Health Law and Policy Commons^™

Slouching Toward Managed Care Liability: Reflections On Doctrinal Boundaries, Paradigm Shifts, And Incremental Reform, Wendy K. Mariner

Faculty Scholarship

Following the seemingly endless debate over managed care liability, I cannot suppress thoughts of Yeats’s poem, “The Second Coming.” It is not the wellknown phrase, “Things fall apart; the centre cannot hold,” that comes to mind; although that could describe the feeling of a health-care system unraveling. The poem’s depiction of lost innocence — “The best lack all conviction, while the worst/Are full of passionate intensity” — does not allude to the legislature, the industry, the public, or the medical or legal profession. What resonates is the poem’s evocation of humanity’s cyclical history of expectation and disappointment, with ideas as …

Standards Of Care And Standard Form Contracts: Distinguishing Patient Rights And Consumer Rights In Managed Care, Wendy K. Mariner

Faculty Scholarship

There is hardly a legislature in the country that is not currently debating the issue of patient rights in managed care. Not surprisingly, legislators, as well as reporters covering the debate, have called upon George J. Annas, Edward R. Utley Professor of Health Law and Chair of the Health Law Department at Boston University, for information and advice. Professor Annas has earned the title of "father of patient rights" for his decades of research, writing, and advocacy on behalf of individuals who need health care and deserve justice.

Today, however, one might ask whether patient rights are compatible with managed …

Playing Doctor: Corporate Medical Practice And Medical Malpractice, E. Haavi Morreim

University of Michigan Journal of Law Reform

Although health plans once existed mainly to ensure that patients could pay for care, in recent years managed care organizations (MCOs) have attempted to limit expenditures by exercising significant influence over the kinds and levels of care provided. Some commentators argue that such influence constitutes the practice of medicine, and should subject MCOs to the same medical malpractice torts traditionally brought against physicians. Others hold that MCOs engage only in contract interpretation, and do not literally practice medicine.

This Article begins by arguing that traditional common law doctrines governing corporate practice of medicine do not precisely apply to the current …

Accountable Managed Care: Should We Be Careful What We Wish For?, David A. Hyman

University of Michigan Journal of Law Reform

Managed care is exceedingly unpopular of late. Many people believe that the problem is managed care organizations (MCOs) are unaccountable. Indeed, for many people, the creation of tort-based accountability for MCOs is the touchstone for assessing legislative "reform." The case for tort-based accountability is actually quite complex, and the merits of tort-based accountability cannot be resolved with sound bites and bad anecdotes. Tort-based accountability has both costs and benefits, and little attention has been paid to the extent to which alternatives to tort-based accountability are found in existing institutional arrangements.

This Article systematically considers the extent to which alternatives to …

Managed Care- The First Chapter Comes To A Close, Sallyanne Payton

University of Michigan Journal of Law Reform

Introduction to the symposium, Managed Care: What's the Prognosis: Managing Care in the Next Century.

Clearing The Way For An Effective Federal-State Partnership In Health Reform, Eleanor D. Kinney

University of Michigan Journal of Law Reform

At century's end, states have assumed a very different role in the design, implementation, and operation of health service programs than they did twenty-five years ago. In the current volatile political atmosphere particularly at the federal level, states have taken up the mantle of healthcare reform in the final years of the 1990s. Yet there remain problems and difficulties with the current federal-state relationship in health reform. The critical question is whether states can successfully accomplish genuine reform given its politically charged, complex and costly nature. This question takes on particular significance for the most important reform-expanding coverage to the …

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, …

How Many Libertarians Does It Take To Fix The Health Care System?, Thomas L. Greaney

Michigan Law Review

There's an old joke about a Southern preacher who is asked whether he believes in the sacrament of infant baptism. "Believe in it?" thunders the preacher. "Hell, son, I've seen it done." In Mortal Peril: Our Inalienable Right to Health Care?, Richard Epstein gives testimony that markets should be left unfettered to distribute health care services. Arguing from first principles, he aims to persuade that the messy, confusing business of health care is best dealt with by simple legal rules: permit free contracting, countenance no government-induced subsidies, recognize no positive rights. One leaves this particular revival tent feeling he …

The Evolution Of Health Care Decision Making: The Political Paradigm And Beyond, Elizabeth Price Foley, Elizabeth C. Price

Faculty Publications

The ascendancy of the political paradigm as the primary mode of health care decision-making is a natural evolutionary reaction to the unrestrained market paradigm. Although a certain of political intrusion into the health care marketplace is both necessary and useful, it has the potential to unravel the efficiencies achieved by managed care. Overzealous intervention in the health care market in the name of "reform" may cause the health care decision-making pendulum to swing back to the provider paradigm, with its tendency to escalate health care costs and diminish access. One possible way to achieve decision-making equilibrium and and end the …

How Many Libertarians Does It Take To Fix The Health Care System?, Thomas L. Greaney

All Faculty Scholarship

The libertarian prescription for health care reform is a admixture of deregulation and purportedly utilitarian calculation of social benefits and costs. In Mortal Peril: Our Inalienable Right to Health Care?, Richard Epstein's offers a stark roadmap that embraces an unfettered free market for health care services, indigent care left primarily to the charitable impulses of providers and no cross subsidies between classes, generations or other categories of citizens (including the sick and healthy). This review essay argues that the history, economics, and politics of health markets belie Epstein's abstract reasoning. Though much of the argument in Mortal Peril is written …

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

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.

Democratizing Hmo Regulation To Enforce The "Rule Of Rescue", Kent G. Rutter

University of Michigan Journal of Law Reform

Despite heightened public concern about HMOs, misguided regulatory measures have not guaranteed HMO patients access to the treatment options many consider vital. This Note recommends four changes to the current regulatory system that would preserve HMOs' ability to control health care costs while allowing patients and doctors, rather than lawmakers or HMO administrators, to set health care priorities.

Patients' Rights After Health Care Reform: Who Decides What Is Medically Necessary?, Wendy K. Mariner

Faculty Scholarship

President Clinton's Health Security Act entitles individuals not to unlimited health care, but to a package of defined insurance benefits with specific exclusions and limitations. Like virtually all reform proposals, it would limit covered benefits to services that are medically necessary. If health reform is to control costs, not all medically necessary care can be covered. In the absence of a generally accepted definition of medical necessity, many services will not be guaranteed to all patients unless they are explicitly covered in the federal legislation or regulations. Without a federal definition of medical necessity or regulations listing covered services, health …

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 …

Securing Health Or Just Health Care? The Effect Of The Health Care System On The Health Of America, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

The author first analyzes why the prevention of illness and promotion of health provide the leading justification for the government to act for the welfare of the population. His analysis focuses principally on the foundational importance of health for human happiness, the exercise of rights and privileges, and the formation of family and social relationships. He explains why health care, although critically important; is not the only, nor even the most important, determinant of health. Most morbidity and mortality in the United States is attributable to environmental conditions, pathogens, and human behavior, which are all more responsive to population-based interventions …

Universal Health Care And The Continued Reliance On Custom In Determining Medical Malpractice, James A. Henderson Jr., John A. Siliciano

Cornell Law Faculty Publications

No abstract provided.

Three Visions Of Managed Competition, 1920-1950, Rudolph J.R. Peritz

Articles & Chapters

No abstract provided.

Managed Competition, Integrated Delivery Systems And Antitrust, Thomas L. Greaney

All Faculty Scholarship

A central question confronting proponents of managed competition during the health reform debate in 1994 was whether competitive networks or integrated delivery systems would emerge. Under reformers’ vision, controlling costs depended on the emergence of a sufficient number of efficient and viable integrated delivery systems. Conversely, if one or a few integrated networks dominate the market for physician or hospital services, rivalry on the main issues of health care cost control would likely dissipate. This article argues that vigilant and sensible antitrust enforcement was also a prerequisite for the success of the managed competition model. Despite the considerable emphasis on …

Outcomes Assessment In Health Care Reform: Promise And Limitations, Wendy K. Mariner

Faculty Scholarship

If the fundamental goals of the health care reform effort are to ensure universal access to an acceptable quality of health care at an affordable cost, then the threshold question for reform is: What health care services should be provided in an efficient, equitable system?

Answering this question requires weighing a complex mix of medical and social policy factors, a process not attempted in this article. But the starting point for that process should be determining what health care services “work” and what they cost. Outcomes assessment holds considerable promise in finding answers to these subsidiary questions, because it is …

Federalism And Health Care Reform: Is Half A Loaf Really Worse Than None?, Richard Briffault

Faculty Scholarship

Health care reform dominates the domestic agenda of the Clinton Administration. Policy analysts, media pundits, and ordinary citizens are abuzz with the once-arcane terminology of health reform – "managed competition," "single-payer," "regional alliances," "global budgets" – as they ponder the merits and demerits of the leading reform alternatives. At the center of the public debate are questions concerning the role of government in constraining health care costs, maintaining quality, and widening access. But in our federal system there are two governments that can address most domestic problems – the national government and the states – and, although considerable ink has …

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 …

Health Care Reform And Fraud By Health Care Providers, Pamela H. Bucy

Villanova Law Review (1956 - )

No abstract provided.

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 …

Health Care Reform In The United States, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

The author presents a brief description of the design features and objectives of the health care reform package, together with the reasons to support reform of the health care system in the United States.

Foreword: Health Care Reform In The United States—The Presidential Task Force, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

This essay serves as the foreword to Implementing U.S. Health Care Reform, a symposium held in 1993.

The exact specifications of the new health care system depend on the package that President Clinton will send to Capitol Hill and the changes that Congress will make in the reform package. Some of the basic structures and organizing principles of the new system that are being considered by the President are already the subject of intense public scrutiny.

The design being considered would involve new relations between the federal government and the states, between the public and private sectors, and between …

Problems With Employer-Provided Health Insurance — The Employee Retirement Income Security Act And Health Care Reform, Wendy K. Mariner

Faculty Scholarship

Health care reform is in the wind. As the nation prepares for a new presidential term, a more equitable and cost-effective health care system is beginning to sound inevitable.1 But the shape of that system remains a matter of debate. Employer-provided health insurance is the cornerstone of several national proposals for reform.2 3 4 5 6 The Bush administration's preference for tax credits rested on the assumption that most employers would continue to provide health insurance to their employees. President-elect Bill Clinton's proposal relies on insurance reform to enable small businesses to buy affordable private health insurance. Lawmakers …

Introduction: Caring For The Nation--Current Issues In Health Care Reform, Susan E. Powley

Vanderbilt Law Review

Health care reform is once again on the "front burner" of American politics. With health care costs in the United States rising at three times the rate of inflation and an increasing portion of the population falling through the cracks of the current health care delivery system,' legislators, health care professionals, and the population at large now have little difficulty agreeing that the system is badly in need of reform. This consensus, however, falls apart when discussion turns to what needs to be fixed and how to fix it. Federal legislators currently have over twenty health bills pending before them, …

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

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.