Case mix reimbursement for nursing homes

Nursing home care is growing in importance as the population ages and as Medicare's prospective payment system encourages earlier discharges from acute care settings to nursing homes. Nursing home reimbursement policy is primarily a Medicaid issue, since Medicaid pays for about half the nation's nursing home care. The research reviewed in this article suggests a strong association between case mix and cost, and a weaker but still positive association between quality and cost. The research also implies that traditional nursing home reimbursement methodologies may impede access and may lower quality for Medicaid (and Medicare) recipients. To offset these problems, several states have recently begun to incorporate case mix directly into the reimbursement process. These systems deserve careful policy consideration.     

Taxes and Transnational Treaties: Responsive Regulation and the Reassertion of Offshore Sovereignty

Regulatory dialogue between states with widely diverging tax systems has emerged as a key feature of Organization for Economic Cooperation and Development (OECD), International Monetary Fund (IMF), and European Union (EU) initiatives on Offshore Finance Centers (OFCs) or tax havens. This has brought together states of differing dimensions in size, population, economy, and power. Where there is such a discrepancy in power between states there is often a temptation to assert a command-and-control regulatory approach. This was the initial reading of the OECD's Harmful Tax Practices Project that demanded tax havens—mostly small states in Europe, the Pacific, Indian Ocean, and the Caribbean—repeal financial secrecy legislation and commit to Tax Information Exchange Agreements (TIEAs). As these initiatives have unfolded there has been a transition away from regulation by command-and-control towards responsive regulatory dialogue in which tax havens have been encouraged to cooperate through engagement and active participation. Based on qualitative research with key stakeholders in OFC jurisdictions and multilateral organizations, this article explores this transition towards meta-principles of responsive regulation. The preservation of tax bilateralism has limited the capacity of multilateral organizations to deploy the full range of regulatory techniques, particularly those involving penalty and coercion. Instead all parties, tax haven states and multilateral institutions alike, have been confined to the broadest base of the regulatory pyramid. Responsive regulation can end up having the opposite effect from what is intended where the enforcement peak of the regulatory pyramid is absent. This has resulted in strengthening the sovereignty of small OFC states and has increased international tax competition, rather than reduced it.     

The political management of managed care: explaining variations in state health maintenance organization regulations

In the 1990s, strong incentives for managed care organizations to control costs, once regarded as a fortuitous confluence of interests, came to be seen as antithetical to consumers' interests in quality of care. In response to this change in political climate, many states have greatly increased their regulatory control of managed care organizations since the mid-1990s. This activity is surprising in an era when public policy on health care issues is usually described as frozen, gridlocked, and/or stalemated as a result of intense activity on the part of organized interests. We take advantage of the variation in state regulations of health maintenance organizations (HMOs) to discover why some governments are able to address policy problems that are often perceived as intractable in a political if not in a true policy sense. From the history of HMOs, the backlash against managed care, and state responses to that backlash, we first extract a number of hypotheses about state regulatory activity. We then test these hypotheses with data on regulatory adoptions by states during the late 1990s and the early 2000s. Last, we discuss the findings with special attention to the role of politics in health care.     

“Regulation,I presume?” said the robot – Towards an iterative regulatory process for robot governance

This article envisions an iterative regulatory process for robot governance. In the article, we argue that what lacks in robot governance is actually a backstep mechanism that can coordinate and align robot and regulatory developers. In order to solve that problem, we present a theoretical model that represents a step forward in the coordination and alignment of robot and regulatory development. Our work builds on previous literature, and explores modes of alignment and iteration towards greater closeness in the nexus between research and development (R&D) and regulatory appraisal and channeling of robotics’ development. To illustrate practical challenges and solutions, we explore different examples of (related) types of communication processes between robot developers and regulatory bodies. These examples help illuminate the lack of formalization of the policymaking process, and the loss of time and resources that the waste of knowledge generated for future robot governance instruments implies. We argue that initiatives that fail to formalize the communication process between different actors and that propose the mere creation of coordinating agencies risk being seriously ineffective. We propose an iterative regulatory process for robot governance, which combines the use of an ex ante robot impact assessment for legal/ethical appraisal, and evaluation settings as data generators, and an ex post legislative evaluation instrument that eases the revision, modification and update of the normative instrument. In all, the model breathes the concept of creating dynamic evidence-based policies that can serve as temporary benchmark for future and/or new uses or robot developments. Our contribution seeks to provide a thoughtful proposal that avoids the current mismatch between existing governmental approaches and what is needed for effective ethical/legal oversight, in the hope that this will inform the policy debate and set the scene for further research.     

Integrative Regulation: A Principle-Based Approach to Environmental Policy

This article builds on recent field research to articulate a principle-based approach to environmental regulatory design that is applicable to a wide variety of circumstances, irrespective of political and social particularities. At its core, this approach recognizes that an excessive reliance on "single-instrument" policies is misguided, because all instruments have strengths and weaknesses, and none is sufficiently flexible and resilient to successfully address all environmental problems in all contexts. A better strategy is to harness the strengths of individual mechanisms while compensating for their weaknesses by the use of additional instruments. That is, in the large majority of circumstances, a mix of regulatory instruments is required, tailored to specific policy goals. The article identifies a series of regulatory design principles that sequentially address the problems and opportunities arising from the application of multi-instrument mixes and engaging a variety of first-, second-, and third-party participants in the regulatory process. The importance of choosing inherently complementary instrument combinations is also highlighted, with practical guidance provided to policymakers. Although the focus of the article is on environmental regulation, the general principles articulated should also be applicable to other areas of social regulation.     

Emerging Legal Orders. Formalism and the Theory of Legal Integration

Using analogies from research in simulation and artificial societies and borrowing from Weinrib's Philosophy of Private Law, we show how a "private law" model of law and legal integration does not need to presuppose the state as a regulatory framework. Rather, the state emerges as a "second order property" from the private law interaction of individuals. We apply this to the debate about harmonisation in Europe. We show how a form of unity in diversity can be built up starting with such individual interactions, extended later to interactions between member states. But this does not need to end up in an individualistic and neo-liberal model, as in Weinrib, if we understand the underlying exchange relation in terms of Wilhelmsson's social contract law.     

Displaced agendas: current regulatory strategies for germline gene therapy

Recent developments in biotechnology are radically affecting the nature of reproduction and the manner in which we approach disease. In particular, germline gene therapy, or the insertion of genetic material into cells while they are developing and dividing, offers the promise of eradicating genetic defects in humans during embryonic development. In this article, the authors argue that the social and ethical implications of the developments in the field of germline gene therapy have not yet received adequate consideration. Unlike previous technologies which targeted already-developed cells, germline gene therapy can potentially correct and eliminate genetic deficiencies at the developmental stages of a cell. This raises issues of genetic enhancement beyond the therapeutic applications of this technology. However, the authors submit that an established pattern of subordinating social and ethical issues to technical and scientific debate in the regulatory arena is repeating itself in the case of discussions over germline gene therapy. The authors suggest that the American scientific regulatory process fails to fully meet the challenges of this technology, particularly because social and ethical issues are not formally considered in the existing process. They therefore suggest that American regulatory agencies should look to the approach taken by Europe with regard to germline gene therapy as an emerging technology, and that it may be necessary to incorporate effective public debate over social and ethical concerns into a regulatory process which is primarily concerned only with the efficacy of new technologies.     

Management-Based Regulation: Prescribing Private Management to Achieve Public Goals

We analyze a little-studied regulatory approach that we call management-based regulation. Management-based regulation directs regulated organizations to engage in a planning process that aims toward the achievement of public goals, offering firms flexibility in how they achieve public goals. In this article, we develop a framework for assessing conditions for using management-based regulation as opposed to the more traditional technology-based or performance-based regulation. Drawing on case studies of management-based regulation in the areas of food safety, industrial safety, and environmental protection, we show how management-based regulation can be an effective strategy when regulated entities are heterogeneous and regulatory outputs are relatively difficult to monitor. In addition to analyzing conditions for the use of management-based regulation, we assess the range of choices regulators confront in designing management-based regulations. We conclude that management-based regulation requires a far more complex intertwining of the public and private sectors than is typical of other forms of regulation, owing to regulators' need to intervene at multiple stages of the production process as well as to the degree of ambiguity over what constitutes "good management."     

Conceptualising Multilevel Regulation in the EU: A Legal Translation of Multilevel Governance?

How should we conceive of regulation in the European context? This paper attempts to answer this by developing multilevel regulation as a theoretical concept. The basic aim of the paper is to explore the difference and convergence between regulation and governance and develop multilevel governance and multilevel regulation as two individual heuristic concepts. We suggest that it is useful to frame multilevel governance in the context of regulatory spaces. As an example, we undertake an exploratory investigation of multilevelness of the regulatory space of marketing authorisation of medical devices. This allows us to help focus on certain aspects of the regulatory process by acknowledging that it is no longer located in the hand of a single (governmental) actor and highlighting the necessity of considering interventions beyond the state in addressing regulatory effectiveness problems that may crop up in this context. Ultimately, we assess whether multilevel regulation is a legal translation of the concept of multilevel governance.     

A new perspective to explore the technology transfer efficiencies in US universities

Universities play a critical role in the complex technology transfer process that facilitates technology transformation from pure research activities to commercialization. The literature has recently focused on whether universities are efficient in this process. With a two-stage perspective, this study explores the required capabilities for universities to be efficient in technology transfer process. To explore the efficiencies in different stages of technology transfer, we apply a 2-stage process DEA method. The model considers 2 inputs, 2 intermediate variables, and 3 output variables from the Association of University Technology Management database. These variables represent funding resource, patenting activities, and licensing and entrepreneurships. Technology transfer in the 2-stage perspective includes the research innovation stage and the value creation stage. The results show that achieving efficiency in the 2 technology-transfer stages requires many different innovation capabilities; thus, most efficient universities only perform efficiently in one of the two stages. When mapping the relative site of universities in the reference network, we found that efficient universities in the research innovation stage are in a more centralized location than those in the value creation stage. By contrast, in the value creation stage, efficient universities can be identified as different reference groups for specific inefficient universities. The network visualization also helps to explain that universities must consider their relative advantages and capabilities to reach efficiency goals in different stages. The comparison between the large-scale group and the small-scale group also showed that a resource scale is critical for universities to accumulate different required capabilities for efficiencies in both stages.     

Why is it taking so long to move down the road?: Creating a regional border agreement in the DMV as an alternative for the Interstate Compact on the Placement of Children

The Interstate Compact on the Placement of Children (ICPC) is an agreement between all 50 states and the District of Columbia governing the process of placing a foster child out of state. Notorious for its long wait times and system backlog, the ICPC presents a host of problems for children attempting to move mere minutes across state lines to be with a relative or kin placement instead of state foster care. In an effort to make this process smoother, 18 different “border agreements” have been adopted by several neighboring states across the U.S. Such border agreements give temporary placement licenses to relatives and kin while the ICPC process is ongoing. While this is a good start towards a solution, the ICPC could be further streamlined if border agreements were used more widely, especially in regional contexts. This article considers the possibility of such a regional agreement between the District of Columbia, Maryland, and Northern Virginia (known as the “DMV”). By comparing and contrasting two existing border agreements in these three jurisdictions, a regional DMV border agreement can be created implementing the best terms of both agreements.     

Balancing regulatory controls and incentives: toward smarter and more transparent oversight in long-term care

Government oversight of long-term care involves inspections of patients' records, limited observations of patients and care practices, reviews of policies and procedures, and distribution of publicly available information. Although many providers bemoan the stifling consequences of excessive regulation, oversight in this area remains a highly legitimate endeavor for the public, though the public has limited trust in the existing regulatory regime. This distrust stems from many sources, not least of which includes considerable variation, both within and across states, in the way government oversight occurs. Reforming the current regulatory structure requires that we regulate "smarter" and more consistently. This means improving and maximizing use of the data already being collected, but it also means explicitly rationalizing the regulator's responsibility to review performance and apply sanctions when necessary. Oversight should more closely resemble consultancy, with regulators sharing information with providers about how to improve quality. Ideally, there needs to be an iterative process in which state inspectors identify performance problems and the nation's quality improvement organizations then help providers design quality improvement interventions to ameliorate the problems identified. The benefits of a revised regulatory approach are especially apparent in the aftermath of Hurricane Katrina, where more effective oversight would have identified nursing home residents at risk for low-quality care before the disaster occurred while better identifying those in need of evacuation or assistance afterward.     

Legal Diversity and Regulatory Competition: Which Model for Europe?

Abstract:  Two models of regulatory competition are contrasted, one based on a US pattern of 'competitive federalism', the other a European conception of 'reflexive harmonisation'. In the European context, harmonisation of corporate and labour law, contrary to its critics, has been a force for the preservation of diversity, and of an approach to regulatory interaction based on mutual learning between nation states. It is thus paradoxical, and arguably antithetical to the goal of European integration, that this approach is in danger of being undermined by attempts, following the Centros case, to introduce a Delaware-type form of inter-jurisdictional competition into European company law.     

Facilitators and Impediments to Designing,Implementing, and Evaluating Risk-Based Policing Strategies Using Risk Terrain Modeling: Insights from a Multi-City Evaluation in the United States

The contemporary policing literature contains numerous examples of partnerships between academic researchers and police agencies. Such efforts have greatly contributed to evidence-based policing by increasing the knowledge base on effective strategies. However, research has demonstrated that successful collaboration between researchers and practitioners can be a challenge, with various organizational and inter-agency factors presenting difficulties at various stages of the process. Additionally, applied research can oftentimes face implementation challenges when the time comes to convert research into practice. The current study contributes to the literature by discussing researcher/practitioner partnerships and program implementation in the context of a multi-city risk-based policing project in the United States. We conceptualize police interventions as contingent on four distinct phases: 1) problem analysis, 2) project design, 3) project implementation, and 4) project evaluation. In this project, the research partners were able to successfully complete each phase in certain cities while the project experienced difficulty at one or more phases in other cities. We discuss these disparate experiences, identifying factors that facilitate or impede successful completion of each step. Policy implications and recommendations for future risk-based policing interventions are discussed.     

Evaluation of the Abandoned Shipwreck Act of 1987: Impact and Challenges for Preserving Underwater Cultural Heritage

In the demand of regulatory policy to control salvage of shipwrecks and protect the nation's underwater cultural heritage, the Abandoned Shipwreck Act of 1987 allowed the exception of the admiralty law to give states authority and management of abandoned shipwrecks for the purposes of preservation and recreation. Due to the lack of its regulatory power and vague standards, the Act has been harshly criticized for being ineffectual in resolving conflicts between commercial salvors, and states or protecting illicit salvage. This research will examine the purpose and impact of the policy under the framework of the National Historic Preservation Act, which restrained options in the policymaking. While acknowledging its limitations, this research finds that the Act enabled the inclusion of historic shipwrecks in the nation's preservation system, allowed funding, and promoted its use for public benefits. Studying the Act in the policy context of the U.S. historic preservation can promote the rightful understanding of its policy limitations as well as impact, and support feasible policy improvement.     

Research on human embryos and cloning: difficulties of legislating in a changing environment and model approaches to regulation

It is difficult to regulate rapidly changing fields of science. New technologies are not anticipated and legislation becomes inadequate. Legislative definitions are also problematic. This article begins with consideration of such difficulties in the context of research on human embryos and cloning. It considers problems with past legislative definitions in Australia, the new regulatory regime, and whether that regime now sets clear boundaries. It is found that problems still exist--some terms are not adequately defined and boundaries for research prove unclear. Three regulatory approaches are therefore discussed. Legislation based on strict definitions is compared to a legislative model that leaves terms undefined. The third model--which combines framework legislation with the oversight of a regulatory authority--is seen as most suitable. However, problems with this model are recognised and suggestions made regarding how to ensure the "framework" remains workable and effective.     

Judicial Reform and Rationalization: The Diffusion of Court Reform Policies Among the American States

Explaining the diffusion of judicial reform policies among the American states is an elusive task. Are such policies simply part of the larger policy process revealed in the comparative state policy literature? Or b court reform a policy arena unto itself, responding to factors uniquely legal or professional in nature? Our inquiry begins with Max Weber's sociology of law from which we adopt his concept of rationalization as a schema of policy development. According to Weber, the “rationalization” of legal institutions would accompany the advancement of capitalism in modernizing nations. Thus, we might expect specific judicial reform policies expressly aimed at rationalizing the structure and process of state court systems to be closely associated with each other and with commonly accepted indicators of economic development among the states. As part of our investigation, we relate court reforms to broader policy innovations among the states, drawing on earlier “diffusion of innovations” research. Our data indicate a strong connection between judicial reform and more general patterns of innovation diffusion among the states, but provide only modest support for Weber's assertions about the rationalization of legal systems under advancing capitalism. Three of the selected reforms cluster together and are largely explainable by indicators of economic development. Two other reforms do not fit this pattern, and their “behavior” requires additional discussion and research. Thus, the diffusion of judicial reform policy is partly accounted for by factors found in explanations of general policy innovations across states, but other, as yet unidentified, factors apparently influence certain aspects of judicial reform. The connection between Max Weber's legal sociology and policy development among the American states might at first blush seem remote or tenuous. However, this article attempts to use Weber's insights into modern legal systems to (1) examine a specific area of state policy making–judicial reform–and (2) establish a connection between policy development in the court reform area and the larger literature on general policy innovation in the American states. This inquiry is inspired by the lack of theoretical integration apparent in the literature on court reform, on the one hand, and the absence of empirical analyses connecting court reform data with “diffusion of innovation” policy studies, on the other.     

Associations between national gambling policies and disordered gambling prevalence rates within Europe

Policymakers and other interested stakeholders currently are seeking information about the comparative effectiveness of different regulatory approaches to minimising gambling-related harm. This study responds to this research gap by exploring associations between gambling policies and disordered gambling prevalence rates. We gathered information about gambling policies for thirty European jurisdictions and past-year prevalence rates for disordered gambling for twelve of these jurisdictions. We present policy trends and prevalence rates and then describe the level of association between policy and prevalence. We observe one statistically significant association between policy and prevalence: rates of sub-clinical (i.e., Level 2) disordered gambling were higher within environments that mandated less strict regulation of advertising for online gambling. Finally, we discuss the implications of our research in the context of the current process regarding the pan-European regulation of gambling. Our findings do not offer evidence for certain assumptions made in the past by the European judiciary.     

The Paradox of American Critical Legalism

Duncan Kennedy's essay is a reprint from his recently published book. We hope to draw attention to Kennedy's work among students of European integration since we believe his analysis to be relevant both to the specific debate on the impact of European integration upon private law and to comparative legal study in general. European legal scholarship has only recently begun to examine the problems of private legal integration. The late appearance of private law in the integration arena is due to a primarily instrumental understanding and strategic use of law in the European market-building project: only once legal ‘barriers to trade’ were eliminated and national regulatory law replaced by Europeanised norms, did the degree to which the core institutions of ’private‘ law had been (indirectly) affected by the integrationist logic become apparent. Comparative legal research, however, has benefited from this awakening of interest. European Commission projects have widened the scope of and intensified comparative studies in Europe. Equally, experience gained from the ‘Integration Through (Public) Law’ project has led to a new private legal debate on the impact of national traditions, the concept of legal cultures and the social functions of private law. Accordingly, whilst Duncan Kennedy's deliberations on the history of American legal thought and the differences between American and European legal cultures are generally to be commended for their sensitive treatment of the specificities of the civil law system and the common law heritage, they are equally of particular topical concern since in addition to highlighting America's ‘utter faith and utter distrust in law,’ they also investigate the fundamentally different approaches adopted towards ‘the project law’ within each of the member states of the EU. If European private lawyers are to come to terms with the problems of integration and convergence, they must first tackle these deep-seated divergences between their own national legal cultures.     

Management of child care services — A state-to-state transfer venture

This paper presents information of a new venture between several states to transfer child services components, drawing on the author's personal experience as one of California's representatives to a five-state transfer of technology Consortium. The purpose, participants, and goals of the Consortium are outlined; some of the major components transferred are discussed, and the proposed versus the actual transfer process is compared. It was discovered that of the six stages designed for the effective and efficient transfer of services, most, in actuality, served to function as proposed. At the same time, it was discovered that the most crucial stage occurred at the beginning, and without an adequate definition of the transfer need, problems and dissatisfaction from the States impacted on all subsequent transfer stages.