Barcelona 2002: law, ethics, and human rights. Global battle cry: health is a right, not a commodity

Health is a fundamental right, not a commodity to be sold at a profit, argues Irene Fernandez in the second Jonathan Mann Memorial Lecture delivered on 8 July 2002 to the XIV International AIDS Conference in Barcelona. Ms Fernandez had to obtain a special permit from the Malaysian government to attend the Conference because she is on trial for having publicly released information about abuse, torture, illness, corruption, and death in Malaysian detention camps for migrants. This article, based on Ms Fernandez' presentation, describes how the policies of the rich world have failed the poor world. According to Ms Fernandez, the policies of globalization and privatization of health care have hindered the ability of developing countries to respond to the HIV/AIDS epidemic. The article decries the hypocrisy of the industrialized nations in increasing subsidies to farmers while demanding that the developing world open its doors to Western goods. It points out that the rich nations have failed to live up their foreign aid commitments. The article concludes that these commitments--and the other promises made in the last few years, such as those in the United Nations' Declaration of Commitment on HIV/AIDS--can only become a reality if they are translated into action.     

Independent medical review: expanding legal remedies to achieve managed care accountability

Author Leatrice Berman-Sandler reports on independent medical review (IMR), a state-based statutory remedy used to resolve disputes over coverage between patients and their health plans. Ms. Berman-Sandler explores the connection between ERISA preemption and IMR, and opines that in light of recent Supreme Court decisions, the stage has been set for expansion of IMR. Accordingly, Ms. Berman-Sandler concludes that there are strong legal and policy reasons for state legislatures to broaden the application of IMR and for the Court to continue to narrow ERISA preemption in order to increase accountability in the managed care arena.     

Schiavo's lessons for health attorneys when good law is all you have: reflections of the special guardian ad litem to Theresa Marie Schiavo

Rarely have all the branches of federal and state government converged upon a single issue, a single person as they did in the tragic and acrimonious case of Theresa Maria Schiavo. In late 2003, the Florida Legislature passed what become known as "Terri's Law" and in Spring of 2005, Congress and the President of the United States sought to directly intervene in the care of the severely brain damaged woman. During that period, the state and federal court systems, through the highest courts in both venues, ruled on Ms. Schiavo's life, resulting in the removal of an artificial feeding tube and her death during Easter week. The legal and medical issues in this complex, politically and emotionally charged case continue to raise important questions for health attorneys. In this Article, Professor Wolfson, who served as the legislatively mandated, court appointed special guardian ad litem for Theresa Schiavo in late 2003, provides a distinctive first-person overview of the Schiavo case.     

Playing fair: fairness beliefs and health policy preferences in the United States

Conventional wisdom suggests that the best way to persuade Americans to support changes in health care policy is to appeal to their self-interest - particularly to concerns about their economic and health security. An alternative strategy, framing problems in the health care system to emphasize inequalities, could also, however, mobilize public support for policy change by activating underlying attitudes about the unfairness or injustice of these inequalities. In this article, we draw on original data from a nationally representative survey to describe Americans' beliefs about fairness in the health domain, including their perceptions of the fairness of particular inequalities in health and health care. We then assess the influence of these fairness considerations on opinions about the appropriate role of private actors versus government in providing health insurance. Respondents believe inequalities in access to and quality of health care are more unfair than unequal health outcomes. Even after taking into account self-interest considerations and the other usual suspects driving policy opinions, perceptions of the unfairness of inequalities in health care strongly influence respondents' preferences for government provision of health insurance.     

Reform and remembrance: the place of the private sector in the future of health care policy

Although the nation failed during the past decade to enact large-scale, structural change in government health policy, it has seen health care in the private sector remodeled dramatically during the same period. In this article I argue that a new round of equally significant changes is quite possible, this time at the hands of the national government. More specifically, I argue that for a variety of reasons, both enduring and more recently born, support for the private sector and the market in health care is relatively weak: that given likely trends in costs, demographics, and inequalities, it is likely to get even weaker; and that in the potential coming crisis of the health care system. there will be a real opportunity for seizing the agenda and winning policy battles on the part of would-be reformers pushing large-scale, public sector-oriented changes that go well beyond the recent reform efforts directed at managed care and HMOs.     

澳大利亚基本公共卫生服务的法律保障（二）——政府作用

为引导基本公共卫生服务方向，澳大利亚政府扮演了独特和关键的角色，联邦与州／特区政府签订公共卫生产出资助协议，州／特区、市镇政府制定公共卫生计划。同时，为了组织实施基本公共卫生服务，澳大利亚政府从传染病的总体预防与控制、计划免疫、母婴保健、慢性病预防控制、弱势群体综合公共服务等方面采取了有效措施。     

The who, what, and why of risk adjustment: a technology on the cusp of adoption

Risk adjustment (RA) consists of a series of techniques that account for the health status of patients when predicting or explaining costs of health care for defined populations or for evaluating retrospectively the performance of providers who care for them. Although the federal government seems to have settled on an approach to RA for Medicare Advantage programs, adoption and implementation of RA techniques elsewhere have proceeded much more slowly than was anticipated. This article examines factors affecting the adoption and use of RA outside the Medicare program using case studies in six U.S. health care markets (Baltimore, Seattle, Denver, Cleveland, Phoenix, and Atlanta) as of 2001. We found that for purchasing decisions, RA was used exclusively by public agencies. In the private sector, use of risk adjustment was uncommon and scattered and assumed informal and unexpected forms. The most common private sector use of RA was by health plans, which occasionally employed RA in negotiations with purchasers or to allocate resources internally among providers. The article uses classic technology diffusion theory to explain the adoption and use of RA in these six markets and derives lessons for health policy generally and for the future of RA in particular. For health policy generally, the differing experiences of public and private actors with RA serve as markers of the divergent paths that public and private health care sectors are pursuing with respect to managed care and risk sharing. For the future of RA in particular, its history suggests the need for health service researchers to consider barriers to use adoption and new analytic technologies as they develop them.     

Perceptions of the health system and public trust in government in low- and middle-income countries: evidence from the World Health Surveys

In low- and middle-income countries, health care systems are an important means by which individuals interact with their government. As such, aspects of health systems in these countries may be associated with public trust in government. Greater trust in government may in turn improve governance and government effectiveness. We identify health system and non-health system factors hypothesized to be associated with trust in government and fit several multilevel regression models to cross-national data from 51,300 respondents in thirty-eight low- and middle-income countries participating in the World Health Surveys. We find that health system performance factors are associated with trust in government while controlling for a range of non-health system covariates. Taken together, higher technical quality of health services, more responsive service delivery, fair treatment, better health outcomes, and financial risk protection accounted for a 13 percentage point increase in the probability of having trust in government. Health system performance and good governance may be more inter-related than previously thought. This finding is particularly important for low-income and fragile states, where health systems and governments tend to be weakest. Future research efforts should focus on determining the causal mechanisms that underlie the observed associations between health system performance and trust in government.     

Report from Germany: current conditions and controversies in the health care system

This paper presents a structured survey of the West German health care and health insurance system, and analyzes major developments of current German health policy. In order to make the analysis more accessible to a largely American audience, brief historical remarks, comparisons with U.S. experience, and considerable data and tabular information are provided. The German statutory health insurance scheme is known as a very comprehensive and generous one. However, under the pressure from rapidly expanding health care expenditures and a severe economic recession, the German governments under Helmut Schmidt and his successor Helmut Kohl imposed a number of cost-containment measures, namely a change in the mode of remuneration for physician services, certain regulations of the drug market, and increased cost-sharing. Cost-sharing is especially favored by the new conservative-liberal government. The article concludes with a summary of striking similarities between the American and German health care schemes, and an outlook on proposals for reform which are currently under investigation by the German government.     

The unintended consequences of New Zealand's primary health care reforms

In 2001, the New Zealand government commenced a program to reform the organization of publicly funded primary care services. While there have been several positive results of this reform, including the reduction of patient co-payments and the extension of the range of primary care services, the government's program was a hastily implemented attempt to place primary care, the delivery of which is dominated by private doctors, under firm state control. It was also an attempt to override preexisting arrangements. As such, the government succeeded in its goal of establishing new primary health organizations (PHOs), but there were also significant unintended consequences. As detailed in this article, these consequences include (1) the creation of a labyrinthine funding and organizational system with a variable capacity to deliver on the government's reform objectives, (2) an increase in the power and scope of preexisting doctor organizations combined with a government unable to wrest control over the setting of patient co-payment levels, and (3) an emerging lack of clarity about future directions for the primary health care sector.     

The role of group interest,identity, and stigma in determining mental health policy preferences

Public attitudes toward mental health present an interesting puzzle. While mental health is one aspect of general health and well-being, it receives less support for government spending increases than does health care. One explanation lies with the stigma that is attached to mental illness. This stigma produces more negative attitudes on policy issues related to persons with mental illness such as government spending for mental health. However, group identification, as defined by personal experience or a family member who has experienced a mental illness, may have a strong effect on these attitudes. Using data from the 1996 General Social Survey's module on mental health. I examine this and other hypotheses and find evidence that group identification increases the likelihood of increased support for government spending for mental health. These robust findings exist even in quantitative models, which include politically relevant variables and measure identification with mental illness in two different ways. These findings suggest that mental health is policy for the few because those most supportive of government spending increases are persons who share the common identity of experiencing mental illness.     

From shared cost to block funding and beyond: the politics of health insurance in Canada

This paper takes as its starting point recent major changes in arrangements between the federal and provincial government in Canada concerning the sharing of costs for health insurance programs. The switch from a shared cost (conditional grant) to a modified block funding system was motivated by federal desires to limit and make predictable their expenditures, by provincial desires to increase the flexibility of their allocation of funds and by a mutual desire to limit any growth of health care costs as a proportion of GNP. Concerns related directly to improving medical care delivery were insignificant The changes will effectively centralize responsibility for program financing and program delivery, thus providing a powerful incentive for provincial governments to apply very strong measures to control costs. For reasons largely external to the relationship between public sector insurers and the suppliers of medical services, these attempts are unlikely to be successful in the short run. The probable impact of this difficulty on government and members of the health care delivery system is assessed.     

Charter rights & health care funding: a typology of Canadian health rights litigation

Canadian health consumers have increasingly relied on the Charter of Rights and Freedoms to demand certain therapies and reasonably timely access to care. Organizing these cases into a 5-part typology, we examine how a rights-based discourse affects allocation of health care resources. First, successful Charter challenges can, in theory, lead to courts granting and enforcing positive rights to therapies or to timely care. Second, courts may grant a right to certain health services; however, subsequently government fails to deliver on this right. Third, successful litigation may create negative rights, i.e. rights to access care or private health insurance without government interference. Fourth, consumers can fail in their legal pursuit of a right but galvanize public support in the process, ultimately effecting the desired policy changes. Lastly, a failed lawsuit can stifle an entire advocacy campaign for the sought-after therapies. The typology illustrates the need to examine both legal and policy outcomes of health right litigation. This broader analysis reveals that the pursuit of health rights seems to have caused largely a regressive rather than progressive impact on Canadian Medicare.     

Responding to the immunoglobulin shortage: a case study

In fall 1997, a shortage of intravenous immunoglobulin (IVIG) developed in the United States because of increased demand for the product, reduced supply, and product recalls. This shortage is a useful model for understanding how our health care system responds to scarcity. Although the U.S. government took steps to inform the medical community of the shortage, with few exceptions, the government did not respond to the shortage in a timely or effective manner. Instead, it took a relatively passive role, leaving IVIG manufacturers and distributors, health care institutions, and clinicians to fend for themselves. The shortage likely had an uneven impact on patients, based on the relative market strength of the health care institutions in which they received care and the individual patient's ability to absorb the increasing out-of-pocket costs of scarce IVIG. Market mechanisms have now largely alleviated the shortage and significantly reduced its detrimental impact on patients. However, future shortages of IVIG or other scarce medical products, such as vaccines and antibiotics, would benefit from more immediate and coordinated efforts not only to make sure that scarce health care resources are distributed in a just manner but also to identify and remedy the sources of health product supply problems.     

Qui tam claims: threat to voluntary compliance programs in health care organizations

The Department of Justice (DOJ) reports that after violent crime, health care fraud is the department's top priority. The number of health care fraud investigations pending at the DOJ increased from 270 cases in 1992 to more than 4,000 in 1997. The DOJ's primary weapon in prosecuting health care fraud is the federal False Claims Act (FCA) of 1863 (31 U.S.C. secs. 3729-3733). Almost unique among federal antifraud provisions, the FCA may also be used by "private prosecutors" to file lawsuits on behalf of the federal government charging organizations with submitting false claims to the government. The FCA rewards such whistle-blowers with a share of any resulting recoveries as a bounty and protects them from discharge for filing false claims lawsuits against their employers. It also requires defendants to pay the costs and attorneys fees of successful claimants. Although the private "bounty hunter" features of the FCA data back to the Civil War, these so-called qui tam claims were nearly dormant until 1986, when Congress amended the FCA to revive their use. Following the 1986 amendments, and paralleling the rapid increase in federal reimbursements for health care costs, private qui tam claims have far expanded beyond their traditional purview of defense contracts into the field of health care. By 1997, health care providers were the targets of 54 percent of the 530 private qui tam lawsuits field that year.     

A conversation with Donald Berwick on implementing national health reform

Michael Birnbaum interviews Donald Berwick shortly after his departure from the Centers for Medicare and Medicaid Services about the national health care landscape. Berwick discusses the strategic vision, policy levers, operational challenges, and political significance of federal health care reform. He rejects the notion that the Affordable Care Act represents a government takeover of health care financing or service delivery but says the law's Medicaid expansion and its creation of health benefit exchanges present a "watershed moment for American federalism." Berwick argues that the solution to Medicare's cost-containment challenge lies in quality improvement. He is optimistic that accountable care organizations can deliver savings and suggests that shifting risk downstream to providers throws the health insurance model into question. Finally, looking to the future, Berwick sees a race against time to make American health care more affordable.     

An end to a consensus on health care in the Federal Republic of Germany?

Over the past fifteen years the national government in the Federal Republic of Germany has animated the political debate about rising health care expenditures. However, it has only provided health policy leadership by shifting the burden of financing health and medical care to others. This paper presents three cases that illustrate the political and institutional constraints inherent in the German policy process that limit the proposal and implementation of appropriate policy solutions to rising health care costs. Cost controls have been inhibited because of the near-universal entitlement of national health insurance, the access all social groups have to advanced medical care, and policies targeted at providers rather than users of health services. The paper also underscores the past and future importance of regional policy coalitions in shaping national health policy.     

Three meanings of capacity; or,why the federal government is most likely to lead on insurance access issues

This essay considers on what health policy issues the federal government is best able to lead. Positive leadership requires knowledge, power, and will. The federal government has different supplies of each for different aspects of quality of, cost of, and access to health care. Here I review technical capacity to attain desired ends, define the institutional strengths and weaknesses of the federal government, and outline current dynamics of the national political process. This analysis suggests both prospects for and some characteristics of successful policy. The federal government is more likely to lead on insurance than on other health policy issues because its supply of relevant knowledge and power is relatively high on insurance issues and the political barriers are lower than conventional wisdom suggests. But that leadership could take the form of either the expanding or contracting of access to insurance.     

Economic credentialing: your money or your life!

The economic overhaul of health care in America is restructuring the business of medicine, and with it the relationship between physician and patient. Previously accustomed to thinking primarily about the best interests of each patient, the physician now finds this traditional loyalty in conflict with competing concerns, including those of government, business, and insurers who watch with alarm the relentless rise in their health care expenditures. And there are competing interests of hospitals, health maintenance organizations, and other provider-institutions who find their survival threatened by high-powered competition and increasingly stringent resource limits, and interests of other physicians and their patients whose health needs compete for limited health care dollars.     

Proposed changes to the hospital-medical staff relationship to improve quality of care

Medical staff attorney Snelson answers the Colloquium's charge, "What exactly has to change in the hospital-medical staff relationship for health care quality to be improved?" Her response emphasizes the logic of having clinicians vested with authority to establish policies concerning the clinical decision-making. The article discusses the cases defining the medical staff bylaws as contractual in nature, and the problem of hospital attorneys demanding unilateral amendments to bylaws. Bylaw clauses that would chill medical opinion and communication or denigrate clinical recommendations are discussed. Ms. Snelson advocates for the inclusion of the medical staff organization in exclusive contract and other clinical decision-making, and includes sample bylaw language enacting her recommendations.