of its origin and focus—the United States.

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the new old age

Old and Young, Talking Again

A society in which members of different generations do not interact “is a dangerous experiment,” said one researcher.

Two people sit and talk at a table at a coffee shop.

By Paula Span

On Fridays at 10 a.m., Richard Bement and Zach Ahmed sign on to their weekly video chat. The program that brought them together provides online discussion prompts and suggests arts-related activities, but the two largely ignore all that.

“We just started talking about things that were important to us,” said Mr. Ahmed, 19, a pre-med student at Miami University in Oxford, Ohio.

Since the pair met more than a year ago, conversation topics have included: Pink Floyd, in a long exploration led by Mr. Bement, 76, a retired sales manager in Milford Township, Ohio; their religious faiths (the senior conversation partner is Episcopalian; the younger is Muslim); their families; changing gender norms; and poetry, including Mr. Ahmed’s own efforts.

“There’s this fallacy that these two generations can’t communicate,” said Mr. Bement. “I don’t find that to be true.”

“Zach tells me about his organic chemistry class, about being a student in 2024. I afford Zach an opportunity to share with me what it’s like to be him, and vice versa.”

Miami University began Opening Minds Through Art, a program designed to foster intergenerational understanding, in 2007 and introduced an online version in 2022. This semester, about 70 pairs have enrolled in the video program. Another 73 students engage in O.M.A.-sponsored arts activities with people who have dementia at a nursing home, a senior center and an adult day program.

There are thousands of similar programs, said Donna Butts, executive director of Generations United, which promotes such efforts. Intergenerational programs can involve toddlers in day care centers playing with nursing home residents, older adults and elementary school children engaging in community gardening or college students and seniors joining forces against climate change.

“As age segregation in our society has increased, the impetus to try to overcome it has definitely grown,” said Karl Pillemer, a Cornell gerontologist who has led research on intergenerational communication.

Factors like early retirement, age-segregated housing and a decline in church membership and traditional social organizations have produced “a decrease in opportunities for natural intergenerational interactions,” Dr. Pillemer said.

“There are whole industries where older people are uncommon,” he added, pointing to advertising, entertainment and technology. “Most people’s networks consist only of people 10 years older or 10 years younger than they are.”

One reason that matters is the documented toll ageism takes on older adults’ health. Repeatedly, studies demonstrating the impact of older people’s negative attitudes about aging, many led by the Yale psychologist Dr. Becca Levy, have found associations between negative attitudes about aging and the risks of cardiovascular events like strokes and heart attacks, and psychiatric illnesses including depression and anxiety.

People with positive feelings about age, on the other hand, do better on memory and hearing tests, have better physical function and recover more quickly from periods of disability. And they live longer.

Ageist attitudes form early in childhood, but they can be changed, Dr. Levy has found. Intergenerational programs are one way to counter them.

For instance, several studies of O.M.A. have demonstrated that after a single semester, student participants had improved overall attitudes toward people with dementia and greater comfort with them.

In another study, younger participants developed greater affection, kinship, engagement and enthusiasm toward older people with dementia, compared to students who didn’t participate. Research with medical students who participated in O.M.A. found similar results.

Moreover, “as we have gotten more information on intergenerational programs, enough high-quality studies using comparison groups, the news gets better and better,” said Dr. Pillemer, the senior author of a 2019 meta-analysis finding that intergenerational programs significantly reduced ageism among younger participants.

A recent meta-analysis of 23 intergenerational program studies from nine countries found other effects including less depression, better physical health and increased “generativity” among older adults. The effects were small but statistically significant.

Generativity refers to the desire to leave a legacy. Dr. Pillemer describes it as “a developmental need older people experience, assisting younger generations to create a better world that they themselves won’t live to see.”

In Rochester, N.Y., for instance, young employees at the Center for Teen Empowerment worked with older members of a community group, Clarissa Street Legacy, to produce a film and exhibit that documented a lively Black community that was nearly destroyed by the construction of a highway decades ago.

The teenagers “came to our homes with cameras and mics and asked us questions and listened as we described what Clarissa Street meant to us,” said Kathy Sprague-Dexter, 77, who grew up in the neighborhood and witnessed the displacement. “Our thinking was, we’re not going to be around for long. We need younger people to be a part of this.”

The documentary film has been shown in high schools and colleges around the country; the exhibit, following several weeks in a downtown arts space, will reopen on Feb. 21 at the Rochester Public Library.

“I don’t think we could have accomplished this without the young folks, their ingenuity, their skills and connections,” Ms. Sprague-Dexter said. “They were carrying the load.”

Attempts to bridge a multigenerational gap don’t always achieve success. Programs come and go. A 2022 Generations United survey found that 40 percent of responding intergenerational programs had operated for a decade or longer but almost half had just begun within the past year.

“You can’t just put people in the same room and expect something to happen,” said Dr. Shannon Jarrott, a gerontologist and researcher at Ohio State University. The most effective programs provide preparatory training for participants on both ends of the age spectrum, she said, with activities and equipment appropriate for all parties.

They work best with “consistent pairing,” so that the same two people “have a chance to keep building that relationship,” Dr. Jarrott explained. More frequent interactions appear to have greater effects.

“What really works is equal-status contact,” Dr. Pillemer said. “It’s not just a service project, primarily seen as a young person helping an older person.”

“It’s only been 150 years or so since people went to anyone other than the oldest person in a community for advice about finding a mate or what crops to plant in a drought,” he added. “It’s a dangerous experiment to have a society in which that doesn’t happen.”

Initially, Mr. Ahmed did think of the program, suggested to him by a sociology professor as a way to earn additional college credit, as a kind of favor.

“I signed up expecting to gain nothing for myself,” he said. “The idea of elderly people as they age is rather depressing. They lose a lot of people in their lives.”

But as conversations with Mr. Bement unfolded, Mr. Ahmed realized that the program was helping him too. “Things I’ve read about in history books, he has lived through,” Mr. Ahmed said of Mr. Bement. “It changes the stereotypic, stigmatized view of elderly people. They have stories and experiences and more life than I’ve had.”

The pair are now in their third semester. They met in person once, for dinner. “It was wonderful,” Mr. Bement recalled. “My life has been enhanced by this relationship.”

Might they continue next year? “Why not?” Mr. Ahmed said. “I really do value this friendship.”

Mr. Bement has acquired two new students to talk with, but said he would always make time for Mr. Ahmed.

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‘What’s the point of a risk-free life?’ – Deborah Levy on starting again at 50

At 50, two decades of stable family life fell apart. In this extract from her memoir, the novelist recalls finding strength in the chaos – and a new voice

A s Orson Welles told us, if we want a happy ending, it depends on where we stop the story. One January night I was eating coconut rice and fish in a bar on Colombia’s Caribbean coast. A tanned, tattooed American man sat at the table next to me. He was in his late 40s, big muscled arms, his silver hair pinned into a bun. He was talking to a young English woman, perhaps 19 years old, who had been sitting on her own reading a book, but after some ambivalence had taken up his invitation to join him. At first he did all the talking. After a while she interrupted him.

Her conversation was interesting, intense and strange. She was telling him about scuba diving in Mexico, how she had been underwater for 20 minutes and then surfaced to find there was a storm. The sea had become a whirlpool and she had been anxious about making it back to the boat. Although her story was about surfacing from a dive to discover the weather had changed, it was also about some sort of undisclosed hurt. She gave him a few clues about that (there was someone on the boat who she thought should have come to save her) and then she glanced at him to check if he knew that she was talking about the storm in a disguised way.

He said, “You talk a lot don’t you?”

It was not that easy to convey to him, a man much older than she was, that the world was her world, too. He had taken a risk when he invited her to join him at his table. After all, she came with a whole life and libido of her own. It had not occurred to him that she might not consider herself to be the minor character and him the major character. In this sense, she had unsettled a boundary, collapsed a social hierarchy, broken with the usual rituals. She could have stopped the story by describing the wonder of all she had seen in the deep calm sea before the storm. That would have been a happy ending, but she did not stop there. She was asking him (and herself) a question: do you think I was abandoned by that person on the boat?

To speak our life as we feel it is a freedom we mostly choose not to take, but it seemed to me that the words she wanted to say were lively inside her, mysterious to herself as much as anyone else. He was probably the wrong reader for her story, but I thought on balance that she might be the right reader for mine.

Everything was calm. The sun was shining. I was swimming in the deep. And then, when I surfaced 20 years later, I discovered there was a storm, a whirlpool, a blasting gale lifting the waves over my head.

At first I wasn’t sure I’d make it back to the boat and then I realised I didn’t want to make it back to the boat. Chaos is supposed to be what we most fear but I have come to believe it might be what we most want. If we don’t believe in the future we are planning, the house we are mortgaged to, the person who sleeps by our side, it is possible that a tempest (long lurking in the clouds) might bring us closer to how we want to be in the world.

Life falls apart. We try to get a grip and hold it together. And then we realise we don’t want to hold it together.

When I was around 50 and my life was supposed to be slowing down, becoming more stable and predictable, life became faster, unstable, unpredictable. My marriage was the boat and I knew that I could not swim back to it. It is also the ghost that will always haunt my life. I will never stop grieving for my long-held wish for enduring love that does not reduce its major players to something less than they are.

I am not sure I have often witnessed love that achieves all of these things, so perhaps this ideal is fated to be a phantom. What sort of questions does this phantom ask of me? It asks political questions for sure, but it is not a politician.

We sold the family house. This action of dismantling and packing up a long life lived together seemed to flip time into a weird shape; a flashback to leaving South Africa, the country of my birth, when I was nine years old, and a flash forward to an unknown life I was yet to live at 50. I was unmaking the home that I’d spent much of my life’s energy creating.

To strip the wallpaper off the fairytale of The Family House in which the comfort and happiness of men and children has been the priority is to find behind it an unthanked, unloved, neglected, exhausted woman. It requires skill, time, dedication and empathy to create a home that everyone enjoys and that functions well. This task is still mostly perceived as women’s work. Consequently, there are all kinds of words used to belittle this huge endeavour. If the wife and mother has been impregnated by society, she is playing everyone’s wife and mother. She has built the story the old patriarchy has designed for the nuclear heterosexual family, and of course added a few contemporary flourishes of her own. To not feel at home in her family home is the beginning of the bigger story of society and its female discontents. If she is not too defeated by the societal story she has enacted with hope, pride, happiness, ambivalence and rage, she will change the story.

The moody politics of the modern home had become complicated and confusing. There were many modern and apparently powerful women I knew who had made a home for everyone else, but did not feel at home in their family home. They preferred the office or wherever they worked because they had more status than being a wife. Orwell, in his 1936 essay Shooting an Elephant, noted that the imperialist “wears a mask, and his face grows to fit it”. The wife also wears a mask and her face grows to fit it, in all its variations. Some women who were the main earners in their family were being slyly punished by their men for any success they had achieved. Their male partners had become resentful, angry and depressed. Women are not supposed to eclipse men in a world in which success and power are marked out for them. It is not easy to take up the historical privilege of dominance over women (with a modern twist) if he is economically dependent on her talents. At the same time, she receives the fatal message that she must conceal her talents and abilities in order to be loved by him.

It was futile to try to fit an old life into a new life. The old fridge was too big for the new kitchen, the sofa too big for the lounge, the beds the wrong shape to fit the bedrooms. Most of my books were in boxes in the garage with the rest of the family house. More urgently, I no longer had a study at the most professionally busy time in my life. I wrote wherever I could and concentrated on making a home for my daughters. I could say that it was these years that were the most self-sacrificing, and not the years in our nuclear family unit. Yet, to be making this kind of home, a space for a mother and her daughters, was so hard and humbling, profound and interesting, that to my surprise I found I could work very well in the chaos of this time.

I was thinking clearly, lucidly; the new situation had freed something that had been trapped and stifled. I became physically strong at 50, just as my bones were supposed to be losing their strength. I had energy because I had no choice but to have energy. I had to write to support my children and I had to do all the heavy lifting. Freedom is never free. Anyone who has struggled to be free knows how much it costs.

Celia came to the rescue. She was an actor and bookseller in her early 80s. One evening in her kitchen in late January, she started to sing something to me in Welsh. I told her I didn’t understand Welsh.

“Well, I was born in Wales and you weren’t, but what I was thinking while I was singing is that you need a place to write.”

‘What’s the point of a risk-free life?’ … Deborah Levy.

She pointed towards the shed at the back of her garden. It was where her husband, the late, great poet Adrian Mitchell, had sometimes written in the spring and summer. It was built under an apple tree. In three seconds flat, I agreed to rent it from her. Celia knew I was financially supporting “quite a crowd”, as she put it, so we sealed a manageable deal over a glass of the Havana rum she had a liking for, and which she preferred to mix with Coke. Every time she drank Havana rum, she raised her glass to toast the miracle of the high literacy rate in Cuba. “By the way,” she said, “next time the communal boiler is on the blink in your flat, you’d better all come over for a hot bath.”

Everyone deserves a guardian angel like Celia.

Celia understood that I would be writing at all hours, and introduced me to her many friends as She Who Lurks in the Garden. No one was allowed to interrupt me on her watch; to knock on the door and solicit a conversation (the weather, the news, the arrival of cake) or even to convey an urgent message from the Mistress of the House. To be valued and respected in this way, as if it were the most normal thing in the world, was a new experience. I did not know it then, but I would go on to write three books in that shed. It was there that I would begin to write in the first person, using an I that is close to myself and yet is not myself.

To separate from love is to live a risk-free life. What’s the point of that sort of life? As I wheeled my electric bike through the park on the way to my writing shed, my hands had turned blue from the cold. I had given up wearing gloves because I was always grappling in the dark to find keys. I stopped by the fountain, only to find it had been switched off. A sign from the council read, “This fountain has been winterised.”

I reckoned that is what had happened to me, too.

To live without love is a waste of time. I was living in the Republic of Writing and Children. I was not Simone de Beauvoir , after all. No, I had got off the train at a different stop (marriage) and stepped on to a different platform (children). She was my muse but I was certainly not hers.

All the same we had both bought a ticket (earned with our own money) for the same train. The destination was to head towards a freer life. That is a vague destination, no one knows what it looks like when we get there. It is a journey without end, but I did not know that then. I was just on my way. Where else was there to head for? I was young and lovely, I boarded that train, opened my journal and began to write in the first person and the third person.

De Beauvoir knew that a life without love was a waste of time. Her enduring love for Sartre seems to have been contingent on her living in hotels and not making a home with him, which in the 1950s was more radical than I believe even she realised. She remained committed to Sartre being the essential love of her life for 51 years, despite their other attachments. She knew she never wanted children or to serve his breakfast or run his errands or pretend she was not intellectually engaged with the world to make herself more lovable to him. She was appalled by middle age, in ways I did not completely understand. All the same, as she had written to the writer Nelson Algren, in the flush of their new love: “I want everything from life, I want to be a woman and to be a man, to have many friends and have loneliness, to work much and write good books and to travel and enjoy myself ... ”

I was intrigued by her wish to “be a woman and to be a man” because it was obvious to me that femininity, as written by men and performed by women, was the exhausted phantom that still haunted the early 21st century. There were not that many women I knew who wanted to put the phantom together again. She is a very tricky character to play and it is a role (sacrifice, endurance, cheerful suffering) that has made some women go mad. This was not a story I wanted to hear all over again. It was time to find other main female characters with other talents

Extracted from Deborah Levy’s The Cost of Living, published by Hamish Hamilton on 5 April.

  • Autobiography and memoir
  • Deborah Levy

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