Governing Medicare

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.

Accepted Paper Series