1 See, e.g., Wendy E., Parmet, The Impact of Health Insurance Reform on the Law Governing Physician- Patient Relationship, 268 JAMA 468 (1992);Google Scholar Marilyn, Moon & John, Holahan, Can States Take the Lead in Health Care Reform?, 268 JAMA 1588 (1992);Google Scholar E. Richard, Brown, Health USA: A National Health Program for the United States, 267 JAMA 552 (1992).Google Scholar

2 For a medico-legal analysis of current federal preemption doctrine and state reform options, see Wendy E., Parmet, Regulation and Federalism: Impediments to State Health Care Reform, 19 Am.J.L. & Med. 121 (1993).Google Scholar

3 See Erik, Eckholm, On ‘Managed Competition': Primer on Health-Care Idea, N.Y. Times, May 1, 1993, at 1, 8.Google Scholar

4 See Marc J., Roberts, Economics and the Allocation of Resources to Improve Health, in the Price of Health 3, 15–16Google Scholar (George J. Asich & Charles E. Begley eds., 1986).

5 The ethicist's primary disciplinary grounding is in philosophy. The philosopher brings to the table an interest in primary or foundational issues and some expertise in careful definition of terms and framing of questions. Therefore, before moving to analysis, it is particularly important for the ethicist to define precisely the subject of analysis.

6 Sally T., Sonnefeld et al., Projections of National Health Expenditures Through the Year 2000, Health Care Financing Rev., Fall 1991, at 1, 7, 23.Google Scholar The federal Health Care Financing Administration publishes Health Care Financing Review.

7 See id. at 23.

8 In 1974, the federal government began the Rand Health Insurance Experiment (HIE). Willard G., Manning et al., Health Insurance and the Demand for Medical Care: Evidence from a Randomized Experiment, 77 Am. Econ. Rev. 251, 252 (1987).Google Scholar One of its chief aims was to track how demand for medical care responds to insurance-induced price variation. See id. The experiment involved enrolling families in various areas of the United States and assigning them to one of 14 different fee-for-service insurance plans or to a prepaid group practice. See id. at 253. For a more recent and somewhat radical discussion of the health care reform debate by the principal architect of the HIE, see Joseph P., Newhouse, An Iconoclastic View of Health Cost Containment, Health Aff., Supp. 1993, at 152.Google Scholar

First-dollar insurance coverage totally covers medical care without requiring the insured to pay any part of the cost. See Barry R. Furrow Et al., Health Law 669 (2d ed. 1991).

9 Manning, supra note 8, at 269-70.

10 Id.

11 Robert J., Blendon et al., The Health Insurance Industry in the Year 2001: One Scenario, Health Aff., Winter 1991, at 170, 172.Google Scholar

12 Id. at 173.

13 For a summary of employer responses during the 1980s, see Katharine R., Levit et al., National Health Care Spending Trends: 1988, Health Aff., Summer 1990, at 171, 177-80.Google Scholar

14 See Katherine, Swartz, Why Requiring Employers to Provide Health Insurance Is a Bad Idea, 15 J. Health Pol., Pol'y & L. 779, 786-87 (1990).Google Scholar

15 See W. David, Helms et al., Mending the Flaws in the Small-Group Market, Health Aff., Summer 1992, at 7, 11.Google Scholar This process of fragmentation is accelerated by the benefits of self-insuring through the Employee Retirement and Income Security Act of 1974. See Parmet, supra note 2, at 134, 136.

16 See Richard, Kronick, Empowering the Demand Side: From Regulation to Purchasing, 29 Inquiry 213, 218 (1992).Google Scholar

17 See Catherine G., McLaughlin & Wendy K., Zellers, The Shortcomings of Voluntarism in the Small-Group Market, Health Aff., Summer 1992, at 28, 33.Google Scholar I leave aside taxation issues in this analysis while acknowledging that caps on tax-free contributions to health benefit plans by employers are a major part of the current health care policy debate. See Sharon, Mcllrath, Battle Looms over Benefit Tax Caps: Would They Target Employees or Employers?, Am. Med. News, Jan. 11, 1993, at 1.Google Scholar

18 See Troyen A., Brennan, Health Insurance, in 1 The American Law Institute, Reporters' Study: Enterprise Responsibility for Personal Injury: The Institutional Framework 129, 142 (1991)Google Scholar (discussing caps on out-of-pocket payments). But employers who self-insure are attempting to reduce benefits for employees. See infra notes 121-27.

19 See, e.g., Kenneth E., Thorpe, Expanding Employment-Based Health Insurance: Is Small Group Reform the Answer, 29 Inquiry 128, 128-36 (1992).Google Scholar

20 “Health alliances” is a term that President Clinton's advisers have used to refer to the large, state-organized groups that would purchase health insurance under a managed competition plan. See Eckholm, supra note 3, at 8.

21 Approximately 35 to 40 million people in the United States are uninsured. See Paul, Cotton, Clinton Tinkers with Health System Status Quo; Critics Seek to Pick Apart Managed Competition, 269 JAMA 1229, 1229 (1993).Google Scholar

22 See Marcia, Angell, Cost Containment and the Physician, 254 JAMA 1203, 1207 (1985)Google Scholar (“[WJe should be prepared to argue for spending whatever is necessary for effective medical care.“); Duncan, Neuhauser & William B., Stason, Cost Effective Clinical Decision Making, in The Physician and Cost Control 133, 133 (Edward J. Carels et al. eds., 1980)Google Scholar (“Traditional clinical decision making does not explicitly assume resource scarcity. The goal of the physician is to do everything that can be done for each patient following the slogan that ‘nothing is too good for my patient.’ “).

23 Charles Rosenberg notes that, in the early twentieth century, the relative minority of private patients had better accommodations, but he is unable to comment on the quality of medical care. See Charles E., Rosenberg, The Care of Strangers: The Rise of America's Hospital System 244-46, 258-60 (1987).Google Scholar There is indeed little evidence on outcomes of care before 1970.

24 See Troyen A. Brennan, Just Doctoring: Medical Ethics in the Liberal Stat. 31-37 (1991).

25 See, e.g., Amy, Goldstein, D.C. Hospitals Spending Millions to Treat Crime Victims, Wash. Post, Oct. 24, 1991,Google Scholar at Dl (discussing study that found that every Washington, D.C. hospital raised its fees for patients with health insurance to subsidize the treatment of uninsured crime victims).

26 See Health Insurance for the Aged Act, Pub. L. No. 89-97, 79 Stat. 290 (1965) (codified as amended at 42 U.S.C.A. §§ 1395-1395ccc (West 1992 & Supp. 1993) and scattered sections of 26 U.S.C.A. and 45 U.S.C.A.).

27 See Social Security Amendments of 1965, Pub. L. No. 89-97, §§ 121-22, 79 Stat. 343 (codified as amended at 42 U.S.C.A. §§ 1396-1396u (West 1992)).

28 See Marilyn, Milloy, Decision's Effect is Xegligible in Missouri, Newsday, July 30, 1989, at 7Google Scholar (noting that the distinction between public and private hospitals is becoming increasingly blurred).

29 See, e.g., Thompson v. Sun City Community Hosp., Inc., 688 P.2d 605, 610 (Ariz. 1984).

30 See, e.g., Darling v. Charlestown Community Memorial Hosp., 211 N.E.2d 253, 260-61 (111. 1965).

31 Congress passed the Hill-Burton Act after World War II to fund hospital construction. See Hospital Survey and Construction Act, ch. 958, 60 Stat. 1040 (1946) (codified as amended at scattered sections of 42 U.S.C.A. and various sections of 26 U.S.C.A., 33 U.S.C.A., 46 U.S.C.A., 48 U.S.C.A. and 49 U.S.C.A.). In return for this funding, participating hospitals are subject to community service and free-care requirements. See 42 U.S.C.A. § 291 (West 1991 & Supp. 1993).

32 See Troyen A., Brennan, Ensuring Adequate Health Care for the Sick: The Challenge of the Acquired Immunodeficiency Syndrome as an Occupational Disease, 1988 Duke L.J. 29, 39–40.Google Scholar

33 Some commentators advocated the adoption of graduated standards of medical care. See, e.g., John A., Siliciano, Wealth, Equity and the Unitary Medical Malpractice Standard, 77 Va. L. Rev. 439, 442-45 (1991)Google Scholar (contending that tort law's efforts to promote an equitable distribution of health care benefits despite wealth disparity is misguided); Troyen A., Brennan, Improving the Quality of Medical Care: A Critical Evaluation of the Major Proposals, 10 Yale L. & Pol'y Rev. 431, 447-48 (1992)Google Scholar (suggesting a health care market where individuals could purchase different standards of care).

34 The lack of high quality ambulatory care in impoverished communities served as the impetus for the neighborhood health center movement. The U.S. Office of Economic Opportunity issued the first grant for developing such a health center to Drs. H. Jack Geiger and Count Gibson of the Tufts University Medical School in 1965. Alice Sardell, The U.S. Experiment in Social Medicine: The Community Health Center Program. 1965-1986, at 51-52 (1988). The grant was to fund two health projects, one in Columbia Point, a Boston housing project, and the other in a rural southern region. Id. at 52. These centers aspired to provide comprehensive, coordinated health care and preventive services that considered the economic, political, and cultural needs of the community. See id. at 52-56; Jo I. Boufford & Pa. A. Shonubi, Community Oriented Primary Care: Training for Urban Practices 45-58, 65-73 (1986). Neighborhood health centers were meant to provide primary care services for the family, with less emphasis on specialized and technologically oriented care. See Sardell, supra, at 53-55.

As the links between poverty, poor access to medical care and higher rates of morbidity and mortality were recognized, public monies to health centers increased. See Howard, Waitzkin, Community- Based Health Care: Contradictions and Challenges, 98 Annals Internal Med. 235, 236-37 (1983).Google Scholar These centers were expected to provide accessible, inexpensive, and culturally appropriate care and outreach services. The centers are often located in federally designated health manpower shortage areas and serve a predominantly minority population. See generally Dale Young, A Promise Kept: Boston's Neighborhood Health Centers (1982). Nevertheless, this reliance on public funding and other subsidies has placed many health centers in financial jeopardy in recent years. See generally Charles, Brecher & Maury, Forman, Financial Viability of Community Health Centers, 5 J. Health POL., POL'Y & L. 742 (1981).Google Scholar Community health centers also face rising malpractice premium costs that may force them to cut back on critically needed services, such as care for pregnant women. See Robert, Pear, Community Health Centers Cut Back as Malpractice Insurance Costs Soar, N.Y. Times, Aug. 21, 1991, at A18.Google Scholar

35 See Robert J., Blendon et al., Access to Medical Care for Black and White Americans: A Matter of Continuing Concern, 261 JAMA 278 (1989);Google Scholar Clare, Bombardier et al., Socioeconomic Factors Affecting the Utilization of Surgical Operations, 297 New Eng. J. Med. 699 (1977);Google Scholar Paula, Braveman et al., Adverse Outcomes and Lack of Health Insurance Among Newborns in an Eight County Area of California, 1982 to 1986, 321 New Eng. J. Med. 508 (1989);Google Scholar Jack, Hadley et al., Comparison of Uninsured and Privately Insured Hospital Patients: Condition on Admission, Resource Use, and Outcome, 265 JAMA 374 (1991);Google Scholar Nicole, Lurie et al., Preventive Care: Do We Practice What We Preach?, 77 Am. J. Pub. Health 801 (1987);Google Scholar Nicole, Lurie et al., Termination From Medi-cal —- Does It Affect Health?, 311 New Eng. J. Med. 480 (1984);Google Scholar Martin F., Shapiro et al., Effects of Cost Sharing on Seeking Care for Serious and Minor Symptoms: Results of a Randomized Controlled Trial, 104 Annals Internal Med. 246 (1986);Google Scholar Mark B., Wenneker & Arnold M., Epstein, Racial Inequalities in the Use of Procedures for Patients with Ischemic Heart Disease in Massachusetts, 261 JAMA 253 (1989);Google Scholar Mark B., Wenneker et al., The Association of Payer with Utilization of Cardiac Procedures in Massachusetts, 264 JAMA 1255 (1990);Google Scholar Paul H., Wise et al., Racial and Socioeconomic Disparities in Childhood Mortality in Boston, 313 New Eng. J. Med. 360 (1985);Google Scholar Steffie, Woolhandler & David U., Himmelstein, Reverse Targeting of Preventive Care Due to Lack of Health Insurance, 259 JAMA 2872 (1988);Google Scholar see also Helen R., Burstin et al., Socioeconomic Status and Risk for Substandard Medical Care, 268 JAMA 2383, 2387 (1992).Google Scholar

36 See generally John K., Iglehart, Medicare Begins Prospective Payment of Hospitals, 308 New Eng. J. Med. 1428 (1987)Google Scholar (requiring Medicare to use diagnosis-related groups (DRGs) allows the “government to [realistically] establish Medicare's hospital spending plan in advance“).

37 See Paul B., Ginsburg & Kenneth E., Thorpe, Can All-Payer Rate Setting and the Competitive Strategy Coexist?, Health Aff., Summer 1992, at 73, 81.Google Scholar

38 See Burstin et al., supra note 35, at 2387 (“[L]ack of insurance … is the major individual socioeconomic risk factor for substandard care.“).

39 See Howard H. Hiatt, The Medical Lifeboat: Will there be Room for Yor in the Health Care System? (1989).

40 See Bryan, Dowd & Roger, Feldman, Insurer Competition and Protection from Risk Redefinition in the Individual and Small Group Health Insurance Market, 29 Inquiry 148, 151-56 (1992);Google Scholar McLaughlin & Zellers, supra note 17, at 29-31; Helms et al., supra note 15, at 8, 14-16.

41 See Kenneth E., Thorpe et al., Reducing the Number of Uninsured by Subsidizing Employment-Based Health Insurance, 267 JAMA 945 (1992).Google Scholar

42 See generally Dianne M. Wolman, High-Risk Pools, in Improving Access to Health Care: What can the States Do? 123 (John H. Goddeeris & Andrew J. Hogan eds., 1992). Several states, including Connecticut, Florida, Indiana, and Washington, have created high-risk pools to increase the availability of private health insurance to people who are medically needy. See id. at 123-29.

43 An enormous amount has been written about insurance reform in the last five years. The single best reference on this topic is the Journal of the American Medical Association's May 1991 theme issue wherein the editors compiled an admirable range of reform proposals. See Symposium, , Caring for the Uninsured and Underinsured, 265 JAMA 2491 (1991)Google Scholar. A comprehensive summary existing proposals is also found in Theodore R., Marmor & Michael S., Barr, Making Sense of the National Health Insurance Reform Debate, 10 Yale L. & Pol'y Rev. 228 (1992).Google Scholar

44 See Kevin, Grumbach et al., Liberal Benefits, Conservative Spending: The Physicians for a National Health Program Proposal, 265 JAMA 2549 (1991).Google Scholar For a discussion of Canada's system, see R.G., Evans, The Canadian Health-Care Financing and Delivery System: Its Experience and Lessons for Other Nations, 10 Yale L. & Pol'y Rev. 362 (1992).Google Scholar

45 See, e.g., H. Denman, Scott & Howard B., Shapiro, Universal Insurance for American Health Care: A Proposal of the American College of Physicians, 117 Annals Internal Med. 511 (1992).Google Scholar

46 For a theoretical discussion, see Alain C., Enthoven & Richard, Kronick, Universal Health Insurance Through Incentives Reform, 265 JAMA 2532 (1991).Google Scholar For a discussion of a more complete proposal, the Garamendi plan, see Sabin, Russell, Garamendi Plan for Universal Health Care: Business, Employee Taxes Would Pay for State System, S.F. Chron., Feb. 13, 1992,Google Scholar at Al. California Insurance Commissioner John Garamendi's proposal would present each California resident with a choice of private health insurance plans financed by taxes on employers and employees. See id. Employers would not provide health insurance and state residents would be able to select among health insurance plans from a regional agency operated by consumers and employers, whether they are employed or not. See id. The national health care reform proposal that the Clinton Administration is still developing resembles the Garamendi plan in several respects. For example, the Clinton proposal seems to be planning to merge the workers’ compensation system and car and business liability insurance into a single system; this was a component of the Garamendi plan. See Edwin, Chen & Thomas S., Mulligan, Clinton Plans to Meld Workers’ Comp, Auto Insurance into Health Care System, L.A. Times, May 8, 1993, at A6.Google Scholar

47 See, e.g., Louis W., Sullivan, The Bush Administration's Health Care Plan, 327 New Eng. J. Med. 801 (1992).Google Scholar For a proposal that is a variation on this theme, see Mark V., Pauly et al., A Plan for “Responsible National Health Insurance, “ Health Aff., Spring 1991, at 5, 11–12.Google Scholar

48 See Victor R., Fuchs, National Health Insurance Revisited, Health Aff., Winter 1991, at 7, 10–11.Google Scholar

49 See id.

50 See id. at 10-14. Certainly, pure social insurance entails only the first model; however, the proposal of the American College of Physicians, which would be an example of model two, intends broad-based taxation and universal coverage. This proposal somewhat resembles the German system of health care financing. See John K., Iglehart, Germany's Health Care System, 324 New Eng. J. Med. 503, 503 (1991)Google Scholar (noting that all German citizens enjoy access to a comprehensive set of medical benefits regardless of ability to pay as a consequence of government-mandated financing requiring contributions from all employers and employees into insurance organizations called “sickness funds.“).

51 For a thorough discussion of the framework of reform, see Marmor & Barr, supra note 43.

52 See Robin, Toner, Hillary Clinton's Potent Brain Trust on Health Reform, N.Y. Times, Feb. 28, 1993, § 3, at 1Google Scholar (describing how a managed competition health care system would work).

53 See Fuchs, supra note 48, at 12; Badgley, Robin F. et al., Equity and Health Care, in Canadian Health Care and the Stat. 193, 194–214Google Scholar (C. David Naylor ed., 1993).

54 See Gilbert M., Gaul, Physicians Offer Plan to Control Costs, Phila. Inquirer, Sept. 15, 1992, at A2.Google Scholar

55 See David U., Himmelstein et al., A National Health Program for the United States, 320 New Eng. J. Med. 102, 103, 106-07 (1989);Google Scholar Steffie, Woolhandler & David U., Himmelstein, A National Health Program: Northern Light at the End of the Tunnel, 262 JAMA 2136 (1989).Google Scholar

56 See Pauly et al., supra note 47. Some of the proposals seem to envision a unitary, national plan. Other proposals can accommodate state-to-state variation within a single analytical framework. See Stephen M., Shortell, A Model for State Health Care Reform, Health Aff., Spring 1992, at 108, 123-24 (1992).Google Scholar Indeed, much of today's health reform action is at the state level, where a variety of models are being implemented or discussed. See, e.g., Moon & Holahan, supra note 1.

57 Fuchs, supra note 48, at 11-13; see also Donald W., Moran & Patricia R., Wolfe, Can Managed Care Control Costs?, Health Aff., Winter 1991, at 120, 125-27Google Scholar.

58 Global budgets are merely a matter of a monopsonistic payer fixing a price, in this regard based on a calendar year. The federal government already employs similar mechanisms by setting prices for DRGs under Medicare Part A, and fee schedules under Medicare Part B. See generally George J. Annas Et al., American Health Law 188-89 (1990) (detailing medical benefits and co-payments under Medicare Part A and Part B).

59 See Mark A., Hall, Institutional Control of Physician Behavior: Legal Barriers to Health Care Cost Containment, 137 U. Pa. L. Rev. 431, 435-38 (1988);Google Scholar Ross P., Lanzafame, Comment, Provider Liability Under Public Law 98-21: The Medicare Prospective Payment System in Light of Wickline v. State, 34 Buff. L. Rev. 1011, 1016 (1985).Google Scholar

60 Indeed, the Clinton Administration's endorsement of both managed competition and global budgets seems paradoxical. It remains to be seen how competing insurers can administer global budgets. See Paul, Starr & Walter, Zelman, Bridges to Compromise: Competition Under a Budget, Health Aff., Supp. 1993, at 7.Google Scholar On the other hand, a single payer can administer such budgets relatively smoothly. See Evans, supra note 44, at 368-72.

61 See Troyen A., Brennan, Practice Guidelines and Malpractice Litigation: Collision or Cohesion?, 16 J. Health Pol., Pol'y & L. 67 (1991).Google Scholar

62 See Elizabeth W., Hoy et al., Change and Growth in Managed Care, Health Aff., Winter 1991, at 18, 25–29.Google Scholar

63 See, e.g., Alain C., Enthoven & Richard, Kronick, A Consumer Choice Health Plan for the 1990's: Universal Health Insurance in a System Designed to Promote Quality and Economy, 320 New Eng. J. Med. 94, 95–96 (1989).Google Scholar

64 Symposium, The Law and Policy of Health Care Rationing: Models and Accountability, 140 U. Pa. L. Rev. 1505 (1992).

65 On March 19, 1993, the Clinton Administration approved the Oregon plan. Robert, Pear, U.S. Backs Oregon's Health Plan for Covering All Poor People, N.Y. Times, Mar. 20, 1993, at 8;Google Scholar see infra note 145. Rationing in Oregon is merely the specification of a benefits program for the Medicaid population.

66 I make no effort in this Article to evaluate the efficacy of these approaches. That is why I have suggested that the effort to integrate outcomes data into development of guidelines to change practice patterns will not prove as efficacious as many now believe. See Troyen A., Brennan, Reform of Quality of Care: A Critique of Existing Proposals, 10 Yale L. & Pol'y Rev. 431, 435-39 (1992).Google Scholar Blustein and Marmor have raised similar concerns about a variety of quasi-regulatory strategies in medical care. See Jan, Blustein & Theodore R., Marmor, Cutting Waste by Making Rules: Promises, Pitfalls, and Realistic Prospects, 140 U. Pa. L. Rev. 1543 (1992).Google Scholar

67 See Steffie, Woolhandler & David U., Himmelstein, The Deteriorating Administrative Efficiency of the U.S. Health Care System, 324 New Eng. J. Med. 1253, 1256-57 (1991).Google Scholar

68 See Kenneth E., Thorpe, Inside the Black Box of Administrative Costs, Health Aff., Summer 1992, at 41;Google Scholar see also Patricia M., Danzon, Hidden Overhead Costs: Is Canada's System Really Less Expensive?, Health Aff., Spring 1992, at 21;Google Scholar Morris L., Barer & Robert G., Evans, Interpreting Canada: Models, Mind-Sets, and Myths, Health Aff., Spring 1992, at 44, 58.Google Scholar Studies have recently calculated that up to 24% ($194 billion in 1992 dollars) of total U.S. health spending covers administration. Thorpe, supra, at 42.

69 See, e.g., 1 President's Comm'n for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Securing access to Health Care: A Report on the Ethical Implications of Differences in the Availability of Health Services 11-47 (1983) (describing an ethical framework for reasoning about access to health care); Allen E., Buchanan, The Right to a Decent Minimum Health Care, 13 Phil. & Pub. Aff. 55, 59-78 (1984);Google Scholar Charles, Fried, Equality and Rights in Medical Care, Hastings Center Rep., Feb. 1976, at 29.Google Scholar

70 Norman Daniels has been the chief proponent of these theoretical discussions. See Norman Daniels, Just Health Care 36-58 (1985).

71 See Ronald, Bayer, Ethics, Politics, and Access to Health Care: A Critical Analysis of the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, 6 Cardozo L. Rev. 303 (1984)Google Scholar (discussing phases of the Commission's work and the Commission's different approaches to achieving access to health care, based partly on members’ political inclinations).

72 See JAMAs F., Blumstein, Thinking About Government's Role in Medical Care, 32 St. Louis U. LJ. 853, 856-57 (1988).Google Scholar

73 See, e.g., id. at 858-59.

74 Advocates of market-based methods of health care financing reform would likely argue, with some justification, that costs could have decreased and access increased had we been willing to remove more of the barriers to true competition in the 1980s. The efficiency-inducing aspects of competition are no doubt the main reason that the Clinton Administration has endorsed managed competition.

While retaining competition, however, the President's team recognizes the need for a just distribution of health care services. Many predict that an explicit ethical review of the eventual proposal will be conducted by a group of leading ethicists.

75 See Linda, Emanuel & Ezekiel J., Emanuel, The Medical Directive: A Xew Comprehensive Advance Care Document, 261 JAMA 3288 (1989);Google Scholar Linda, Emanuel et al., Advance Directives for Medical Care: A Case for Greater Use, 324 New Eng. J. Med. 889 (1991);Google Scholar John La, Puma et al., Advance Directives on Admission: Clinical Implications and Analysis of the Patient Self-Determination Act of 1990, 266 JAMA 402 (1991);Google Scholar Bernard, Lo et al., Patient Attitudes to Discussing Life-Sustaining Treatment, 146 Archives Internal Med. 1613, 1613-14 (1986);Google Scholar Tom, Tomlinson & Howard, Brody, Ethics and Communication in Do-Not-Resuscitate Orders, 318 New Eng. J. Med. 43 (1988);Google Scholar Nancy R., Zweibel & Christine K., Cassel, Treatment Choices at the End of Life: A Comparison of Decisions by Older Patients and Their Physician- Selected Proxies, 29 Gerontologist 615 (1989).Google Scholar

76 See Brennan, supra note 24, at 58-71.

77 For a crisp discussion of these issues, see Charles E., Begley, Physicians and Cost Control, in the Price of Health, supra note 4, at 227-44;Google Scholar see also George J., Agich, Rationing and Professional Autonomy, 18 LAW, Med. & Health Care 77 (1990).Google Scholar Nancy Jecker and Alfred O. Berg have characterized this conflict as one between justice and beneficence. See Nancy S., Jecker & Alfred O., Berg, Allocating Medical Resources in Rural America: Alternative Perceptions of Justice, 34 Soc. Sci. & Med. 467, 468 (1992).Google Scholar

78 See Brennan, supra note 24, at 58-71.

79 The relationship of liberal justice to medical care and, hence, medical ethics has been the subject of many books and articles. See Paul T. Menzel, Strong Medicine: The Ethical Rationing of Health Care 116-28 (1990); Larry R. Churchill, Rationing Health Care in America: Perceptions and Principles of Justice 43-69 (1987). Two arguments are particularly useful to illustrate the difference between the bottom-up notion defined here, and a top-down notion of the relationship between liberalism and medical ethics. Norman Daniels's book, Just Health Care, is a paradigmatic, top-down, liberal justice philosophy. See Daniels, supra note 70. Daniels notes that he does not intend to produce new political theory, but rather will rely heavily on Rawlsian notions of liberal justice. See id. at 37. He argues that needs are critical to understanding the distribution of health care. Daniels's discussion stresses that needs must be fulfilled to enable equality of opportunity. See id. at 39.

Id. at 57.

Using this as his guiding principle, Daniels then attempts to construct a just health care system. He wants to guarantee all citizens access to some basic tier of services. “The basic tier … would include health-care services that meet health-care needs, or at least important healthcare needs — as judged by their impact on the normal opportunity range.” Id. at 79 (emphasis omitted). He provides few operative principles, however, for deciding tough distributional questions.

Daniels's reliance on notions of liberal justice to define health care, not the inadequacies of his foundation, are explored here. Nowhere in this portion of his argument does Daniels consider professionals or professional ethics. In fact, he raises these issues later, but only to show the peripheral nature of professional ethics to just health care, and to suggest that it would be inappropriate to rely on provider-based principles to determine an ethical distribution of health care resources. See id. at 114-39.

Ezekiel Emanuel's book, The Ends of Human Life, covers much of the same territory, but on a quite different path. See Ezekiel J. Emanuel, The Ends of Human Life 150-54 (1991). While Daniels does not consider the relation between professional ethics and justice to be critical, Emanuel (at least in his initial chapters) does. He notes that professional ethics cannot be distinguished from political theory, but there must be a synergistic relationship between these two areas of thought. He rejects various conceptions of medical ethics because of their failure to consider carefully the tenets of political philosophy. Id. at 27-29. In this regard, the argument is quite similar to mine in Just Doctoring. See Brennan, supra note 24, at 50-96.

According to Emanuel, however, the problem is with liberal political philosophy. He contends that liberal justice, dependent on the notion of neutrality, simply cannot provide the kind of ends that inform an ethical framework. See Emanuel, supra, at 152. Medical ethics needs political philosophy, but liberalism cannot be the kind of political philosophy that medical ethics needs. Much of Emanuel's book is a demonstration of the poor manner in which a liberal state resolves medical-ethical questions. Indeed, not even democratic principles can overcome the deficiencies that arise out of the neutrality principle. See id. at 150-54.

Obviously influenced by his advisor, Michael Sandel, Emanuel sees a much stronger distinction between communitarianism and liberalism than perhaps others do. What is striking about his book, however, is that it attempts to give substance to notions of communitarianism, something that many scholars crave. Unfortunately, his proposal for small community health programs seems to be based primarily on a Utopian trust in the tenet “small is beautiful.” He expects small community health programs composed of a few thousand people to be able to overcome many of the problems he finds in end-of-life decisions and just distribution of health care, problems with which liberalism is unable to cope. See id. at 178-244. A reader is left to question whether community health programs are to be taken seriously. It is not at all clear how community health programs would develop the expertise that Emanuel assures they would have. Nor is it clear that radical inequality would not develop around community health programs, especially if budget constraints begin to ration down the value of the public voucher. In fact, the community health programs most closely resemble employer/self-insured plans that are ERISA qualified. It is exactly these plans that take advantage of restrictions on benefits and litigate to ensure that distributive mechanisms in public programs are minimized or eliminated. See infra notes 118-124. The selfish nature of the real world undercuts the utility of the community health program experiment. Indeed, the key to “managed competition” is the use of Health Insurance Purchasing Cooperatives to curb the tendency of employer plans to exclude members with severe diseases and undermine subsidies for the poor. See generally Alain C. Enthoven, The History and Principles of Managed Competition, Health Aff., Supp. 1993, at 24, 29-37

Dr. Daniels's and Emanuel's efforts to step forward with these tough problems are admirable. They do not, however, offer any real solutions. My own efforts in this essay are much less grand. I seek to enumerate a series of principles that would arise out of medical ethics if practitioners are willing to extrapolate from the principles that guide their individual relationships with patients to distributional questions.

80 Norman Daniels indicates that health care requires only “fair equality of opportunity.” See Daniels, supra note 70, at 39-42.

81 Much of this discussion is informed by conversations with John La Puma, the result of which is John La Puma & Troyen A. Brennan, The Ethics of Physician Payment Reform: Or, RBRVS: What Values Drive It? (unpublished manuscript, on file with the author). This is not to suggest that La Puma would agree with all or even many of the views expressed in this Article.

82 See John Rawls, A Theory of Justice 118-50 (1971).

83 See Brennan, supra note 24, at 50-96.

84 Linda Emanuel has suggested to me that this approach is best characterized as “bottom up” reasoning. Traditional analyses of liberalism and medical care are “top-down,” In many ways, they have different audiences — the former appeals to health care providers and the latter to medical ethicists and philosophers. For examples of both approaches, see supra note 79.

85 See Paul T., Menzel, Some Ethical Costs of Rationing, 20 Law, Med. & Health Care 57 (1992)Google Scholar (discussing this and other costs of explicit rationing).

86 See Nancy S., Jecker, Integrating Medical Ethics with Normative Theory: Patient Advocacy and Social Responsibility, 11 Theoretical Med. 125 (1990)Google Scholar (discussing maximally and minimally restricted patient advocacy). Under the model of minimally restrictive patient advocacy, “considerations of justice do furnish a moral basis for individual action, because principles of professional ethics derive from roles specified by just institutions.” Id. at 126. Under maximally restricted patient advocacy, “both considerations of social justice and other considerations involving social welfare afford a moral basis for individual action, because principles of professional ethics derive from normative principles generally.” Id.

87 See Jay Katz, The Silent World of Doctor and Patient 201-02 (1984).

88 See Uwe E., Reinhardt, Reforming the Health Care System: The Universal Dilemma, 19 Am. J.L. & Med. 21 (1993);Google Scholar see also Robert S., Stern et al., The Emergency Department as a Pathway to Admission for Poor and High-Cost Patients, 266 JAMA 2238, 2242 (1991).Google Scholar

89 This is no small order, nor is it original. Others have been concerned about the need for moral integrity in health care institutions, especially those involved in the training of physicians. See, e.g., Roger J., Bulger, Covenant, Leadership, and Value Formation in Academic Health Centers, in Integrity in Health Care Institutions: Humane Environments for Teaching, Inquiry, and Healing 3 (Ruth E., Bulger & Stanley J., Reiser eds., 1990).Google Scholar Breaking down the barriers between interpersonal and institutional ethics does create a risk that the bureaucratic and professional influences of modern medical organization will overcome ethical behavior. See Stephen, Toulmin, Medical Institutions and Their Moral Constraints, in Integrity in Health Care Institutions, supra, at 21Google Scholar (discussing constraints that the institutionalization of medical organizations puts on the scope of moral medical practice). Thus, one does not advocate an institutional aspect to ethics without some trepidation.

90 See La Puma & Brennan, supra note 81, at 7-9.

91 See generally Brennan, supra note 24, at 32-33, 42, 88-89.

92 Physician payment reform is an excellent example of the importance of provider orientation. See id.

93 See generally Furrow Et al., supra note 8, at 667-71.

94 See Robert, Clark, Does the Son-Profit Form Fit the Hospital Industry?, 93 Harv. L. Rev. 1416 (1981);Google Scholar Clark C., Havighurst, The Changing Locus of Decision Making in the Health Care Sector, 11 J. Health Pol., Pol'y & L. 697, 697–708 (1986).Google Scholar

95 See Brennan, supra note 24, at 24-49.

96 421 U.S. 773, 787 (1975).

97 See Frances H., Miller, Competition Law and Anti-Competitive Professional Behavior Affecting Health Care, 55 Mod. L. Rev. 453, 454 (1992).Google Scholar For a general review of antitrust in health care, see generally Symposium, Antitrust and Health Care, Law & Contemp. Probs., Spring 1988.

98 See Arizona v. Maricopa County Medical Soc'y, 457 U.S. 332 (1982).

99 See Patrick v. Burget, 486 U.S. 94 (1988).

100 See, e.g., Daniels, supra note 70, at 114-38.

101 For a discussion of the relationship between principles of justice and the distribution of social primary goods, see RAWLS, supra note 82, at 60-65.

102 I have argued that this method can be reasonably characterized as communitarian. See Brennan, supra note 24, at 85-88. Communitarianism has evolved from liberal justice scholarship. It represents a reaction to the emphasis on individual values in liberalism, and a recognition of the manner in which one's community ties have epistemological and moral importance. See generally Amitai Etzioni, The Spirit of Community: Rights, Responsibilities, and the Communitarian Agenda (1993). In this regard, a theory of medical ethics that requires consideration of the class of patients in addition to the individual patients, and mandates that ethical values be reflected in the organization of health care, circumscribes a communitarian enterprise. See Brennan, supra note 24, at 229.

103 Although he has rarely stated his views on ethics, I believe Clark Havighurst is the leading intellectual proponent of this market-central position. See, e.g., Clark C., Havighurst, The Professional Paradigm of Medical Care: Obstacle to Decentralization, 30 Jurimetrics 415, 417-21 (1990).Google Scholar

104 See Eliot, Freidson, The Cenlrality of Professionalism to Health Care, 30 Jurimetrics 431, 434 (1990)Google Scholar (The U.S. health care system is based on a set of conflicting assumptions and methods, including the assumption that “response to financial incentives by physicians will be constrained by an ethical concern for the well-being of those to whom they provide services and a professional concern for doing good work … . [But] there is real danger that conflict between one set [of assumptions] will cancel out the benefits expected from elements of another.“).

105 Stanley J., Reiser, Consumer Competence and the Reform of American Health Care, 267 JAMA 1511, 1512-13 (1992).Google Scholar

106 See, e.g., Stephen, O'Connor & Joyce, Lanning, The End of Autonomy? Reflections on the Post Professional Physician, 7 Health Care Mgmt. Rev., Winter 1992, at 63;Google Scholar Ralph R., Reed & Darly, Evans, The Deprofessionalization of Medicine: Causes, Effects and Responses, 258 JAMA 3279 (1987).Google Scholar

107 See Havighurst, supra note 94, at 700-08.

108 See id. at 710-13.

109 See, e.g., id. at 711.

110 See, e.g., id. at 713.

111 See id. at 700-08.

112 See Clark, Havighurst, Prospective Self-Denial: Can Consumers Contract Today to Accept Health Care Rationing Tomorrow?, 140 U. Pa. L. Rev. 1755, 1805 n.122 (1992).Google Scholar The effort to gain economic advantage is not limited to the for-profit sector of medical care. See Dan W., Brock & Allen E., Buchanan, The Profit Motive in Medicine, 12 J. Med. & Phil. 1, 3–17 (1987)Google Scholar (arguing that problems that stem from profit-seeking exist in both for-profit and not-for-profit medicine); see also Clark, supra note 94.

113 These are propositions that an ethical analysis will raise. Another perspective may raise a slightly different question. For instance, Marmor's political/economic analytical framework leads him to focus on a different set of issues, including rationing, waste and prevention, competition versus regulation, and medical care as a right. To be sure, there are many intersections between this approach and one based on ethics. See Theodore R., Marmor & David, Boyum, American Medical Care Reform: Are We Doomed to Fail?, 121 Daedalus, Fall 1992, at 175, 181-86.Google Scholar

Even more pragmatic are the valuative frameworks developed independently by Blendon and Lundberg. Robert Blendon suggested that the following critical issues must be used to judge health care reform: 1) Should everyone be guaranteed a health plan?; 2) If yes, how do we provide universal coverage?; 3) If no, how do we expand coverage?; 4) How should we pay for expanded coverage?; 5) Should Medicaid be retained?; 6) What health benefits should be covered?; 7) How should costs be controlled?; and 8) Who should administer the health plan? See Robert J., Blendon et al., Making the Critical Choices, 267 JAMA 2509 (1992).Google Scholar George Lundberg, Editor of the Journal ofthe American Medical Association, proposes an outcome grid that includes the following questions: Does the proposal provide access to basic medical care for all our people?; Does it produce real cost control?; Does it promote continuing quality?; Does it limit professional liability?; Does it reduce administrative hassle?; Does it retain necessary patient and physician autonomy?; Does it consider long-term care?; Does it encourage primary care?; Does it enhance disease prevention?; and Does it have the same power for five, ten, or twenty years? See George D., Lundberg, National Health Care Reform: The Aura of Inevitability Intensifies, 267 JAMA 2521 (1992).Google Scholar For an example of how these analytical frameworks are used, see Barbara P., Yawn et al., MinnesotaCare (HealthRight): Myths and Miracles, 269 JAMA 511 (1993).Google Scholar

114 See supra notes 87-89 and accompanying text.

115 It is clear how a bottom-up theory of the ethics of health policy might differ from a topdown approach. The critical evidence that ability to pay affects quality of care creates an intolerable situation for an ethics of health policy that is based on the moral commitment of doctor to patient. This kind of inequality might not be as troubling to a rights-based analysis, in which there is an assumption that some primary goods may be distributed in an unequal fashion. Certainly, the propositions of an ethics of health policy based on medical morality are different from a constitutional analysis that clearly tolerates inequality in the provision of medical care. See, e.g., Blumstein, supra note 72, at 856-57.

116 Another ethical pathway that leads to rejection of casualty model of insurance centers on analysis of the impact that genetic advances will have on risk rating. See Thomas H., Murray, Genetics and the Moral Mission of Health Insurance, Hastings Center Rep., Nov.-Dec. 1992, at 12.Google Scholar

117 Cream-skimming in this context refers to minimizing average cost by selecting “ ‘healthy' patients, i.e., patients who can be expected to receive fewer services than others.” See Joseph P., Newhouse, Is Competition the Answer?, 1 J. Health Econ. 110, 112 (1982);Google Scholar see also Mark V., Pauly, Is Cream-Skimming a Problem for the Competitive Medical Market?, 3 J. Health Econ. 88 (1984);Google Scholar Joseph P., Newhouse, Cream Skimming, Asymmetric Information, and a Competitive Insurance Market, 3 J. Health Econ. 97 (1984).Google Scholar

118 This depends somewhat on finding the floor of benefits that is ethically satisfactory. See Rawls, supra note 82, at 285-86.

119 See infra Propositions Three, Four, and Seven, at parts IV.C, IV.D., and IV.C, respectively.

120 29 U.S.C.A. §§ 1001-1461 (West 1985 & Supp. 1993).

121 See H.R. Rep. No. 533, 93d Cong., 1st Sess. 3, reprinted in 1974 U.S.C.C.A.N. 4639, 4642; see also Julia F., Costich, Note, Denial of Coverage for “Experimental” Medical Procedures: The Problem of De Novo Review Under ERISA, 79 Ky. L.J. 801, 803-04 (1990-91).Google Scholar

122 See, e.g.. Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724 (1985) (holding that, although the state-mandated health benefits statute was within the broad sweep of the ERISA preemption, it was not preempted because it is a “law which regulates insurance” per § 514(b)(2)(A) of ERISA); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41 (1987) (holding that a state common law claim for benefits “under an ERISA-regulated plan is not saved by § 514(b)(2)(A)“).

123 See FMC Corp. v. Holliday, 498 U.S. 52 (1990); District of Columbia v. Greater Washing ton Bd. of Trade, 113 S. Ct. 580 (1992). See generally JAMAs R., Bruner, AIDS and ERISA Preemption: The Double Threat, 41 Duke L.J. 1115 (1992);Google Scholar Parmet, supra note 2.

124 See H & H Music Co. v. McGann, 742 F. Supp. 392 (S.D. Tex. 1990), aff'd, 946 F.2d 407 (1991) (holding that ERISA-qualified plan may limit AIDS benefits to $5,000 lifetime costs).

125 See, e.g., Bricklayers Local No. 1 Welfare Fund v. Louisiana Health Ins., 771 F. Supp. 771 (E.D. La. 1991). This area of the law is still in flux, however. Recently, the U.S. Court of Appeals for the Third Circuit reversed the summary judgment finding ERISA preemption that a federal district court had entered in favor of several self-insured employee benefit plans and individual plan participants. See United Wire, Metal & Mach. Health & Welfare Fund v. Morristown Memorial Hosp., 1993 U.S. App. Lexis 11112 (3d Cir. May 14, 1993).

126 See Robert A., Padzug & Gerald M., Oppenheimer, AIDS, Health Insurance and the Crisis of Community, 5 Notre Dam. J.L. Ethics & Pub. Pol'y 35, 38 (1990).Google Scholar

127 See BNA, Senate Bill Would Waive ERISA Preemption for State Programs, BNA Pensions & Benefits Daily, Sept. 23, 1992, available in Lexis, BNA Library, BNAPEN File (discussing Senator David Durenberger's State Health Financing Equity Act and Senator Pat Leahy's State Health Care Act).

128 Paradoxically, ERISA may also tend to limit workers’ benefits insofar as it allows restrictions that state law would otherwise invalidate.

129 Notably, in the recent Symposium on universal access to affordable health care in the prestigious policy journal, Inquiry: The Journal of Health Care Organization, Provision, and Financing, published by the Blue Cross and Blue Shield Association, only two of the sixteen articles made even a passing reference to ERISA. See Thorpe, supra note 19, at 133; Kronick, supra note 16, at 217-18.

130 Pauly et al., supra note 47, at 10.

131 Id.

132 See Grumbach et al., supra note 44, at 2549.

133 See id.

134 Scott & Shapiro, supra note 45, at 512.

135 Brennan, supra note 24, at 222.

136 See 42 U.S.C.A. § 11361 (West 1993); see also JAMAs K., Langdon II & Mark A., Kass, Homelessness in America: Looking for the Right to Shelter, 19 Colum. J.L. & Soc. Probs. 305 (1985).Google Scholar

137 See David U., Himmelstein et al., A National Health Program for the United States: A Physicians' Proposal, 320 New Eng. J. Med. 102, 103 (1989)Google Scholar (PNHP plan); Scott & Shapiro, supra note 45, at 511 (ACP plan).

138 This is not to say that all primary goods must be distributed in the same manner. Indeed, the ethics of health policy presented here is not transferrable to other institutions. It is based on the particular conditions of the community of medical care, fundamentally the vulnerability of the sick person. One might expect other communitarian enterprises to offer different distribution mechanisms.

139 Many of the same justifications were integrated into arguments on behalf of the right to a health care floor, which is consistent with liberalism. See Brennan, supra note 24, at 219-25.

140 It is important to note that the ACP and PNHP proposals assume a single package of benefits and a single standard of care. Similarly, in our present system of health care, we expect physicians to practice according to a unitary standard of care, that of the reasonable medical practitioner. See Annas Et al., supra note 58, at 44. We currently allow different benefits packages, however. For instance, some insurance plans may cover quite experimental therapy, such as bone marrow transplantation for breast cancer, whereas others may not.

Recently some commentators, particularly Siliciano and Havighurst, have suggested that we should do away with the unitary standard of care. See Siliciano, supra note 33, at 442-45; Havighurst, supra note 103, at 426-27. In this plan, each insured could have access to similar benefits, such as heart catheterization, but one patient (the one who bought a lower standard of care) would be catheterized only after the chest pain had failed to respond to medications over a oneyear period, while the other (who had purchased the higher standard) could go for catheterization when he or she first noted the chest pain. The multiple standard of care regime accommodates differential benefits packages, but is much more far-reaching. I have discussed its drawbacks in detail elsewhere. See Brennan, supra note 33, at 446-51.

141 Intellectual gymnastics concerning the definition of a basic minimum package of benefits are well practiced. Norman Daniels, for instance, has rehearsed many of the arguments that people use today in his book, Just Health Care, relying on articles that were written in the late 1970s and early 1980s. See Daniels, supra note 70, at 59-85. None of his arguments about the basic minimum, however, can produce anything more clear than the following statement: “The basic tier on my account would include health-care services that meet health-care needs, or at least important health-care needs — as judged by their impact on the normal opportunity range.“ Id. at 79 (emphasis omitted); see also supra note 79.

Ezekiel Emanuel notes that a number of respected authors have suggested the parameters of a universal benefits package. See Emanuel, supra note 79, at 114-16. He rejects the possibility of designing such a package, but many states are now prepared to enact packages that will be finetuned over time. See, e.g., National Health Lawyers Association, Pennsylvania Enacts Legislation Providing Healthcare to Uninsured and Underinsured Children: Also Creates Loan Forgiveness Program for Doctors, Health LAW DIG., Jan. 1993, at 29 (detailing the Pennsylvania Children's Health Care Act, Pennsylvania's new childhood benefit package); see also Paul E., Kalb, Defining an “Adequate” Package of Health Care Benefits, 140 U. Pa. L. Rev. 1987 (1992).Google Scholar

I agree with Veatch and Spicer that these definitions ought not be left in the hands of physicians. See Robert M., Veatch & Carol M., Spicer, Medically Futile Care: The Role of the Physician in Setting Limits, 18 Am. J.L. & Med. 15, 17 (1992).Google Scholar

142 In addition, cost controls must be carefully constructed so that they are consistent with the ethics of health policy. Consider, for example, global budgets. If a hospital or district overspends in a given year, will not some patients face restrictions on benefits at the end of the year? These restrictions, based on the calendar year of one's illness, are as irrational as restrictions that exist today for those without insurance. They are also unacceptable as a commitment to the class of all patients. Therefore, specific mechanisms to prevent such inequalities must be implemented.

143 The other facile, generic answer is that a single benefits plan decreases administrative costs. See, e.g., Grumbach et al., supra note 44, at 2549-51. This is debatable.

144 See generally Arthur L., Caplan, Can Autonomy Be Saved?, in Arthur L. Caplan, If I were a Rich Man Could i Buy a Pancreas?: and Other Essays on the Ethics of Health Care 256, 256-60 (1992).Google Scholar

145 Such concerns about inequality lie just beneath the recent storm over rationing in Oregon. As has been exhaustively discussed in a variety of medical, health policy, and legal journals, the state of Oregon sought a Medicaid waiver to undertake a program of explicit rationing based on a list of acceptable, cost-effective procedures. See Lawrence D., Brown, The National Politics of Oregon's Rationing Plan, Health Aff., Summer 1991, at 28 (1991);Google Scholar Daniel, Callahan, Ethics and Priority Settingin Oregon, Health Aff., Summer 1991, at 78;Google Scholar David M., Eddy, Oregon's Plan: Should It Be Approved?, 266 JAMA 2439 (1991).Google Scholar See generally Symposium, Rationing Health Care: Social, Political and Legal Perspectives, 18 Am. J. L. & Med. 1 (1992); Symposium, The Law and Policy of Health Care Rationing: Models and Accountability, 140 U. Pa. L. Rev. 1505 (1992).

Although the Clinton Administration recently approved the Oregon experiment, its implementation is conditioned on the state's refining its ranking of services to prevent even the possibility of discrimination against people with disabilities. See Pear, supra note 65. The Bush Administration had refused to grant Oregon's Medicaid waiver on the ground that the plan violated the Americans with Disabilities Act of 1990 (ADA). Id.

Built into the texture of this list of acceptable procedures is a set of quality of life measures so that the priorities represent an assessment of the life one would live after therapy. The quality of life measures are part of the general health policy model that researchers in San Diego recently developed. See Daniel M., Fox & Howard M., Leichter, Rationing Care in Oregon: The New Accountability, Health Aff., Summer 1991, at 7, 21.Google Scholar This methodology produced an initial list that was reformulated by the Oregon Health Services Commission, thus further burying the quality of life assessments. See id. at 7. For a variety of reasons, these quality of life assessments would appear to have little to do with discrimination against people with disabilities. See David C., Hadorn, The Problem of Discrimination in Health Care Priority Setting, 268 JAMA 1454 (1992);Google Scholar see also Note, The Oregon Health Care Proposal and the Americans with Disabilities Act, 106 Harv. L. Rev. 1296 (1993) (arguing that the Oregon plan does not violate the ADA).

The consideration of quality of life after therapy for certain conditions hardly seems to constitute discrimination against people with disabilities, even under the sweep of the ADA. See Pub. L. No. 101-336, 104 Stat. 327 (codified at 29 U.S.C.A. § 706, 42 U.S.C.A. §§ 12101-12213, 47 U.S.C.A. §§ 225,611). The peculiarity of the decision by the Department of Health and Human Services under the Bush Administration was reflected in the Department's inability to provide the Oregon Medicaid program with specific advice about how to modify the plan in order to comply with the ADA. See Letter from Louis W. Sullivan, Secretary of the Department of Health and Human Services, to the Honorable Barbara Roberts, Governor of Oregon 1-3 (Aug. 3, 1992) (on file with the American Journal of Law and Medicine). The Oregon proposal appears to treat all patients with a similar diagnosis in a similar fashion, whether or not a patient is significantly disabled by co-morbid illnesses. Hence, it does not intend differential (discriminatory) treatment of people with disabilities.

A unitary set of benefits might violate the ADA insofar as it would restrict availability of treatment on the basis of notions of medical appropriateness that are rooted in the existence of co-morbid conditions. Such conditions definitely represent disabilities under the ADA, and, therefore, cannot be the basis for access to public goods. It may be that the facile turn to vague “medically appropriate” rationing of care is discriminatory.

The advocate of a single benefit plan would counter, with some justification, by asking whether we are ready to allow patients to demand futile care based simply on their rights under the ADA. Patients’ demands for futile care have recently gained some attention from ethicists, many of whom conclude that political rights cannot require specific interventions. See, e.g., Allan S., Brett & Laurence B., McCullough, When Patients Request Specific Interventions: Defining the Limits of the Physician's Obligations, 315 New Eng. J. Med. 1347, 1349-50 (1986).Google Scholar Difficult cases will eventually produce some restrictions on ADA-generated patient rights. It seems unlikely that a patient with a terminal disease, such as advanced lung cancer, will be allowed to demand cardiac catheterization in order to evaluate mildly sympathetic chest pain. Congress's adjustment of the ADA seems probable once such cases begin to appear.

146 See Webster's New Collegiate Dictionary 958 (Henry B. Woolf ed., 1975).

147 See generally Annas Et al., supra note 58, at 43-44; Daniel, Callahan, Symbols, Rationality, and fustice: Rationing Health Care, 18 Am. J. L. & Med. 1, 2–3, 8 (1992).Google Scholar

148 A great deal has been written about the ethics of rationing. See, e.g., Paul T., Menzel, Oregon's Denial: Disabilities and Quality of Life, Hastings Center Rep., Nov.-Dec. 1992, at 21;Google Scholar Menzel, supra note 79, at 3-21. This discussion will focus on the difference between rationing in a single-payer format and rationing in a multiple-payer format.

149 See Spencer Rich, U.S. Approves Oregon Plan for Health Care Rationing, Wash. Post, Mar. 20, 1993, at Al, A10. See generally Sara, Rosenbaum, Mothers and Children Last: The Oregon Medicaid Experiment, 18 Am. J.L. & Med. 97, 99–101 (1992).Google Scholar

150 Peter P., Budetti, Medicaid Rationing in Oregon: Political Wolf in a Philosopher's Sheepskin, 1 Health Matrix 205, 222-25 (1991);Google Scholar Maxwell J., Mehlman, The Oregon Medicaid Program: Is It Just?, 1 Health Matrix 175, 191-94 (1991).Google Scholar

151 Rashi Fein has suggested to me another way to adjust a mixed system — monitor the proportion of people who move into the private sector. If this proportion begins to grow (greater than something like 5%-15%), the benefits covered by the floor (the public program) must be ratcheted up to a higher level. Professor Fein would not specify an exact figure; this should emerge from the political process. If 40% of people are outside the public system, however, the idea of a public approach would be defeated. The private system envisioned here is similar to that which exists today in many Canadian provinces. See Evans, supra note 44, at 371- 72.

There are plenty of such benefit packages now available. See Linda A., Bergthold, Benefit Design Choices Under Managed Competition, Health Aff., Supp. 1993, at 99.Google Scholar But they are rarely specific, and tremendous debate is likely to ensue regarding the appropriate floor package. See Sharon, Mcllrath, Debate Shifts to ‘Standard’ Benefit Plan, Am. Med. News, May 10, 1993, at 1.Google Scholar

152 See supra note 74 and accompanying text.

153 See, e.g., Clark C., Havighurst, Doctors and Hospitals: An Antitrust Perspective on Traditional Relationships, 1984 Duke LJ. 1071, 1086.Google Scholar

154 See, e.g., Havighurst, supra note 94, at 713-17, 723-26; E.P., Melia et al., Competition in the Health-Care Marketplace: A Beginning in California, 308 New Eng. J. Med. 788 (1983).Google Scholar

155 See Eli, Ginzberg, The Destabilization of Health Care, 315 New Eng. J. Med. 757 (1986);Google Scholar Arnold S., Relman, Practicing Medicine in the New Business Climate, 316 New Eng. J. Med. 1150 (1987).Google Scholar

156 See, e.g., Mark V., Pauly, Is Medical Care Different? Old Questions, New Answers, 13 J. Health Pol. Pol'y & L. 227, 235-36 (1988);Google Scholar Alain C., Enthoven, Effective Management of Competition in the FEHBP, Health Aff., Fall 1989, at 33, 39–40.Google Scholar

157 See Eckholm, supra note 3. See generally Starr & Zelman, supra note 60, at 7. The ardor is not restricted to the federal level. New Jersey has just repudiated its long reliance on DRGs and adopted a managed care, competitive approach. See New Jersey Health Care Reform Act of 1992, ch. 160, 1992 N.J. Laws 555 (to be codified at scattered sections of titles 17, 18, 26, 30, and 43 of N.J. Stat. Ann. (West)). This reform act was in some ways precipitated by the ERISA challenge to previous mechanisms for financing care for the uninsured. See supra note 125; Jerry, Gray, Xew Jersey Bill for Health Care Signed by Florio, N.Y. Times, Dec. 1, 1992, at Al.Google Scholar

158 Furrow Et al., supra note 8, at 476.

159 For a general discussion about health maintenance organizations and managed care, see Thomas R., Mayer & Gloria G., Mayer, HMOs: Origins and Development, 312 New Eng. J. Med. 590 (1985);Google Scholar see also Harold S., Luft et al., The Competitive Effects of Health Maintenance Organizations: Another Look at the Evidence from Hawaii, Rochester, and Minneapolis/St. Paul, 10 J. Health Pol., Pol'y & L. 625 (1986);Google Scholar Roger, Feldman et al., Health Maintenance Organizations: The Beginning or the End?, 24 Health Services Res. 191 (1989).Google Scholar

160 R.G., Evans, The Canadian Health-Care Financing and Delivery System: Its Experience and Lessons for Other Nations, 10 Yale L. & Pol'y Rev. 362, 370 (1992).Google Scholar

161 See supra Part IV.C.

162 See Arnold, Relman, Dealing with Conflicts of Interest, 313 New Eng. J. Med. 749 (1985).Google Scholar For discussion about this issue, see infra Part IV.E.

163 See Uwe E., Reinhardt, Reflections on the Meaning of Efficiency: Can Efficiency Be Separated from Equity?, 10 Yale L. & Pol'y Rev. 302 (1992).Google Scholar

164 See generally JAMAs C., Robinson, A Payment Method for Health Insurance Purchasing Cooperatives, Health Aff., Supp. 1993, at 65.Google Scholar

165 See Arnold S., Relman, Controlling Costs by “Managed Competition“—Would It Work?, 328 New Eng. J. Med. 133, 134 (1993).Google Scholar

166 See id. at 135.

167 See Wickline v. State, 192 Cal. App. 3d 1630 (1986); see also Wilson v. Blue Cross, 222 Cal. App. 3d 660 (1990). ERISA may preempt such suits against qualified self-insured plans.

168 Strict care management will require some accommodation with existing malpractice law. These issues have been carefully debated by Hall and Morreim. See Mark, Hall, The Malpractice Standard Under Health Care Cost Containment, 17 Law, Med. & Health Care 347 (1989);Google Scholar Haavi, Morreim, Stratified Scarcity: Redefining the Standard of Care, 17 Law, Med. & Health Care 356 (1989).Google Scholar

169 Furrow ET AL., supra note 8, at 472; see Eli, Ginzberg, Physician Supply Policies and Health Reform, 268 JAMA 3115 (1992);Google Scholar Peter P., Budetti, Achieving a Uniform Federal Primary Care Policy: Opportunities Presented by National Health Reform, 269 JAMA 498 (1993).Google Scholar There are also financial incentives for patients, but universal access, single benefit plans are opposed to such “costsharing.“

170 The alternative, noted above and emphasized in many programs that eschew managed care, is very strict global budgeting. In many ways, however, the ethical and practical effects of global budgets will resemble managed care.

171 See Brown, supra note 1; see also Blendon et al., supra note 113.

172 The marginal utility of managed care incentives has not been defined. See Peter, Franks et al.. Gatekeeping Revisited—Protecting Patients from Overtreatment, 327 New Eng. J. Med. 424 (1992).Google Scholar

173 See Alan L., Hillman, Financial Incentives for Physicians in HMOs: Is There a Conflict of Interest?, 317 New Eng. J. Med. 1743 (1987).Google Scholar Advocates of managed competition suggest they will “mana ge” incentives appropriately. See Shoshana, Sofaer, Informing and Protecting Consumers Under Managed Competition, Health Aff., Supp. 1993, at 76.Google Scholar But HMOs will oppose any restriction on their ability to control doctors. See Mike, Mitka, HMOs Oppose Rules Protecting Doctors from Risks, Am. Med. News, May 10, 1993, at 6.Google Scholar

174 Alan L., Hillman et al., How Do Financial Incentives Affect Physicians’ Clinical Decisions and the Financial Performance of Health Maintenance Organizations?, 321 New Eng. J. Med. 86, 86 (1989).Google Scholar

175 See Troyen A., Brennan, An Empirical Analysis of Accident and Accident Law: The Case of Medical Malpractice Law, 36 St . Louis U. L.J. 823 (1992).Google Scholar

176 This analysis suggests that, as we push managed care, liability broadening doctrines, such as missed chance, should be encouraged, and that tort reform measures ought to be rethought. See generally Brennan, supra note 24, at 128-39.

177 See Helen R. Burstin et al., The Impact of Hospital Financial Characteristics on Quality of Care 14 (April 28, 1993) (unpublished manuscript, on file with author). “Adverse events” are injuries that result from medical management rather than disease. Id. at 5, 14.

178 Id. at 12-13.

179 See id. at 17. The poorest patients are the most expensive, but the least insured. See id. at 3-4. For an endorsement of supplementary federal payments to hospitals, based on the results of a different study, see Arnold M. Epstein et al., Do the Poor Cost More? A Multihospital Study of Patients' Socioeconomic Status and Use of Hospital Resources, 322 New Eng. J. Med. 1122, 1128 (1990).

180 Any system of financing health care is likely to lead to some operations that are tightly run and efficient, and to others that are always cash-strapped. These differences are likely to parallel differences in quality of care. While a competitive system may induce quality deficiencies as some hospitals are driven to the margin by the competitive process, the same could occur in a heavily regulated, single-payer system.

181 The concern about the quality of care seems to transcend distinctions between for-profit and not-for-profit institutions. There is little empirical evidence that suggests that for-profit institutions render deficient care (with the possible exception of for-profit dialysis centers). See, e.g., Troyen A., Brennan et al., Hospital Characteristics Associated with Adverse Events and Substandard Care, 265 JAMA 3265, 3268 (1991);Google Scholar Cindy Lou, Parks et al., Quality of Acute Episodic Care in Investor- Owned Ambulatory Health Centers, 29 Med. Care 72, 80–81 (1991).Google Scholar

Moreover, the behavior of not-for-profit hospitals does not seem different from that of forprofits. While the former does not legally earn a profit for shareholders, it does attempt to maximize fund balances and other measures of economic health. As competition increases, not-forprofits are likely to learn how to induce the same behavior changes in providers that for-profits can now induce. See Mark V., Pauly et al., Managing Physician Incentives in Managed Care: The Role of For-Profit Ownership, 28 Med. Care 1013, 1013-14, 1023 (1990).Google Scholar Thus, special concerns about forprofits within a competitive marketplace may not bear scrutiny. See Gail, Povar & Jonathan, Moreno, Hippocrates and the Health Maintenance Organization: A Discussion of Ethical Issues, 109 Annals Internal Med. 419, 420-23 (1988).Google Scholar

182 Of course, there is little consensus about the value of outcome measures, and even less consensus about how they correlate with one another. See Burstin et al., supra note 35, at 2386.

183 See Jesse, Green, Problems in the Use of Outcome Statistics to Compare Health Care Providers, 58 Brooklyn L. Rev. 55, 55–56 (1992).Google Scholar

184 See Douglas F., Levinson, Toward Full Disclosure of Referral Restrictions and Financial Incentive by Prepaid Health Plans, 317 New Eng. J. Med. 1729, 1730 (1987).Google Scholar

185 See Havighurst, supra note 112, at 1805-08.

186 See Maxwell J., Mehlman, Fiduciary Contracting: Limitation on Bargaining Between Patients and Health Care Providers, 51 U. Pitt. L. Rev. 365 (1991).Google Scholar

187 See Brennan, supra note 24, at 199-200. Arnold Relman has offered an alternative method for informing patients — the model of a socially responsive health maintenance organization in which participants and providers discuss and select a range of benefits. See Arnold S., Relman, Reforming the Health Care System, 323 New Eng. J. Med. 991, 991-92 (1990).Google Scholar This is similar to Ezekiel Emanuel's communitarian concept of the community health program. See Emanuel, supra note 79, at 178-98.

188 Robert Truog has suggested to me that physicians ought to be advocates on behalf of their patients similar to the way that lawyers are advocates for their clients. Recent scholarship in legal ethics raises questions about the acceptability of unlimited advocacy as a model for legal ethics. See David Luban, Lawyers and Justice: An Ethical Study 154-58 (1988); see also David B., Wilkins, Who Should Regulate Lawyers?, 105 Harv. L. Rev. 799, 815 (1992).Google Scholar

189 I am indebted to Dr. Marcia Angell for pointing out the importance of this segregation of roles. These roles are also segregated insofar as providers develop practice guidelines and critical pathways that are intended to support cost-effective care.

190 See Robert G., Evans, Finding the Levers, Finding the Courage: Lessons from Cost Containment in North America, 11 J. Health Pol., Pol'y & L. 585, 605 (1986).Google Scholar

191 See, e.g., Daniel P., Sulmasy, Physicians, Cost Control, and Ethics, 116 Annals Internal Med. 920 (1992).Google Scholar

192 See Greg, Borzo, Doctor Salaries Beat Inflation, Am. Med. News, Dec. 28, 1992, at 7.Google Scholar In 1991, the median net income for all physicians was $139,000. See id.

193 See La Puma & Brennan, supra note 81. Recent changes in Medicare Part B have ushered in a new era in provider reimbursement that appears to be of some ethical value. See id. Our argument about physician payment progresses from a provider relationship with the patient to self-imposed limits on income. Id. at 6-9. It is, of course, possible to derive a similar conclusion from a top-down argument that applies notions of liberal justice. Daniels sketched such an argument nearly 10 years ago. See Daniels, supra note 70, at 124-35.

194 See Bill, Clements, Pay Hikes for Most Doctors in Groups Lag Behind Inflation, Am. Med. News, Sept. 28, 1992, at 13.Google Scholar

195 Daniels argues that there are “too many social, economic and technological factors [within] a society [that] effect the distribution of health-care needs for it to be possible for the individual professional, or even the profession as a whole, to guarantee just health-care distribution.“ See Daniels, supra note 70, at 117.

196 Id. (emphasis omitted).

197 The reality is that a common medical ethics does not dictate a common approach to health care reform. This is true even within specialties. For instance, while the American College of Physicians and the American Academy of Family Physicians have publicly endorsed the concept of global budgeting, the American Society of Internal Medicine opposes global budgeting on the grounds that it would entail a huge bureaucracy, which could be inflexible and insensitive, to establish and enforce the budget. See Karen, Sandrick, Future Fears: Organized Medicine Faces Managed Competition, Hospitals, Apr. 20, 1993, at 34, 36.Google Scholar The American Medical Association also disapproves of global budgeting, on the grounds that it would be arbitrary, it would not address demographic changes or inflation, and it would not examine the reasons for exceeding the budget. See id. Such conflicts will no doubt occur if and when proposals for reduction in physicians' fees are elaborated. This possibility, however, does not invalidate the extension of medical ethical reasoning to health policy. The altruism of medical ethics should lead to some providers' reexamination of their economic advantage.

198 See Brennan, supra note 24, at 229.