Prospective payment in perspective

Prospective payment promises improvement for a health care system plagued by inefficiency and rising costs, but is likely to disappoint. Serious efforts to control costs threaten the system's access and quality objectives and will be resisted. Moreover, serious cost containment, whether the result of all-payer regulation or competition, requires a stronger civil service than America seems capable of providing. A comparison with the experience in defense demonstrates the important limitations in applying incentive-based models in policy areas with conflicting goals. The search for panaceas will go on, but there are none.     

Using law to fight a silent epidemic: the role of health literacy in health care access, quality, & cost

The dominant rhetoric in the health care policy debate about cost has assumed an inherent tension between access and quality on the one hand, and cost effectiveness on the other; but an emerging discourse has challenged this narrative by presenting a more nuanced relationship between access, quality, and cost. This is reflected in the discourse surrounding health literacy, which is viewed as an important tool for achieving all three goals. Health literacy refers to one's ability to obtain, understand and use health information to make appropriate health decisions. Research shows that improving patients' health literacy can help overcome access barriers and empower patients to be better health care partners, which should lead to better health outcomes. Promoting health literacy can also reduce expenditures for unnecessary or inappropriate treatment. This explains why, as a policy matter, improving health literacy is an objective that has been embraced by almost every sector of the health care system. As a legal matter, however, the role of health literacy in ensuring quality and access is not as prominent. Although the health literacy movement is relatively young, it has roots in longstanding bioethical principles of patient autonomy, beneficence, and justice as well as the corresponding legal principles of informed consent, the right to quality care, and antidiscrimination. Assumptions and concerns about health literacy seem to do important, yet subtle work in these legal doctrines--influencing conclusions about patient understanding in informed consent cases, animating decisions about patient responsibility in malpractice cases, and underlying regulatory guidance concerning the quality of language assistance services that are necessary for meaningful access to care. Nonetheless, health literacy is not explicitly treated as a legally relevant factor in these doctrines. Moreover, there is no coherent legal framework for incorporating health literacy research that challenges traditional assumptions about patient comprehension and decision-making, and that emphasizes the need for providers to improve communication and take affirmative steps to assess patient understanding. The absence of a clear and robust consideration of health literacy in these doctrines undermines core access and quality aims, and it means that such laws are of limited efficacy in promoting health literacy. Returning to the theme that the health literacy problem reflects a complementary view of access, quality and cost, it is likely that the cost implications of this problem (and not concerns about quality and access) will motivate the kind of health literacy reform that may ultimately strengthen existing quality and access standards. One recent example of this can be seen in reforms linked to government, insurer and provider attempts to reduce costly medication errors.     

The stages of managed care regulation: developing better rules

The managed care industry is at a crossroads. Belief in the ability of market forces alone to create an environment fostering quality health care at lower cost is eroding. Regulators across the country are confronted with a growing consumer backlash against managed care. As a result, states have passed managed care reform legislation at unprecedented rates. In doing so, states are confronted with a patchwork of federal intervention and preemption. We examine the stages of these recent state and federal developments and evaluate them in terms of the traditional objectives of a reasonably functioning health care system: quality care, access, and cost containment.     

Equity and the allocation of health care resources: Proposition or oxymoron?

The rate of changes in the allocation of health care resources has escalated in the past decade in an attempt to provide for cost containment and a more equitable distribution while retaining quality of care. In this issue, economists, physicians, psychologists, and sociologists examine the current health care environment for evidence relevant to the effect of these changes and provide a guideline for future direction.     

The complexities of managed care: operating a voluntary system

The implementation of state-sponsored voluntary case management programs for public assistance recipients creates provider and recipient recruiting problems that are unique to the state's economic environment, its political climate, its historic relationship with providers, its program goals, and its implementation strategies. This implementation study discusses the factors that influenced the operationalization of the Massachusetts managed care program for AFDC families. The issues of provider recruitment and recipient enrollment are examined in relation to the formal program goals of cost containment and access. The operational and bureaucratic problems the state Medicaid staff has experienced in maintaining the program evokes questions of who should administer the programs, who the best types of providers are in light of program goals, and how recipients can be enrolled in a voluntary program.     

Medicare reimbursement for hospice care: ethical and policy implications of cost-containment strategies

In several areas of health policy, current concern over rising costs has generated considerably political support for reforms that many in the business have advocated unsuccessfully on philosophical, ethical, or humanitarian grounds for years. Thus, for example, the spiraling cost of caring for the mentally ill and the developmentally disabled in an institutional setting has breathed new life into proposals to bring these groups out into the community where they can live more independently--and more cheaply. But this overlap of quality and frugality goals is only partial. Although alliances with cost-cutters can bring reform, health policy reformers are discovering that they may have to accept a lot of bathwater along with the baby. Medicare reimbursement for hospice care, authorized by Section 122 of PL 97-248, the Tax Equity and Fiscal Responsibility Act of 1982, provides one recent example of this dilemma. This article discusses the results of a survey--conducted by the Office of the Inspector General of the Department of Health and Human Services--to discover how many hospices would seek certification for reimbursement by Medicare, how many patients would be served, and the consequences of this legislation for cost, access, and quality of service.     

Finding the levers, finding the courage: lessons from cost containment in North America

"Learning" is broader and more complex than simply the orderly acquisition of new knowledge. At least as important is the evolution of the background of assumptions and beliefs held by the community, or its principal decision makers, and implicit in its institutions and policies. These may bear only a loose relation to evidence or knowledge narrowly defined. The pressures of cost escalation over the past twenty years, and the attempts at containment in the U.S. and Canada, have added substantially to our knowledge of how the health care system works. Containment is possible, and the successful mechanisms, thus far, are quite specific. But the results of these attempts and (in the U.S.) the continued escalation have also significantly shifted the broader set of assumptions in the community about appropriate priorities and policies in health care. Attitudes towards physician supply, variations in practice patterns, capitated practice, and for-profit organization, for example, have changed radically, although the supporting evidence has not. But cost pressures have created an audience which wants to hear, whose background assumptions provide a different "fit" for the evidence.     

Epistemological and ethical understandings of access and allocation in Earth System Governance: a 10-year review of the literature

“Access and allocation” is one of the five analytical problems identified as key for analysing earth system governance in the first Earth System Governance Science and Implementation Plan officially published in 2009. Ten years later and with a new Science and Implementation Plan in place, it is time to take stock. Therefore, this paper addresses the question: What does a decadal review of the Earth System Governance literature tell us about how to conceptualize and define access and allocation, what ethical norms and epistemologies underlie access and allocation research, and what does Earth System Governance scholarship reveal about the interplay between access and allocation and other norms? We find that: (a) there is a relatively small body of the Earth System Governance literature on access and allocation, albeit growing; (b) this literature is largely empirical and dispersed across a variety of topics; and (c) there is a diversity of ethical norms and principles emphasized in Earth System Governance scholarship, but the dynamics between different forms of access and related implications for allocation are relatively underexplored. In light of these findings and with a new Earth System Governance Science and Implementation Plan in place, this paper highlights key areas for further research and development.

     

The Impact of Insanity Acquittees on Missouri's Public Mental Health System

Even though state departments of mental health have primary responsibility for the care, custody, and treatment of insanity acquittees, the impact of insanity acquittees on the public mental health system is generally lacking in policy discussions and as a topic for policy research. This issue has received increased attention in Missouri, where insanity acquittees now occupy half of the long-term public psychiatric hospital beds. This article examines the presence of Missouri's insanity acquittees on the state's public mental health system and includes the impact on goals, fiscal costs, inpatient and community psychiatric services, and inpatient treatment staff. As states consider managed care and other cost containment measures, it remains to be seen if the high costs associated with extensive use of hospitalization of insanity acquittees to promote public safety will influence policy changes to more community-based insanity acquittee systems.     

An empirical study of tissue banking in Australia: navigating regulatory and ethical challenges

Collections of tumour samples can be an invaluable resource for medical research. There are, however, numerous ethical and legal challenges associated with tumour banking. While there has been extensive discussion of these issues in the legal and ethical literature, there are few available empirical data in relation to the activities of tumour banks in Australia, their practices around ethically charged issues, and their success in implementing complex regulatory guidelines. The aim of this study was to gain more information about the activities of tumour banks in New South Wales, Australia, with a particular focus on their management of, and attitudes towards, ethical and regulatory issues. A survey of 27 tumour collection and research facilities was conducted using a 55-item questionnaire. There is significant heterogeneity of research methodologies as well as of methods for gaining consent and ensuring donor privacy, and there is general concern among the research community about ethical and regulatory issues related to tumour banking. Heterogeneity of practice and uncertainty about ethical and regulatory requirements is problematic in its potential to hinder research and its potential to generate the space for unethical practice, whether intentional or unintentional. There is a pressing need to address these issues so that tumour banks can be used in the most ethical and efficient way possible.     

“Worth It If It Saves Just One Life”? Ethical Reservations Regarding AMBER Alert

This article provides an exploratory ethical critique of the AMBER Alert system. Using illustrative examples of actual AMBER Alerts and the public discourse regarding them, it notes potentially problematic impacts on victims and/or offenders, and investigation of child abduction cases, as well as the public discourse about the system in particular and threats to children in general. None of these issues have been adequately addressed either by system operators in their public portrayals of the system or rigorous research as to their practical impacts, or in the suggestion of possible remedies. At the heart of the open and unresolved ethical quandaries confronting the AMBER Alert system lies a failure on the part of system operators and supporters to acknowledge apparent limits to the system's effectiveness, and an exaggeration of its capacities in the absence of adequate evidence, which should be sought in earnest through rigorous research. The article argues that system operators should discuss AMBER Alert more candidly and downplay expectations to avert at least some of the problems its facile portrayal can engender. The article also provides directions for future research on the system—research which could either show some of the ethical reservations that are cited to be moot, or reveal ways they could be resolved.     

The elderly's access to health care services: The crude and subtle impacts of Medicare changes

Medicare, the federal government's health insurance program for the aged and disabled, has been subjected to a number of legislative and regulatory changes since 1981 aimed at reducing the costs of the program. About a third of the cutbacks have been in activities that directly increase patient cost sharing. Other changes, while aimed at improving efficiency, may also shift costs onto program beneficiaries. This paper estimates the differential impacts of such program changes by age and income of elderly Medicare enrollees and discusses the likely resulting impact on their access to care. Surprisingly, such equity concerns have been largely overlooked in the policy debate concerning cost containment under Medicare.     

Case-mix payment for nursing home care: lessons from Maryland

Even before Medicare adopted case-based payments for hospitals, some state Medicaid programs employed case-mix payment systems for nursing home care. Their purpose was less to promote cost containment than to improve access to nursing homes for the most costly patients. This paper evaluates one such system, adopted by the state of Maryland in 1983 as part of an overall reimbursement reform. Using data on nursing home patient characteristics, costs, and staffing, as well as interviews with officials and various providers of care, the article shows that Maryland's system was successful in shifting nursing home service away from light-care and toward heavy-care patients. Furthermore, the shift occurred without inducing readily measurable declines in quality of care and with little additional administrative cost (partly because the state built its case-mix system on preexisting patient review activities). Although states could learn from and improve upon Maryland's experience--most notably in offering incentives to improve quality of care and in targeting community care on the light-care patients that nursing homes become less willing to serve--Maryland demonstrates that case-mix payment can change nursing home behavior in desired directions without substantial negative consequences.     

Differences in health care spending across countries: statistical evidence

The empirical evidence available for OECD countries suggests that economic factors play a major role and that demographic factors play a minor role in explaining differences in health care spending across countries. When countries are grouped on the basis of their health care systems, some significant cross-country differences result: countries with higher transfer rates (a larger share of collective financing) are not generally characterized by higher health care expenditures, and conversely, countries with a larger share of private financing (including higher coinsurance rates) do not have lower expenditures. Rather, the opposite holds true. Similar conclusions apply to the share of public versus private production of health goods. Furthermore, the results do not support the claims of those critics of universal public insurance systems who consider the expansion of the coverage to be a major source of expenditure growth. These findings cast serious doubt on the claim that cost containment can be achieved via market reforms that rely heavily on direct consumer payments and cost sharing as instruments of financing. A comparative analysis of the historic record of the United States, Canada, and the Federal Republic of Germany generally supports these conclusions; it also suggests that a greater degree of public penetration offers a better chance for control of health spending, particularly in periods of austerity. There is a strong presumption that health care systems relying on some overall control of spending generally are more cost-effective than those relying more on decentralized mechanisms of control. Services are more equitably distributed in relation to health and payment for health services is far more progressive in the former type of system.     

In Defence of Substantial Sentencing Discretion

This article develops an ideal of sentencing discretion as consisting in sufficient dispositional flexibility for the trial judge to set, on behalf of the polity, reasonable terms for the continuance of relations with the offender in view of his crime. This ideal requires trial judges to have what may be termed “substantial” sentencing discretion: discretion that is exercised with direct reference to the values and goals penal sanctions are expected to serve, and where it is this quality of value-based engagement that provides the justification for the decision. The article engages with empirical research into sentencing that helps us address the strength of the case for and against substantial sentencing discretion, and ultimately defends substantial sentencing discretion on functional as well as ethical–political grounds.     

Health care cost-containment regulation: prospects and an alternative.

Regulation of the health care system to achieve appropriate containment of overall costs is characterized by Professor Havighurst as requiring public officials to engage, directly or indirectly, in the rationing of medical services. This rationing function is seen by the author as peculiarly difficult for political institutions to perform, given the public's expectations and the symbolic importance of health care. An effort on the part of regulators to shift the rationing burden to providers is detected, as is a trend toward increasingly arbitrary regulation, designed to minimize regulators' confrontations with sensitive issues. Irrationality and ignorance are found to plague regulatory decision making on health-related issues, even though it is the consumer who is usually thought to suffer most from these disabilities. The author argues that consumer choice under some cost constraints is a preferable mechanism for allocating resources because it better reflects individuals' subjective preferences, has a greater capacity for facing trade-offs realistically, and can better contend with professional dominance of the resource allocation process. In view of the unlikelihood of regulation that is both sensitive and effective in containing costs, the author proposes that we rely primarily on consumer incentives to reform the system. A simple change in the tax treatment of health insurance or other health plan premiums, to strengthen consumers' interest in cost containment while also subsidizing needy consumers, is advocated. Steps to improve opportunities for innovation in cost containment by health insurers, HMOs, and other actors are outlined briefly.     

Freedom of Assembly, Consequential Harms and the Rule of Law: Liberty-limiting Principles in the Context of Transition

The consequences of restricting or not restricting the rightto freedom of assembly are potentially magnified in transitionalsocieties. Yet determining whether such consequences are indeed‘harmful’, and whether their cost should be bornedespite the harms caused, requires the elaboration of criteriawhich define what are valid and relevant harms. While a humanrights framework can perform this task, open-textured rightsstandards prescribe neither the threshold of legal interventionnor the goals of transition. By extension, the rule of law—underpinnedby this rights discourse—is silent about whether liberalor communitarian ideals should inform the reconstruction ofpublic space in conflicted or nascent democracies. Illustratedby analysis of legal interventions in parade disputes in NorthernIreland, this article argues that the rule of law is necessarilyorientated by ethical consensus about its scope. Furthermore,this consensus operates as a restraint upon the degree of normativediscontinuity permitted during transitional compromises. Thearticle frames the ethical options in terms of three liberty-limitingprinciples—the argument from democracy, the argument fortoleration, and the argument for recognition. Each suggestsdifferent parameters for the transitional project and for therole of law within it.     

Can Online Courts Promote Access to Justice? A Case Study of the Internet Courts in China

The right to access the courts is a basic human right in civilised societies, but the current legal system is unfriendly and often unaffordable for the victims of e-commerce disputes and copyright infringements seeking access to justice. Therefore, how to design a judicial system that is more accessible for the aforementioned victims has become a critical legal point of contention in the digital economy era. In particular, it is not easy to provide solid evidence of consumer disputes or copyright infringements on the Internet because the electronic evidence stored on the current centralised database has data security and trust problems. In response to this challenge, China established three Internet Courts in 2017 to move dispute resolution for e-commerce disputes and copyright infringements from the physical courts to the Internet. All the proceedings in these Internet Courts are conducted on the Internet, so the time and expenses of the litigants can be largely reduced. Most notably, these Internet Courts accept the use of blockchain as a method of securing evidence, to overcome the risks that evidence stored on the Internet can be hacked or falsified. The notion of an Internet Court, which substantially enhances popular access to justice, is a significant judicial innovation. It is of special significance for those lawsuits with small value claims and online evidence, and in which the parties are separated by long distances. However, these Internet Courts leave much to reflect on, including whether due process can be guaranteed, whether public trial can be fully implemented, and whether blockchain-based evidence is absolutely admissible. Even so, this article argues that true justice is not only to pursue absolute correctness of judgements, but that true justice should also strike a balance between the correctness and efficiency of trials. For this reason, Internet Courts may yet establish a new judicial paradigm to pursue a balance between correctness, time, and cost.     

Investigators' and judges' opinions about civil commitment

As part of our work with the Oregon Task Force on Civil Commitment, we surveyed the judges and commitment investigators involved in the state's involuntary treatment program. In Oregon the investigators recommend whether or not a commitment hearing should be held. These mental health professionals indicated that current confidentiality laws restrict their access to important information. The investigators also expressed concern about the lack of resources with which to divert clients out of the commitment system. Judges too felt that relaxing the rules of evidence would improve the quality of commitment hearings. Regarding changes in the system, investigators and judges indicated that outpatient treatment (including compliance with medications) should be required of committed patients. These professionals noted that involuntary outpatient treatment could only be enforced if the system included a mechanism for hospitalizing patients who were noncompliant. Although the investigators believed commitment criteria should be broadened so that their clients could receive treatment before becoming dangerous, judges did not generally endorse this view. We discuss the implications of these findings for new civil commitment legislation.