Paying Patients: Legal and Ethical Dimensions

This Article explores the implications for medical care of a debate that is more familiar in the law and ethics of human subjects research: whether people should be paid to receive or decline medical interventions, or to reach certain health objectives. It examines the legal and ethical issues such payments raise, and considers various actors who might make such payments, including governments, employers, insurers, care providers, and private parties. It argues for two interrelated conclusions: first, that these payments should not be subject to blanket normative condemnation, and, second, that payments made in different settings and contexts frequently share underlying commonalities, which suggests categorizing them according to these commonalities. We should move from a “siloed” legal and normative landscape, where discussions of payments to patients in one context are isolated from similar discussions in other contexts, to a landscape where payments are evaluated and categorized more systematically. The categories along which payments should be evaluated include who the payer is, what purpose the payment serves, and who the payment affects. In Part I, I identify and present four categories of payments to patients. These include value-based insurance designs in which insurers offer patients a share of the savings realized when they choose cheaper medications; providers paying patients to adhere to treatment regimens; and private parties paying others to make health decisions such as avoiding pregnancy. In Part II, I examine the normative issues raised by these payments. I argue that the risk of exploitation or undue psychological pressure is low, but that we should be more concerned about ways in which the payments might change relationships between payers and payees or might harm the interests of third parties. In developing this analysis, I draw on work in the ethics of human subjects research. In Part III, I use the ethical analysis developed in Part II to develop normative frameworks for the evaluation of payments to patients. These frameworks identify and differentiate the responsibilities of different actors in the health care system. In doing so, these frameworks draw from and build on theories of distributive fairness. They also draw from accounts of professional and business ethics that prescribe specific responsibilities for professionals. Finally, in Part IV, I examine how these normative frameworks would bear on the legal issues that payments to patients raise. These include whether the payments are subject to taxation or might affect recipients’ eligibility for need-based benefits; whether they are consistent with antidiscrimination law; and whether they violate anti-kickback statutes or regulations.