Health Law and Policy Commons^™

Vertical Restraints And Powerful Health Insurers: Exclusionary Conduct Masquerading As Managed Care?, Frances H. Miller

Faculty Scholarship

Overt competition is a relative newcomer to the health care field-a field rarely even referred to as an industry a mere twenty-five years ago. In the early sixties most observers still considered commercial motives basically inapplicable to the delivery of medical services.' But perceptions have changed now that more than 11 percent of the gross national product is spent on the health sector of the economy, a development made possible primarily because insurance to pay for expensive treatment and technology has become more widely available. Delivering medical services is commonly considered big business now, and the same kinds of competitive …

Aids And The Right To Health Care, Taunya Lovell Banks

Faculty Scholarship

No abstract provided.

Special Care: Medical Decisions At The Beginning Of Life, Jonathan H. Margolies

Michigan Law Review

A Review of Special Care: Medical Decisions at the Beginning of Life by Fred M. Frohock

Foreword: Public Health & The Law—A Symposium Dedicated To Professor William J. Curran, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

This essay serves as the foreword to Public Health & the Law, a symposium dedicated to Professor William J. Curran held in 1987.

During his career, Professor Curran chaired the Harvard School of Public Health Committee on Human Research; he directed the Program in Law and Public Health; and he was co-director of the Harvard Interfaculty Program in Medical Ethics from 1973 to 1980. He was also an advisor to the World Health Organization and spent two sabbatical periods in Europe with WHO organizations. He advised and lectured in countries throughout the world.

At Harvard Law School and at …

The Painful Prescription: A Procrustean Perspective?, Frances H. Miller, Graham A.H. Miller

Faculty Scholarship

The United States and Great Britain have often been called two countries divided by a common language. In the field of medicine, common language facilitates comparisons, but it can obscure basic value differences as well. Henry Aaron, Ph.D., and William Schwartz, M.D., in their influential book The Painful Prescription: Rationing Hospital Care,1 analyzed how and why Britain (as compared with the United States) has apparently limited the use of such high-technology procedures as kidney dialysis, CT scans, coronary-artery surgery, x-ray films, and intensive care beds. The authors then speculated about whether similar responses will be forthcoming in this …

The Medicare Rx: Prospective Pricing To Effect Cost Containment, H. Lynda Kugel

University of Michigan Journal of Law Reform

This Note analyzes the impact of changing hospital reimbursement while maintaining charge-based reimbursement for physicians on hospital-physician relationships and on cost and quality of care. This Note contends that if the stated goals of redirecting incentives and containing costs are to be realized, physicians must be drawn into the revised reimbursement scheme. An indirect, aggregate approach is advocated to maintain the integrity of the physician-patient relationship and to avoid a direct financial impact upon the physician regarding patient care decisions. Part I will briefly examine the reasons for changing hospital reimbursement from retrospective cost-based reimbursement to prospective fixed rates. Part …

Access To Health Care And Equal Protection Of The Law: The Need For A New Heightened Scrutiny, Wendy K. Mariner

Faculty Scholarship

Proposals to reduce national expenditures for health care under Medicare and other programs raise questions about the limits on legislative power to distribute health care benefits. The constitutional guarantee of equal protection has been a weak source of protection for the sick, largely because they fail to qualify for special scrutiny under traditional equal protection analysis. Recent decisions of the United States Supreme Court suggest that the Justices seek a newer, more flexible approach to reviewing claims of unequal protection. This Article examines the application of the equal protection guarantee to health-related claims. It argues that traditional equal protection analysis …

Of Foxes And Hen Houses: Licensing And The Health Professions, Michigan Law Review

Michigan Law Review

A Review of Of Foxes and Hen Houses: Licensing and the Health Professions by Stanley J. Gross

Selective Nontreatment Of Handicapped Newborns, Michigan Law Review

Michigan Law Review

A Review of Selective Nontreatment of Handicapped Newborns by Robert Weir

Making Health Care Decisions: A Report On The Ethical And Legal Implications Of Informed Consent In The Patient-Practitioner Relationship, Volume 1, Michigan Law Review

Michigan Law Review

A Review of Making Health Care Decisions: A Report on the Ethical and Legal Implications of Informed Consent in the Patient-Practitioner Relationship, Volume 1 by the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research

Who Speaks For The Child: The Problems Of Proxy Consent, Michigan Law Review

Michigan Law Review

A Review of Who Speaks for the Child: The Problems of Proxy Consent edited by Willard Gaylin and Ruth Macklin

Tax Exempt Financing Of Health Care Facilities As A Component Of The Market Approach To Health Care Cost Containment, George A. King

Fordham Urban Law Journal

This Comment will discuss the current health delivery system in the context of a Market Approach to health care cost containment. Political and financial issues in health care as well as current judicial and tax policies affecting Market Approach theory will be examined. The Comment concludes that targeted tax exempt financing must play a major role in establishing competitive forces in the health care delivery system.

The Nonproliferation Mandate And The Appropriate Legal Standard In Health Care Bargaining Unit Determinations, Mary Esquivel Sciarra

Fordham Urban Law Journal

This Comment examines the ongoing controversy over the appropriate legal standard to be applied in the determination of bargaining units in the health care industry. It reviews the basic law which governs the selection of appropriate units, discusses the legislative history of the 1974 amendments as they relate to bargaining units, and considers the intent of the accompanying admonition against unit proliferation. Implementation of the congressional mandate is examined in Board unit determinations. The Board's persistent use of the traditional industrial community of interest test is examined in light of circuit court decisions which have advocated new approaches. This Comment …

Mental Health Law: Major Issues, Michigan Law Review

Michigan Law Review

A Review of Mental Health Law: Major Issues by David B. Wexler

Why Does Health Care Regulation Fail?, Robert C. Clark

Maryland Law Review

No abstract provided.

The Emerging Stowaway: Patients' Rights In The 1980s, George J. Annas

Faculty Scholarship

At one point in Edgar Allan Poe's Narrative of Arthur Gordon Pyr of Nantucket, Pym, who has stowed away in the hold of a whaling vessel, believes he has been abandoned and that the hold will be his tomb. He expressed sensations of "extreme horror and dismay," and "the most gloomy imaginings, in which the dreadful deaths of thirst, famine, suffocation, and premature interment, crowded in as the prominent disasters to be encountered."

Redefining Government's Role In Health Care: Is A Dose Of Competition What The Doctor Should Order?, James F. Blumstein, Frank A. Sloan

Vanderbilt Law Review

Throughout the 1970s, the two major political parties espoused some form of national health insurance. Faced with a fiscal squeeze, however, the Carter Administration gave national health insurance a relatively low priority.The political movement for comprehensive national health insurance rests on an ideological commitment that the federal government should underwrite the cost of providing universal access to medical services. The objective is essentially redistributive in nature: equitable concerns for the disadvantaged loom as the major focus. The selective expansion of coverage to encompass those identified as needy and worthy, but only those so identified, is anathema to those who traditionally …

Health Care, Markets, And Democratic Values, Rand E. Rosenblatt

Vanderbilt Law Review

Proposals to restructure the health care industry by increasing market competition currently have much political and academic momentum. Whether such proposals will work necessarily depends in part upon the criteria for success that are applied. Viewed from the market perspective, the question is whether procompetitive reforms will achieve their stated goals of containing costs, increasing efficiency, and enhancing consumer sovereignty over health care decisions. From a broader perspective, other questions are also of concern: whether increased competition in health care will actually improve people's health, and whether the operations and effects of health care competition are consistent with important values …

Regulation Through The Looking Glass: Hospitals, Blue Cross, And Certificate-Of-Need, Sallyanne Payton, Rhoda M. Powsner

Michigan Law Review

A clear focus on the commitment of the public health and hospital establishments to the large teaching hospital and their belief in rationalizing the health care system through community-based planning allows us to understand the ideas and institutions that have produced our present system of hospital regulation. It can also help us to understand the structure and behavior of the hospital industry and can illuminate current controversies over health care policy.

What follows is a narrative account of the development of regional planning and certificate-of-need legislation. As part of that story, we trace the evolution of the Blue Cross, explain …

Michigan's Nursing Home Reform Law, John D. Croll

University of Michigan Journal of Law Reform

This article examines Michigan's new nursing home reform law, which has been hailed as "landmark legislation" and as a model for the entire country. Part I examines the past failures of nursing home regulation and the need for reform. Part II analyzes the law's key provisions. Part III examines the weaknesses of certain enforcement measures. The article proposes the following improvements: (1) extension of the law's protection to residents of homes for the aged; (2) greater access to patients by approved organizations; (3) adoption of nurse-patient ratios; (4) improvement of inspection procedures; and (5) allowance for patients or their representatives …

Relative Value Guides And The Sherman Antitrust Act, David R. Simonsen, Jr.

Vanderbilt Law Review

The skyrocketing costs of health care services for the American people constitute a crisis of national importance.' The seriousness of this crisis is reflected in the attention that antitrust enforcement agencies of the federal government are giving to the health care industry. The agencies are responding, at least in part, to the common perception that these skyrocketing costs result as much from the restrictive trade practices of the health care industry as from the growing use of sophisticated technology and inflation. Competition is viewed as an antidote to increasing prices and antitrust laws as the vehicle by which federal agencies …

Due Process For Hill-Burton Assisted Facilities, Margaret L. Huddleston

Vanderbilt Law Review

The need to make health care available to all Americans does not justify the impairment of governmental contracts with Hill-Burton grantees. When substantial rights are greatly impaired by retroactive legislation, the need for a strong governmental justification becomes more acute. The impairment caused by the post-1947 Hill-Burton regulations, particularly the 1979 regulations, is neither reasonable nor necessary in light of the nature and extent to which they impair substantial private rights. The recent Hill-Burton regulations attempt to make health care more available to Americans,but the Government seeks to do this without additional financial expenditure on its part. Although the goal …

The Abortion-Funding Cases And Population Control: An Imaginary Lawsuit (And Some Reflections On The Uncertain Limits Of Reproductive Privacy), Susan Frelich Appleton

Michigan Law Review

Two issues are before us today: (I) the meaning of the term "medically necessary" in a public hospital's charter and (II) the constitutionality of state action that provides free medical treatment to indigent pregnant women seeking an abortion but denies them such assistance for prenatal care and childbirth. On the basis of recent Supreme Court authority, we find that such action violates neither the hospital's charter nor the United States Constitution.

The Hill-Burton Act, 1946-1980: Asynchrony In The Delivery Of Health Care To The Poor

Maryland Law Review

No abstract provided.

The Rights Of The Employee As Patient, Frances H. Miller

Faculty Scholarship

No abstract provided.

Alternative Proposals For The Regulation Of An Emergency Strike In The Health Care Industry, Susan A. Jones

Vanderbilt Law Review

In order to give approximately 1,400,0001 health care employees the protection enjoyed by employees under the National Labor Relations Act (NLRA), Congress amended the Act in 1974 to make health care institutions "employers. Recognizing the public's dependence upon the unique services provided by health care facilities, Congress was hesitant, however, to extend coverage under the Act to health care employees without providing additional safe-guards. These safeguards are embodied in the following special provisions: (1) the extension of the sixty-day notice requirement for modification of an expiring contract to ninety days; (2) the creation of a thirty-day notice requirement of a …

The Health Professions Educational Assistance Act Of 1976: A New Prescription?, John J. Greene

Fordham Urban Law Journal

The 1976 Health Professions Educational Assistance Act is a new congressional effort to promote the rational development, distribution, and utilization of the health professions through financial incentives. The Act represents a compromise solution to the issues affecting the quality, quantity and distribution of health manpower. It targets the four major problems of the current system: (1) the shortage of health professionals; (2) the geographic maldistribution of health manpower; (3) the specialty maldistribution of physicians and dentists; and (4) the influx of foreign medical graduates into the United States. This comment examines the effectiveness of past legislative responses to these issues …

Psro Data And Information: Disclosure To State Health Regulatory Agencies, Frances H. Miller

Faculty Scholarship

No abstract provided.

Regulation Of Electroconvulsive Therapy, Michigan Law Review

Michigan Law Review

Regulation of ECT has generally focused on whether the patient or his representative effectively consented to the treatment. The highly intrusive nature of ECT and the unique circumstances of those patients who are likely to receive it create particularly difficult legal issues concerning the validity of the patient's consent. This Note will examine the various methods that are available to protect the rights of patients for whom ECT is proposed. After briefly explaining the nature of the therapy, the Note will discuss the efficacy of judicial remedies with respect to both competent and incompetent patients. It will argue that, because …

New York's Revised Nursing Home Legislation, Michael G. Mcgee

University of Michigan Journal of Law Reform

This note undertakes an analysis of the extensive package of nursing home legislation recently enacted in New York. First, specific regulations will be examined in relation to problems they are designed to remedy. Next, the note critically appraises three key, innovative provisions, making recommendations for implementation or revision of each. Finally, the broad changes needed to bring about lasting improvement of nursing care are discussed and a summary of pending legislation is provided.