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Abstract:
Despite the interdisciplinary bent of legal scholars, the academy has yet to identify an empirical methodology that is uniquely its own. We propose that one standard social science technique - content analysis - could form the basis for an empirical methodology that is uniquely legal. It holds the potential for bringing social science rigor to our empirical understanding of caselaw, and therefore for creating what is distinctively a legal form of empiricism. To explore this potential, we collected all 122 examples we could find that use content analysis to study judicial opinions, and coded them for pertinent features.

Legal scholars began to code and count cases decades ago, but use of this method did not accelerate until about 15 years ago. Most applications are home-grown, with no effort to draw on established social science techniques. To provide methodological guidance, we survey the questions that legal scholars have tried to answer through content analysis, and use that experience to generalize about the strengths and weaknesses of the technique compared with conventional interpretive legal methods.

The epistemological roots of content analysis lie in legal realism. Any question that a lawyer might ask about what courts say or do can be studied more objectively using one of the four distinct components of content analysis: 1) replicable selection of cases; 2) objective coding of cases; 3) counting case contents for descriptive purposes; or 4) statistical analysis of case coding. Each of these components contributes something of unique epistemological value to legal research, yet at each of these four stages, some legal scholars have objected to the technique. The most effective response is to recognize that content analysis does not occupy the same epistemological ground as conventional legal scholarship. Instead, each method renders different kinds of insights that complement each other, so that, together, the two approaches to understanding caselaw are more powerful that either alone.

Content analysis is best used when each decision should receive equal weight, that is, when it is appropriate to regard the content of opinions as generic data. Scholars have found that it is especially useful in studies that question or debunk conventional legal wisdom. Content analysis also holds promise in the study of the connections between judicial opinions and other parts of the social, political, or economic landscape. The strongest application is when the subject of study is simply the behavior of judges in writing opinions or deciding cases. Then, content analysis combines the analytical skills of the lawyer with the power of science that comes from articulated and replicable methods. However, analyzing the cause-and-effect relationship between the outcome of cases and the legally relevant factors presented by judges to justify their decisions raises a serious circularity problem. Therefore, content analysis is not an especially good tool for helping lawyers to predict the outcome of cases based on real-world facts.

This article also provides guidance on the best practices for using this research method. We identify techniques that meet standards of social science rigor and account for the practical needs of legal researchers. These techniques include methods for case sampling, coder training, reliability testing, and statistical analysis. It is not necessary to practice this method profitably only at its highest level. Instead, we show that valuable uses can be made even by those who are largely innumerate.

Content analysis, empirical methods, epistemology, legal method

Abstract:
The prevailing approach for establishing the legal standard of care in medical malpractice litigation is for competing expert witnesses to testify based on their impressions and experience. Health services research is a field that includes the objective and scientific documentation of physician behavior. The data sources and research techniques of health services research thus offer litigants a more empirical approach to establishing the standard of care. To facilitate this endeavor, this Article provides lawyers an overview of health services research and its pertinent methods and data sources. Several examples are used to illustrate and analyze the efficacy of determining the legal standard of care with empirical evidence about how physicians actually behave when faced with particular clinical issues. The Authors ultimately propose not to displace expert witnesses, but rather to supplement subjective clinical testimony with more objective and scientifically sound evidence.

torts, medical malpractice, standard of care, medical malpractice patterns, health services research and data

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:
The ultimate aim of health care policy is good care at good prices. Managed care failed to achieve this goal through influencing providers, so health policy has turned to the only market-based option left: treating patients like consumers. Health insurance and tax policy now pressure patients to spend their own money when they select health plans, providers, and treatments. Expecting patients to choose what they need at the price they want, consumerists believe that market competition will constrain costs while optimizing quality. This classic form of consumerism is today's health policy watchword.

This article evaluates consumerism and the regulatory mechanism of which it is essentially an example - legally mandated disclosure of information. We do so by assessing the crucial assumptions about human nature on which consumerism and mandated disclosure depend. Consumerism operates in a variety of contexts in a variety of ways with a variety of aims. To assess so protean a thing, we ask what a patient's life would really be like in a consumerist world. The literature abounds in theories about how medical consumers should behave. We look for empirical evidence about how real people actually buy health plans, choose providers, and select treatments.

We conclude that consumerism, and thus mandated disclosure generally, are unlikely to accomplish the goals imagined for them. Consumerism's prerequisites are too many and too demanding. First, consumers must have choices that include the coverage, care-takers, and care they want. Second, reliable information about those choices must be available. Third, information must be put before consumers, especially by doctors. Fourth, consumers must receive the information. Fifth, the information must be complete and comprehensible enough for consumers to use it. Sixth, consumers must understand what they are told. Seventh, consumers must be willing to analyze the information. Eighth, consumers must actually analyze the information and do so well enough to make good choices.

Our review of the empirical evidence concludes that these prerequisites cannot be met reliably most of the time. At every stage people encounter daunting hurdles. Like so many other dreams of controlling costs and giving patients control, consumerism is doomed to disappoint. This does not mean that consumerist tools should never be used. It means they should not be used unadvisedly or lightly, but discreetly, advisedly, soberly, and in the fear of error.

consumerism, health care, behavioral economics

Abstract:
In a recent commentary, health economist Jaime Robinson observed that "the fundamental flaw of managed care, in retrospect, was that it sought to navigate the tensions between limited resources and unlimited expectations without explaining exactly how it was so doing". One such failure is the absence, prior to the late 1990s, of any disclosure by HMOs that they use financial incentives to encourage physicians to contain costs, and of any explanation of how and why this is done. Other features of managed care are visible to all members, such as a limited network of providers, primary care gatekeeping, or prior authorization requirements. Physician incentives, however, are entirely behind the scenes. Disclosure of financial incentives to subscribers has occurred only in the past three years, in response to several legal pressures.

These developments call for an assessment of the theory and practice of disclosing physician incentives. To what extent does HMOs' earlier silence about physician incentives account for the public's backlash against managed care and the failure to appreciate the need for making cost/benefit trade-offs in medicine? Now that disclosure is becoming more commonplace, will this help put managed care back on a better track? Or, is disclosure being done in an excessively legalistic environment that defeats its fundamental purposes?

To gain better understanding of these issues, this article begins by summarizing the theoretical case for mandating disclosure of incentives, in terms of various types of information market failures. The article then analyzes the components of liability and regulatory law that require disclosure, observing how well each source of law responds to different aspects of the justification for disclosure. Following this, empirical literature is explored on the content, source, and timing of disclosures now being made, and on the impact of incentive disclosures. The article concludes by sketching a model approach to disclosure, one that provides information in layers, at different points and in varying levels of detail, as best suits people's desire and need for this information.

Health Care, Health Economics, Health Law, Physicians

Abstract:
It has come to light recently that most hospitals and some doctors commonly charge patients two to four times more if patients are uninsured or seek care outside discounted networks. This is one reason that medical costs contribute to over half of personal bankruptcies. This article explains how this dysfunctional market arose and what courts should do about it. Using both standard and behavioral economic analysis, we survey the range of common law doctrines that should allow courts to supervene contracts for the price of medical care. Along the way, we have much to say about whether law in general should regard patients as consumers, and whether the newly emerging idea of consumer-driven health care will work well.

medical bills, unconscionability, health care pricing

Abstract:
Who owns a patient's medical information? The patient, the provider, or the insurer? All of the above? None of the above?

In the emerging era of electronic medical records, no other legal question is more critical, more contested, or more poorly understood. Ownership was never much in doubt in an age of paper-based records, but now that information content can be easily digitized and freed from any particular storage medium, confusion reigns. How this issue is resolved can have huge impacts on how or whether massive anticipated developments in electronic and personal health records will take shape. The respective property rights of patients, providers and insurers will strongly influence, if not determine, what form of electronic health informatics ends up predominating. And, whether rights to access and use medical information can be commercialized may determine whether effective, comprehensive medical information networks can emerge at all, absent overt government mandate.

This paper analyzes optimal property rights in medical information from the perspective of network economics. It proposes that patients be allowed to monetize their access and control rights by assigning them to a trusted intermediary who may then place these rights in a stream of commerce that determines their value and best use. The funds generated can then be distributed both to patients and providers to encourage their adoption and use of interconnected electronic records.

Abstract:
Rich academic debate has emerged over multiple competing views of health care law. Under one view, termed essentialism, health care law is a distinctive academic field because the particular attributes of medicine and treatment relationships matter fundamentally, not just incidentally, to how law governs this field. The competing conceptualization, which has been denigrated as the law of the horse view, is that much of health care law consists of nothing more than conventional rules from other legal fields as they apply to the services, actors, and institutions that happen to populate the medical arena.

This essay supports the essentialism view by demonstrating that the legal system sees individuals who receive medical care more as patients than as consumers, even in the most commercial of settings - the payment for services. Normal rules of contract do not apply between providers and patients. Instead, like family law, medical law is as much about status as it is about contract. Patients' and physicians' contractual obligations are forged in the context of someone who is sick and vulnerable seeking care in a therapeutic relationship that entails special responsibility for the patient's welfare. This Essay documents how this contextualized view has affected law's treatment of medical transactions throughout history.

health care law, patients as consumers, legal history

Abstract:
Several states have either passed or proposed legislation requiring employers to offer their employees the ability to pay for health insurance on a pre-tax basis through a "cafeteria" (or "premium-only") plan under section 125 of the tax code (a "section 125 plan"). Prior to these initiatives, many employers voluntarily established section 125 plans for this purpose. Recently, some authorities have raised a serious concern about the legality of this arrangement under the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA). Specifically, they maintain that, under the tax code, section 125 plans cannot be used to purchase medically-underwritten individual insurance because doing so would violate HIPAA's non-discrimination provisions for group plans. This paper explains the basis for this legal concern, and presents contrary legal arguments. It concludes that the current state of the law is unclear and is subject to change.

Abstract:
Many proposals to reform health care finance and delivery require individuals or private employers to pay for private health insurance. This paper analyzes the constitutionality of such proposals. A direct and unconditional federal requirement for an individual to transfer money to a private party for health or economic purposes seems to be unprecedented. Thus, an individual (or employer) mandate to purchase private health insurance raises several possible constitutional issues.

Although the Constitution does not confer plenary powers over public welfare like those possessed by the states, a mandate to purchase health insurance appears to fall fairly readily within the current breadth of Congress's power to regulate interstate commerce. Also, if the sole means used to enforce compulsory insurance is the federal tax system, then this requirement would easily fall within Congress's broad powers over taxation. Moreover, under Congress's broad power to spend to promote the general welfare, it could require states to adopt an insurance mandate as a condition for receiving health-related federal funding. There are no plausible federalism objections to any of this as long as state and local governments are not required to purchase insurance for their own employees, but even that requirement appears to be consistent with current Supreme Court precedents.

Regarding individual liberties, there is no support in Supreme Court decisions for a Constitutional objection based on religious liberty, but a statutory objection might be made under the Religious Freedom Restoration Act (RFRA). Also, a plausible challenge might be made under the Takings Clause, but such a challenge is not likely to succeed. There is no solid precedent that applies the Takings Clause to mandated purchases of any kind, and several inconsistent precedents. Moreover, a Takings Clause challenge could easily be avoided by framing the mandate as a taxation provision (i.e., simply a tax benefit for complying or a tax levy for not complying).

These major contours of Constitutional jurisprudence appear to be secure. Still, challenges to some versions of compulsory health insurance would be possible. The safest versions - those least susceptible to challenge - would be mandates that: 1) contain explicit findings about effects on and in interstate commerce; or 2) are conditioned on federal spending or federal taxation; and 3) avoid state and local government employers; and 4) provide a religious exemption or exception from RFRA.

Abstract:
This database provides information on state managed care patient protection and liability laws, through Dec. 31, 2003. Laws were identified first by researching existing compilations. Then, the original source for each law was obtained and reviewed to confirm, revise, or refine the content. Independent research was done to fill in obvious or suspected gaps in these compilations. Also, regulators were surveyed in each state to confirm and supplement information about these laws, in order to determine inaccuracies and missing information.

This dataset focuses on the cluster of laws frequently contained in managed care "patients' bill of rights" laws enacted by the states beginning in the mid 1990s. Laws more typically found as part of basic HMO or utilization review legislation are not included. Some of these laws long predate the mid-1990s enactments or were enacted as part of other legislative packages, for example, any-willing provider laws, or definitions of medical necessity. For categories of laws that are tracked here, all such laws identified are included regardless of when and where they were enacted.

For each of about 20 laws, and in each state plus D.C., the dataset indicates whether such a law exists, its effective date, and what version of the law the state has among various major variations that might exist.

managed care, insurance regulation

Abstract:
Although health savings accounts (HSAs) and managed health care are often seen as antithetical, they can be integrated in fruitful ways. Moreover, combining these approaches will serve policy objectives by clarifying the payment responsibilities of patients, health plans, and premium payers, thus altering important perceptions about health care decision making. The availability in HSAs of funds that patients can use to pay for services found not covered under insurance contracts should help to re-legitimize predetermination of benefits and enable the public and the legal system to take a more benign view of corporate health plans as agents of their subscribers.

Managed Health Care, Health Savings Accounts, Health Law, Health Insurance

Abstract:
Conversions of Blue Cross plans to for-profit status have the potential to remake the corporate landscape of health care finance. Absent regulatory intervention, current trends could easily result in more than half of Blue Cross subscribers being in for-profit plans, a phenomenon far more significant than the conversion of nonprofit hospitals. Therefore, regulators' deliberations over conversion proposals are beginning to focus on the health policy impacts. This chapter surveys the full range of health policy implications by analyzing all existing studies of Blue Cross conversions and reporting on the authors' own case studies of conversion impacts. These studies conclude that conversions have not caused major negative impacts on the availability or accessibility of health care in the states in which conversions have occurred so far. However, a great deal of uncertainty exists about the actual effects of previous conversions, and each state is unique; therefore, even if the historical record were clear, it is difficult to predict with great certainty what the actual effects will be in another state undergoing a Blue conversion.

health insurance, nonprofit, conversion

Abstract:
A specter haunts health law, the specter of exhaustion. Our field was once vibrant with new issues and fresh ideas. Today, scholarship routinely recycles old proposals about recurring problems. The dominant paradigms - patient autonomy and market theory - have largely done their work and run their course. And while new perspectives are struggling to be born, they are tentative and incomplete. The time has come to rethink health law's paradigms broadly and boldly. To that end, a small group of leading health law scholars and other academics convened at Wake Forest University in December 2005 to reflect on three questions:

• Does health law have a core set of concerns?
• What new paradigms can best help us reconceive health law?
• How can health law accommodate the special psychological, emotional, and moral aspects of its subject?

This symposium publishes the results of that discussion. Some of the articles address our three questions at the broadest level. Others tackle more specific issues in health law in a way that suggests the merits of newer paradigms and better methods.

Our conference prospectus proposed a patient-centered approach to reconceptualizing the field. Under that rubric, lines of inquiry that are now under-developed might profitably be pursued. We offered three possibilities: a relational perspective, patient-centered professionalism, and patient-centered empiricism. While none of the symposium articles proposes a comprehensive patient-centered health law, most of the articles offer promising insights into the concept.

Mark Hall offers an essentialist definition of health care law that emphasizes the centrality of the patient. He hopes that making the patient central will force the law to acknowledge and accommodate crucial features of the medical arena, such as the social and psychological realities of treatment encounters and the essential ingredients of medical practice and professionalism. Einer Elhauge endorses a different relational perspective on health care. He prefers a comparative analytic method that uses interdisciplinary insights to craft the best accommodations of four competing and often contradictory paradigms - the moral, professional, market, and political. Roger Dworkin applies such an approach in his article on medical malpractice. In designing a medical malpractice system that maximizes institutional competencies, he takes on the challenging task of assessing ways to integrate morality, professionalism, market forces, and politics.

Carl Schneider uses the law of bioethics to explore the argument for a patient-centered health law. He argues that the contemporary law of bioethics has foundered on its preoccupation with the autonomy principle and suggests that the policies that law has instituted have, on empirical examination, apparently failed substantially. He notes that the agenda of bioethics has been set by the intellectual interests and ideological preferences of bioethics and asks what the agenda would be like were it set by patients. Lois Shepherd and Carol Heimer each explore a different strand of patient-centered health law, one that develops what might be called patient-centered professionalism. In this vein, Shepherd urges that we consider not simply the duties of professionals, but also those of insurers, governments, family members, the individual patient, and others. Heimer asks how the law - viewed broadly to include institutional guidelines and other kinds of 'rules' that form the penumbra of law - can produce responsible and responsive health care, a goal that requires both that professionals be morally competent and that social incentives encourage them to assume responsibility for patients' welfare.

Finally, several of the symposium articles illustrate or advocate patient-centered empiricism: attending more closely to what actually happens to patients and to how public policy initiatives actually affect patients. For instance, Timothy Jost examines the entire system of health care laws and regulation from an evidence-based perspective that asks how well several ideological approaches actually advance their policy objectives.

In commentary, Hank Greely questions the utility of proposing new paradigms in a field that is vibrant with different strands of scholarship. He concludes aptly, noting that all of our contributions can be both real and important. We should get back to them. There is work to be done.

Abstract:
Health law in the U.S. coalesced intellectually and academically roughly 25 years ago as the doctrinal and public policy study of law that applies to the health care industry. Many scholars, are dissatisfied, however, with the state of the field. What existed for centuries as a field defined by physicians' encounters with courts is now defined in essentially the same fashion, only much more broadly, as the judicial, legislative, market, and regulatory systems' encounter with all facets of the health care industry. The field is much richer and more sophisticated than in its origins, but a hodgepodge it still is. Each of the four major branches stands apart from the others and is thought to be dominated by distinct themes.

For a body of substantive law to emerge as a distinctive field of intellectual inquiry, it must be more than just the assortment of rules that result from applying other bodies of substantive law to a particular economic sector or human activity. Such a field is not intellectually distinctive unless there are one or more attributes of the economic or social enterprise in question that make it uniquely important or difficult in the legal domain. For medicine, surely this is the case. Medical law is about the delivery of an extremely important, very expensive, and highly specialized professional service delivered in situations of tremendous personal vulnerability. This is what has attracted scholars to the field. For this simple reason, I propose an essentialist view approach: what are the essential features of health care delivery that distinguish its legal issues from those of other related fields.

Of course, any applied body of law should take some stock of its particular subject matter. But, this need to contextualize is much more compelling in health care law than in many or most other economic and social arenas. That is why its defining characteristics include the special features of medicine. Under this essentialist approach, when ethics, or law, regards patients, it tends to regard them as patients, rather than as people who happen to be patients. And the same is true for people who are physicians and for services that are medical care. Sometimes, it matters fundamentally, even profoundly, that a legal matter involves physicians caring for patients rather than providers servicing generic consumers. When this is so, general law becomes health care law. In sum, the core of academic health care law consists of those aspects of law for which the unique features of medicine are central to the analysis or inquiry, rather than medicine simply being an incident of generic law's subject matter.

Abstract:
Little empirical evidence exists to support either side of the ongoing debate over whether legalizing physician aid in dying would undermine patient trust. To address this question, a random national sample of adults were asked their level of agreement with a statement that they would trust their doctor less if euthanasia were legal [and] doctors were allowed to help patients die. Almost 60% of subjects disagreed, and only 20% agreed, that legalizing euthanasia would cause them to trust their personal physician less. The remainder were neutral. These attitudes were the same in men and women, but older patients and blacks had somewhat more agreement that euthanasia would lower trust. Still, overall, only a quarter of elderly patients (age 65+) and a third of blacks thought that physician aid in dying would lower trust. Despite the widespread consensus that legalizing physician aid in dying would seriously threaten or undermine trust in physicians, there is very little evidence, either in this study or elsewhere, to support this view.

euthanasia, physician-assisted suicide, trust

Abstract:
Various public and private initiatives encourage physicians to coordinate care for patients with multiple chronic conditions, but physicians may resist doing so for fear of liability. This article assesses the extent of liability risk using qualitative methods that combine legal research with key informant interviews. Some aspects of care coordination for patients with multiple chronic conditions hold potential for higher liability. Physicians coordinating care have a broader responsibility for patients with complex conditions who have a greater chance of poor outcomes. Care coordinators may be held to a higher standard of care by adopting best practices guidelines or by making medical decisions on issues that require specialized expertise. However, other aspects lower liability risk: elderly patients are less likely to sue; care coordination should improve outcomes; and the information systems that support enhanced care coordination target the major sources of medical error in primary care. On balance, the liability risks of care coordination are commensurate with other risks in primary care practice. Liability insurers indicated no reluctance to insure physicians who coordinate care for patients with multiple chronic conditions, and no strong tendency to attribute higher risk to this role. Physicians who currently perform these or similar functions have not encountered demonstrably higher liability. On balance, there is no strong basis for physicians who perform care coordination functions to have serious concerns about liability; instead, care coordination done well may lower liability risks.

Medical liability

Abstract:
Almost every state has enacted a prudent layperson standard for determining insurance coverage for emergency services. This study evaluates the enforcement and impact of these laws across the country, to determine whether they are achieving their goals or causing unintended side effects. Basic compliance with prudent layperson laws appears to be widespread. Regulators actively enforce these laws, and most subjects reported no systematic violations. Many insurers support these laws and had adopted the prudent layperson standard even prior to specific legal mandates. However, some compliance problems were noted, including some insurers that routinely continue to deny coverage initially but who quickly reverse themselves if the denial is challenged. Insurers explained that it is difficult to operationalize a coverage standard that relies on patients' experience of symptoms rather than on providers' assignment of diagnostic and procedure codes. No strong evidence was found that these laws have significantly increased insurance costs. This is due in part to various strategies insurers have adopted to reduce payments to providers for emergency services, and to greatly increase patients' copayments. Also, insurers were reported to seek more actively to improve after-hours primary care options as a way to reduce inappropriate use of emergency services. Accordingly, few subjects believe these laws have increased inappropriate emergency room use. Overall, prudent layperson laws have helped to catalyze industry-wide changes in how health insurers review emergency room claims and how they manage these costs.

Abstract:
On the heels of widespread patient protection legislation in the states, the managed care industry abandoned or greatly scale back the core elements of gatekeeping, utilization management, and financial incentives, which are the very targets of this legislation. This article explores whether, and to what extent, the industry's abrupt change in course can be attributed to these laws. Based on extensive interviews with key informants in six representative states, the article concludes that these laws were not the primary driver of changes in managed care practices. However, patient protection laws interacted with other social and market forces, through complex forms of feedback and reinforcement, to bring about more thoroughgoing change than would have otherwise occurred.

Abstract:
This study explores how state managed care patient protection laws affect health insurers' criteria for medical necessity, using weight reduction surgery as a case in point. Six states and three national insurers were selected for in-depth case studies to represent a range of market, demographic, and legal conditions. In each state, 10-12 qualitative interviews were conducted with insurers, regulators, providers, and health care attorneys, for a total of 71 interview subjects.

Unlike most areas of medicine, where health insurers have greatly scaled back their past efforts to scrutinize medical necessity, for weight reduction surgery, many insurers continue to apply a more stringent standard for medical necessity than the one that independent practicing physicians use. Accordingly, denials of coverage for weight reduction surgery are a frequent source of appeals to external review, and external reviewers frequently overturn these denials. However, few insurers feel pressured to approve most or all requests for coverage because external review decisions do not set binding precedents. Instead, insurers continue to assert their own criteria for medical necessity, relying on the insurance contract's general definition of medical necessity. Some insurers, however, specifically exclude all weight reduction surgeries because of the difficulty of defending case-by-case denials on appeal.

Abstract:
Conversions by Blue Cross plans to for-profit status have the potential to remake the corporate landscape of health care finance. Absent a regulatory intervention, current trends could easily result in over half of Blues subscribers being in for-profit plans, a phenomenon far more significant than the conversion of nonprofit hospitals. Therefore, regulators' deliberations over conversion proposals are beginning to focus on health policy impacts as well as charitable trust and valuation issues. This article surveys the full range of health policy implications by assembling all existing analyses of Blues plans and their conversion and reporting on the authors' own case studies of conversion impacts in four states.

The authors conclude that conversion increases pressures to generate more profit, which leads to a range of possible changes in operations - some negative, and some positive. A possible positive effect is decreased administrative costs, but most conversions so far do not appear to have produced large new efficiencies or economies of scale. Therefore, profit pressures have been more visible in reducing the medical loss ratio. This might be accomplished by increasing rates faster than medical cost trends, but there is little evidence this has happened to date in the four study states, although detailed information is not available in all relevant market segments. It also does not appear that conversion sharply changes medical underwriting policies, primarily because these have already become largely indistinguishable from commercial insurers, due to market competition. Nor does conversion appear to make a major difference in what products Blues plans offer or in the geographic markets they serve. Indeed, there is some evidence that conversion may reinforce market incentives to improve customer service.

The most visible effect of conversion is to eradicate whatever special relationship Blues plans historically had with physicians and hospitals - close ties that had largely dissipated in many states over the past few decades anyway. There is evidence from several sources that conversion intensifies efforts to negotiate deeper price discounts. Whether this is in the public interest depends in part on whether some portion of these discounts are passed on to consumers, and whether occasional inevitable breakdowns in contract negotiations result in harmful disruptions of service.

Balancing the potential harms from conversion against the health policy benefits that can accrue from conversion foundations is also difficult because these foundations often pursue a wide range of health policy goals other than directly mitigating the effects of conversion. However, as best can be determined, conversions on balance have not caused serious harm so far to statewide measures of healthcare affordability and accessibility. Still, each state and each conversion is unique, so even if the historical record were clear elsewhere, it is difficult to predict with great certainty what the actual effects will be in a particular state. Therefore, public policy issues deserve careful study in each instance where conversion might be proposed.

for-profit conversion, health insurance, Blue Cross plans

Abstract:
The legal environment that afforded managed care organizations protection from liability for harm resulting from their cost containment activities has shifted and the risk of liability under state law has increased. This article combines conventional legal analysis with empirical findings from a large number of confidential interviews with experienced health care lawyers, health plan managers, and industry observers to explain why managed care liability has been low and why it is increasing. It also analyzes liability statutes enacted by the states and proposed by Congress to describe their differing scopes and standards of liability. The article then addresses the costs and benefits of enhanced liability of managed care organizations to develop a framework for the adjudication of lawsuits challenging the clinically based actions taken by managed care organizations. The authors conclude that a medical professional standard should govern vicarious liability claims that seek to hold health insurers responsible for the quality of care rendered by their physician agents and that a process standard should govern claims that challenge managed care organizations' clinically based coverage determinations. In cases seeking personal injury damages for wrongful coverage determinations, the principal focus should be whether the managed care organization had an acceptable system in place, and followed it, for making reasonable assessments of clinical factors that determine what the insurance policy covers.

managed care, medical malpractice, cost containment, liability, ERISA preemption

Abstract:
Since the mid-1990s, ten states have enacted statutes that create tort liability for patient harm caused by managed care organizations, and similar liability has been considered in Congress. This extensive qualitative study is the first attempt to evaluate the impact of these state statutes on liability exposure and litigation activity. These statutes have resulted in little or no litigation and are not seen as creating any fundamentally new type of liability exposure. This muted effect is not due primarily to ERISA pre-emption, which lawyers believe is rapidly eroding but is still a barrier. Instead, plaintiffs lawyers explained that the costs and complexities of suing a health plan deter them from including this additional defendant in medical malpractice cases. Health plans and their lawyers explained that the main drivers of increased liability concerns are the large class action lawsuits that are pending under federal law and the few state cases with massive punitive damage verdicts prior to these statutes. This suggests that a federal liability statute is not likely to greatly increase liability exposure unless it allows such suits.

Abstract:
In response to widespread dissatisfaction with managed care, states have enacted numerous statutes, known as managed care patient protection laws, that address concerns of consumers and medical care providers. These laws include (in various combinations): (1) liability and external review provisions, (2) increasing choice of and access to providers, (3) protecting providers from undue influence, and (4) setting general coverage standards and specific coverage mandates. These laws are now well understood in terms of political responses to public and interest group concerns, but what is less well understood are justifications for managed care regulation in terms of well articulated market failures. Also lacking is an examination of how well legal enactments and enforcement activities respond to market failure theory. Accordingly, this article has two distinct parts: A detailed analysis of the market failures that managed care patient protection laws attempt to correct. And, a report of a 50-state survey of state managed care protection laws and their enforcement. We conclude that, while there are some deficiencies in managed care markets as they are constituted currently, overall the patient protection laws are not well designed to address many of the most important deficiencies since few of these laws address the fundamental source of these market flaws. At most, many of these laws attempt to treat only some of the symptoms of market defects. However, these laws are not being neglected by enforcement agencies. Enforcement activities are evident in most states, and the variation in enforcement relates to legitimate differences in legal, market and agency conditions.

managed care, patient protections laws, market failure theory, regulatory enforcement

Abstract:
Opinions are deeply divided over whether rewarding physicians for lowering costs decreases trust in physicians or insurers. To explore the effects of disclosing physician payment methods in HMOs, members of two similar HMO plans were randomized to intervention and control groups, and the experimental arm was told how the HMO paid their primary care physician. Separate disclosures were developed for each plan, one describing primarily capitation payment, and the other (mixed-incentive plan) describing fee-for-service payment with a bonus that rewards cost savings, satisfaction, and preventive services. The disclosures pointed out more of the positive than the negative features of these incentives. We found that the disclosures doubled the number of subjects with substantial knowledge of the physician incentives and halved the number with no knowledge. Nevertheless, the disclosures had no negative effects on trust of either physicians or insurers. The capitated plan disclosure had a small positive effect on trust of physicians. Disclosing the positive and negative features of incentives and increasing knowledge of these incentives does not, in the short term, reduce trust in physicians or insurers and may have a mild positive impact on physician trust, perhaps as a consequence of displaying candor and increasing understanding of positive features.

Trust, Financial Incentives, Managed Care, Health Maintenance Organizations

Abstract:
There is a stark dichotomy between the significance of trust in medical relationships and the lack of attention paid to trust in existing legal analyses. Health care law lacks a developed vocabulary, analytical framework, or body of empirical information for focusing on the psychological realities of trust, vulnerability and illness. This article seeks to give legal and public policy analysts the tools and information they need to begin thinking clearly and constructively about trust by establishing the following foundational features of medical care delivery:
(1) Trust is essential and unavoidable in medical relationships. Patients need and want to trust, and without trust medical relationships never form or are entirely dysfunctional.
(2) Beyond the mechanics of forming and conducting treatment relationships, trust may confer therapeutic benefit by activating non-specific or self-healing mechanisms, or by enhancing the effects of active therapies. Medical trust has this unique instrumental value because of its strong emotional content, which results from the deep vulnerability of illness that gives rise to trust.
(3) Law can (and does) enforce trust-related expectations, punish violations of trust, facilitate the psychology of trust, and undermine trust. These effects occur both through direct regulation and through the law's expressive function and its relationship with social and professional norms.
(4) These legal attitudes toward trust sometimes come into conflict because enforcing trust or punishing its violations can also weaken the psychological foundations of trust.
(5) Striking the best compromise among competing legal stances toward trust often requires subtlety, complexity, and detailed empirical information about the psychology of trust.
(6) Honoring these principles may require that formal legal rights be softened somewhat with the therapeutic reality of trust.

Recognizing these points does not require us to jettison or rework entire sections of the field, however, since most of existing law is broadly consistent with the psychology of trust. Seeing this demonstrates that a therapeutic perspective can reconcile many of the tensions between a strong patient rights orientation and a more enlightened version of professionalism.

Abstract:
Existing scales to measure trust in physicians have differing content and limited development and testing. To advance the ability to measure trust, a detailed conceptual model was constructed and a large item pool (n=78) was generated, pilot tested, and revised using focus groups, expert reviewers, and convenience samples. The best performing items were validated with a random national sample (n=959) and a regional sample of HMO members (n=1199). Factor analysis and other psychometric tests produced a 10-item unidimensional scale consistent with most aspects of the conceptual model. This scale is similar to previous ones, but it has important differences, as well as an improved combination of internal consistency, variability, and discriminability. Compared with the most recently published trust scale, the Wake Forest physician trust scale is more strongly correlated with satisfaction, desire to remain with a physician, willingness to recommend to friends, and not seeking second opinions; it is somewhat less correlated with insurer trust, membership in managed care, and choice of physician; and correlations are equivalent with lack of disputes with a physician and length of relationship and number of visits.

trust, doctor-patient relationship, instrument development

Abstract:
Despite the profound and pervasive importance of trust in medical settings, there is no commonly shared understanding of what trust means, and little is known about what actual difference trust makes, what factors affect trust, and how trust relates to other, similar attitudes and behaviors. To address this gap in understanding, this article reviews and synthesizes the emerging theoretical, empirical, and public policy literature on trust in physicians and in medical institutions. Based on this review and on the authors' own research and analysis, the article presents a formal definition and conceptual model of trust, and it reviews to what extent this model has been confirmed by empirical studies. The article concludes with an overview of the significance this conceptual and empirical understanding has for ethics, law, and public policy.

Abstract:
The health insurance market consists of three distinct segments -- individual, small group, and large group -- each governed by different economic and regulatory structures. A number of border-crossing techniques have arisen for avoiding the burdens of one segment and capitalizing on the benefits of others. Drawing from extensive qualitative research into the functioning of existing market structures, this article describes these techniques and their purposes and effects. This road map helps to identify which reform proposals seek to produce true economic efficiencies and which have the potential to undermine previous reform objectives.

Abstract:
Evaluations of health insurance market reforms have tended to neglect the critical role of independent agents, and have failed, so far, to directly observe market behavior. This article reports on an initial attempt to assess the impact of health insurance market reforms through structured contacts with insurance agents. A small employer was trained to contact a stratified random sampling of agents in eight states with varying market rules, to inquire about insurance purchase for a group of three and an individual, under a scenario that presented various elevated risk factors. On the whole, agents of all types appear to be highly compliant with market reform laws. Very few indicated that coverage would be unavailable for the group. However, for a high-risk individual, the degree of regulation did affect agents' responses about insurance availability. Genetic conditions did not appear to impose a substantial barrier to coverage. And, public purchasing cooperatives were seldom mentioned, in contrast with private association plans. Overall, judged by agents' initial responses to inquiries by potential purchasers, insurance market reforms are not hindering access to health insurance, and they may be significantly helping access, at least for those with chronic medical conditions.

Abstract:
Understanding of health insurance markets and the impact of market reforms is limited by the lack of information and analysis about insurance agents. Drawing from an in-depth, qualitative study of insurance market reforms in seven illustrative states, this article reports on the role agents play in shaping the efficiency and fairness of insurance markets. The article first outlines the different types of agents and how they relate to and are compensated by insurers. It next documents the enthusiasm that agents have for guaranteed issue requirements and other components of market reforms. The article then explores various ways that insurers can and are manipulating agents to avoid undesirable business, but it concludes these opportunities are limited and are not seriously undermining the effectiveness of market reforms. Although agents add a layer of cost to the system, they play an important role in making market reforms work, and they fill essential information and service functions for which there is no ready substitute for many purchasers.

Abstract:
Since 1991, over half the states have enacted laws that prohibit insurers' use of genetic information in pricing, issuing, or structuring health insurance. This article evaluates whether these laws reduce the extent of genetic discrimination. Using both in-person interviews with insurers and geneticists and a direct market test of insurance agents, we find that there are almost no well-documented cases of health insurers either asking for or using presymptomatic genetic test results in their underwriting decisions, either before or after these laws, or in states with or without these laws. These data suggest that a person with a serious genetic condition that is presymptomatic faces little or no difficulty obtaining health insurance. Further, there are few indications that the degree of difficulty varies according to whether a state regulates the use of genetic information. Nevertheless, these laws have made it less likely insurers will use genetic information in the future. Although insurers and agents are only vaguely aware of these laws, the laws have shaped industry norms and attitudes about the legitimacy of using this information.

These findings are published in two articles, one (Am J Hum Genetics) in a briefer scientific format, and the second (Jurimetrics) which provides a more detailed account of the content of the interviews.

Abstract:
Requiring health insurers to cover everyone who applies regardless of health status ("guaranteed issue") is severely hampered without accompanying rating restrictions that keep insurance affordable for higher risks. The degree of rating flexibility also determines how much insurers can continue to compete based on their skills at risk selection and how well they can counter adverse selection. Therefore, the structure and enforcement of rating reforms are essential to how insurance market reforms function. Based on an in-depth qualitative study in seven states with insurers, agents, and regulators, this article explains the factors that determine the stringency of rating reforms, and it details how various aspects of rating restrictions can be used strategically to engage in greater risk segmentation than first appears possible. The article concludes by reflecting on the appropriate degree of complexity in rating rules, and it offers recommendations for crafting rating reforms that avoid unintended consequences.

Abstract:
This article reports on findings from an extensive study of small-group health insurance market reforms in seven states, enacted during the early 1990s. After summarizing the content and purpose of these reforms, this evaluation focuses on the impact these reforms have had on the nature and degree of market competition. The principal findings are: (1) small-group health insurance markets are highly competitive, both in price and in product innovation and diversity; (2) although some insurers have left some or all of these states in part because of these reforms, an ample number of active competitors remain, even in heavily regulated states; (3) in some of the more heavily regulated states, competition is very thin in less populated areas, especially for indemnity insurance; (4) the rapid growth in managed care in the small group market may have been precipitated by these reforms; (5) standardized benefit plans have not achieved their objectives; (6) competitive forces still focus to a considerable extent on risk selection techniques and hardly at all on the quality of care.

Abstract:
This project evaluates the performance of health insurance market reforms in seven states. Its focus is on state reforms to the small group and individual markets, but it also includes some preliminary findings about the early impact of the federal Health Insurance Portability and Accountability Act (HIPAA).

Little is presently known about the details of how well these reforms have performed in achieving their various objectives and avoiding predicted harms. Other studies test for aggregate effects on enrollment and premiums using primarily quantitative measures. This project is a primarily qualitative evaluation that attempts to understand why these effects have occurred and how these reforms affect the inner workings of the insurance market. The principal reforms studied are: (1) guaranteed issue; (2) renewability and portability; (3) rating bands and community rating; (4) restrictions on underwriting practices such as risk selection and pre-existing condition exclusions; (5) reinsurance and risk adjustment; and (6) public purchasing cooperatives.

The primary method is an intensive case study of seven states that have enacted varying reforms: Colorado, Florida, Iowa, New York, North Carolina, Ohio and Vermont. This multiple case study consists primarily of two rounds of structured, in-depth, open-ended interviews with over 100 insurance industry and regulatory sources. The study also includes an analysis of quantitative, documentary, and other secondary data, and a market test in which a potential purchaser contacted 144 agents.

Abstract:
This article is one of nine appearing in a forthcoming symposium focused on Richard Epstein's book "Mortal Peril." This article begins by questioning the legitimacy of the conclusions Epstein reaches about the proper role of government with respect to health care financing, observing that Epstein's utilitarian version of libertarian principles could lead to any number of alternative public policy positions than the ones that he advocates opposing virtually all forms of government intervention.

The article then shifts focus to a particular set of government interventions, those intended to improve the functioning of the market for small employer health insurance. Accepting Epstein's challenge to establish the case for market regulation with empirical evidence, the article presents findings from an in-depth qualitative study of the impact of these reforms on the health insurance markets in a dozen states. These findings indicate that this set of regulations has been largely effective in keeping these markets functioning in a more socially and economically productive fashion, although these effects are subdued. The article agrees, however, with Epstein's prediction that similar reforms in the market for individual health insurance will be counterproductive or perhaps even destructive.