If you work in health policy, medicine, or health economics I recommend you listen to The Week in Health Law podcast. I remove pods from my playlist all the time. Occasionally from a perceived terse exchange on twitter about a subscription paywall but more often influenced by verbal tics such as vocal fry and upspeak, or limited perspectives on complex topics.
You don't get those distractions when listening to discussions of health policy law on the TWIHL podcast. North Carolina is finally sweating off the snow from a record snowfall--that I dodged during travels to DC and NYC. I laced up my sneakers and headed out the door for a misty run along the creek. The podcast queue always keeps me company. This whole brain thread was launched by a simple question I was asked on social media. How do I use cost information (data) for gap analysis in medical education. There are too many data points to answer the question simply. Listening to a technical podcast by experts in health law creates opportunities to dig a little deeper into questions. And to question long-held "answers" roaming around the status quo. To appreciate the impact of legal precedent, policy, and a new digital economy still regulated or "guiding" by outdated regulations enacted before we had our current technologic advances--we need context. When should "guidance" yield to regulation? When do we reach the point of "too late", the toothpaste is already out of the tube? I suggest that data questions need to be informed by the realities of choice at the point of care. Who is really making the decisions that influence patient care? 
A common theme throughout is "bigness." How big should companies, industries, governments be allowed to get before the ill and often unintended consequences are all but palpable? Not only what is the role of regulation but is there historical precedence? Is there something we can learn?
The Curse of Bigness by Christopher Ketcham
Today's episode featured discussion of a roundtable discussion on "The Law and Policy of AI, Robotics, and Telemedicine in Health Care." I use SIRI on my phone to create notes so that when I return to my office, I can recall the vast number of rabbit holes I will enjoy rappelling down as time permits. What follows is a summary of a few insights with links so you can also design an exploration based on your interests but first, a little back story.
I don't know about you, but I have not heard the tech industry discuss publicly the concerns of bias and discrimination integrated into AI or other devices. The solution to our healthcare woes are just a click away as algorithms replace human cognition and we seek hacks to fast track our journey to better health.
For starters, we lack a robust definition of device that differs in an appreciable way from that of obscenity, "I know it when I see it." -- 1964 United States Supreme Court Justice Potter Stewart. The Lochnerized first amendment and the FDA: toward a more democratic political economy
Lochnerizing refers to a ruling in a 1905 Supreme Court case where corporations were granted constitutional rights by invalidating democratically enacted laws. For example, the case struck down a New York State law limiting the number of hours a baker could work in one day citing the law would violate the constitutional liberty of a contract, between two "persons."
The Columbia Law Review published this informative article as a response to the Columbia Law Review's 2018 Symposium. The article discusses in a non-trivial manner the weaponizing of the first amendment and the impact it has had, and will have on the Food and Drug Administration (FDA). “[T]he majority has chosen the winners by turning the First Amendment into a sword, and using it against workaday economic and regulatory policy. Today is not the first time the Court has wielded the First Amendment in such an aggressive way. And it threatens not to be the last. Speech is everywhere—a part of every human activity (employment, health care, securities trading, you name it). For that reason, almost all economic and regulatory policy affects or touches speech. So the majority’s road runs long. And at every stop are black-robed rulers overriding citizens’ choices. The First Amendment was meant for better things.”--Janus v. AFSCME, Justice Kagan dissenting
It is an important discussion on a current trend of the U.S. courts to "pivot away from the model of private market regulation upon which the FDA is approach is built."
In this era of Too Big To Fail we could do worse than revisit the writings of Louis D. Brandeis, Supreme Court judge from 1916 to 1939 and prolific author. Here is a taste of his views on concentration of power within banking industry, What Publicity Can Do. THE NEW UTILITIES: PRIVATE POWER, SOCIAL INFRASTRUCTURE, AND THE REVIVAL OF THE PUBLIC UTILITY CONCEPT
This final article is an important one as it reminds us of the earlier landscape, reviews the current challenges, and puts forward potential solutions. There is a tendency to silo much of the digital debates around privacy and the rights of consumers without rolling the healthcare wagon into the debate.
From the control of banks over financial stability as well as access to finance and credit, to the control of internet service providers (ISPs) and telecom companies over broadband infrastructure, the problem is the same: private actors possess the means to undermine the public value of essential goods and services upon which many businesses, communities, and individuals depend.--THE NEW UTILITIES: PRIVATE POWER, SOCIAL INFRASTRUCTURE, AND THE REVIVAL OF THE PUBLIC UTILITY CONCEPT--K. Sabeel Rahman
There is a powerful delineation between power brokers in healthcare and consumers rebranded as patients, wielding market power now empowered as patient-centeredness--heralded as a way to equalize the debate.
Definition of social infrastructure--” Where private actors accumulate outsized control over those goods and services that form the vital foundation or backbone of our political economy—social infrastructure—this control poses dangers. By defining social infrastructure as a concept, this article provides a way to diagnose essential goods and services and therefore potentially problematic accumulations of private power."--THE NEW UTILITIES: PRIVATE POWER, SOCIAL INFRASTRUCTURE, AND THE REVIVAL OF THE PUBLIC UTILITY CONCEPT--K. Sabeel Rahman
Collectively we praise industries such as pharmaceuticals and healthcare technology when they "do good" through public endowments, investments, and charitable giving but we rarely if ever challenge them to do less harm through persistent self-serving policies that limit access to medications and prolong financial benefits. The threat is always around innovation.
Drawing from these disparate debates over net neutrality and TBTF financial firms, I extract four key elements of a twenty-first century framework for public utility regulation: firewalling core necessities away from behaviors and practices that might contaminate the basic provision of these goods and services—including through structural limits on the corporate organization and form of firms that provide infrastructural goods; imposing public obligations on infrastructural firms, whether negative obligations to prevent discrimination or unfair disparities in prices or positive obligations to proactively provide equal, affordable, and accessible services to under-served constituencies; and creating public options, state-chartered, cheaper, basic versions of these services that would offer an alternative to exploitative private control in markets otherwise immune to competitive pressures.--THE NEW UTILITIES: PRIVATE POWER, SOCIAL INFRASTRUCTURE, AND THE REVIVAL OF THE PUBLIC UTILITY CONCEPT--K. Sabeel Rahman
The Aspen Institute also discussed the liabilities of bigness and what we can and can't accomplish.
These final quotes from the article speak to the rise of social determinants and constructs into the debate surrounding reform. I mean true reform. Not the current model of working within a broken system as we tiptoe around real change.
Progressive reformers thus understood public utilities not just in terms of economies of scale and laws of nature, but in moral and social terms. Industries triggered public utility regulation when there was a combination of economies of scale limiting ordinary accountability through market competition and a moral or social importance that made the industries too vital to be left to the whims of the market or the control of a handful of private actors.
These are thoughtful discussions that deserve consideration as we struggle with enormous inequality and unsurmountable financial burdens in society as a whole.
...firms and sectors that might warrant greater regulatory oversight by examining three overlapping conditions: the economics of production; the downstream uses of the good or service; and the degree to which the good or service is a necessity that makes its users particularly vulnerable to exploitation. The presence of all three features indicates a firm or sector that is “infrastructural,” where the concentration of private power over these services poses a unique potential threat to public welfare. THE NEW UTILITIES: PRIVATE POWER, SOCIAL INFRASTRUCTURE, AND THE REVIVAL OF THE PUBLIC UTILITY CONCEPT--K. Sabeel Rahman Comments are closed.
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