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W1821444549 abstract "The passage of the National Health Planning and Resources Development Act of 1974, PL93-641, set in motion the establishment of 205 health systems agencies (HSAs) across the country. The aims of the legislation were ambitious—to produce planning “with teeth,” to cut the costs of medical care, to rationalize access, and to do so with more attention to consumer interests than was the case under earlier health planning. Many commentators expected these efforts to produce little change. Yet in some state and local areas the tasks of health planning have been taken up with fervor. Our interest is the connection between consumer representation and these health planning institutions. Our focus is on the conceptual, legal, and administrative questions raised by efforts to create HSA boards dominated by actors “broadly representative” of the constituents of each local HSA. Our aim is to untangle some of the theoretical and political difficulties that have bedeviled PL93-641's efforts to improve consumer representation. We first set a broad theoretical background, and show why concentrated interests (such as medical-care providers) dominate the politics of most industries. Representing consumers is cast as an important attempt to break this recurring pattern in decision-making about public choices. In the core of the paper we analyze the concept of representation and such associated notions as accountability and participation. Understanding these concepts is important in explaining why the law's clumsy efforts at representing consumers have fostered legal challenges and will almost certainly continue to fail. We describe a number of these failures and prescribe in brief outline a remedy that seems conceptually more defensible and legally more practical. It would be naive, nonetheless, to expect the Health Planning Act to achieve a major reorientation in American medicine, even if consumer representation were successfully instituted. We suggest reasons why this should be so, emphasizing the wildly inflated expectations characterizing PL93-641 and its rhetorical promises about planning's high technology and regulatory “teeth.” Our effort throughout is to describe, illuminate, and appraise one widely discussed policy strategy for controlling contemporary medical care: local planning agencies dominated by consumer representatives. While we discuss consumer representation, its potential and limits, current pitfalls and proposed adjustments, we are keenly aware that the health planning law is in flux, that we are appraising, so to speak, a moving target. But, if our analysis is correct, the movements toward controlling medicine through planning and consumer control are crippled by flaws in both the statute and the regulations. Explaining why that is so constitutes this paper's aim. The puzzles of representation are exacerbated in circumstances that stimulate representation without explicitly structuring it—when there are no elections, no clearly defined channels of influence, or only murky conceptions of constituency. The politics of regulatory agencies or regional authorities provide examples. Though representatives of groups commonly press their interests within such contexts, there are no systematic canvasses of the relevant interests, such as geographically based elections provide. It is unclear who legitimately merits representation, how representation should be organized, or how it ought to operate. Interest-group theorists address the problems of representation in precisely such political settings. In their view, interests that are harmed coalesce into groups and seek redress through the political system. Despite the absence of electoral mechanisms of representation, their conception of representation is systematic; every interest that is strongly felt can be represented by a group. At their most sanguine, group theorists suggest that “all legitimate groups can make themselves heard at some crucial stage in the decision-making process” (Dahl, 1964:137). Politics itself is characterized by legions of groups, bargaining on every level of government about policies that affect them. Government is viewed as the bargaining broker, policy choices as the consequences of mutual adjustments among the bargaining groups (Bentley, 1967; Truman, 1951; Dahl, 1961; and Greenstone, 1975:256). The group model is now partially in eclipse among academic political scientists (McFarland, 1979; Salisbury, 1978). One criticism is significant here: groups that organize themselves for political action form a highly biased sample of affected interests. This argument recalls Schattschneider's (1960:34) classic epigram: “The flaw in the pluralist heaven is that the heavenly chorus sings with a strong upper-class accent. Probably about 90 percent of the people cannot get into the pressure system.” Furthermore, that bias is predictable and recurs on almost every level of the political process. We refer to it as a tendency toward imbalanced political markets. Political markets are imbalanced in part because organizing for political action is difficult and costly. Even if considerable benefits are at stake, potential beneficiaries may choose not to pursue them. If collective goods are involved (that is, if they are shared among members of a group, regardless of the costs any one member paid to attain them, like clean air or a tariff), potential beneficiaries often let other members of the collectivity pay the costs, and simply enjoy the benefits—the classic “free-rider” problem. Free riders aside, the probability of political action can be expected to vary with the incentives. If either the benefits or the costs of political action are concentrated, political action is more likely. A tax or a tariff on tea, for example, clearly and significantly affects the tea industry. To tea consumers, the tax is of marginal importance, a few dollars a year perhaps. Clearly those in the industry, with their livelihood at issue, are more likely to organize for political action. And even such concentrated interests are not likely to act if the expected benefits do not significantly outweigh the costs. As Wilson (1973:318) has phrased it, “The clearer the material incentives of the organization's member, the more prompt, focused and vigorous the action.” (See also Marmor and Wittman, 1976.) From de Toqueville to David Truman, observers of American politics have argued that threats to occupational status are the most common stimulants to political action. If the group model overstated the facility and extent of group organization, some of its proponents isolated the most significant element: narrow, concentrated, producer interests are more likely to pay the costs of political action than broad, diffuse, consumer interests. Not only do concentrated interests have a larger incentive to engage in political action, but they also act with two significant advantages. First, they typically have ongoing organizations, with staff and other resources already in place. This dramatically lowers the marginal cost of political action. Second, most economic organizations have an expertise that rivals that of other political interests, even government agencies and regulators. Their superior grasp (and sometimes even monopoly) of relevant information easily translates into political influence. The more technical an area, the more powerful the advantage, but it is almost always present to some extent. In sum, two phenomena work to imbalance political markets: unequal interests and disproportionate resources. The two are interrelated: groups with more at stake will invest more to secure an outcome. However, the distinction warrants emphasis for it has important policy implications. Attempts to stimulate countervailing powers, by making resources available to subordinate groups, are doomed to fail if they do not account for differing incentives to employ them. For example, even a resource such as equal access to policy makers—now the object of considerable political effort—is meaningless if the incentives to utilize it over time are grossly unequal. The reverse case—equal interests, unequal resources—is too obvious to require comment. But that clarity should not obscure the fact that imbalanced markets pose an even greater dilemma than the obvious inequality of group resources. Naturally, diffuse interests are not always somnolent. There are purposive as well as material incentives to political action. A revolt against a sales tax might necessitate cuts in programs that benefit specific groups—scattered taxpayers defeating concentrated beneficiaries; tea drinkers may be swept into political action (even to the point of dumping the tea into Boston harbor). Both are examples of diffuse interests uniting for political action. Such coalitions tend to be loosely organized and are characterized by a grass-roots style of politics. Since sustained, long-term political action requires careful organization, they tend to be temporary. With the end of a legislative deliberation, the group disbands or sets out in search of new issues. Concentrated interests, however, carry on, motivated by the same incentives that first prompted political action. The conception of imbalanced political markets is relevant to any level of government, but it is particularly appropriate in considering administrative agencies and bureaus. The problem is less nettlesome for legislatures. On a practical level, lobbying legislators appears only marginally effective; analysts have generally found that politicians are more likely to follow their own opinions or the apparent desires of their constituency (Schattschneider, 1935; Bauer et al., 1963; Marmor, 1973; Eulau and Prewitt, 1973). More important, there is at least a formal representation of every citizen. Of course, this does not minimize the complexities of electoral representation. But elective systems do afford a systematic canvass of community sentiment, however vague a guide it may be to concrete policy. The advantages of organized groups—whatever their extent in legislative politics—increase after a policy's inception. Such groups can be expected to pursue the policy through its implementation and administration. Administrative politics are far less visible; they are not bounded by clear, discrete decisions, and are cluttered with technical details rather than with the symbols that are more likely to arouse diffuse constituencies. The policy focus of program administration is dispersed—temporally, conceptually, even geographically. Only concentrated groups are likely to sustain the attention necessary to participate. Furthermore, when a bureau deals with a group or an industry over time, symbiotic relationships tend to form. A considerable literature documents the range of these clientele relationships and offers the following account of their life cycle: The industry groups typically have information vital to governing; their cooperation is often necessary to program success; and, as a bureau loses public visibility, the groups with concentrated stakes form a major part of its environment, applying pressure, representing their interests, interacting regularly with the agency (Bernstein, 1955; Noll, 1971). In extreme cases, groups with intense, concentrated stakes can use a friendly agency to recoup legislative defeats. Important decisions are made in agencies and bureaus that define, qualify, even subvert original legislative intent. Administrative processes may even grow biased to the point that other affected parties are shut out from deliberations that concern them. For example, Congress included a consumer-participation provision in the Hill-Burton Act, but the implementing agency never wrote regulations for it. When consumers overcame the imbalance of interests and sued for participation, they were denied standing. Since the regulations had never been written, consumer representatives had no entry into the policy-making process (Rosenblatt, 1978). As governmental administration becomes more important, the imperative of balancing political markets becomes more pronounced. The difficulties of doing so are intensified by the disaggregated character of the American political process. In contrast to the British case (McConnell, 1966; Lowi, 1969), congressional oversight of the regulatory and administrative agencies has in the past been uneven and often quite loose. This pattern illustrates imbalanced political markets and its extreme manifestation, agency “capture.” The notoriously weak and undisciplined political parties in America contribute to this centrifugal tendency of authority within national government (Burnham, 1978). The issue we address is how to balance political markets in administrative politics. How do we represent broad, diffuse interests, when all the incentives point to domination by a minority of intensely interested producers? The following discussion analyzes the details of the effort to achieve this balance in local health planning according to the strictures of the 1974 law and subsequent regulation: agencies governed by representative boards ostensibly dominated by consumers. We suggest how clearly understanding and properly institutionalizing the concept of representation can help formulate measures to overcome the tendencies toward imbalance that would normally subvert such efforts. The Health Planning Act addressed the issue of interest imbalance by mandating consumer majorities on HSA governing boards: between 51 and 60 percent of each board must be composed of “consumers of health care … broadly representative of the social, economic, linguistic, and racial populations” and of “the geographic areas” of the health service area.1 The rest of the governing board is to be composed of health care providers. There was no means specified for conforming to this mandate in either the law or the regulations. Administrators quickly discovered that achieving meaningful consumer representation requires considerably more than simply calling for it. Within two years of the law's enactment, a spate of lawsuits had been filed as various groups contended that they were not being represented; the law's ambiguity lent some plausibility to the claim of almost every group. Equally problematic was the question of who should count as representative of whom. And there were reports of public meetings attended only by providers, of consumers shut out of all meaningful deliberations, and of representatives overwhelmed by technical details (Clark, 1977). Such difficulties in the efforts to represent consumers were a major factor in the unexpected delays in certification (“full designation”) of most agencies; confusion about or repudiation of consumer dominance has actually led to decertification in several instances. Not all the agencies have experienced such troubles, but where HSA success has been achieved, it occurs despite the federal law and its regulations. Establishing representation requires making fundamental choices. Decisions must be made about the selection of representatives, what those representatives should be like, and the expectations that govern their behavior. Furthermore, the governmental structures within which representatives operate must be considered. Do they encourage or impede effective representation? Is the tendency toward political imbalance redressed? Finally, there is the issue of who is to be represented, a question particularly significant when geographic representation is supplemented or abandoned. The character and success of consumer representation is contingent on how these questions get answered. Indeed, many of the difficulties that plague the Health Planning Act follow from a failure even to consider most of them. Three factors, central to consumer involvement in PL93-641, have been conceptually muddled, both in the law itself and in the analysis and litigation surrounding it. They are accountability, participation, and representation. Accountability Put simply, accountability means “answering to” or, more precisely, “having to answer to.” One must answer to agents who control the scarce resources one desires. In the classic electoral example, officials are accountable to voters because they control the scarce resources officials desire. Public officials are accountable to legislatures, which control funds; to pressure groups, who can extend or withdraw support; or even to medical providers, who can choose whether to cooperate with an official's program. The crucial element in each case is that accountability stems from some resource valued by the accountable actor. Accountability is thus not merely an ideal—such as honesty—that public actors “ought” to strive toward. Rather, the resources one cares about hang in the balance, controllable by the relevant constituency. We call the means by which actors are held to account “mechanisms of accountability.” These mechanisms can vary enormously in character and in the extent of control they impose on an actor. For example, voters can occasionally exert control with a “yes” or “no” decision, whereas work supervisors can regularly monitor a subordinate's work, enforcing compliance with specific demands. There is often, to be sure, a give-and-take process in which actors try to maximize their freedom of action within the constraints of the formal mechanisms and thus minimize accountability. And those indifferent to the scarce resources in question (e.g., an official who has no desire to be reelected) are not, strictly speaking, accountable. But this illustrates the crucial point: in speaking of accountability one must be able to point to specific scarce resources, particular mechanisms that hold representatives to account. Many of the HSA requirements that are touted as increasing accountability to the public are, in fact, irrelevant to it: a public record of board proceedings;2 open meetings, with the notice of meetings published in two newspapers and an address given where a proposed agenda may be obtained;3 an opportunity to comment, either in writing or in a public meeting, about designation,4 or health system plans (HSPs)5 or annual implementation plans (AIPs).6 These requirements might be said to facilitate public accounting, not accountability. Public participation and information can inform the exercise of accountability but, without formal mechanisms that force boards to answer to consumers, there is not what we call direct public accountability. Well-defined mechanisms of accountability are central to the idea of holding leaders to account. Propositions that substitute such notions as “winning over” or “working with” the community for an identifiable mechanism are much weaker, conflating the common-language usage of accounting for action with accountability to a constituency, a distinction pointed out by our colleague, Douglas Yates. Suggesting that health systems agencies would be ineffective without public support is an equally weak conception of accountability to consumers. Every agency of every government expresses these expectations and fears. What is unique about representative government is that the citizenry—not the government agencies—is given the final say. And that say is not expressed by “inhospitality” or “lack of trust” or “written protests” but by an authoritative decision. What we term mechanisms of accountability are the institutionalization of that authoritative decision. Accountability can be to more than one constituency. As health planning is now structured, the Department of Health, Education, and Welfare (HEW), state governments, local governments, consumers, providers, and numerous other groups can all attempt to hold an HSA accountable. These competing agents introduce significant tensions. One especially difficult problem is the conflict between accountability to local and to national government. There are indications that precisely this conflict is asserting itself as HEW, for example, drafts guidelines, and local communities protest that they do not apply in their specific situations. (Rudolf Klein [1979] has elaborated this argument in the British context, with elegant insight on the question of consumer participation.) The emphasis on community control rests on Jeffersonian traditions, and has been seized upon by opponents of big government and centralized bureaucracies. Local communities, according to this view, understand their own needs best and ought, therefore, to be responsible for the policies by which they are governed. The opposing position draws from sources as disparate as Marx and Weber, Madison and Hamilton. National needs require national solutions. What is good for individual communities (e.g., the best hospitals) may not sum to what is best for the entire nation (lower medical costs). This conception typically expresses egalitarian values—only a national policy can redistribute costs and benefits among states and regions. Accountability in the Health Planning Act is only partially delineated, and is therefore geographically ambiguous. Since local communities establish their agency's modus operandi, the potential for local accountability is present. However, insofar as the law takes up the issue explicitly, it presses accountability to HEW. HEW is responsible for reviewing the plans, the structure, and the operation of every designated agency at least once every twelve months (sec. 201515 [c][1]). Presumably, renewal of designation (an important resource that HSA boards desire) is at stake. This is accountability in every important sense. But it can be traced to the public only through the long theoretical strand leading through the presidency. From this perspective, HSA boards are no more accountable to the public than is any other executive agency—certainly a far cry from the rhetoric that accompanied the enactment of PL93-641. As the law now stands, accountability to the public (either directly or through states and localities) is not prohibited or rendered impossible. But neither is accountability to the public instituted or even significantly facilitated. Participation In classical political thought, self-government meant direct participation by the citizenry in public decisions. In this context, Plato envisioned a republic small enough for an orator to address; Aristotle, one in which each citizen could know every other. Rousseau argued that democracy ended when participation did. For obvious reasons, such formulations are generally considered anachronisms in modern industrial societies. Representation has replaced direct participation as the institutionalization of the idea that “every man has the right to have a say in what happens to him” (Pitkin, 1967:3). From a theoretical perspective, it is surprising that a law as concerned with consumer representation as PL93-641 articulates so few guidelines regarding representation, and so many regarding direct public participation. The earlier discussion of imbalanced political markets suggests why direct participation provisions tend to favor providers over consumers. First, their interest in health planning is far more concentrated and obvious. Planning decisions can directly affect their livelihood. Hospital administrators, officials of state medical associations, and other employed medical-care personnel are far more likely to pay the costs of participating in open HSA meetings. The general public—“the consumers”—are not likely to do so. After all, their stake in the proceedings is much smaller; planning does not usually affect their livelihood in as obvious a way. Furthermore, the difficulties of fostering direct consumer participation are aggravated by the nature of health issues. Health concerns, though important, are intermittent for most people. They are not as clearly or regularly salient as the condition of housing or children's schools—situations that citizens confront daily. Consequently, it is far more difficult to establish public participation in HSAs than in renter's associations or school districts (Marmor, 1977). We are not suggesting that provisions for participation are objectionable or should be stricken from PL93-641. Rather, without being carefully tied to some mechanism of accountability or broader view of representation, the provisions are, at best, marginally useful to consumers. They are most likely to be utilized by aroused provider institutions. Representation Representation is necessitated by the impossibility of direct, participatory democracy in modern society. The entire population cannot be present to make decisions. Hence, institutions must be designed to “represent”—literally, “to make present again” or to “make present in some sense something which is nevertheless not present literally or in fact” (Pitkin, 1967:8). Three aspects of representation are usually considered in the appraisal of representative institutions: formal, descriptive, and substantive features, a formulation originated by Griffiths (1960), and refined and popularized by Pitkin (1967). By formal representation we mean the institutionalization of representation—the specific mechanisms by which representatives are selected and controlled. The mechanisms need have nothing to do with what representatives should be like (descriptive), or the way in which they should act (substantive). Yet they are crucial in defining the process of representation. They are the structure through which representation is established and carried on; they define constituencies and link representatives to them. Institutionalizing accountability rests in large measure on formal requirements. One commonsense definition of representation is purely formal. Birch (1971:20), for example, suggests that “the essential character of political representatives is the manner of their selection, not their behavior or characteristics or symbolic value.” To him, elections equal representation. Few theorists would agree to so starkly formal a view. More commonly, elections must not merely be held but must offer significant “choice”—they must be “free” (Swabey, 1969; Friedrich, 1950:266 ff.). Although empirical referants are often noted (elections in the UK, not in the USSR), theorists have had difficulty in specifying precisely what constitutes “free” elections. The most important issue of formal representation relevant to PL93-641 is whether representatives should be selected in general elections, by organized groups, by officials, or by self-selection. Though in many cases accountability to the community is increased by general elections, we do not believe that is the case for HSAs. The Health Planning Act leaves most formal representational questions to be answered on the local level. This is not necessarily unfortunate, as long as the applications for designation are carefully reviewed regarding the issues of formal representation. These issues can be stated in broad terms by asking what constituency a representative is tied to, and by what institutional arrangements. Descriptive representation refers to the characteristics of representatives. Early formulations of representation held that, since constituencies could not be present themselves to make public choices, they should be “represented” by a “body which [is] an exact portrait, in miniature, of the people at large.” The reasoning is straightforward. Since not all the people can be present to make decisions, representative bodies ought to be miniature versions or microcosms of the public, mirroring the populations they represent. The similarity of composition is expected to result in similarity of outcomes; the assembly will “think, feel, reason (and, therefore) act” as the public would have (John Quincy Adams, cited in Pitkin, 1967:60). A number of difficulties confront this formulation. First, “the public” is a broad entity. What aspect of it ought to be reflected in an assembly? The map metaphor is telling in this regard. Do we want the kind of map that shows rainfall, or altitudes? Topography? Trade regions? Dialects? John Stuart Mill argued that opinions should be represented; Bentham and James Mill emphasized subjective interests; Sterne, more ambiguously, “opinions, aspirations and wishes”; Burke, broad fixed interests. Swabey suggested that citizens were equivalent units, that if all had roughly equal political opportunities, representatives would be a proper random selection and, consequently, would be descriptively representative. Whichever the case, a failure to specify precisely what characteristics are mirrored reduces microcosm or mirror theories to incoherence. Even when the relevant criterion for selecting representatives is properly specified, mirroring an entire nation is chimerical. Mill's “every shade of opinion,” for example, cannot possibly be reconstructed in the assembly hall on one issue, much less on all. One cannot mirror a million consumers, no matter which sixteen or eighteen consumers are representing them on the HSA governing board. Competing opinions or interests can of course be represented. But the chief aim of microcosmic representation is mirroring the full spectrum of constituencies. Pitkin notes that the language in which these theories is presented indicates the difficulty of actually implementing them. The theorists constantly resort to metaphor—the assembly as map, mirror, portrait. They are all unrealistic in more practical terms. Mirroring the populace may be as undesirable as it is infeasible. Many opinions are idiotic. The merriment that followed Senator Hruska's proposal that the mediocre deserved representation on the U.S. Supreme Court suggests a common understanding of the foolishness of baldly descriptive views.7 Furthermore, if representatives are asked merely to reflect the populace, they have no standards regarding their behavior as representatives. Descriptive representation tells us only what representatives are" @default.
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W1821444549 title "Representing Consumer Interests: Imbalanced Markets, Health Planning, and the HSAs" @default.
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