Jim Hawkins on Financing Fertility Treatments

Jim Hawkins (University of Houston Law Center) has posted Financing Fertility on SSRN.  Here is the abstract:

Fertility clinics and financing companies often offer refund programs in which patients pay a premium up front for fertility treatments. If the treatment fails, clinics refund part of the fee. This is an innovative tool for financing fertility treatments that is virtually unparalleled in other areas of medicine. Despite the prevalence of this financing tool, academic commentary has offered little analysis of how it operates, how fertility clinics promote it, and how patients evaluate whether to use it. Moreover, academic commentary has not assessed whether current regulations adequately protect patients who use refund programs to finance their treatments. This Article offers the first in-depth study of how fertility refund programs are presented to patients. The author conducted an empirical assessment of the website of every United States fertility clinic that is a member of the Society for Assisted Reproductive Technology, coding the information presented on these websites about refund programs. The findings are surprising. According to the study, clinics largely fail to comply with professional self-regulations that mandate the disclosure of specific information about their refund program. Additionally, clinics often present information about refund programs deceptively or in a manner that exploits poor patient decision-making. Using the data in the study and applying insights from behavioral law and economics, the author argues for additional consumer protection regulations for refund programs. Refund programs currently operate in a regulatory vacuum, and voluntary self-regulation has failed to promote accurate and effective disclosures. Moreover, evidence suggests that patients evaluating refund programs make predictable, systematic mistakes and that clinics offering refunds frame the program in a way that exploits patients’ defective reasoning. To protect patients considering refund programs, the author proposes that policymakers require refund providers to make certain mandatory disclosures when presenting information about their refund programs.