1 See H.R. 3600, 103d Cong. (1993); S. 1757, 103d Cong. (1993).

2 See Priest, Dana & Weisskopf, Michael, Health Care Reform: The Collapse of a Quest, Wash. Post, Oct. 11, 1994, at A6.Google Scholar Neither the House of Representatives nor the Senate voted on a health care bill. A cumbersome process initiated by the President, intense lobbying by insurers and big business, the Democratic failure to put together cohesive support, and Republicans who would not cooperate on any bill, all combined to kill the process before a vote took place. See id.

3 See Alain C. Enthoven, Health Plan: the Only Practical Solution to the Soaring Cost of Medical Care xvii (1980) (discussing the incentives in the fee-for-scrvice system to in crease costs).

4 See id.

5 See National “Anti-Managed Care” laws Would Raise Health Care Costs, Study Says, 3 Health Care Pol’y Rep. (BNA) No. 26, at 1035 (June 26, 1995)Google Scholar [hereinafter “Anti-Managed Care” Laws].

6 See id.; see also Amicus Curiae Brief by CIGNA Corporation in Support of Petitioner at 2, Aetna Life Ins. Co. v. Stuart Circle Hosp. Corp., 510 U.S. 1003 (1993) (No. 93-510).

7 See U.S. Dep’t of Commerce, U.S. Industrial Outlook 1992, at 43-53 (1992).

8 See U.S. Bureau of the Census, U.S. Dep’t of Commerce, Ser. P-60, No. 180, Money Income of Households, Families, and Persons in the United States: 1991, at xx (1992).

9 See Jordan, Karen A., Managed Competition and Limited Choice of Providers: Countering Negative Perceptions Through a Responsibility to Select Quality Network Physicians, 27 Ariz. St. L.J. 875, 876-77 (1996)Google Scholar (concluding that “health care reform will continue—driven by both state and private sector initiatives”).

10 See, e.g., Enthoven, supra note 3, at 57-67 (describing examples of alternate delivery sys tems); Health Care Study Group, Report: Understanding the Choices in Health Care Reform, 19 J. Health Pol. Pol’y & L. 499, 512-13 (1994)Google Scholar (describing various types of managed care); Jordan, supra note 9, at 901-06 (describing managed care organizational structures); Rodwin, Marc A., Man aged Care and Consumer Protection: What are the Issues?, 26 Seton Hall L. Rev. 1007, 1009 n.1 (1996)Google Scholar (describing various Mco models).

Congress enacted the Health Maintenance Organization Act of 1973, 42 U.S.C. § 300(e) (1994), in an effort to slow the growth of health care expenditures. See Karen Davis et al., Health Care Cost Containment 134 (1990). The legislation established a program of grants and loans to assist HMO development and set requirements for federal qualification. See id. The federal government stopped providing grants to HMOs in 1981. See id. at 135.

11 See, e.g., Jordan, supra note 9, at 882-83; Rodwin, supra note 10, at 1009 n.1.

12 See Amicus Curiae Brief by Cigna Corporation in Support of Petitioner at 3, Aetna Life Ins. Co. v. Stuart Circle Hosp. Corp., 510 U.S. 1003 (1993) (No. 93-510). MCOs maintain that con tracting with a selected group of providers lowers costs for three reasons: (1) providers negotiate discount rates in return for patient volume that the managed care plan is able to deliver, (2) lower administration costs, and (3) lower utilization costs because only the most efficient providers are included in the network and it is easier to monitor utilization on a small group of providers. See id.

13 See id. at 2; see also National “Anti-Managed Care” Laws, supra note 5, at 1034-35 (citing a study conducted by Lcwin-Vhi Inc. for the managed care industry). The study reports that na tionwide implementation of “Any Willing Provider” laws and other “anti-managed care” laws would result in lost savings of between $29.6 and $92.8 billion over the next seven years. See id.

14 See discussion infra Part II.A.

15 See discussion infra Part II.

16 See 29 U.S.C. § 1144(b) (1994); Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 90 (1983).

17 See 29 U.S.C. § 1144(a).

18 115 S. Ct. 1671 (1995).

19 Gary A. Francesconi, Note, ERISA Preemption of “Any Willing Provider” Laws—An Essen tial Step Toward National Health Care Reform, 73 WASH. U. L.Q. 227 (1995).

20 The ten statutes enacted since 1993 are: Del. Code Ann. tit. 18, § 7303 (Supp. 1994); Idaho Code § 41-3937 (Supp. 1995); Ind. Code Ann. § 27-8-1l-3(b)-(c) (West Supp. 1996); Ky. Rev. Stat. Ann. § 304.17A-110 (Michie Supp. 1994); Mass. Gen. Laws ch. 176D, § 3(B)(5) (1994); Minn. Stat. Ann. § 62Q.095 (West 1996); Miss. Code Ann. § 83-41-203 (1994); N.J. Stat. Ann. § 26:2J-4.7(a)(2) (West 1996); Okla. Stat. Ann. tit. 36, § 3634.3 (West Supp. 1997); S.C. Code Ann. § 38-71-147 (Law Co-op. Supp. 1996).

Statutes enacted previously include: Ala. Code § 27-45-3 (Supp. 1996); Ark. Code Ann. § 23-79-114(B) (Michie Supp. 1995); Conn. Gen. Stat. Ann. § 38a-471(f) (West 1992); Fla. Stat. Ann. § 408.706 (West Supp. 1995); Ga. Code Ann. §§ 33-20-16, 33-30-25 (Michie 1988); Ill. Comp. Stat. 5/370h (West 1994); La. Rev. Stat. Ann. § 22:1214(15) (West 1995); N.H. Rev. Stat. Ann. § 420-B:I2(V) (Supp. 1996); N.C. Gen. Stat. § 58-51-37 (1994); N.D. Cent. Code § 26.1-36-12.2(1)(c) (1995); Utah Code Ann. § 31A-22-617 (1994); Va. Code Ann. § 38.2-3407(B) (Michie 1994); Wiss. Stat. Ann. § 628.36 (West 1995); Wyo. Stat. § 26-22-503(a)(i) (Michie Supp. 1995).

21 See, e.g., Va. Code Ann. § 38.2-3407(B). The Virginia code states in part:

Id.

22 See Ala. Code § 27-45-3; Conn. Gen. Stat. Ann. § 38a-471(f); Del. Code Ann. tit. 18, § 7303(b); Fla. Stat. Ann. § 408.706(10); La. Rev. Stat. Ann. § 22:1214(15)(a)(ii); Mass. Gen. Laws ch. 176D, § 3(B)(5); N.H. Rev. Stat. Ann. § 420-B:12(V); N.J. Stat. Ann. § 26:2J- 4.7(a)(2); N.C. Gen. Stat. § 58-5I-37(c)(2); N.D. Cent. Code § 26.1-36-I2.2(I)(c); Okla. Stat. Ann. tit. 36, § 3634.3; S.C. Code Ann. § 38-71-147.

23 See Idaho Code § 41-3937; Ill. Comp. Stat. 5/370h; Ind. Code Ann. § 27-8-1 l-3(b)-(c); Ky. Rev. Stat. Ann. § 304.I7A-110(3); Minn. Stat. Ann. § 62Q.095; Utah Code Ann. § 31A- 22-617(7); Va. Code Ann. § 38.2-3407(B); Wis. Stat. Ann. § 628.36; Wyo. Stat. Ann. § 26-22- 503(a)(i).

24 See Ark. Code Ann. § 23-79-114(b)(1); Ga. Code Ann. §§ 33-20-16, 33-30-25; Miss. Code Ann. §§ 83-41-203.

25 Wyo. Stat. § 26-22-502(V); see also Idaho Code § 41-3903(7) (“any physician, hospital, or other institution, organization or person that furnishes any health maintenance services and if so required by law is licensed . . . .”); Ill. Comp. Stat. 5/370(g)(d) (“individual or entity duly licensed or legally authorized to provide health care services”); Wis. Stat. Ann. § 628.36(2)(a)(2) (“a health care professional, a health care facility or a health care service organization”).

26 Ala. Code § 27-45-3(1); see also Del. Code Ann. tit. 18, § 7303(a) (“any person . . . may select the pharmacy of the person’s choice”); N.D. Cent. Code § 26.1-36-12.2(1)(a) (“No . . . payor . . . may prevent a beneficiary from selecting the pharmacy or pharmacist of the beneficiary’s choice . . . .”).

27 See Conn. Gen. Stat. Ann. § 38a-471(f) (“No administrator shall prohibit a pharmacy from enrolling in a program . . . .”); Ind. Code Ann. § 27-8-1 l-3(c) (“[N]o hospital, physician, pharma cist, or other provider . . . willing to meet the terms and conditions . . . may be denied the right to enter into an agreement.”); N.J. Stat. Ann. § 26:2J-4.7(a)(2) (“[N]o pharmacy or pharmacist shall be denied the right to participate.”).

28 Utah Code Ann. § 31A-22-6I7(7)(b); see also Del. Code Ann. tit. 18, § 7303(a) (stating that the pharmacy must agree to participate in the plan according to the terms offered by the insurer).

29 Fla. Stat. Ann. § 408.706(10) (requiring the pharmacy to accept the MCO’s rate of pay ment, and meet all its qualifications for participation, including professional education, skills, expe rience, documentation requirements, and utilization mechanisms); Minn. Stat. Ann. § 62Q.095 (requiring the provider to meet the company’s credentialing standards, accept the terms of the con tract and comply with all protocols).

30 See, e.g., Mass. Gen. Laws ch. 176D, § 3(B) (stipulating requirements related to bidding and acceptance, reimbursement methods, eligibility determinations, satisfaction surveys, confiden tiality and privacy protection, and compliance with audit standards).

31 See, e.g., Stuart Circle Hosp. Corp. v. Aetna Health Management, 995 F.2d 500 (4th Cir. 1993); Cigna Healthplan of La., Inc. v. State ex rel. Ieyoub, 883 F. Supp. 94 (M.D. La. 1995) (both discussed in detail in Part II of this Note); see also Texas Pharmacy Ass’n v. Prudential Ins. Co., 907 F. Supp. 1019, 1026 (1995) (finding that the exclusion of pharmacies from Prudential’s provider panel violated Texas’s “Any Willing Provider” law and that ERISA did not preempt the “Any Will ing Provider” statute).

32 29 U.S.C. § 1144(a) (1994). The preemption clause states:

Id.

33 Id.

34 29 U.S.C. § 1144(b)(2)(A). The savings clause states: “Except as provided in subparagraph (B), nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking or securities.” Id.

35 498 U.S. 133, 140 (1990) (holding that ERISA § 514(a) preempts an employee’s state com mon law claim that an employer discharged the employee to prevent his attainment of benefits under an ERISA plan).

36 463 U.S. 85, 108 (1983) (finding that ERISA preempted two New York state laws, one for bidding discrimination in employment and the other requiring employers to pay sick-leave benefits to employees unable to work because of pregnancy, only insofar as they prohibit practices that are lawful under federal law).

37 See, e.g., Cigna Healthplan of La., Inc. v. State, ex rel. Ieyoub, 883 F. Supp. 94, 104 (M.D. La. 1995) (finding that ERISA preempted the Louisiana “Any Willing Provider” statute because it failed to pass the common sense definition of insurance regulation).

38 See id. at 103.

39 See id. at 104.

40 Compare Stuart Circle Hosp. Corp. v. Aetna Health Management, 995 F.2d 500, 504-05 (4th Cir. 1993) (holding that Virginia’s “Any Willing Provider” statute regulates the business of insur ance and escapes ERISA preemption), with Cigna Healthplan, 883 F. Supp at 104 (agreeing that the statute “related to” employee benefits, but differing on the second step of the analysis and achieving opposite results).

41 See 29 U.S.C. § 1144(a) (1994); Shaw, 463 U.S. at 90-91.

42 See Shaw, 463 U.S. at 90.

43 See id.

44 See Francesconi, supra note 19, at 228 n.7 (citing Hodges, Jill & DePass, Darlene, Insurance Concerns Affect Job Choices, Many Workers Say, Startrib., June 16, 1993, at 1A).Google Scholar

45 See Shaw, 463 U.S. at 98.

46 See id. at 96-97.

47 See id. at 98.

48 498 U.S. 133, 142(1990).

49 ld.

50 Id.

51 Id.

52 See id. at 138-39.

53 See id. at 139.

54 See id.

55 29 U.S.C. § 1144(b)(2)(A) (1994).

56 471 U.S. 724, 733 (1985).

57 See Mass. Gen. Laws. Ann. ch. 175, § 47B (West Supp. 1996).

58 See Metropolitan Life, 471 U.S. at 739-40.

59 See id. at 743.

60 Id.

61 Metropolitan Life, 471 U.S. at 743. Congress passed the McCarran-Ferguson Act, 59 Stat. 33 (1945) (codified as amended at 15 U.S.C. §§ 1011-1015 (1994)), in response to a U.S. Supreme Court ruling in United States v. South-Eastern Underwriters Ass’n, which held that an insurance company conducting a substantial part of its business across state lines engaged in interstate com merce and was subject to antitrust laws. 322 U.S. 533, 553, 560-61 (1944). Previously, Congress had not considered insurance industry activity as a transaction of commerce subject to federal regu lation and left the industry to state regulation. See id. at 544. States perceived this ruling as a threat to their power to regulate and tax the insurance industry. See Group Life & Health Ins. Co. v. Royal Drug Co., 440 U.S. 205, 218 n.18 (1979). The McCarran-Ferguson Act declared that state regulation and taxation of the insurance industry is in the public interest. See 15 U.S.C. § 1012(a). ERISA § 514(b)(2)(A) conforms with the McCarran-Ferguson Act by exempting from preemption any state law that “regulates insurance.” 29 U.S.C. § 1144(b)(2)(A) (1994).

The U.S. Supreme Court initially developed the three-part test for determining what constitutes the “business of insurance” in Group Life & Health, 440 U.S. at 232-33 (holding that agreements between an insurance company and pharmacies to set drug prices did not constitute the business of insurance); see also Department of Treasury v. Fabe, 508 U.S. 491, 508 (1993) (holding that an Ohio law ranking governmental claims behind other claims in the insolvency of an insurance company was not enacted for the purpose of regulating the business of insurance); Union Labor Life Ins. Co. v. Pireno, 458 U.S. 119, 134 (1982) (holding that an insurance company’s use of a peer review committee to determine the reasonableness of fees and treatment did not constitute the “business of insurance” and therefore was not exempt from antitrust scrutiny).

62 Pireno, 458 U.S. at 129.

63 See Metropolitan Life, 471 U.S. at 743.

64 995 F.2d 500 (4th Cir. 1993).

65 883 F. Supp. 94 (M.D. La. 1995).

66 995 F.2d at 503-05 (hospital excluded from Aetna’s Ppo alleged that Aetna failed to comply with the “Any Willing Provider” statute).

67 See id. at 502.

68 See id.

69 See id.

70 See id. at 503.

71 See id.

72 See id.

73 See id

74 See id.

75 See id.

76 See id. at 504.

77 See Petition for Writ of Certiorari at 7, 11, 12, Aetna Life Ins. Co. v. Stuart Circle Hosp. Corp., 510 U.S. 1003 (1993) (No. 93-510).

78 See Respondents’ Brief at 8, 9, Aetna Life Ins., 510 U.S. 1003.

79 See Aetna Life Ins., 510 U.S. 1003.

80 883 F. Supp. 94, 104 (M.D. La. 1995) (Cigna Healthplan sought declaratory judgment as to the validity of Louisiana’s “Any Willing Provider” statute).

81 See id. at 103.

82 See id.

83 Id.

84 See id. at 104.

85 See id. The three-part analysis of regulating insurance requires the court to determine if the law: (1) has the effect of spreading a policyholder’s risk, (2) is an integral part of the policy relation ship between the insurer and the insured, and (3) is limited to entities within the insurance industry. See Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 743 (1984).

86 See Cigna Healthplan, 883 F. Supp. at 104.

87 See id.

88 510 U.S. at 1003.

89 995 F.2d 500 (4th Cir. 1993).

90 883 F. Supp. 94.

91 115 S. Ct. 1671 (1995).

92 See id. at 1673.

93 See id. at 1678.

94 See id. at 1679.

95 See id. at 1675.

96 See id. at 1674.

97 See id. at 1676.

98 See id. at 1677.

99 Id.

100 See id.

101 Id. at 1677-78.

102 See Id. at 1678 (citing Fmc Corp. v. Holliday, 498 U.S. 52, 60-61 (1990) (finding that a Pennsylvania law regulating reimbursement practices related to the benefit plan because the practices affected the plan’s structure); Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 108 (1983) (finding a New York law mandating certain benefits “related to” benefit plans because the law required that the subjects of a plan’s benefits be varied only in New York)).

103 See New York Blue Cross, 115 S. Ct. at 1678 (citing Ingersoll-Rand v. McClendon, 498 U.S. 133, 142-45 (1990) (finding ERISA preempted a Texas law because it provided for alternative enforcement mechanisms)).

104 See id.

105 See id. at 1679.

106 See id.

107 Id.

108 See id.

109 Id. at 1680.

110 See id. at 1680-81.

111 See id. at 1680.

112 Id. at 1680-81.

113 Id

114 See id. at 1681-82. The Court cited the National Health Planning and Resources Development Act of 1974, §§ 1-3, 88 Stat. 2225, repealed by Act of Jan. 1, 1987, tit. VII, § 701(a), 100 Stat. 3799, which sought to facilitate state attempts to control growing health care costs. See New York Blue Cross, 115 S. Ct. at 1681. Furthermore, the Court reasoned that the history of Medicare regulation confirmed Congress’s intention to encourage and rely on state experimentation in controlling health care costs. See id. at 1682 n.6.

115 See id. at 1674, 1683.

116 See, e.g., Va. Code Ann. § 38.2-3407 (Michie 1994) (requiring that the insurer establish the terms and conditions, and not exclude from the panel any provider willing to meet them).

117 See id. The statute leaves to the self-insured employer the establishment of uniform terms and conditions, which would not vary from state to state. See id.

118 See Jordan, supra note 9, at 881.

119 See New York Blue Cross, 115 S. Ct. at 1679.

120 Francesconi, supra note 19, at 232-33.

121 See id. at 234-35 n.28.

122 See id. at 243-50.

123 See id. at 253-59.

124 See id. at 239.

125 See id.

126 See discussion supra Part III.

127 See discussion supra Part III; see also New York Blue Cross, 115 S. Ct. at 1672.

128 See Franccsconi, supra note 19, at 244-46.

129 See id. at 245n.73.

130 See id.

131 Id.

132 This print and radio advertising campaign ran in the fall of 1995. Telephone interview with Stefanie Cloutier, Advertising Manager, Harvard Pilgrim Health Care (Apr. II, 1997) [hereinafter Cloutier interview].

133 But see Jordan, supra note 9, at 884-85 (contending that “the relationship between autono mous control over provider choice and quality assurance is illusory”). Consumers miss important characteristics of quality, because health care is a “credence good.” Id. They can never know for sure if treatment was helpful. See id. at 885. Nevertheless, to gain consumers’ acceptance, MCOs must acknowledge the perception that limited choice may mean lower quality. See id.

134 See Cloutier interview, supra note 132.

135 See Stein, Charles, Fallon HMO Gives Its Members More Choice, Boston Globe, Nov. 3, 1994, at 71.Google Scholar In response to criticism that the HMO restricted provider choice, Fallon began a plan called “Peace of Mind” which allowed patients access to Boston’s best known teaching hospitals for specialty care. See id.

136 See Pham, Alex, 3 HMOs Win Top Marks in Survey, Boston Globe, Oct. 22, 1996, at C1Google Scholar (citing a survey conducted by the Massachusetts Healthcare Partnership). Quality of care was measured by looking at quality indicators for specific health care services. See Massachusetts Healthcare Purchaser Group, Guide To Health Plan Performance (1996).

137 See Pham, Alex, Harvard, Pilgrim Formalize Merger, Boston Globe, Aug. 17, 1994, at 45.Google Scholar Harvard Community Health Plan was a closed HMO with 4,000 physicians who treated patients in Harvard facilities. See id. Pilgrim Health Care had 11,000 independent doctors who provided serv ices in their own offices. See id. Harvard had approximately 1,000,000 members in four New Eng land states and grew 2.5 times in the last ten years. See id. Pilgrim had only 330,000 members but grew more than sixteen times in the last ten years. See id. The merger was billed as an “equal part nership;” a further recognition that Pilgrim’s method of service is in demand by consumers. See id.

138 See id.

139 See, e.g., Larson, Erik, The Soul of an HMO, Time, Jan. 22, 1996, at 44, 45-47.Google ScholarPubMed The article led with the subcaption: “Managed Care is certainly bringing down America’s medical costs, but it is also raising the question of whether patients, especially those with severe illnesses, can still trust their doctors.” Id. at 44-45. The article described how MCOs encourage physicians to base medical decisions, such as tests and advanced procedures, on monetary considerations. See id. at 46-47. It also discussed managed care executives’ efforts to influence the medical decisions of providers on their panels. See id.

140 However, for an interesting discussion of how “Any Willing Provider” laws may actively undermine provider quality, see Jordan, supra note 9, at 915-20. “Any Willing Provider” laws eliminate the ability of MCOs to choose only those providers with the best credentials and “constitute a clear barrier to quality-focused selective contracting.” Id. at 915, 918. To protect long-standing physician-patient relationships, the author suggests incorporating limited out-of- network provisions for short-term and extraordinary circumstances. See id. at 919.

141 See 42 U.S.C. § 1396(a)(23) (1994). The Act states in part: any individual eligible for medical assistance (including drugs) may obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service or services required (including an organization which provides such services or arranges for their availability, on a prepayment basis), who undertakes to provide him such services. Id.

142 Id

143 See 42 C.F.R. § 431.51 (1995) (“[R]ecipients may obtain services from any qualified Medi caid provider that undertakes to provide services to them.”).

144 See id.

145 See HURLEY, ROBERT E. et al., Managed Care in Medicaid 25 (1993).Google Scholar

146 See id.

147 See, e.g., id. at 26.

148 See Public Welfare Amendments of 1962, Pub. L. No. 87-543, 76 Stat. 173 (1962) (codified as amended at 42 U.S.C. § 1315 (1994)); see also Rosenberg, Judith M. & Zaring, David T., Recent Developments, Managing Medicaid Waivers: Section 1115 and State Health Care Reform, 32 Harv. J. On Legis. 545, 547-48 (1995).Google Scholar

149 42 C.F.R. § 431.55 (1995) states in part: “the Act authorizes the Secretary to waive most requirements of section 1902 of the Act to the extent he or she finds proposed improvements or specified practices in the provision of services under Medicaid to be cost effective, efficient, and consistent with the objectives of the Medicaid program.”

150 For descriptions of the section 1115 waiver application procedure, see Randall, Vernellia et al., Section 1115 Medicaid Waivers: Critiquing the State Applications, 26 Seton Hall L. Rev. 1069, 1073 n.22 (1996)Google Scholar, and Rosenberg & Zaring, supra note 148, at 547-48.

151 See Stales, Managed Care Plans Debate Success as Congress Weighs Reform, 3 Health Care Pol’y Rep. (BNA) No. 39, at 1573, 1573 (Oct. 2, 1995)Google Scholar [hereinafter Congress Weighs Reform].

152 See Rosenberg & Zaring, supra note 148, at 549.

153 See 59 Fed. Reg. 49,249 (1994); Rosenberg & Zaring, supra note 148, at 549-50.

154 See Congress Weighs Reform, supra note 151, at 1573.

155 See, e.g., Beal v. Doe, 432 U.S. 438 (1977).

156 See id. at 444. Medicaid-eligible plaintiffs brought suit after being denied financial assistance for desired abortions, which were limited by Pennsylvania Medicaid regulations to those abortions that were certified by physicians as medically necessary. See id. at 442.

157 See Steiger v. Department of Pub. Welfare, 406 N.E.2d 415, 415-16 (Mass. App. Ct. 1980).

158 See Beno v. Shalala, 30 F.3d 1057, 1069 (9th Cir. 1994).

159 See Congress Weighs Reform, supra note 151, at 1573.

160 See PPRC Commissioners Express Concern with Section 1115 Medicaid Waivers, 2 Health Care Pol’y Rep. (BNA) No. 50, 2065, 2066 (Dec. 19, 1994).Google Scholar

161 See id.

162 See id.

163 For an excellent discussion of the potential effects of managed care on disenfrachised pa tients, such as the poor and minorities, see Randall, supra note 150, at 1115-17. Without ensuring both quality and access while implementing cost containment, there is the potential that a dual track health care system will develop. See id. at 1116-17. It is exactly this type of dual system (one of lower quality for the poor and one of higher quality for those who can avoid paying for health care) that the Medicaid program was initially designed to prevent in the 1960s. See id.

164 See Pham, supra note 136, at Cs1.

165 See Stein, supra note 135, at 71.

166 See Jordan, supra note 9, at 919.