Concept: An ounce of prevention is worth a pound of cure.

The Paradoxical Legal Treatment of Preventive Medicine

By Doron Dorfman

Preventive medicine is a tool used by individual patients, primary care physicians, and governmental agencies to preempt illnesses rather than to treat them after they have arisen. Despite this salubrious aim, stigma, shame, and fear often are attached to the use of preventative care.

The stigma around preventive medicine can arise from the tendency to view such measures as a proxy for risky or otherwise socially marginalized behavior or lifestyle. Why would someone use a preventative measure if they are not at high risk as a consequence of their own choices?

Consider, for example, what I call “sexually charged” preventative health measures like the human papillomavirus vaccine or Pre-Exposure Prophylaxis (PrEP). PrEP is a highly effective daily drug regimen that prevents HIV infection, which has become specifically popular with gay and bisexual men.

As I discuss in a forthcoming paper, PrEP has been viewed by policymakers and health care professionals as a “license for promiscuity” due to the fear of risk compensation, meaning the adjustment of risky behavior by those who take PrEP to potentially have sex with more partners and with no condoms. Such views are reflected in Kelley v. Becerra, a case pending before the U.S. District Court of the Northern District of Texas, where plaintiffs wish to purchase insurance that excludes coverage for PrEP and contraception, to which they object to on religious and moral grounds.

My new project explores the ways law perpetuates the paradox of preventive medicine. On the one hand, preventive medicine has been an integral part of the Affordable Care Act’s effort to increase quality of care for all insured. Section 2713 to the Affordable Care Act incentivizes the use of preventive health measures by prohibiting the charge of cost sharing (such as copayments, deductibles, or co-insurance) by insurers for a range of preventive services approved by designated federal organizations. On the other hand, existing policies and practices in a variety of contexts have an intentional or unintentional penalizing consequence that deters populations from using preventive treatments.

Take, for example, insurance discrimination for PrEP users. In a case settled in 2018, a gay couple from Massachusetts who tried to purchase long-term health-care insurance from Mutual of Omaha were denied eligibility because one of them was taking PrEP — even though using PrEP directly decreases the chance of contracting HIV. After investigating six similar cases, the Massachusetts attorney general reached an assurance of discontinuance agreement with Mutual in  January 2019, whereby the insurance company will revise its business practice and no longer deny or charge higher rates to PrEP users residing in Massachusetts. The insurer also was issued a fine for the practice.

Another case study of insurance discrimination has to do with naloxone, a spray or injection that serves as an opioid “overdose blocker,” reversing symptoms such as slowed breathing. This drug has the potential to save many lives during the ongoing opioid epidemic.

Naloxone is categorized as a “tertiary prevention” strategy — while it does not treat the underlying opioid use disorder, it prevents deterioration and pain in the patient. The Department of Health and Human Services has recommended the distribution of naloxone to potential Samaritans, not only first responders, as a way to combat overdose mortality.

Nevertheless, some individuals who have purchased naloxone kits to help others have been denied life insurance coverage by insurers that viewed them as engaging in dangerous drug use. While some states like Maine, Rhode Island, and Minnesota have enacted laws to prohibit such insurance discrimination, it is still an unresolved issue in many states, which ironically have higher opioid overdose-related death rates. This practice also creates a chilling effect on willingness among the general population to carry naloxone, which frustrates the goal of using preventive medicine to improve public health.

A different type of policy that penalizes the use of preventive medicine is the character and fitness evaluation as part of the process for admission to state bar associations. In many states, the character and fitness evaluation is informed by a prior history of mental health treatment. This inquiry into applicants’ mental health history by state bars has created a chilling effect on seeking preventative mental health treatment during law school. This issue has been recognized by some state courts, but still exists in many others

In this project, I call for harmonization of the legal treatment of preventive medicine. The message conveyed by the law regarding preventative health measures should be unified in a way that increases quality of life and hinders the development of disease. Such a process is crucial to ensuring the goals of the Affordable Care Act with regard to quality of care.

Doron Dorfman is an Associate Professor of Law at Syracuse University College of Law.

The Petrie-Flom Center Staff

The Petrie-Flom Center staff often posts updates, announcements, and guests posts on behalf of others.

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