Medical rationing: the implicit result of Leadership by Example

The Institute of Medicine (IOM) has released the latest publication in its campaign to curtail medical error: Leadership by Example: Coordinating Government Roles in Improving Health Care Quality. In this publication, the IOM recommends that the government utilize its position as the country's largest purchaser of healthcare to institute unified performance standards, create appropriate incentives to improve quality of care, and develop a system to disseminate provider-specific quality information to the public. The author examines these recommendations and the contents of IOM's prior publications and concludes that necessary predicates of IOM's vision are rationing of care and a two-tiered system of healthcare. Thus, if the IOM's recommendations are carried out, the author envisions a healthcare system in which truly state-of-the-art care can only be purchased out of pocket. He concludes that, although Leadership by Example is a rational plan to address escalating healthcare costs, it is unclear both whether the American public would support it if the IOM were explicit about its ultimate impact, and whether the recommendations, in the long run, will prove to be a good thing.     

Extending due process protections in managed care credentialling to hospital privileges

The Article analyzes two recent state court decisions granting due process rights to physicians deselected from managed care networks. The author applauds these decisions and argues that managed care organizations wishing to deselect a physician should be required to demonstrate (1) that they have a legitimate reason for doing so relating to quality of care, economic factors, or administrative considerations, and (2) that the deselection will not unduly affect the quality of healthcare available in the network. In addition, the author contends that these same due process requirements may be applied to the closely analogous area of hospital staff privileges in situations in which the privileges of hospital-based practitioners are tied to employment, or the grant or termination of exclusive contracts.     

Medicare and Medicaid programs; hospital conditions of participation: quality assessment and performance improvement. Final rule

This final rule requires hospitals to develop and maintain a quality assessment and performance improvement (QAPI) program. In the December 19, 1997 Federal Register, we published a proposed rule to revise the hospitals conditions of participation (CoPs). The QAPI CoP was one of the conditions included in the proposed rule. We separated the QAPI CoP from the larger set of hospital CoPs so that it could be published in advance of the remaining CoPs to implement the Administration's initiatives regarding medical errors. QAPI focuses provider efforts on the actual care delivered to patients, the performance of the hospital as an organization, and the impact of treatment furnished by the hospital on the health status of its patients. Specifically, it is important to note that a QAPI is not designed to measure a hospital's quality, but rather a minimum requirement that the hospital systematically examine its quality and implement specific improvement projects on an ongoing basis. State agencies (SAs) during their surveys, review all aspects of a hospital's operations and this review provides a framework in which the SA can assess a hospital's QAPI program. In addition, the QAPI entails all activities required for measuring quality of care and maintaining it at acceptable levels. This typically includes; 1) Identifying and verifying quality-related problems and their underlying cause; 2) Designing and implementing corrective action activities to address deficiencies; 3) Following up to determine the degree of success of an intervention and to detect new problems and opportunities for improvement. Performance improvement activities aim to improve overall performance assuming that there is no permanent threshold for good performance. Under performance improvement framework, hospitals will continuously study and improve the processes of healthcare and delivery of service.     

RULE OF LAW IN CHINA-- LEGISLATION REASONING AND ENFORCEMENT OF ANTI-MONOPOLY LAW IN CHINA AND THE WEST

It is a long debate over whether rule of law is reliable in China, when some Chinese regulations are considered to be decided for political interests rather than the law itself. Furthermore, Chinese court decisions are often criticized for not according with statutes, even though the latter are properly written. The author examines these issues by comparing the legislation reasoning and enforcement of competition law in China, the European Union and the United States, which will not lead to endorsement of or objection to the view that rule of law is properly enforced in China, but it shall be an inevitable responsibility for the Chinese judiciary to demonstrate efforts it has taken.     

Parliamentary Question Times: How Legislative Accountability Mechanisms Affect Mass Political Engagement

Over time, people have been losing interest in politics. Some believe this to be one of the largest challenges facing democracy today. What causes some citizens to be more engaged than others? This paper argues that national-level political institutions are important in shaping the tone of political debate between election campaigns. Some countries have regular, accessible debates between political leaders; in others the debate is rarer and harder to follow. Parliamentary question time (QT) is a prominent forum for regular elite-level debate, and QTs featuring open, accessible debate should help induce citizens to engage with politics by providing them with an information-laden political spectacle. The data show that these open QTs are associated with higher levels of political knowledge, partisanship, and turnout.     

Media framing and political advertising in the Patients' Bill of Rights debate

The purpose of this article is to assess the influence of interest groups over news content. In particular, I explore the possibility that political advertising campaigns affect the tenor and framing of newspaper coverage in health policy debates. To do so, I compare newspaper coverage of the Patients' Bill of Rights debate in 1999 in five states that were subject to extensive advertising campaigns with coverage in five comparison states that were not directly exposed to the advocacy campaigns. I find significant differences in coverage depending on the presence or absence of paid advertising campaigns, and conclude that readers were exposed to different perspectives and arguments about managed care regulation if the newspapers they read were published in states targeted by political advertisements. Specifically, newspaper coverage was 17 percent less likely to be supportive of managed care reform in states subject to advertising campaigns designed to foment opposition to the Patients' Bill of Rights. Understanding the ability of organized interests and political actors to successfully promote their preferred issue frames in a dynamic political environment is particularly important in light of the proliferation of interest groups, the prevalence of multimillion-dollar political advertising campaigns, and the health care reform debate under President Barack Obama.     

No long-term solutions in current health care reform proposals

As this article goes to press, it is nearly impossible to predict what sort of health reform plan will ultimately be passed, if any, and whether any form of long-term care coverage will be included. The need for such coverage will not, however, diminish with the close of the current congressional session and is likely to be a topic of debate for some time. The entire process of health reform legislation has been one of paring down initial hopes and expectations, and it may take many more years, until an even larger segment of our population is aged, before log-term care coverage becomes politically and fiscally desirable enough to withstand the political process.     

Issue ads and the health reform debate

The public debate over health care reform in 2009 was carried out partly through issue advertisements aired online and on television. Did these advertisements alter the course of the debate over health care reform? While millions of dollars are spent each year on issue ads, little is known about their effects. Results from a naturalistic online experiment on the effects of issue ads suggest that they can influence the perceived importance of an issue and perceptions of politicians associated with the featured policy while influencing policy support only among those low in political awareness.     

Cassirer in Davos. An Intermezzo on Magic Mountain (1929)

The Davos-debate between Ernst Cassirer and Martin Heidegger at Davos in 1929 has proved a landmark in the history of twentieth century philosophy. The debate not only marked the end of the heyday of continental Neo-Kantian philosophy, but influenced, although in implicit ways, legal and political theory as well. At various levels of discourse, philosophical, moral philosophical, and that of legal and political philosophy, in the first half of the twentieth century Cassirer acted as the advocate of what remained of the old European humanist tradition. Heidegger, on the contrary, acted as the exponent of the emerging existentialist, anti-humanist movement that would soon supplant the old tradition in significance and force. This is an account of an imaginary encounter between two traditions, so that the clash of their opposing forces may shed sparks on a (still) dark era in Western philosophical history. The conclusion sums up the lessons or wisdom to be learned for political and legal theory.     

Corporate crime and the Canadian state: Anti-combines legislation, 1945–1986

This paper analyses post-war (1945–1986) anti-combines enforcement in Canada in the light of major competing theoretical models of the state in capitalist economies. Such an analysis serves as a framework for the clarification of issues pertaining to the debate on the state in advanced capitalism, the outcome of which may permit certain postulates concerning state-corporate relations in Canada. A narrative history of the nature and development of the Canadian economy informed by Canadian political economists will be presented, followed by a brief review of the history of anti-combines legislation and its enforcement up to 1945. Data will then be introduced enabling analysis in greater detail of post-war enforcement.     

Healthcare fraud and quality of care: a patient-centered approach

This Article explores the intersection between quality of care and healthcare fraud by examining the extent to which quality-related fraud settlements benefit patients. The author argues that, although the protection of beneficiary health and welfare often is invoked by the federal government as one of the reasons for undertaking anti-fraud efforts, such considerations do not appear to play a large role in many of the settlements that are negotiated. While returning funds to the federal Treasury helps to ensure that the federal healthcare programs remain solvent and continue to serve beneficiaries in the aggregate, it may not adequately address harm to individual patients. Thus, the author concludes it may be time to explore new models of fraud settlements that can provide adequate compensation to the patients who may have suffered harm.     

Law,ideology and social change: An analysis of the role of law in the construction of corporate crime

This paper explores recent efforts to theorize the potential of law as an agency for progressive social change in the context of the debate over corporate crime. Drawing on feminist experience with criminal law reform in the area of domestic violence, the author argues that the strategy of criminalizing corporate violations needs to be problematized, and that attention should also be focussed on exploring other avenues for progressive legal and political struggles aimed at the control of corporate crime.     

The Senility of Group Solidarity and Contemporary Multiculturalism: A Word of Warning from a Medieval Arabic Thinker

This paper discusses the thought of the medieval Maghrebin thinker Ibn Khaldun through the prism of the philosophy and sociology of law and politics. I will first try to illustrate how, even if Ibn Khaldun wrote in the fourteenth century, he anticipated many core concepts that are characteristic of modern Western sociological and philosophical thought. The argument is thus made that his thought can, and indeed must, be rescued from the wide neglect that, outside the specialized field of Khaldunian studies, it has so far suffered in our treatment and teaching of the history of politico‐legal sociological thought. I will then claim that the scheme he devised to explain the rise and fall of civilizations can also, with due care, be used to frame and understand the political and cultural landscape in which the West and the Islamic world are presently engaged in a difficult dialogue. The discussion is in this sense offered in the hope of making a contribution to the current politico‐legal philosophical and sociological debate on multiculturalism, and on the limits of its scope.     

Promoting the quality of life in nursing homes: can regulation succeed?

It has been assumed that the best policy for promoting quality of life in nursing homes is direct regulation. In this paper it is argued that if our experience in regulating quality of care is any indication, we may not possess the political will to successfully regulate quality of life. Moreover, from a legal perspective, the less concrete nature of the concept of quality of life may make it more difficult to regulate than quality of care. Finally, although regulation would probably be necessary if potential nursing home residents (and their agents) lacked the information or rationality to make choices that promoted their interests, this has never been shown to be the case empirically. Therefore, we may not be forced to choose regulation to achieve an adequate quality of life. Alternative--and perhaps better--policies may be available.     

The Priority of Politics and Procedure over Perfectionism in Penal Law, or, Blackmail in Perspective

Criminal law theory concerns itself with the justification of punishment. Conflicting moral theories of punishment will be held in liberal democracies. The positive law therefore neither will nor should reflect exclusively a single moral theory of punishment. Like the institutions for making law, the institutions for enforcing it will cause punishments imposed to deviate from what pure moral theory might prescribe. These claims are illustrated by the debate over blackmail prohibition. The best rationale for prohibition is not the moral argument that blackmailers culpably cause harm, but the political argument that blackmailers threaten the state’s claimed monopoly on punishing crime.     

Strategies to enhance price and quality competition in health care: lessons learned from tracking local markets

Drawing on observations from tracking changes in local health care markets over the past ten years, this article critiques two Federal Trade Commission and Department of Justice recommendations to enhance price and quality competition. First, we take issue with the notion that consumers, acting independently, will drive greater competition in health care markets. Rather we suggest an important role remains for trusted agents who can analyze inherently complex price and quality information and negotiate on consumers' behalf. With aggregated information identifying providers who deliver cost-effective care, consumers would be better positioned to respond to financial incentives about where to seek care and thereby drive more meaningful competition among providers to reduce costs and improve quality. Second, we take issue with the FTC/DOJ recommendation to provide more direct subsidies to prevent distortions in competition. In the current political environment, it is not practical to provide direct subsidies for all of the unfunded care that exists in health care markets today; instead, some interference with competition may be necessary to protect cross subsidies. Barriers can be reduced, though, by revising pricing policies that have resulted in marked disparities in the relative profitability of different services.     

Embryonic stem cell research: one small step for science or one giant leap back for mankind?

At the forefront of modern debate over the ethical use of biotechnology is embryonic stem cell research. In this poignant analysis of its legitimacy, the author examines the history of this research in light of the United States' policy favoring the protection of human beings over scientific progress. Stem cells, which can divide in culture to create specialized cells in the human body, possess significant potential for curing disease, particularly when taken from human embryos. However, as evidenced by the research atrocities committed under the Nazi regime, the benefits of human research do not come without a cost to humanity. Recognizing this, the later trial of these scientists produced the Nuremberg Code, a set of natural law principles guiding future research on humans that continues to influence health policy decisions. Drawing on this background, the author first considers the appropriate legal status for a human embryo. Biologically, the characteristics of a human embryo place it between human tissue and a constitutional person. Judicially, the answer is even less clear. The author analyzes case law in the context of abortion and in vitro fertilization, as well as classifications by the common law, state legislation, and the National Bioethics Advisory Commission, to conclude that a human embryo should be subject to the same legal and ethical restrictions as any other "human subject." Accordingly, the author argues that embryonic stem cell research violates the ethical standards and purposes of the Nuremberg Code and should be banned by federal legislation. Such a prohibition will fulfill the societal policy choice of protecting potential life and vulnerable human subjects.     

Connecting consumer choice to the healthcare system

American healthcare needs to be reformed into competing, efficient, comprehensive care systems. To get there from here, we need a health insurance market in which each person or household has a wide, responsible, informed, individual multiple choice of health care financing and delivery plans. The point of this is competing delivery systems, not just competing carriers. To compete, some carriers will create or contract with selective delivery systems or doctors selected for their quality and cost-effectiveness. Others will already be teamed up with large multispecialty group practices. On the other hand, high deductible plans will not help us get to a reformed delivery system.     

Problems with the Human Rights Act 1998 and How to Remedy Them: Is a Bill of Rights the Answer?

Recently there has been much discussion of the prospect of replacing, or supplementing, the Human Rights Act 1998 (HRA) with a British bill of rights. The Government, opposition Conservative Party and others have published detailed plans and research reports. Whilst there has been some limited examination of the alleged failures of the HRA in providing effective legal protection for human rights, the debate has not been accompanied by a thorough examination of these types of problems with the HRA, free from political criticisms. Drawing on research concerning aspects of the HRA carried out over the past ten years, it is possible to identify concrete problems which have prevented the HRA from meeting the objectives originally set for it. But given the limitations of the present debate, future plans do not adequately address many of these problems making it uncertain how effective any new bill of rights will actually be.     

Medicare revisited: a look through the past to the future

This paper examines the elderly's out-of-pocket health care expenditures by category of expense, before and after the inception of Medicare. It describes the shifting of out-of-pocket expenses from hospital care to nursing-home care, while physician services and drugs have remained prominent components of out-of-pocket expenditures. Recent corrosive trends in the protection against out-of-pocket liability are discussed and analyzed. The author contends that the raging debate over the Medicare program must include and recognize the concerns of the elderly consumer.