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Health Law 2010: It's Not All about the Money

Published online by Cambridge University Press:  06 January 2021

Peter D. Jacobson
Affiliation:
University of Michigan School of Public Health
Soniya Keskar Mathur
Affiliation:
Department of Health Management and Policy, University of Michigan School of Public Health

Extract

It would be naïve to argue that money isn't the driving force motivating health care delivery in 2010. At nearly 17% of GDP, health care delivery is a large and growing industrial enterprise that is the largest employer in many communities. Save for free clinics, generating revenue is fundamental to every aspect of the delivery system. From insurance reimbursement rates to the cost of purchasing the latest technology, the surest explanation for understanding changes in the health care system and concomitant development of legal doctrine is, indeed, to “follow the money.”

Determining who controls the money flows usually explains who the dominant players are, and how they are able to organize and change the delivery system. Unquestionably, the most straightforward way to understand how the system functions, where its vulnerabilities lie, and why it is so difficult to institute significant reforms is to identify who controls the money.

Type
Article
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 2010

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References

1 Charles Fried, Equality and Rights in Medical Care, Hastings Center Rep. Feb. 1976, at 32.

2 Dan, W. Brock & Norman, Daniels, Ethical Foundations of the Clinton Administration's Proposed Health Care System, 271 JAMA 1189 (1994)Google Scholar.

3 See generally Wendy, K. Mariner, Toward an Architecture of Health Law, 35 Am. J.L. & Med. 67, 70 (2009)Google Scholar.

4 Tracy E. Miller & Valerie L. Gutmann, Changing Expectations for Board Oversight of Healthcare Quality: The Emerging Paradigm, 2 J. Health & Life Sci. L. 31, 34 (2009).

5 Id. at 45.

6 Id. at 53.

7 See id. Similarly, New Jersey law holds board members responsible for “maintaining quality of care” without providing members with additional guidance. Id. (quoting N.J. Admin Code § 8:43G-5.1(b)). New York law provides slightly more guidance by stating that the board is “legally responsible for quality of patient care services” and requires the board to establish a coordinated plan to oversee hospital activities to ensure quality of care. Id. (quoting N.Y. COMP. CODES R. & REGS. tit. 10 § 405.2(a)).

8 Thomas, L. Greaney & Kathleen, M. Boozang, Mission, Margin, and Trust in the Nonprofit Health Care Enterprise, 5 Yale J. Health Pol’y L. & Ethics 1, 5 (2005)Google Scholar.

9 Miller & Gutmann, supra note 4, at 46.

10 715 N.Y.S.2d 575, 595-96 (Sup. Ct. 1999).

11 Id. at 596-97.

12 Id.

13 Id.

14 Alice M. Maples, State Attorney General Oversight of Nonprofit Healthcare Corporations: Have We Reached an Ideological Impasse? 37 Cumb. L. Rev. 235, 243 (2006) (quoting Greaney & Boozang, supra note 8, at 59-60).

15 287 A.D.2d 202 (N.Y. App. Div. 2001).

16 Id. at 204-06, 207.

17 MEETH v. Spitzer, 715 N.Y.S.2d 575, 593 (1999).

18 In re Walt Disney Co. Derivative Litig. , 906 A.2d 27 (Del. 2006). Per Ovitz's employment agreement with Disney, he was to serve in the capacity of president for five years, however he was fired a little over one year from the date he was hired. 906 A.2d at 41. As Ovitz was terminated without cause, Disney was obligated to pay him a severance package valued at approximately $140 million. In re Walt Disney Co. Derivative Litig. (Disney II), 825 A.2d 275, 279 (Del. Ch. 2003).

19 Claire, A. Hill and Brett, H. McDonnell, Stone, v. Ritter and the Expanding Duty of Loyalty, 76 Fordham L. Rev. 1769, 1878 (2007)Google Scholar (quoting In re Walt Disney Co. Derivative Litig., 907 A.2d 693, 670 n.487 (Del. Ch. 2005)).

20 Mark, J. Loewenstein, The Diverging Meaning of Good Faith, 34 Del. J. Corp. L. 433, 442 (2009)Google Scholar.

21 See id. at 443. The duty of loyalty focuses on the director's relationship to the underlying transaction, while the duty of care focuses on the process by which the directors informed themselves about the transaction. Id.

22 See id.

23 See id. at 446.

24 Andrew S. Gold, A Decision Theory Approach to the Business Judgment Rule: Reflections on Disney, Good Faith & Judicial Uncertainty, 66 Md. L. Rev. 398, 427 (2007).

25 Id. at 400-01.

26 Michael W. Peregrine et al., Executive Summary, Delaware Supreme Court Affirms Disney, Continuing Vitality of Business Judgment Rule, Corp. Governance Task Force (Am. Health Lawyers Ass’n), Aug. 2006, at 6.

27 Id.

28 Michael W. Peregrine & James R. Schwartz, Executive Summary, Disney's Message to Healthcare Governance: Process Counts!, Sarbanes-Oxley Task Force (Am. Health Lawyers Ass’n), Sept. 2005, at 3.

29 Greaney & Boozang, supra note 8, at 36.

30 See id. at 39.

31 See id. (citing Oberly v. Kirby, 592 A.2d 445, 472-73 (Del. 1991)).

32 See id. at 83.

33 Id.

34 See id. at 84.

35 For further analysis of the mission primacy concept, see Peter, D. Jacobson, Health Law 2005: An Agenda, 33 J.L. Med & Ethics 725, 738 (2005)Google Scholar.

36 See Howard, Brody, Pharmaceutical Industry Financial Support for Medical Education: Benefit, or Undue Influence?, 37 J.L. Med & Ethics 451, 458 (2009)Google Scholar; see also Thomas, L. Hafemeister & Sarah, P. Bryan, Beware Those Bearing Gifts: Physicians’ Fiduciary Duty To Avoid Pharmaceutical Marketing, 57 U. Kan. L. Rev. 491, 537 (2009)Google Scholar; Editorial, Seducing the Medical Profession, N.Y. Times, Feb. 2, 2006, at A22.

37 Maxine, M. Harrington, The Ever-Expanding Health Care Conscience Clause: The Quest for Immunity in the Struggle Between Professional Duties and Moral Beliefs, 34 Fla St. U. L. Rev. 779, 779 (2007)Google Scholar.

38 Id. at 781.

39 Id.

40 See id.

41 See id. at 781-82.

42 Jennifer E. Spreng, Pharmacists and the “Duty” To Dispense Emergency Contraceptives, 23 Issues L. & Med. 216-17 & n.12 (2008).

43 Harrington, supra note 37, at 824. The provider is generally obligated to inform the patient of the conflict, attempt to reach a mutually acceptable resolution, and failing that, the provider must transfer the patient to a different provider. Id.

44 .

45 Id.

46 See Priscilla, N. Harris, Money, Fear and Prejudice: Why the Courts Killed Terri Schiavo, 30 Women's Rts. L. Rep. 42, 43 (2008)Google Scholar.

47 See id. at 79.

48 See, e.g., Margaret, P. Battin, Physician-Assisted Dying and the Slippery Slope: The Challenge of Empirical Evidence, 45 Willamette L. Rev. 91 (2008)Google Scholar.

49 Wojciech, Baginski, Hastening Death: Dying, Dignity and the Organ Shortage Gap, 35 AM. J.L. & MED. 562, 563 (2009)Google Scholar.

50 Id. at 577.

51 Mark, A. Hall & Carl, E. Schneider, When Patients Say No (To Save Money): An Essay on the Tectonics of Health Law, 41 Conn. L. Rev. 743, 747 (2009) (citing Washington v. Glucksberg, 521 U.S. 702, 723-28 (1997)Google Scholar).

52 Id. at 750-51.

53 Peter, D. Jacobson & Michael, R. Tunick, Consumer-Directed Health Care and the Courts: Let the Seller (and Buyer) Beware, 26 Health Affairs 704, 705 (2007)Google Scholar.

54 Thomas, L. Hafemeister & Richard, M. Gulbrandsen Jr., The Fiduciary Obligation of Physicians to “Just Say No” if an “Informed” Patient Demands Services that Are Not Medically Indicated, 39 Seton Hall L. Rev. 335, 336 (2009)Google Scholar.

55 Id. at 336, 382-83.

56 See id. at 374, 380.

57 A full analysis of reform strategies is beyond the scope of this paper.

58 Peter D. Jacobson, Regulating Health Care: From Self-Regulation to Self-Regulation?, 26 J. HEALTH POL. POL'Y & L. 1165, 1173-76 (2001).

59 See, e.g., O.I.G. Advisory Op. No. 01-1 (Jan. 11, 2001), available at http://oig.hhs.gov/fraud/docs/advisoryopinions/2001/ao01-01.pdf (finding gainsharing plan would violate fraud and abuse laws, but declining to sanction plan under consideration due to presence of sufficient safeguards).

60 See, e.g. , O.I.G. Advisory Op. No. 08-21 (Nov. 25, 2008), available at http://oig.hhs.gov/fraud/docs/advisoryopinions/2008/AdvOpn08-21.2.pdf (finding gainsharing plan could violate fraud and abuse laws, but declining to sanction plan under consideration due to presence of sufficient safeguards).

61 See Elliott S. Fisher et al., Creating Accountable Care Organizations: The Extended Hospital Medical Staff, 26 Health Aff. w44, w54 & n.21 (2007).

62 Timothy Stoltzfus Jost, Value Purchasing in Traditional Medicare: Legal Issues, in Making Medicare Sustainable 109, 135-36 (Len M. Nichols & Robert A. Berenson eds., 2009).

63 Timothy, Stoltzfus Jost & Ezekiel, J. Emanuel, Legal Reforms Necessary To Promote Delivery System Innovation, 299 JAMA 2561, 2561-62 (2008)Google Scholar.

64 M. Gregg Bloche, The Emergent Logic of Health Law, 82 S. Cal. L. Rev. 389 (2009).

65 Mariner, supra note 3.

66 Mark, A. Hall & Carl, E. Schneider, Where Is the “There” in Health Law? Can It Become a Coherent Field?, 14 Health Matrix 101, 103-04 (2004)Google Scholar.

67 See Wendy E. Parmet, Populations, Public Health, and the Law (2009).