Secret weapon: the "new" Medicare as a route to health security

Over the past twenty years, Medicare has been transformed from a single-payer insurer into a hybrid of complementary public and private insurance arrangements. Despite creating ongoing controversy, these changes have resulted in an ironic and largely overlooked strategic potential: Medicare's evolving hybrid form makes it the most promising vehicle for overcoming the historical obstacles to universal health insurance in the United States. To make this surprising case, we first explore the distinctive political dynamics of programs that, like today's Medicare, are hybrids of public and private arrangements. We then consider how these political dynamics might circumvent past barriers to universal health insurance. Finally, we discuss the strengths and weaknesses of alternative pathways through which Medicare could be expanded to promote health security.     

基本权利在特类民事行为领域的适用

"特类民事行为"即指与国家公权力有关联的民事行为。它主要适用于给付行政领域,可以分为两种类型:其一,国家以私法主体身份所为的民事行为,具体可以分解为3种形式。该类行为必须受到基本权利的限制,但这仅仅指向于其中的行政私法行为。而且,基本权利对该种行为的适用与对传统高权行政行为的适用不同,前者具有明显的层次性。其二,私人在传统公共行政领域所为的私法行为。该行为属于"公共行政民营化"中的第3种形式,即"实质民营化",主要集中在给付行政领域。该类行为要受到基本权利的约束。而且,应该受到法律保留原则的约束,但是,法律保留原则在该领域的适用和在秩序行政领域的适用具有本质的不同。     

Empire and the business of health insurance.

I examine the development of privately provided insurance since World War II, giving special attention to Empire Blue Cross, and argue that the competition between employers and unions for the loyalty of workers after the passage of the Taft-Hartley Act helped diffuse private health insurance benefits already favored by federal policies. For-profit insurers did not challenge the privileged status of Blue Cross plans because they recognized the political benefits that the plans offered and because they did not wish to offend the plans' sponsors. A relatively easy and profitable business, health insurance has been greatly disturbed by the system inflation accompanying the introduction of Medicare and Medicaid programs. Now self-insurance and various managed-care schemes are major threats. The future may bring consolidation and the strengthening of pools, just the opposite of today's system fragmentation.     

Privatization and Organized Crime in Macedonia

The privatization in Macedonia is considered to be the finally found form of establishment of the interrupted evolution of the ownership. Of course, this is from the aspect of introduction and functioning of the state ownership in the socialistic system which denied the title of ownership. From the chosen model of paid privatization, it was expected that the privatization will be carried out lawfully, fairly, justly, relatively fast and transparently. This paper analyses the process of privatization from the aspect of its lawful performance and its fairness as consequential effect. The analysis specifically refers to one of the five segments of the privatization process—the privatization of socially-owned enterprises. Subject to this analysis are the views and opinions of employees and managers, as well as those of the government officials on issues whether the privatization is implemented as a political process and whether privatization is realized as a robbery. The results of the analysis can be summarized twofold: the employees and the politicians see the privatization as a political process and robbery, while the managers deny any connection with politicians and do not consider themselves oligarchs. In the analysis, these results are compared with some objective parameters of privatization: (i) the funds raised from the sale of social capital and (ii) proceedings initiated in front of state and judicial authorities based on suspicions of crime in the privatization process.     

The corporate context of private prisons

This article deals with the growing interest in the privatization of correctional institutions. It focuses on the corporate context of this trend because modern privatization is being done by corporations which have been formed specifically for this purpose or are specialized subsidiaries of large conglomerates. The article reviews the theoretial, legal, political, regulatory, economic, management, and labor issues involved in corporate privatization, taking into consideration the aspects of organizational climate and corporate deviance. Finally, the article points out that corporate involvement in the private management of correctional facilities should be analyzed carefully and taken into consideration in the privatization debate.     

Prison privatization: a perspective on core governmental functions

Prison privatization in the US illustrates the challenge of privatization to the traditional state monopoly over “inherently governmental” functions. From a perspective on core governmental functions, this paper provides a new logical explanation of this phenomenon and argues that prison privatization demonstrates the political rationality of governments. Conservative social control and economic neoliberalism were two major political reasons for prison privatization in the US. These factors aggravated the instrumental problems of the public prison system and reinforced the urgency to address them. This logic is applied to explain the variation in the magnitude of prison privatization in the 50 states. Drawing on the results of a Tobit analysis, this paper confirms that both political factors and instrumental factors significantly influence the preference of state governments for prison privatization.     

Family, Social Inequalities, and the Persuasive Force of Interpersonal Obligation

To date, the privatization of the costs of social inequalitiesfor women and children has been criticized predominantly froma policy perspective. This article seeks to make a strongercase against remedying social inequalities through private lawobligations by addressing the theoretical difficulties withsuch privatization with a particular focus on familial obligations.I take my core examples from the current Canadian understandingof the spousal and child support obligations. My analysis proposes and proceeds on the basis of a new discoursefor obligations traditionally grouped together as "Family Law"obligations: first, interpersonal obligations, which arise fromand tie together two citizens through either a single interactionor through their relationship as a whole; second, social obligations,which are owed by the community as a whole to individual citizens. I argue that the persuasive force of the focus on an individual'sresponsibility for another's financial need has obscured thereality of the state's obligation, the broader social obligation,to respond to this need. I conclude with a discussion of theconsequences of my analysis for the future of the spousal andchild support obligations. If we deny an expanded role to thesesupport obligations, can we do so in a way that avoids leavingthe impoverished in an even more precarious position?     

Paying for Medicare: benefits, budgets, and Wilbur Mills's policy legacy

Medicare features an unusually complex financing design. The Hospital Insurance Trust Fund pays for Part A of Medicare (hospital stays), while the Supplementary Medical Insurance Trust Fund finances Part B (doctor visits, outpatient care, and certain home health services). At a time when Medicare policy is generating debate, this article takes a new analytical look at the origins and consequences of the program's peculiar bifurcated structure. Addressing historians of the U.S. welfare state as well as contemporary health policy reformers, the article focuses on the crucial role of legendary Ways and Means Committee chair Wilbur Mills in Medicare's enactment in 1965. The central theme of the article is that fiscal conservatism and a commitment to budgetary restraint constitute important elements of Medicare's original political understanding. Contrary to analysts who argue that Medicare's financing design has produced "perverse" effects, we argue that it has served a valuable social function by encouraging policy makers to confront periodically the costs of one of the largest and fastest-growing federal programs. An argument can be made that Medicare's original division requires modification in order to integrate health care delivery changes of the past few decades. It is crucial, however, for reformers not to lose sight of the policy goals, including fiscal rectitude, that motivated the adoption of Medicare's bifurcated structure in the first place.     

以私法形式完成行政任务——以福利民营化为考察对象

20世纪80年代之后,民营化的现象与趋势在福利行政领域日渐出现,一些行政任务开始藉由私法方式得以实现。在此背景下,福利领域出现了公法与私法相互交织和混合的状态,而仅仅依靠传统的行政法学理论似乎已不能应对由此产生的诸多问题,这也对传统的公法与私法划分提出了一定的挑战。而福利民营化之后,公法学的适用空间以及政府可能退出和再介入的界限也需加以关注和考量。     

Bending the health cost curve: the promise and peril of the Independent Payment Advisory Board

Underlying today's and the future's health-care reform debate is a consensus that America's health-care financing system is in a slow-moving but deep crisis: care appears substandard in comparison with other advanced industrial countries, and relative costs are exploding beyond all reasonable measures. The Obama Administration's Patient Protection and Affordable Care Act (ACA) attempts to grapple with both of these problems. One of ACA's key instrumentalities is the Independent Payment Advisory Board-the IPAB, designed to discover and authorize ways to reduce the rate of growth of Medicare and other categories of health spending. The IPAB is a peril. Expert boards to perform regulatory tasks in the interest of efficiency and social goals always run a high risk of being captured by the industry they are supposed to regulate. Even should it succeed at its task of reducing the rate of growth of Medicare spending, who is to say that the reductions will not come at a heavy cost in reduced quantity and effectiveness of medical care? But the IPAB also has promise. The need for a better process than our current specialist-driven one to assign value to the medical services provided by Medicare is great. The bellwether status of Medicare payment systems means that commercial insurance consumers and payors would also benefit mightily from bringing more coherent, technocratic, and cost-effectiveness oriented logic to this process. And the current system of relative Medicare reimbursement rates is, in the judgment of many, currently well out of whack. We quail when we consider the magnitude of the tasks the IPAB faces--even its initial task. Nevertheless, we remain optimistic that this administrative agency will manage to bend the long-run healthcare cost curve and moderate future price increases.     

The ongoing debate over Medicare: understanding the philosophical and policy divides

This Article examines the evolution and status of Medicare, as well as the myriad current efforts to reform this longstanding entitlement. The author analyzes why healthcare financing for the elderly follows an administered pricing, fee-for-service model, while the working population generally obtains its insurance under a competitive market model. As a non-means-tested program modeled after Social Security, Medicare embraces both a universal entitlement philosophy of government-provided basic health services, and a need-based entitlement philosophy of caring for the Medicare-eligible elderly.     

Constitutional Rights and Social Welfare: A Comment on the Canadian Chaoulli Health Care Decision

Chaoulli v Quebec (A.G . ) may be the most controversial Supreme Court of Canada decision to date. The Court used social science evidence of foreign health care systems to justify its finding that a provincial ban on private health care insurance unjustifiably violated the right to security of the person. The decision could lead to fundamental structural changes in the way Canadian provinces deliver health care services. Given the importance of Charter jurisprudence in the United Kingdom, and recent debate about the wisdom of incorporating social rights, the case raises a number of pertinent issues for British lawyers. This comment advances two general arguments. First, that the case was wrongly decided because of its poor characterisation of the legislative objective of the ban, unprincipled approach to judicial deference, and poor treatment of expert and social science evidence. Second, far from justifying suspicion of constitutional social rights, the case illustrates precisely why such rights can make a positive difference.     

The politics of managed competition: public abuse of the private interest

The doctrine of managed competition in health care sought to achieve the social goals of access and efficiency using market incentives and consumer choice rather than governmental regulation and public administration. In retrospect, it demanded too much from both the public and the private sectors. Rather than develop choice-supporting rules and institutions, the public sector has promoted process regulation and benefit mandates. The private health insurance sector has pursued short-term profitability rather than cooperate in the development of fair competition and informed consumer choice. Purchasers have subsidized inefficient insurance designs in order to exploit tax and regulatory loopholes and to retain an image of corporate paternalism. America's health care system suffers from the public abuse of private interests and the private abuse of the public interest.     

The privatization of health care in Europe: an eight-country analysis

This article presents an analysis of recent changes in the public-private mix in health care in eight European countries. The leading question is to what extent a process of privatization in health care can be observed. The framework for the analysis of privatization draws on the idea that there are multiple public/private boundaries in health care. The overall picture that emerges from our analysis is diverse, but there is evidence that health care in Europe has become somewhat more private. The growth of the public fraction in health care spending has come to an end since the 1980s, and in a few countries the private fraction even increased substantially. We also found some evidence for a shift from public to private in health care provision. Furthermore, there are signs of privatization in health care management and operations, as well as investments. Specific attention is spent on the identification of factors that push privatization forward and factors that work as a barrier to privatization.     

私权视角下的社会保险基金监管

社会保险基金是我国社会保障基金的重要组成部分,建立健全社会保险基金的监管制度是建立和完善我国社会保障体系的重要环节。在社会保险基金监管体制的制度构架中,在探讨如何将公权力(监督权力)进行分配,使社会保险基金的各管理主体各尽其能,相互制约的同时,应当明确社会保险基金中的私有产权性质,解决社会保险基金权利主体缺位问题,从而进一步完善社会保险基金监管制度,切实维护劳动者合法权益。     

Three Faces of Justice and the Management of Change

The apparatus of legal principles we use has, far more than we realise, transformed the way we think about the control of private power in the name of social justice. The actual sort of equity that the legal and political system is searching for is not reflected in our major political theories, nor indeed in the official rhetoric of many such systems themselves. The reason for this mismatch has to do with the need to accomodate change – a space opened by the law and unacknowledged by theory.
This article sets out the current theoretical frameworks within which the regulation of private power is analysed, and it contrasts these with a different approach to the problem of justice at work in employment and corporate law that does not find its way into theory. Once that approach is given a formulation, its place within a larger theory of justice is proposed, and its wider implications for the relationship between state and civil society are investigated.     

The political and economic context of mental health care in the United States

Since the mid-1970s, the mental health treatment system in the U.S. has faced budgetary famine. This is in stark contrast to the growing cornucopia of fiscal resources enjoyed by the overall health care system. This paper explores the complex reasons for this disproportionate allocation in health spending. On the one hand, mental health may suffer from the perception that its diagnoses are largely "subjective" and its treatments do not fit the traditional "medical model" that can be defined precisely and paid for by third-party insurers. But more importantly, the death of mental health resources can be attributed to the peculiar nature and characteristics inherent in American politics. This paper describes the American political environment, from both a historical and a contemporary perspective, to give some insight into the development of policies affecting the mental health system in the U.S. Given the current climate of fiscal conservatism in this country toward any increases in social spending, it is likely that the profound mismatch in need and spending for mental health programs will continue indefinitely.     

Privatization in Poland: Politics,Society, and the Law*

The paper presents the beginning and the initial results of the process of privatization in Poland. Starting from the summer of 1990 it examines the political debate on the Privatization Act and corresponding social reaction. It shows how the society answers such important questions as: who, and on what principles, is to take over the hitherto state-owned property? The next question is on the content of the “social contract on privatization”: the legal starting point and the first empirical results. It appears that the most visible social effect was the growth in the inequalities between workers and the elites of the society. The role of workers in the process of transformation is also of special interest. Finally, the paper examines the role of privatization law, which on the one hand presents a compromise between the ruling class and the society and on the other hand has been replaced by current privatization policy.     

公民权与公民社会

根据马克思关于社会成员具有公民与私人的双重身份和公权利与私权利的双重权利的理论,可以将民间社会理解为具有私人社会与公民社会双重属性的存在。公民社会是同政治国家相对应的政治社会,是组织化的政治存在,区别于分散的自然人社会的经济存在或民事主体存在。非政府组织是公民社会的核心力量。公民社会的特性和作用是让各个社会阶层有其组织和表达民意的渠道来参与国家政治,影响国家的决策。     

私有标准及其反垄断法规制

私人治理背景下,标准呈现出私有化发展趋势。标准私有化的基本含义是企业、企业联合以及行业协会等非政府组织成为标准的制定者,标准私有化发展的结果是大量私有标准的产生。作为市场自我规制工具的私有标准在提高经济效率、促进产品多样化以及保护公共利益方面具有积极效应。但是,私有标准可能会通过滥用市场支配地位、垄断协议等途径产生限制竞争的影响。私有标准的反垄断法规制应坚持合理原则,具有国际化视野。私有标准的反垄断法规制还需秉持发展的态度,顾及产业部门的差异性。