HealthLawProf Blog

Questioning Body Modification

[I've decided to put the whole post beneath the fold, since the topic reminds me of Leontius's Tale, and I don't want anyone to accidentally click through to something they don't want to see.]

Recently one of Rupert Murdoch’s properties carried news of the “164XXX” chest of a woman named Chelsea Charms. At a conference on Transhumanism & Design in New York a few days ago, participants talked about a person who has forked his tongue and implanted bumps on his head to look more like a reptile. Yesterday, the “Botox Mom” lost custody of her daughter for injecting her with beauty aids.

These are all extreme and freakish phenomena, but they speak to larger social dilemmas. What are the limits of personal and parental autonomy when it comes to body modification? At least two thoughtful law review articles have addressed the topic.

Botox Mom

Alicia R. Ouellette’s article “Shaping Parental Authority over Children’s Bodies” addressed a number of dilemmas:

In the health-care setting, parental decisions to size, shape, sculpt, and mine children’s bodies through the use of nontherapeutic medical and surgical interventions are a matter of parental choice except in extraordinary cases involving grievous harm. This Article questions the assumption of parental rights that frames the current paradigm for medical decision making for children. . . . I argue that by allowing parents to subordinate their children’s interests to their own, the current paradigm distorts the parent-child relationship and objectifies children in violation of the moral principle, deeply embedded in American legal tradition, that no person, even a parent, may subordinate the life, liberty, or body of another for his or her own purposes.

Ouellette discusses a number of issues, such as the Westernization of Asian eyes, the “3979 cases of liposuction on patients between the ages of thirteen and nineteen in 2008,” and the stunting of a mentally disabled girl. Taking a bioethical perspective, the article “develop[s] a trust-based construct of the parent-child relationship, in which the parents are assigned trustee-like powers and responsibilities over a child’s welfare and future interests and are charged with fiduciary-like duties to the child.” It attempts to “construct in the health-care setting separates medical decisions that belong to parents from decisions that belong to children and those that should be made by a neutral third party.” I think it safe to say that it would be very difficult to defend the Botox mom’s purely cosmetic interventions to affect her daughter’s appearance within Ouellette’s ethical framework.

Extreme Self-Alteration

Does maturity give persons the right to do whatever they want with their bodies? Annemarie Bridy confronted this issue in Confounding Extremities: Surgery At The Medico-Ethical Limits Of Self-Modification. Her description of the following scenario reminded me of the role of the medical profession in the self-modification of Ms. Charms:

Controversy swept the U.K. in January of 2000 over public disclosure of the fact that a Scottish surgeon . . . had amputated the limbs of two able-bodied individuals who reportedly suffered from a condition known as apotemnophilia. The patients, both of whom had sought and consented to the surgery, claimed they had desperately desired for years to live as amputees and had been unable, despite considerable efforts, to reconcile themselves psychologically to living with the bodies with which they were born. Both surgeries were successful, and both patients, who had undergone psychiatric evaluation prior to the amputations, subsequently reported having no regrets. In the wake of a wave of sensationalistic stories in the media, the hospital at which the surgeries had been performed, the Falkirk and District Royal Infirmary, banned any future surgeries of the kind. Outraged local politicians promptly announced their intention to pass laws banning the procedure outright. One member of Scottish Parliament declared the surgery “obscene” and asserted that “the whole thing is repugnant and legislation needs to be brought in now to outlaw this” . . . .

[T]he automaticity of the politician’s response suggests, even as it implicitly denies, the need to examine the cultural dimensions of the paradox and to understand what is at stake for apotemnophiles and for society at large in the proscription of amputations performed on physically healthy individuals. Although apotemnophilia is by no means common, its effects can be quite devastating for those who count themselves among its victims. Consider the case of Philip Bondy, an apotemnophile who died from gangrene in 1998 in a San Diego motel room within days of a “back alley” amputation in Tijuana.

Though apotemnophilia may be rare, compulsive self-alteration is becoming more common, given both advances in cosmetic surgery and fickle and restrictive concepts of beauty and uniqueness. Bridy “consider[s] the legality of elective amputation in light of laws prohibiting mayhem and in the context of the regime of self-regulation that operates within the medical profession.” Psychiatry also promises a way around the paradoxes of self-determination via self-mutilation, via the diagnosis of “Factitious Disability Disorder” (FDD):

Under the factitious disability model, the apotemnophile seeks amputation not as a means of expressing a psychologically “authentic” self, but as a way of artificially manipulating the behavior of others to compensate for a perceived emotional lack. Not surprisingly, surgery does not emerge as a therapeutic option under the FDD model. Presumably this is because accepting apotemnophiles’ desire for amputation would be tantamount to authorizing their delusion that they are irremediably unlovable in their able-bodied state and, conversely, that they will become spontaneously lovable (and therefore loved) if they become disabled.

Roberto Unger once stated that “The closest equivalent to love in the outer coldness of social life is the practical organization of responsibility to care for others, nourished by the patient development of the ability to imagine other people’s experience.” Pleas for extreme self-modification deserve exactly this type of empathy. Those responding to such pleas must first imagine exactly what drives lie behind them, before any technological “quick fix” is offered. Unger, like Dante, is a great theorist of “love misdirected,” and the modern vanity industry’s most extreme excrudescences are its prototypical forms.

Fortunately, the “coils of polypropylene” that Ms. Charms uses are now illegal. But given the dizzying range of potentially self-harming body modifications now on offer, the German approach of discouraging or even banning their promotion might be a necessary additional step to protect the vulnerable.  [FP]

 

USDA Creates the "Food Desert Locator" - Locations with Limited Access to Nutritious Food

The U.S. Department of Agriculture's (USDA) Economic Research Service (ERS) has created the online Food Desert Locator which pinpoints the location of what the U.S. government calls "food deserts." Food deserts are areas where people have limited access to affordable and nutritious foods. The Food Desert Locator is on the Web at www.ers.usda.gov/data/fooddesert. 

The departments of Treasury, Health and Human Services and USDA define a "food desert" as a low-income census tract where either a substantial number or share of residents has low access to a supermarket or large grocery store.

 According to Food Safety News:

"Low income" tracts are defined as those where at least 20 percent of the people have income at or below the federal poverty levels for family size, or where median family income for the tract is at or below 80 percent of the surrounding area's median family income.

Tracts qualify as "low access" tracts if at least 500 persons or 33 percent of their population live more than a mile from a supermarket or large grocery store (for rural census tracts, the distance is more than 10 miles).

According to the USDA, about 10 percent of the 65,000 census tracts in the United States meet that definition.  Mostly in urban areas, these food desert tracts are home to 13.5 million people.The USDA, in a news release, said the tool can be used by policy makers, community planners and others to identify places where public-private intervention might help make fresh, healthy food more readily available, one of the goals of First Lady Michele Obama's Let's Move! initiative to address the epidemic of childhood obesity.

[KVT]

EPA Rules on Hazardous Emissions Delayed

Yesterday, the U.S. Environmental Protection Agency (EPA) issued a stay postponing the effective date of emissions standards for major source boilers and commercial and industrial solid waste incinerators. Because the original boiler rule was vacated, there is no rule currently in place.  

On February 21, 2011, the EPA established Clean Air Act emissions standards for large and small boilers and incinerators that burn solid waste and sewage sludge. The standards cover more than 200,000 boilers and incinerators that emit air pollutants, including mercury, cadmium, dioxins and particle pollution.  The final rule, published on March 21, 2011, called for an effective date of May 20, 2011 with compliance deadlines beginning three years later.

An industry coalition    4 led by the American Forest & Paper Association and the National Association of Manufacturers fought the standards for dioxin and other dangerous emissions, claiming in a petition that they were not achievable, and that the companies forced to comply would suffer economic harm.  

An excellent report about the boiler rule, and the legal claims in the industry’s successful petition to stay the rule, was done by the Environmental Newswire, available here.

Guest Blogger Vickie J. Williams: Physician Work Hours and Expanded Insurance Coverage

With all of the attention being paid to the various challenges to PPACA currently winding their way through the appellate courts, it is easy to forget that there is other interesting work being done that could impact health care reform.  The Government Accountability Office recently released a study entitled “The Effect of a Major Coverage Expansion on Physician Work Hours:  Evidence from the Children’s Health Insurance Program.”  The study found that there was a large negative relationship between the magnitude of a state’s CHIP expansion and trends in pediatricians’ work hours.  When more children became insured by an expanded public health insurance program, pediatricians who would presumably be treating this population actually worked fewer hours, despite an increase in demand for their services.  States that implemented a large CHIP expansion experienced a larger drop in pediatrician hours worked than states that implemented more modest CHIP expansions.   The authors of the study conclude that a possible explanation for this is that the reimbursement rates in the CHIP program are much lower than those of private insurers.  This supply-driven theory goes as follows:  CHIP expansions reduced average reimbursement rates for pediatricians. Physicians control the volume and type of services they provide (they don’t take all comers).  Physicians will continue to have the same fixed costs, such as durable equipment or office capacity (including the number of hours the office is open and the number of hours they work), regardless of the reimbursement rate they receive.  Therefore, physicians will realign their fixed-cost decisions to fit better with the types of patients they are seeing.  In this model, pediatricians would choose to work fewer hours as CHIP enrollment expands, because the reimbursement rates for seeing CHIP patients do not meet their supply-side needs.  These results are consistent with an older study from the New England Journal of Medicine which showed that when universal coverage for physician services was implemented in Quebec, Canada in 1970, average physician work hours fell by about 15 percent.

These results are intriguing for a number of reasons.  First of all, they have implications for how successful the PPACA will be (assuming it survives the current legal challenges) in increasing access to health care.  In addition to expanding the market for private insurance, PPACA relies on expanded enrollment in public insurance to reduce the number of uninsured.  To presume that increased access to public insurance, which will continue to pay rates below those paid by private insurers, will translate to increased access to health care, may be a mistake.  Unless health care providers are incentivized in some way (financial or otherwise) to treat these patients, increased demand will not necessarily increase supply.  As long as there are enough people with better-paying private insurance to keep health care providers busy, providers have no incentive to increase supply to meet the increased demand.  After all, for most people, if you make enough to live comfortably doing the amount of work you are currently accustomed to doing, any extra work you do has to really be worth it.  Children covered by public insurance programs, such as Medicaid and CHIP, are more likely to have medical problems that are complicated by less-than-ideal living or social conditions.  Yet rather than pay pediatricians more to deal with these children’s complex problems and make the extra work worth it, according to a 2009 study by Ingenix Consulting, we pay physicians who treat these children more than 40% less than the national average reimbursement rate for a physician office visit.  Clearly, expanded insurance coverage alone is not the answer to our nation’s health care problems.

Although the PPACA provides for an increase in Medicaid payments to primary care physicians to equal the somewhat higher Medicare payment rate for 2013 and 2014, I don’t think this is likely to be enough to incentivize physicians to take these complex Medicaid patients when private insurance pays far more for physicians to do what is often far less. In the absence of appropriate incentives to make publicly funded patients attractive to physicians, the other option would be to change the supply-side predicate that physicians do not take all comers—mandate that physicians who accept any federal money treat all comers. This is what became necessary to ensure that hospital emergency rooms did not refuse to treat patients, resulting in the wildly unpopular (amongst hospitals) unfunded mandate the Emergency Medical Treatment and Labor Act (EMTALA). Another option would be for state licensing authorities to require physicians to treat a certain number of publicly funded patients as a condition of licensure.  Of course, if all states did not do this at the same time, this would result in a flood of physicians fleeing any state that implemented such a mandate.  

Physicians and other providers must make some hard decisions regarding whom they are willing to treat, and for how much, if they want to avoid having those decisions made for them.  I presume it would be more palatable to physicians if we reduce incentives to treat only privately insured patients by lowering payment rate differentials between privately and publicly insured patients, than to force physicians to treat all comers (or some percentage of comers).  If the GAO’s suggested supply-driven model of physician behavior holds true, and physicians truly want freedom from the tyranny of state or federal mandates, they should probably be embracing the changes in the private and public insurance market that would equalize coverage for all persons currently being debated in Congress and the courts.

- Vickie J. Williams

PPACA at the 4th Circuit

Dahlia Lithwick at slate.com has a nice review of the 4^th Circuit oral argument last week.  My own take on the individual mandate and the activity-inactivity distinction will be appearing later this month at Southern California Law Review Postscript.

[DO]