Special report on reimbursement. HCFA enacts new enforcement remedies covering nursing facilities

While the regulations are revolutionary in their use of "substantial compliance," the interpretation and application of HCFA's new remedial scheme are still uncertain, as states are given broad discretion in defining important terms and in applying and interpreting the criteria to select remedies. Further complicating the issue is the fact that some states, including California, intend to seek waivers from HCFA to substitute their own state enforcement systems for most, if not all, of the new federal system. Based upon these uncertainties, the enforcement of nursing facility standards will likely be in a state of flux for some time to come.     

Dealing with Uncertain Budget Forecasts

The article reviews the history of past budget projections by the Congressional Budget Office (CBO). The projections have been extremely inaccurate because of errors in the choice of economic and technical assumptions. The errors grow rapidly as the projection's period is lengthened. The projections are unlikely to get better soon. Therefore, the question becomes how CBO, the Congress, and the media should react to the extraordinary uncertainty that must be attached to the budget outlook. Among other things, the author suggests de-emphasizing projections made for periods longer than five years, because such projections are only a little better than random noise. He also points out the futility of aiming for rigorously enforced numerical targets for the budget balance, as was done in Gramm-Rudman and as has been proposed in various types of "lock box" legislation. The targets move around too rapidly to ever be hit.     

Book Review

Book reviewed in this article: Corrupt Exchanges: Actors, Resources, and Mechanisms of Political Corruption by Donatella della Porta and Alberto Vannucci. Corruption and Government: Causes, Consequences, and Reform by Susan Rose‐Ackerman.     

We All Make Mistakes: A ‘Duty of Virtue’ Theory of Restitutionary Liability for Mistaken Payments

In contrast to the moral foundations of contract, tort, and the law of property, which are generally regarded as elements of Kantian ‘right’, the liability to return the value of mistaken payments is, it is argued, an example of the law's enforcing a duty of virtue, the legalisation of the duty of beneficence in a way similar (though not identical) to how the law might instantiate a duty of easy rescue. Accordingly, one of Birks's most cherished theses – that the law of unjust enrichment represents a distinctive element of private law – can be made out: it is distinctive in having an entirely different normative source: in virtue, not in right. But this result comes at a cost: (1) a legal system could function more or less justly without such a liability; (2) Birks's thesis that liability for mistaken payment is the archetype or paradigmatic case of liability for unjust enrichment would have to be abandoned; and (3) we would have to recognise that the ground of this liability is policy‐motivated.