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Full-Text Articles in Law
Much Ado About Possibly Pretty Little: Mccarran-Ferguson Repeal In The Health Care Reform Effort, Christopher L. Sagers
Much Ado About Possibly Pretty Little: Mccarran-Ferguson Repeal In The Health Care Reform Effort, Christopher L. Sagers
Law Faculty Articles and Essays
Since 1945, the McCarran-Ferguson Act (MFA) has shielded the “business of insurance” from antitrust liability, so long as the challenged conduct is “regulated by State Law” and does not constitute “boycott, coercion, or intimidation.” This law, like the dozens of other statutory antitrust exemptions that still exist for other industries, has more or less always been controversial, and efforts to repeal it date back more than thirty years. This Essay asks two questions: (1) what consequences the pending repeal measures might have if one of them becomes law; and (2) what a close examination of this effort might teach us …
Contraception, Abortion, And Health Care Reform: Finding Appropriate Moral Ground, Dena S. Davis
Contraception, Abortion, And Health Care Reform: Finding Appropriate Moral Ground, Dena S. Davis
Law Faculty Articles and Essays
In this essay, I make the argument that abortion and contraception are fundamentally different actions that occupy fundamentally different moral space, and that justify fundamentally different political action. I conclude that, while it is morally licit, even morally obligatory, for people who believe that embryos are people like us, to attempt to impede access to abortion, it is morally illicit to attempt to block access to contraception (including sterilization).
Community Health Centers: Health Care As It Could Be, Juniper Lesnik
Community Health Centers: Health Care As It Could Be, Juniper Lesnik
Journal of Law and Health
This article explores the potential of community health centers (CHCs) to become a central component providing health care in America. It focuses on health centers as a proposed solution to the dual national problems of access to care and the shortage of primary care doctoring. It argues that CHCs have the capacity to address the problem of access to health services and to provide a vibrant model for the revival of primary care. Part I deals with the history, structure, current scope, and funding of CHCs. Part II looks at national health care goals and how CHCs are uniquely poised …
Application Of Administrative Law To Health Care Reform: The Real Politik Of Crossing The Quality Chasm , Thomas R. Mclean
Application Of Administrative Law To Health Care Reform: The Real Politik Of Crossing The Quality Chasm , Thomas R. Mclean
Journal of Law and Health
Real Politik, a term in vogue at the height of the Cold War, contemplates that in practice, governmental bodies attempt to expand their spheres of influence and control by the application of economic leverage. The federal government is clearly interested in expanding its influence into health care because of its cost. Americans spend over one trillion dollars - forty-four percent of which is paid for by the federal government - on health care each year. To control the cost of health care, governmental reformers proposed the Health Securities Act of 1993 as a frontal assault on the American health care …
Erisa Preemption: Will The Elimination Of The Erisa Preemption Clause Help Or Harm America's Ability To Deal With Its Pending Health Care Crisis, Damon Henderson Taylor
Erisa Preemption: Will The Elimination Of The Erisa Preemption Clause Help Or Harm America's Ability To Deal With Its Pending Health Care Crisis, Damon Henderson Taylor
Journal of Law and Health
This article explores the arguments surrounding the fate of the preemption clause and argues that Congress must work to preserve self-insured employers' accountability to its employees while concurrently retaining the services of self-insured employers in the health care business. Part II analyzes the federal government's relationship with the health care industry, concentrating selectively on four episodes of federal regulation which helped create the health care crisis that we encounter today - the Hill-Burton Act, the Congressional amendments to the Health Professions Educational Assistance Act, the advent of Medicare, and ERISA. Armed with this understanding, Congress's evaluation of health care issues, …
The Role Of New Federalism And Public Health Law, James G. Hodge Jr.
The Role Of New Federalism And Public Health Law, James G. Hodge Jr.
Journal of Law and Health
To understand the impact of new federalism on the field of public health law, I explore the development of the interrelated concepts of federalism, state police powers, and public health over time. This article concentrates on the theoretical and legal meanings of these concepts in American jurisprudence. Part II further defines the concept of federalism and its relation to the field of public health law. Part III thoroughly examines the traditional nature of the states' police powers as sources of state authority for public health laws and the corresponding localization of public health goals. The rise of the federal role …
Resolving Conflicting Laws And Policy In Integrated Delivery Systems Development, Anthony D. Shaffer, Peter A. Pavarini
Resolving Conflicting Laws And Policy In Integrated Delivery Systems Development, Anthony D. Shaffer, Peter A. Pavarini
Journal of Law and Health
Health care legal advisors are often called on to rationalize and synthesize these conflicting laws and policies while assisting clients to meet current market demands in developing competitive integrated delivery systems ("IDS"). This article explores the myriad of laws and regulations that affect integrated delivery systems development and proposes a practical approach for reconciling conflicting laws and policies. Some legal practitioners may recognize the proposed method as the process they already follow. For others, the suggestions in this article will hopefully challenge them to see conflicts of law and policy as opportunities to engage in creative thinking.
Constitutional Impediments To National Health Reform: Tenth Amendment And Spending Power Hurdles, S. Candice Hoke
Constitutional Impediments To National Health Reform: Tenth Amendment And Spending Power Hurdles, S. Candice Hoke
Law Faculty Articles and Essays
This Article proceeds in four Parts. The first briefly summarizes the approach of each of the pending health reform bills and distills those portions relevant to current Tenth Amendment and Spending Clause analysis. Provisions that would impose on States the financial and administrative responsibility for achieving Federal regulatory objectives or that specify punitive measures to be taken against States choosing not to participate in the cooperative program are critical features for the inquiry. Employing these criteria, the first Part identifies seven distinct and largely novel models of problematic regulatory instructions that warrant more probative analysis.The second Part briefly outlines the …
Book Review: An Overview Of Health Care Reform: A View Of The Forest--An Introduction To Taft Strategic Atlas: U.S. Health Care Reform By Frederick I. Taft, Stephen J. Werber, Stephen R. Smith
Book Review: An Overview Of Health Care Reform: A View Of The Forest--An Introduction To Taft Strategic Atlas: U.S. Health Care Reform By Frederick I. Taft, Stephen J. Werber, Stephen R. Smith
Law Faculty Articles and Essays
Those interested in health law, who wish to follow and participate in the national debate, need a method of organizing the trees of definition, individual issues, and plans found in the forest of the debate. The cliche of not seeing the forest for the trees is reversed in this debate as we all can see the forest, but we cannot distinguish or truly discern its contents. To aid in understanding these issues, The Journal of Law and Health has taken the unusual step of reprinting a significant portion of a new book. The Editors believe that a traditional Book Review …
The Need For A Process Theory: Formulating Health Policy Through Adjudication, Margaret G. Farrell
The Need For A Process Theory: Formulating Health Policy Through Adjudication, Margaret G. Farrell
Journal of Law and Health
This essay sets out a preliminary, theoretical framework within which to analyze remedial options and begin the search for the values they promote. It is based on the premise that the process used to enforce substantive rights to health care should promote values that are consistent with, and even supportive of, the values that health care reform itself would promote. The framework proceeds upon an analysis of the kinds of claims at issue, the alternative decision making models available to settle them, and the forums in which those models might be used. In conclusion, I urge scholars, policy makers and …
Rethinking The Health Care Delivery Crisis: The Need For A Therapeutic Jurisprudence, Bruce J. Winick
Rethinking The Health Care Delivery Crisis: The Need For A Therapeutic Jurisprudence, Bruce J. Winick
Journal of Law and Health
In designing a sensible system of national health insurance we need to avoid a repetition of the built-in inflationary pressures that followed the adoption of Medicaid and Medicare. Medicaid and Medicare eligibility encouraged many to increase their use of health care services, in part because they no longer needed to bear the costs (or full costs) or services. This increased demand, exceeding the supply of health care services, predictably produced price hikes. Other factors undoubtedly have contributed to the escalation of health care costs, including the tendency of some doctors to order unnecessary diagnostic tests, over-reliance on high technology, and …
State And Local Government Legal Responsibilities To Provide Medical Care For The Poor, Michael A. Dowell
State And Local Government Legal Responsibilities To Provide Medical Care For The Poor, Michael A. Dowell
Journal of Law and Health
This article will provide an overview of the extent to which state and local government entities must provide medical care for the poor and ways to enforce these obligations. Delineation of specific medical assistance program responsibilities requires careful review of the legislative intent and statutory purpose. Remedies for state or local failure to meet statutory or constitutional obligations to provide indigent medical care will be discussed in the enforcement section.