A Quiet Revolution: Law As An Agent Of Health System Change

Code Red: The Essential Yet Neglected Role of Emergency Care in Health Law Reform

The United States' health care system is mired in uncertainty. Public opinion on the Patient Protection and Affordable Care Act ("ACA") is undeniably mixed and politicized. The individual mandate, tax subsidies, and Medicaid expansion dominate the discussion. This Article argues that the ACA and reform discourse have given short shrift to a more static problem: the law of emergency care. The Emergency Medical Treatment and Active Labor Act of 1986 ("EMTALA") requires most hospitals to screen patients for emergency medical conditions and provide stabilizing treatment regardless of patients' insurance status or ability to pay. Remarkably, this law strengthened the health safety net in a country that has no universal health care. But it is an unfunded mandate that responded to the problem of emergency care in a flawed fashion and contributed to the supposed "free rider" problem that the ACA attempted to cure. But the ACA has also not been effective at addressing the issue of emergency care. The ACA's architects reduced funding for hospitals that serve a disproportionate percentage of the medically indigent but did not anticipate the Supreme Court's ruling in NFIB v. Sebelius, which made Medicaid expansion optional. Public and non-profit hospitals now face a scenario of less funding and potentially higher emergency room utilization due to continued uninsurance or underinsurance. Alternatives to the ACA have been insufficiently attentive to the importance of emergency care in our health system. This Article contends that any proposal that does not seriously consider EMTALA is incomplete and bound to produce some of the same problems that have dogged the American health care system for the past few decades. Moreover, the Article shows how notions of race, citizenship, and deservingness have filtered into this health care trajectory, and in the context of reform, have the potential to exacerbate existing health inequality. The paper concludes with normative suggestions on how to the mitigate EMTALA's problems in ways that might improve population health.

Managed care regulation in the States: the impact on physicians' practices and clinical autonomy

While the states engaged in an extended period of adopting and revising laws regulating managed care during the 1990s, there has been to date only limited empirical assessment of the impacts of these laws. For this analysis, we constructed a data set using information on state laws combined with survey responses of physicians. We distinguish regulations with a typology based on whether they affect the context or content of care and the target group of the regulation (consumer or provider). Our findings indicate that the context of care appears to be more efficaciously regulated than the content of care. Provisions concerning consumer access and contractual relationships lead to greater reported physician ability to obtain referrals and services, improved quality of clinical interactions, and greater perceived clinical autonomy. Regulations intended to enhance professional autonomy are associated with lower reported levels of utilization constraints and higher reported quality of clinical interactions. In contrast, consumer protection provisions, including procedures for appeals from plan decisions, appear to have had little impact on most physicians' practices. Despite structural and legal constraints on the potential effectiveness of these regulations, state managed care legislation appears to have provided some protections against managed care restrictions on physicians' clinical autonomy.

The political management of managed care: explaining variations in state health maintenance organization regulations

In the 1990s, strong incentives for managed care organizations to control costs, once regarded as a fortuitous confluence of interests, came to be seen as antithetical to consumers' interests in quality of care. In response to this change in political climate, many states have greatly increased their regulatory control of managed care organizations since the mid-1990s. This activity is surprising in an era when public policy on health care issues is usually described as frozen, gridlocked, and/or stalemated as a result of intense activity on the part of organized interests. We take advantage of the variation in state regulations of health maintenance organizations (HMOs) to discover why some governments are able to address policy problems that are often perceived as intractable in a political if not in a true policy sense. From the history of HMOs, the backlash against managed care, and state responses to that backlash, we first extract a number of hypotheses about state regulatory activity. We then test these hypotheses with data on regulatory adoptions by states during the late 1990s and the early 2000s. Last, we discuss the findings with special attention to the role of politics in health care.

Antitrust and hospital mergers: does the nonprofit form affect competitive substance?

Following a string of government losses in cases challenging hospital mergers in federal court, the Federal Trade Commission and the Department of Justice issued their report on competition in health care seeking to set the record straight on a number of issues that underlie the judiciary's resolution of these cases. One such issue is the import of nonprofit status for applying antitrust law. This essay describes antitrust's role in addressing the consolidation in the hospital sector and the subtle influence that the social function of the nonprofit hospital has had in merger litigation. Noting that the political and social context in which these institutions operate is never far from the surface, it takes issue with the proposal to cabin merger doctrine so as to deny the significance of nonprofit status in merger analysis. Given the dynamic change in the regulatory climate and heterogeneity of local health care markets, it advises courts not to accept the FTC's preemptive standard regarding the significance of hospitals' nonprofit status and keep open the possibility of fashioning new presumptive rules tailored to more complete economic accounts of nonprofit firm behavior.

National survey of the status of infection surveillance and control programs in acute care hospitals with more than 300 beds in the Republic of Korea

BACKGROUND

This study was conducted to assess the status of infection surveillance and control programs (ISCPs) and to analyze the trends associated with ISCP implementation since the first program was established in Korea in 1991.

METHODS

A questionnaire modified from the Study on the Efficacy of Nosocomial Infection Control was mailed 4 times nationwide to acute care hospitals (n = 164) with more than 300 beds between June and October 2003. Eighty-five hospitals participated (52%).

RESULTS

The mean number of beds (649) in the responding hospitals was significantly greater than in nonresponding hospitals. Of the participating hospitals, 92% had educational functions, 40% to 90% used hand hygiene resources, and 100% had infection control committees; 86% had infection control doctors, 98% had infection control nurses (ICNs), 89% employed only 1 ICN, and 59% employed an ICN only part-time; 68% performed surveillance, undertaking 2.7 epidemic investigations per year and 8.4 teaching programs per year; 88% undertook needlestick prevention programs; 58% performed regular air culture; and 64% discarded ineffective ISCPs. Annual trends analysis of ISCPs indicated that accreditation and legislation impact strongly on Korean ISCPs.

CONCLUSION

The figures for ISCPs in this study indicate that improvements have been made since the 1990s. Legislation and accreditation have strongly influenced ISCPs. Much consideration should be given to the weaknesses in Korean ISCPs: surveillance, insufficient hand hygiene resources, and shortage of ICNs.

The Chronic Care Model Versus Disease Management Programs

The present article applies transaction cost analysis as a framework for better understanding health plans' decisions to improve chronic illness management by using disease management programs versus redesigning care within physician practices.

Perceived poisons

Perceived poisoning may manifest in numerous ways; however, all cases share certain characteristics. All are fostered by the wide availability of unreliable information about chemical safety, poor understanding of scientific principles, and ineffective risk communication. Although this problem is still incompletely understood, some approaches have been demonstrated to be useful, such as education about risk, appropriate reassurance, and empathy on the part of the practitioner. Successful management may curtail the spread or exacerbation of symptoms, whereas unsuccessful treatment may cause the problems to escalate, with detrimental effects on both society and patient.

The Supreme Court Limits Lawsuits Against Managed Care Organizations

In Aetna Health Inc. v. Davila, the United States Supreme Court revisited the question of whether the Employee Retirement Income Security Act (ERISA) precludes state lawsuits against ERISA plans. The Court held that ERISA preempts damage actions brought against managed care organizations under the Texas Health Care Liability Act because ERISA itself provides the exclusive remedy for challenging ERISA plans' coverage decisions. The Court suggested, however, that health plans might be liable for treatment decisions made by employed physicians. It also volleyed back to Congress the question of whether ERISA beneficiaries should have any remedy for damages caused by coverage decisions.