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Abstract:
Whether or not one believes that the Medicare Prescription Drug, Improvement, and Modernization Act (MMA) in fact "improves" or "modernizes" Medicare, it is obvious that the legislation radically changes the program. The extent and nature of these changes make the MMA the most important piece of health care legislation to be adopted by Congress to date in this young millennium. This Commentary describes the identifying characteristics of the current Medicare program, then examines the significant changes that the MMA makes in the program, and finally discusses the importance, and danger, of these changes.

Abstract:
The Consumer-directed health care movement has recently been given a major boost by section 223 of the Medicare Modernization Act, which provides federal income tax subsidies for health savings accounts coupled with high deductible health plans. The federal tax subsidy, however, will only be available in states whose program of insurance regulation permits high deductible health plans to exist. The MMA represents, therefore, a new approach to federalism in health insurance - offering tax incentives for states to change their approach to insurance regulation rather than preempting state regulation or imposing federal regulation. To date the states have generally responded positively to the federal inducement by adapting their regulations to the federal model. We question, however, whether the states are fully considering the new challenges to insurance regulation raised by consumer-driven health care. This article, based on interviews with state regulators, insurance company representatives, and other experts, attempts to ask the questions that states must answer in deciding how to regulate this new form of health care finance.

Abstract:
This article describes how other countries organize and finance their health care systems, and how the performance of those health care systems compares with that of the United States. It also examines why the United States, unlike all other developed countries, has failed to provide universal access to health care services.

Abstract:
"The Social Transformation of American Medicine" (1982) is a historical study written by a sociologist. Much of the influence of the book, however, has been on disciplines other than history and sociology. The book has been widely cited in other fields, fields as diverse as health services research, nursing, social work, bioethics, philosophy of medicine, dentistry, and anthropology. It is possible, however, that in no other single discipline has the book been referenced as often as in law. This article considers first the way in which "The Social Transformation" has been used in legal citation. Second, it examines the influence of the book on the development of the health law discipline and on health law scholars. Finally, it raises the question of whether the book has had an effect on the law itself.

Abstract:
This paper examines the current role of health insurance regulation and the role that it could play in a reformed health care system. It begins by exploring the nature of health insurance and alternative approaches to its regulation. It next considers the current status of first state and then federal health insurance regulation, both describing the development of health insurance regulation and examining arguments in support of and in opposition to regulatory interventions. Finally, it considers the kind of insurance regulation that will be needed in a reformed health care system, as well as the question of whether authority for insurance regulation should be placed at the federal or state level.

health insurance, regulations, reformed health care, regulatory interventions, insurance, coverage, insurance contract

Abstract:
While Congress continues to debate prescription drug coverage for Medicare beneficiaries, the states have been moving forward with making drugs more affordable to their residents. Several of these programs use the states' Medicaid market power to force drug manufacturers to provide discounts. In Pharmaceutical Research and Manufacturers of America v. Walsh, the Supreme Court rejected a pharmaceutical industry challenge to such a program, upholding the Maine Act to Establish Fair Pricing for Prescription Drugs. The divided Court decisively rejected a Commerce Clause challenge to the program, and held that nothing in the Medicaid statute itself restricts the states from using Medicaid purchasing power to expand drug coverage for their poor residents. Several Justices noted that Medicaid is a cooperative federal-state program, and that the federal Department of Health and Human Services might well have a say in how much flexibility the states ultimately have in using the Medicaid program to this end. Nevertheless, the case represents an important victory for the states in their efforts to make drugs more affordable for their residents.

Abstract:
... Professor Watson has presented us with a provocative paper on the problem of racial disparities in health care.... Though Americans do not necessarily totally lack access to health care because they are uninsured, they do get health care later and less frequently than those who are insured, and suffer much greater mortality and morbidity. Uninsured women with breast cancer, for example, are thirty to fifty percent more likely to die than women with private health insurance, while uninsured patients with colorectal cancer face a fifty percent greater risk of death than insured patients.... African-American women who are insured are more likely than white women to be insured through Medicaid (eighteen percent versus five percent) and less likely to receive employment - based coverage (fifty-four percent versus seventy-three percent).... Most uninsured low-income women, about fifty-eight percent, are employed, but fewer than half of these (forty-nine percent) receive health insurance through their employment.... To the extent that people of color, and in particular women of color, have historically and in the present lacked access to equal education and equal employment, they continue to be also denied access to health care coverage, and thus to health care.

Abstract:
In Aetna Health Inc. v. Davila, the United States Supreme Court revisited the question of whether the Employee Retirement Income Security Act (ERISA) precludes state lawsuits against ERISA plans. The Court held that ERISA preempts damage actions brought against managed care organizations under the Texas Health Care Liability Act because ERISA itself provides the exclusive remedy for challenging ERISA plans' coverage decisions. The Court suggested, however, that health plans might be liable for treatment decisions made by employed physicians. It also volleyed back to Congress the question of whether ERISA beneficiaries should have any remedy for damages caused by coverage decisions.

Abstract:
Health insurance exchanges play an important role in pending health care reform legislation. This paper first examines the different ways in which exchanges could be designed in a reformed health care system and the different roles that they could play. The paper next briefly explores experience with exchanges and what we can learn from it. It then describes the different approaches taken by the three bills pending in Congress to exchange design and function. The following section examines the legal issues raised by exchanges as they are defined in the pending legislation. Finally, the paper concludes with policy recommendations as to how exchanges should be designed and function to play an effective role in a reformed health care system, noting in particular the strengths and weaknesses of the pending legislation.

health reform, health insurance

Abstract:
Consumer-driven health care, based on health savings accounts and high deductible health insurance policies, seems to be the next big thing in U.S. health policy. Long supported by conservative and libertarian advocacy groups, it received a big-boost with the HSA tax subsidy provisions of the Medicare Modernization Act. The question remains, however, whether consumer-driven health care can really bring down health care costs while improving quality and access, as its supporters claim that it will.

This article examines the experience of South Africa, where medical savings accounts have long been available and are widely used. It concludes that South Africa's experience is not terribly encouraging. It is not clear that MSAs have been successful in controlling costs there, and they certainly have not expanded access. It is likely that they have rather tended to break down risk-pooling and to assist insurers in achieving favorable selection. South Africa's experience does not support, therefore, expanding the use of consumer-driven health care in the United States, though South Africa's situation is so different from ours, that there might be little we could learn from it in any event.

consumer-driven health care, South Africa, MSAs, HSAs

Abstract:
This symposium explores the complex relationship between health law and administrative law. It is based on the observation that these two fields of law are peculiarly intertwined. It attempts to understand why this is so, as well as whether it is necessary and whether it is desirable. Would we as a society, that is, be better off if health law were less permeated by administrative law? Even if we would be better off, is it indeed possible to extricate health law from administrative law? This essay begins by defining health law and administrative law. It then proceeds to describe the function of law, the institutions through which law is made and applied, and how law is made and applied in the health - care industry, demonstrating the prominent role of administrative entities in health care. It next examines why the close relationship between health law and administrative law exists. In particular, it considers and rejects the thesis that this close relationship is an artifact of history. The article goes on to develop an alternative hypothesis that administrative entities play a major role in overseeing the delivery and finance of health care because of the need for such oversight and the lack of superior institutional alternatives. This essay concludes by considering why this permeation of health law by administrative law is likely to continue, and why this may not be such a bad result.

Abstract:
This article examines the law of palliative care and end-of-life treatment in three common law countries, the United Kingdom, Australia, and Canada; and in five civil law countries, Poland, France, Germany, Japan and the Netherlands.

Abstract:
Though Medicare was from the outset an entitlement under federal law, the status of Medicaid has always been less certain. Arguably, it was the Supreme Court, rather than Congress that first recognized that Medicaid recipients (and providers) could sue the states in federal court to enforce federal Medicaid requirements. A recent widely reported federal court decision, however, called radically into question the continuing existence of a federal Medicaid entitlement. Though this decision has now been reversed, and rejected by other courts, it illustrates the tenuous nature of the Medicaid entitlement, and the need to reconstitute Medicaid as an exclusively federal program.

Abstract:
This article summarizes the rights of the embryo and fetus under American law. It was presented as a country report at the World Congress on Comparative Law, and is written primarily for a non U.S. audience. It examines, for example, the legal position of the embryo and fetus with respect to their parents, issues in research involving embryos and fetuses, remedies for torts or crimes against an embryo or fetus, and issues involving stem cell research.

Abstract:
Virtually every country in the world is currently attempting to find ways to ration health care services in order to control exploding health care costs. In some countries the courts play a role in overseeing the rationing of health care. This article examines the role that the courts play in the United States in health care rationing in various contexts and programs. It then goes on to present the German social courts as an alternative model for judicial oversight of health care rationing that is both responsive to the rights of health care consumers and professionals and sensitive to the need to contain health care costs.

Abstract:
In the recent past a broad consensus has emerged in the United States that the best way to expand coverage of the uninsured is to use tax subsidies to encourage the purchase of private health insurance policies. Many advocates of this approach also call for replacing employment-related group policies with individual policies, and for minimizing regulation of private insurance. Those who advocate these policies, however, have rarely considered the experience that other nations have had with private health insurance.

In fact most other countries have private insurance markets, and in many countries private insurance plays a significant role in financing health coverage. This study looks at the regulation of private insurance markets in five countries in which private health insurance exists as an alternative to public programs-- Chile, Australia, Germany, the Netherlands, and the United States--and three countries in which private insurance merely supplements public programs--France, Canada, and the United Kingdom. It finds that nations that have attempted to rely on private insurance to provide an alternative means of covering populations have found it necessary to establish extensive public regulatory and subsidy programs to make the private systems work. Only nations in which private insurance merely supplements public insurance do truly competitive markets exist. The article analyses these findings, concluding that true private markets for health insurance to cover entire populations are not possible, and that publicly regulated and subsidized markets do not offer efficiency advantages over public programs.

Abstract:
Because the United States relies on private insurance for financing health care to a much greater degree than do other nations, and because managed care as a form of private insurance is further developed in the United States than elsewhere, it is arguable that we have little to learn from other nations about managed care regulation. This article tests this hypothesis with respect to Chile, a country where private insurance is widespread and managed care is emerging. It concludes that by studying the experience of other nations we might: gain a larger perspective on the context of our concerns in regulating managed care, in particular appraising more soberly the difficulties we face in regulating private health insurance markets; appreciate more fully the importance of attempting the difficult task of regulation; and acknowledge more completely our responsibility for sharing with the rest of the world our insights into managed care regulation. We may even find regulatory tools that others have created that might help us with our tasks.

Abstract:
The undertreatment of pain has increasingly been recognized in recent years as a major problem. Many persons in pain are dependent upon public health care financing programs for their medical care. Limitations in these programs is a significant contributing factor to the undertreatment of pain. This article analyzes gaps and deficiencies in the Medicare and Medicaid programs with respect to pain management. Particular problems in Medicare include its lack of coverage of outpatient medications, its skilled nursing home standards, and its restrictions on hospice coverage. Problems with Medicaid drug coverage and drug use limitations are also explored. Finally, the effect of Medicare and Medicaid fraud and abuse law in potentially deterring adequate pain management is also considered. The article includes recommendations for covering and encouraging proper pain management in Medicare and Medicaid.

Abstract:
This article reviews administrative law issues relevant to the roles of the courts, Congress, and the Health Care Financing Administration in governing Medicare. First, it reviews the dozen Supreme Court cases involving Medicare and a cross-section of lower court cases over the history of the program. It concludes that the courts are extraordinarily deferential to Medicare administrators, and have become more so over time. Second it examines the role of Congress in governing Medicare, concluding that, in contrast, Congress has been exceptionally intrusive, constantly tinkering with Medicare, though standard interest group explanations of legislation do not explain this level of Congressional engagement. Third it considers the Health Care Financing Administration, finding that rulemaking ossification is in an advanced state at HCFA, with most of Medicare policy made through subregulatory instruments. The article concludes that Congress should take a less activist role in governing Medicare while the courts should take actions challenging Medicare more seriously. It also recommends the creation of a corporatist structure for administering Medicare.

Abstract:
This article attempts to explain why health care costs more in the United States than anywhere else in the world. It concludes that the major reason for this difference is the widespread and immediate availability of high technology care in the United States, with secondary reasons being the higher pay of health care professionals in the U.S. and higher U.S. administrative costs. None of these factors are addressed effectively by cost-control strategies based on review of medical necessity. It is also unlikely that the most politically viable policy options currently available, medical savings account or managed competition, can effectively address these issues. In the end, it may be necessary to focus on designing effective cost control strategies for public programs, leaving the market, however ineffectually, to control costs for private programs.