The author would also like to thank her husband, Mario Majette, M.D., MPH, Nicole Sullivan, Christy Oglesby, and colleague Sandy Han for reviewing drafts of this article.

1 Inst. of Med., Primary Care in America: America's Health in a New Era 18 (1996) [hereinafter Primary Care in America].

2 Id.

3 U.S. Gov’t. Accountability Office, Physician Services Concierge Care Characteristics and Considerations for Medicare 4, 15 (2005) [hereinafter GAO Concierge Report].

4 Am. Acad. of Family Physicians et al., Joint Principles of the Patient-Centered Medical Home 1, 2 (2007) [hereinafter Joint Principles of PCMH], available at http://www.aafp.org/online/etc/medialib/aafp_org/documents/policy/fed/jointprinciplespcmh0207.Par.0001.File.dat/022107medicalhome.pdf.

5 According to the Medicare Payment Advisory Commission (MedPac), in 2007, Medicare, Medicaid and SCHIP paid 27% of the personal health spending for physician and clinical services. MedPac, A Data Book: Healthcare Spending and the Medicare Program 6 (2009). In 2007, Part B of Medicare which covers physician and other services provided health insurance coverage to 41 million people. Earl Dirk Hoffman, Jr. et al., Brief Summaries of Medicare & Medicaid, Title XVIII and Title XIX of the Social Security Act 8 (2008), available at http://www.cms.hhs.gov/MedicareProgramRatesStats/downloads/MedicareMedicaidSummaries2008.pdf [hereinafter Medicare-Medicaid Stat Supp]. In 2005, 56 million people received health care coverage through Medicaid. Id. at 25.

6 See infra notes 73, 76, and 90 and accompanying text.

7 See discussion infra Part VIII.

8 Primary Care in America, supra note 1, at 27.

9 Id. at 31. Primary care is less complex and specialized than secondary care and tertiary care. “Secondary care is medical care provided by a specialist or facility upon referral by a primary care physician that requires more specialized knowledge [sic], skill, or equipment than primary care … .” Dictionary.com, primary care, http://dictionary.reference.com/browse/secondary care (last visited Nov. 08, 2009) (citing Merriam-Webster's Medical Dictionary (2002)). It is the level of care normally provided by a community hospital. Primary Care in America, supra note 1, at 27. Tertiary care is “highly specialized medical care usually provided over an extended period of time that involves advanced and complex procedures and [sic] treatments performed by medical specialists in state-of-the-art facilities” such as medical centers and teaching hospitals. Dictionary.com, tertiary care, http://dictionary.reference.com/browse/tertiary care (last visited Nov. 08, 2009) (citing Merriam-Webster's Medical Dictionary (2002); Primary Care in America, supra note 1, at 27.

10 Starfield, Barbara, et al., Contribution of Primary Care to Health Systems and Health, 83 Milbank Q. 457, 458 (2005)CrossRefGoogle ScholarPubMed.

11 Primary Care in America, supra note 1, at 72.

12 Starfield, supra note 10, at 474.

13 Rifat Atun, What are the Advantages and Disadvantages of Restructuring a Health Care System to be More Focused on Primary Care Services?: WHO Regional Office for Europe Health Evidence Network Report, Copenhagen Denmark 4 (2004), available at http://www.euro.who.int/document/e8997.pdf.

14 Primary Care in America, supra note 1, at 53.

15 Comm. on Quality of Health Care in Am., Inst. of Med., Crossing the Quality Chasm, A New Health System for the 21^st Century 44-46 (2001) [hereinafter Crossing the Quality Chasm].

16 Kahn, Norman B. Jr., The Future of Family Medicine: A Collaborative Project of the Family Medicine Community, 2 Annals Family Med. S3, S5 (2004)Google Scholar; Crossing the Quality Chasm, supra note 15, at 3.

17 Kahn, supra note 16, at S5.

18 Id.

19 Id.

20 Green, , et al., Report of the Task force on Patient Expectations, Core Values, Reintegration, and the New Model of Family Medicine Task Force, 2 Annals Family Med. S33, S34 (2004)Google Scholar, available at www.annfammed.org/cont/vol2/suppl_1/index.shtml; Ha T. Tu & Paul Ginsburg, Losing Ground: Physician Income, 1995-2003, Tracking Report 15 (2006), available at http://www.hschange.org/CONTENT/851/.

21 Yarnall, Kimberly S. H., et al., Primary Care: Is There Enough Time for Prevention? 93 Am. J. Public Health 635 (2003)CrossRefGoogle ScholarPubMed.

22 Physicians across the United States are experiencing financial pressures. The Center for Studying Health System Change (CSHSC) in its report, Losing Ground: Physician Income, 1995-2003, notes that physicians overall saw a 7.1% decline in real income between 1995 and 2003. “Primary care physicians fared the worst with a 10.2% decline.” The report cites “flat or declining fees from both public and private payers [as] a major factor underlying declining or stagnating real incomes for physicians.” Tu & Ginsburg, supra note 20, at 1, 3.

23 House Calls are Back - For a Price: Plush Practices on the Rise, Med. Ethics Advisor, Feb. 1, 2002 [hereinafter House Calls are Back].

24 Kaiser Family Found., National Survey of Physicians 2 (2006) [hereinafter 2006 Physician Survey]. In 2002, fifty-eight percent of physicians reported that their enthusiasm for practicing medicine lessened over the last five years, and eighty-seven percent responded that physician morale had gone down. Kaiser Family Found., National Survey of Physicians 2 (2002) [hereinafter 2002 Physician Survey].

25 2006 Physician survey, supra note 24, at 2. In 2002, 45% of physicians would not recommend the practice of medicine to a young person. The primary reasons that physicians would not recommend the practice of medicine to a young person reflect the primary negative impact that managed care has on medicine: Paperwork/red tape/administrative hassles (57%), Loss of autonomy (46%), Inadequate financial rewards (31%). 2002 Physician Survey, supra note 24, at 2.

26 Primary Care at the Crossroads, Physician's Wkly., Sept. 2, 2002, available at http://www.physweeklyarchives.com/article.asp?issueid=35&articleid=291&printable=1.

27 Victor R. Fuchs, Who Shall Live? Health, Economics, and Social Choice 68-69 (Expanded ed. 2002).

28 Fuchs, supra note 27, at 69.

29 Id.

30 Bill Brubaker, VIP Medical Care Promises Fast Access, For a Few Bucks More, Wash. Post, Mar. 21, 2004, at F8. One unhappy patient compared his doctor's visits to Disney World. The patient told the doctor that “it's a three-hour wait for a 20-second ride.” Wayne J. Guglielmo, How to Set Up a Concierge Practice, Med. Econ., Aug. 22, 2003, at 64.

31 Kaiser Family Found. et al., National Survey on Consumers’ Experiences with Patient Safety and Quality Information 2 (2006). In 2004, 55% of patients were dissatisfied. Kaiser Family Found. et al., National Survey on Consumers’ Experiences with Patient Safety and Quality Information 2 (2004). [hereinafter Kaiser 2004 Patient Survey].

32 Kaiser 2004 Patient Survey, supra note 31, at 1.

33 GAO Concierge Report, supra note 3, at 1.

34 Debra C. Cascardo, Concierge Medicine and Patient Advocate Firms: New Horizons in Health Care, Medscape Bus. Med., May 27, 2005, available at http://www.medscape.com/viewarticle/505311.

35 Brubaker, supra note 30, at F8.

36 Am. Med. Ass’n, Council of Medical Services Report 9-A-02 at 1 (2002) [hereinafter Council Report]; Lynn Wagner, Boutique Practices Grow Amid Debate, Physician Fin. News, Sept. 15, 2003, at 30.

37 Id.

38 GAO Concierge Report, supra note 3, at 29.

39 Id. at 9.

40 Id. at 12.

41 Max P. Rosen, et. al., American Medical Association Teleconference: Physician Entrepreneurs: On the Cutting Edge of Technology and Care, Feb. 13, 2003, (on file with the author); Wagner, supra note 36, at 32.

42 Council Report, supra note 36, at 1; GAO Concierge Report, supra note 3, at 13.

43 Eighty percent of the concierge physicians that responded to the GAO questionnaire “reported annual fees from $500 to $3,999.” GAO Concierge Report, supra note 3, at 12. A small percent of physicians “waived the membership fee for some of their concierge patients.” Id.; Council Report, supra note 36, at 2.

44 GAO Concierge Report, supra note 3, at 15; Guglielmo, supra note 30, at 67; Rosen, supra note 41; Wagner, supra note 36, at 1, 3; Ronni Sayewitz, Retainers for Doctors Under Attack, S. Fla. Bus. J., April 12, 2002; House Calls are Back, supra note 23. If health insurance policies cover theses services they are generally limited. For example, since passage of the Medicare Improvement and Modernization Act in 2003, Medicare provides a one-time “Welcome to Medicare” exam which is a preventive evaluation and management service. To be covered the benefit must be taken advantage of within 12 months of joining the Medicare program. Centers for Medicare and Medicaid Services, Overview: Welcome to Medicare Visit, http://www.cms.hhs.gov/pf/printpage.asp?ref=http://www.cms.hhs.gov/WelcometoMedicareExam/01_Overview.asp. However, the Medicare program does not cover a routine physical exam or check-up physical that some physicians provide annually or biannually. Ctrs. For Medicare & Medicaid Serv., The Guide to Medicare Preventive Services for Physicians, Providers, Suppliers and Other Health Care Professionals 19 (3d ed. 2009), available at http://www.cms.hhs.gov/MLNProducts/downloads/mps_guide_web-061305.pdf [hereinafter, Medicare Preventive Service Guide]. In order for a beneficiary to receive counseling on his/her diet, he/she must generally have a condition or disease, such as being overweight or having diabetes or high cholesterol. Medicare Preventive Service Guide, supra at 21, 43, and 53.

45 This can include 24 hour pager or cell phone access to the physicians.

46 The ability to provide longer appointments is an important feature because it facilitates the practice of medicine in ways consistent with the recommendations of physicians from five countries on means that can improve the quality of care. Those means include spending more time with patients, improving access to preventive care, and providing better patient education. Blendon, Robert J., et al., Physicians’ Views on Quality of Care: A Five-Country Comparison, 20 Health Aff. 233, 238 (2001)CrossRefGoogle ScholarPubMed (surveying physicians from Australia, Canada, New Zealand, England, and the United States). By spending more time with patients, physicians have the ability to incorporate treatment methods that help patients change behavior and adhere to treatment protocols. Zimmerman, Gretchen L., et al., A “Stages of Change” Approach to Helping Patients Change Behavior, 61 Am. Family Physician 1409, 1411-12 (2000)Google ScholarPubMed. This model has 6 stages: Precontemplation, contemplation, preparation, action, maintenance, and relapse. A physician must first assess where a patient is with respect to changing behavior that affects health. Once that is done the physician can adjust their medical advice accordingly. The physician can implement the model in longer visits or brief counseling sessions lasting 5 – 15 minutes. Id. at 1409-10.

47 Guglielmo, supra note 30, at 67; Rosen, supra note 41; Sayewitz, supra note 44; Wagner, supra note 36, at 1, 3; House Calls are Back, supra note 23. See also GAO Concierge Report, supra note 3, at 15-16 (for a chart showing typical coverage services and percentages of practices that use them).

48 Romano, Michael & Benko, Laura B., MEMBERS ONLY: These doctors and their affluent patients find themselves in exclusive company, 31 Mod. Healthcare 38 (Oct. 22, 2001)Google ScholarPubMed.

49 Guglielmo, supra note 30, at 67; Rosen, supra note 41; Sayewitz, supra note 44, at 2; Wagner, supra note 36, at 1, 3; House Calls are Back, supra note 23, at 1.

50 TransforMED, The TransforMed Patient-Centered Medical Model 1 (2009), http://www.transformed.com/pdf/TransforMEDMedicalHomeModel-letter.pdf.

51 Coordinated care manages referrals, connects patients to care outside the competence of the physicians. “Primary care physicians are central to efforts to improve care coordination by managing referrals and connecting care and medical information over time and across settings.” Blendon, Robert J., et al., On the Front Lines of Care: Primary Care Doctors’ Office Systems, Experiences, and Views in Seven Countries, 25 Health Aff.-Web Exclusive w555, w560 (2006)Google Scholar [hereinafter PCP Office Systems].

52 Backer, Leigh Ann, The Medical Home – An Idea Whose Time Has Come Again, 14 Fam. Prac. Mgmt. 39, 40 (2007)Google Scholar.

53 Id. at 38.

54 Id.

55 Id.

56 Options to Improve Quality and Efficiency Among Medicare Physicians: Hearings Before the Subcomm. on Health of the H. Comm. on Ways and Means, 110th Cong. 39 (2007) [hereinafter Medicare Physicians Hearings] (testimony of Rick Kellerman, M.D., President, American Academy of Family Physicians).

57 Id.

58 Id.

59 Id.

60 Id. The traditional health care system is designed for passive patients who do not get involved in self-management of their care because it is assumed that their illness or injury is acute and will resolve itself in days or weeks through the use of short-term treatment. Thus, the traditional health care system is not designed to adequately treat or support patients with chronic disease. MedPac, Report to the Congress: Increasing the Value of Medicare 35 (2006) [hereinafter MedPac Report: Increasing the Value of Medicare].

61 MedPac Report: Increasing the Value of Medicare, supra note 60, at 35; Crossing the Quality Chasm, supra note 15, at 202.

62 Backer, supra note 52, at 39; Medicare Physicians Hearings, supra note 56 (testimony of Rick Kellerman, M.D., President, American Academy of Family Physicians).

63 MedPac Report: Increasing the Value of Medicare, supra note 61, at 35; see also McGlynn, Elizabeth A., et al., The Quality of Health Care Delivered to Adults in the United States, 348 New. Eng. J. Med. 2635, 2643 (2003)CrossRefGoogle ScholarPubMed (noting that on average, adult Americans receive about half of the recommended medical care for acute and chronic conditions as well as preventive care).

64 Crossing the Quality Chasm, supra note 15, at 134; MedPac, Report to the Congress: Reforming the Delivery System 39 (2008) [hereinafter MedPac Report: Reforming the Delivery System].

65 The American Academy of Family Physicians has recommended to Congress that it adopt the “Patient-centered Medical Home as an interim component of [the] physician payment while awaiting … [the] results of the [medical home] demonstration” authorized under the Tax Reform and Health Care Act 2006. Medicare Physicians Hearings, supra note 56 (testimony of Rick Kellerman, M.D., President, American Academy of Family Physicians). Staff at the Centers for Medicare and Medicaid Services has already begun working on defining a CPT code for care management. Backer, supra note 52, at 39.

66 Backer, supra note 52, at 39.

67 Letter from Representatives Henry A. Waxman, Sherrod Brown, Pete Stark, and Benjamin Cardin and Senator Richard Durbin, U.S. Congressmen to Tommy Thompson, Secretary of Health and Human Services (March 4, 2002), available at http://oversight.house.gov/story.asp?ID=552.

68 Massachusetts Med. Soc’y v. Dukakis, 815 F.2d 790, 790 (1st Cir. 1987).

69 Non-participating providers are limited to charging 115% of the Medicare physician fee schedule. 42 U.S.C. § 1395w-4(g)(2) (2006).

70 When physicians opt out of Medicare and serve Medicare patients, this is called private contracting. There are specific procedures that a physician must follow to opt out of Medicare. The physician must secure a written contract with the patient that explains that he/she is not accepting Medicare. Neither the patient nor the doctor can bill Medicare for the medical services that are provided. The physician must explain to the patient that the patient is solely responsible for paying the medical bill. The doctor must agree to opt out of the Medicare system for two years. This means the physician can not bill Medicare for any services for two years. 42 U.S.C. § 1395a(b) (2006).

71 Letter from Representatives Henry A. Waxman, Sherrod Brown, Pete Stark, and Benjamin Cardin and Senator Richard Durbin, U.S. Congressmen, to Tommy Thompson, Secretary of Health and Human Services (March 4, 2002), available at http://oversight.house.gov/story.asp?ID=552.

72 Letter from Tommy G. Thompson, Secretary of Health and Human Services, to the Honorable Henry A. Waxman, U.S. Congressman (May 1, 2002), available at http://oversight.house.gov/story.asp?ID=552. Concierge practices may have more difficulty avoiding Medicare violations since the scope of preventive services for the elderly has changed. While historically, Medicare provided few preventive services, since January 2005, a one-time physical exam was added as well as diabetes and cardiovascular screening. Medicare Prescription Drug, Improvement, and Modernization Act of 2003, Pub. L. No. 108-173, §§ 611-613, 117 Stat. 2066, 2303-06 (2003); 42 U.S.C. § 1395x (ww)-(yy) (2006).

73 In 2001, Senator Nelson introduced Senate Bill 1592. In 2002, Congressman Cardin introduced House Bill 4752. This bill was co-sponsored by Congressmen Waxman, Stark and Brown. Additionally in 2002, Senator Bill Nelson from Florida introduced Senate Bill 1606. In 2003, Medicare Equal Access to Care Act 2003 was introduced in the House of Representative by Congressman Cardin as House Bill 2423 and in the Senate by Senator Nelson as Senate Bill 345. Congressman Cardin's bill was co-sponsored by Congressmen Waxman, Brown of Ohio, Congressman Stark, and Congressman Kleczka. Senator Nelson's bill was co-sponsored by Senators Kennedy, Graham, Edwards, and Sarbanes.

74 Pub. L. No. 108-173, § 650, 117 Stat. 2066, 2331.

75 GAO Concierge Report, supra note 3, at 4.

76 Tax Relief and Health Care Act of 2006, Pub. L. No. 109-432, § 204(a)-(b), 120 Stat. 2922, 2987. The duration and scope of the demonstration may be expanded as the Secretary deems appropriate if “the expansion of the project is expected to improve the quality of patient care without increasing spending” or will “reduce spending under the Medicare program without reducing … quality.” Medicare Improvements for Patients and Providers Act of 2008, Pub. L. No. 110-275, § 133, 122 Stat. 2494, 2531. The Secretary must file an annual evaluation and final report to Congress. Tax Relief and Health Care Act § 204(f).

77 Centers for Medicare and Medicaid Services, Design of the CMS Medical Home Demonstration 11 (2008), available at http://www.cms.hhs.gov/DemoProjectsEvalRpts/MD/list.asp#TopOfPage (click “Medicare Medical Home Demonstration” hyperlink; then follow “Demo Design Report” downloads).

78 The medical home must target individuals for participation in the demonstration, provide “safe and secure technology to promote patient access to personal health information,” and develop “a health assessment tool for the individuals targeted.” The medical home must also train the personnel that are involved in the coordination of care. Tax Relief and Health Care Act § 204(d).

79 Id. § 204(a)

80 Id.

81 Id. § 204(c)(2).

82 Id. § 204(c)(3).

83 Id.

84 Id. § 204(c)(3).

85 Id.

86 Id. § 204(e)(1).

87 Id. § 204(e)(2).

88 Id.

89 Id. § 204(e)(3). Funding from the SMI Trust is limited to $100,000,000. Medicare Improvements for Patients and Providers Act of 2008, Pub. L. No. 110-275, § 133(g), 122 Stat. 2494, 2532.

90 Medical Homes Act of 2007, S. 2376, 110th Cong. (2007). Senators Durbin and Burr reintroduced this bill in the 111^th Congress in May 2009 as S. 1114. Medical Homes Act of 2009, S. 1114, 111th Cong. (2009).

91 S. 2376. According to the Congressional findings, use of the medical home will achieve the following: (a) improve health outcomes, (b) result in greater patient satisfaction, (c) satisfy the need to involve patients “in their health care decisions, better inform them of treatment options, and improve their access to information,” (d) result in better management of chronic conditions, (e) reduce disparities in access generally and among minorities, (e) “reduce duplicative health services and inappropriate” use of the emergency room, and (f) encourage the use of health information technology in the provision of health care. Id. § 2. The Secretary must “evaluate the project to determine the effectiveness of the PCMH in terms of quality improvement, patient and provider satisfaction, the improvements of health outcomes,” and estimates of cost savings from the program. Id. § 3(e).

92 The personal primary care provider can be a physician, a nurse practitioner, or health center that provides “first contact, continuous, comprehensive care for the whole person … for all types of health conditions (such as acute care, chronic care, and preventive services).” Id. § 3(a)(6).

93 Id. § 3(a)(5).

94 Id. § 3(d)(3).

95 Id.

96 Id. § 3(a)(4).

97 Id § 3(a)(11).

98 The representatives include primary physicians and representatives from health centers, public health departments, social services, and public and private hospitals. Id.

99 Id.

100 Id. § 3(a)(11).

101 Id. § 3 (c)(3).

102 Id.

103 Id. § 3 (c)(3)(B)(i).

104 Id. § 3 (c)(3)(B)(ii).

105 Id. § 3 (c)(3).

106 Id. § 3 (c)(3)(A)(i).

107 The World Health Organization (WHO) is the largest international health organization with a constitutional mandate to facilitate “the attainment by all peoples of the highest possible level of health.” Constitution of the World Health Organization, art.1, July 22, 1946, 62 Stat. 2679 [hereinafter WHO Constitution].

108 WHO, International Conference on Primary Health Care, Alma-Ata, USSR, Sept. 6-12, 1978, Declaration of Alma-Ata [hereinafter Alma-Ata Declaration].

109 Id. at ¶ I; WHO Constitution, supra note 107, preamble.

110 Alma-Ata Declaration, supra note 108, at ¶ X. Primary health care is defined broadly to include social determinants of health which include public health measures such as sanitation, clean water, prevention and control of endemic diseases. Id. at ¶ VII (3). In contrast, primary care focuses on the delivery of personal health services. Primary Care in America, supra note 1, at 29.

111 Alma-Ata Declaration, supra note 108 at ¶ V.

112 Id. at ¶ VIII.

113 Id. at ¶ VI.

114 Id.

115 WHO, International Conference on Primary Health Care, Alma-Ata: Twenty-Fifth Anniversary, Apr. 24, 2003, Report by the Secretariat [hereinafter Alma-Ata: 25th Anniversary].

116 Id. at ¶ 2.

117 Id. at ¶ 5.

118 Four years later the United States has the same goal. An Administrator at the Center for Medicare and Medicaid Services (CMS) recently testified at a congressional hearing that the “Medicare payment systems should encourage physicians to provide the right care at the right time and in the right setting.” The payment policy should also “encourage prevention and ongoing care for the chronically ill.” Medicare Physicians Hearings, supra note 56 (testimony of Herb Kuhn, Acting Deputy Administrator, Centers for Medicare and Medicaid Services).

119 Id. at ¶ 9.

120 Id. at ¶ 15 (emphasis added).

121 Id. at ¶ 16.

122 Id. at ¶ 12.

123 Id.

124 WHO, Engaging for Health, 11^th General Programme of Work, 2006-20015, A Global Health Agenda 15 (2006), available at http://whqlibdoc.who.int/publications/2006/GPW_eng.pdf [hereinafter Engaging for Health].

125 Engaging for Health, supra note 124, at 16; World Health Organization, World Health Report 2008: Primary Health Care - Now More Than Ever ix, 25, 33 (2008) [hereinafter World Health Report 2008: PHC - Now More Than Ever].

126 World Health Report 2008: PHC Now More Than Ever, supra note 125, at ix, 25, 33. Member-States can refocus their health care systems by focusing on four reform initiatives: (1) Universal coverage ensures that all people have access to health care regardless of ability to pay; (2) Patient-centered services focuses on reforming delivery of health services to be more responsible to the needs of individuals while producing better outcomes; (3) Healthy public policies promote the protection of public health by engaging other sectors that impact health such as trade, environment, and education; and (4) Leadership addresses the need for leaders in the government, private, business, and civil society to negotiate and steer health systems to become more fair and effective instead of relying disproportionately on command and control or laissez-faire principles. Id. at ix, xvi-xviii.

127 The United Kingdom is composed of four countries England, Northern Ireland, Scotland, and Wales. Each country is responsible for the health care of its citizens. The UK has a national health insurance system that is primarily funded “through national taxation; deliver[s] services through public providers; and [has] devolved purchasing responsibilities to local bodies [like the] primary care trusts in England.” World Health Organization Regional Office for Europe, Sarah Allin et al., European Observatory on Health Systems and Policies, snapshots of health systems 49 (Susanne Grosse-Tebbe & Joseph Figueras eds.) (2005), available at http://www.euro.who.int/document/e87303.pdf [hereinafter WHOEurope, UK Health System].

128 European Observatory on Health Care Systems, Health Care Systems in Transition: United Kingdom 53 (1999), available at http://www.euro.who.int/document/e68283.pdf [hereinafter UK HC System in Transition].

129 Id.

130 Peter P. Goenewegen et al., The Regulatory Environment of General Practice: and International Perspective, in Regulating Entrepreneurial behavior in European health care systems 206, 208 (Richard B. Saltman et al. eds.) (2002), available at www.euro.who.int/document/e74487.pdf.

131 UK HC System in Transition, supra note 117, at 53.

132 Goenewegen, supra note 130, at 208.

133 Id.

134 Id. (discussing National Terms and Conditions of Service). This was first done in 1990. Id.

135 Quality initiatives since 1998 include national guidelines, a national inspection system, and clinical governance (imposing a duty upon clinicians and managers to establish a system that continuously improves the quality of care and that ensures delivery of high-quality care). The evidence shows that the “initiatives substantially improved primary care performance.” Doran, Tim, et al., Pay-for Performance Programs in Family Practices in the United Kingdom, 355 New Eng. J. Med. 375, 376 (2006)CrossRefGoogle ScholarPubMed; see also The National Health Service (General Medical Services Contracts) Regulations 2004, S.I. 2004/291 sch. 6, part 9, ¶ 121, available at http://www.opsi.gov.uk/si/si2004/20040291.htm [hereinafter GMS Contract Regulations].

136 The terms of the General Medical Services Contract can be found at GMS Statement of Financial Entitlements for 2004/2005. Department of Health (England), Statement of Financial Entitlements for 2004/2005 (2004), available at http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_4069762 [hereinafter SFE 2004/2005]. While the contract has been amended since 2004, the core concepts are the same. The Consolidated SFE Text contains the most recent terms. Department of Health (England), Consolidated SFE Text (2007), available at http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_081010.pdf.

137 Smith, Peter & York, Nick, Quality Incentives: The Case of U.K. General Practitioners, 23 Health. Aff. 112, 116 (2004).CrossRefGoogle Scholar

138 Davis, Karen, et al., A 2020 Vision of Patient-Centered Primary Care, 20 J. Gen Intern. Med. 953, 955 (2005)CrossRefGoogle ScholarPubMed; Tim Doran, supra note 135, at 376; SFE 2004/2005, supra note 129, at 16-26, 103-260.

139 Doran, supra note 135, at 376.

140 PCP Office Systems, supra note 51, at w558.

141 Id. at w562.

142 WHO-Europe, UK Health System, supra note 127, at 49. Another important organization to the UK national quality strategy is the Commission for Health Care Audit and Inspection. It was created to inspect the quality of and to ensure the value of care; to provide information to patients and the public; and “to promote improvements in health care and public health.” Healthcare Commission, About the Healthcare Commission 3 (2d ed. 2005), available at http://www.chai.org.uk/_db/_documents/04021261.pdf.

143 WHO-Europe, UK Health System, supra note 127, at 49.

144 Previously physicians were required to provide 24 hour access, but the 2004 GMS contact allowed GPs to elect out of providing after hours care. Health Policy Developments Report – Issue 4: Focus on Access, Primary Care, Health Care Organization 45 (Reinhard Busse et al. eds. 2005), available at http://www.hpm.org/Downloads/HPDendVersionEngl4.pdf; UK HC System in Transition, supra note 122, at 53.

145 PCP Office Systems, supra note 51, at w568-69. While 87% of the physicians reported that their practices “have an arrangement where patients can be seen by a doctor or nurse if needed, when the practice is closed” which does not include use of an emergency room, only 1/3 of the practices have early morning and evening hours, and only 5% have weekend hours. Id. at w564.

146 PCP Office Systems, supra note 51 at w556; WHO-Europe, UK Health System, supra note 127.

147 Andre den Exter, et al., Health Care Systems in Transition: Netherlands 67 (2004), available at http://www.euro.who.int/Document/E84949.pdf; Richard Grol, Quality Development in Health Care in the Netherlands 6 (2006).

148 Grol, supra note 147, at 2. Today most primary care practices are small with 2-3 physicians. The size of practices is expected to grow in the future to 4-6 physicians, 1-2 nurses, and other professionals (physiotherapists or pharmacists). Thus, the future practices will be integrated, multidisciplinary primary care centers. Grol, supra note 147, at 3.

149 Exter, supra note 147, at 68.

150 The Netherlands has an effective and efficient health care system because “when care is needed, the doctor who is best equipped to deal with the specific health problem provides it.” Exter, supra note 147, at 67.

151 Grol, supra note 147, at 2.

152 Exter, supra note 147, at 69.

153 Medical education in the Netherlands strongly emphasizes “developing communication skills, counseling, and clarifying the reason for the medical encounter.” Exter, supra note 147, at 69.

154 Grol, supra note 147, at 3; PCP Office Systems, supra note 51, at w567.

155 Grol, supra note 147, at 3.

156 Id. at 6. The Dutch College of Family Physicians has been developing primary care guidelines since 1987. Clinical guidelines exist for most health problems seen by family physicians. Id.

157 Id. at 7.

158 Id. at 4.

159 A survey of adult health care experiences in seven countries shows that it is more effective to have a communitywide approach like primary care cooperatives rather than practice-specific approach to after hours care. Shoen, Cathy et al., Toward Higher-Performance Health Systems: Adults’ Health Care Experiences in Seven Countries, 26 Health Aff.-Web Exclusive w717, w732 (2007)Google Scholar [hereinafter Adults’ HC Experiences].

160 Id.

161 Goenewegen, supra note 130, at 205.

162 Grol, supra note 147, at 2.

163 Id. at 3-4. The actual term for insurers in the Netherlands is “sickness funds.” Id.

164 Goenewegen, supra note 130, at 210.

165 Corens, Dick, Health Systems in Transitions: Belgium: Health System Review, at 108, WHO Regional Office for Europe on behalf of the European Observatory on Health Systems and Policies (2007)Google Scholar.

166 Goenewegen, supra note 130, at 210. The high number of home visits is due to cultural values, not formal incentives. Herbert Nys, Belgium, in Medical Law 1, 23 (Kluwer Law International ed. Supp. 44 2005).

167 Corens, supra note 165, at 108. Not only does Belgium have a relatively high physician contact per person compared to the average of 15 countries in the European Union, but there is some suggestion that physicians have incentives to do what patients demand instead of what is medically necessary. (Belgium averages 7.1 outpatient contacts compared to other EU countries averaging 6.3) Id.; Groenewegen, supra note 122, at 210.

168 Corens, supra note 165, at 138.

169 The form of the file, paper or electronic, depends on the extent of health information technology used by the GP who is selected to hold the patient's file.

170 Corens, supra note 165, at 108. Introduction of the global medical file began with patients over 60. In 2002, the program was expanded to the entire population. Id.

171 Id. at 138.

172 Groenewegen, supra note 123, at 210.

173 Corens, supra note 165, at 139. The GP Circles are funded “based on the number of inhabitants in the GP area where the … circle operates.” Id.

174 Id. at 150. Two other governmental agencies are also worth mentioning for their role in ensuring the efficient use of health care resources - the National Council for Quality Promotion (NCQP) and the Department for Medical Evaluation and Control within the National Institute for Sickness and Disability Insurance (DGEC-SECM). The NCQP was created in 2002 to address quality promotion. Id. at 131. Part of their responsibility is to establish indicators of divergence among medical practices and to manage the system of peer review. Id. at 130-31. The DGEC-SECM is responsible for implementation. Id. at 132. It evaluates “reimbursement of medical care consumption in light of measures taken to prevent and detect misuse” of diagnostic and therapeutic freedom and provides “information to health care providers on recommendations on good medical practices and indicators of over consumption.” Physicians who are informed that their practice is divergent are required to justify the divergence in writing. Id. If the rationale is not satisfactory or additional information is not provided, the provider is monitored for six months. Id. If the divergence is not corrected after the monitoring, the physician will be sanctioned with administrative fines and withdrawal of accreditation. Id. at 133.

175 Id. at 150.

176 Id. at 150.

177 Id. at 59. Insurance companies are known as “Sickness Funds” in Belgium. Id.

178 Nys, supra note 166, at 33.

179 Corens, supra note 165, at 71.

180 Nys, supra note 166, at 23.

181 The government provides incentives to physicians to comply by making contributions to a fund that provides “additional old-age or disability pensions to providers who” adhere to the negotiated fee. Corens, supra note 165, at 71.

182 Two particular concerns to be avoided when primary care physicians are the first point of contact include underutilization of referrals and denial of necessary care.

183 Goroll, Allan H., et al., Fundamental Reform of Payment for Adult Primary Care: Comprehensive Payment for Comprehensive Care, 22 Soc’y of Gen. Internal Med. 410 (2007).CrossRefGoogle ScholarPubMed

184 Am. Coll. of Physicians, Achieving a High-Performance Health Care System with Universal Access: What the United States Can Learn from Other Countries, 148 Annals Internal Med. 55, 69-70 (2008)CrossRefGoogle Scholar.

185 The bonuses increased “income based on performance with respect to 146 quality indicators relating to clinical care for 10 chronic diseases” including asthma, cancer, chronic obstructive pulmonary disease, epilepsy, hypertension, hypothyroidism, mental health, and stroke. Doran, supra note 135, at 376- 77.

186 A 2006 survey of family practice physicians showed that nearly all of the physicians reported receiving feedback from patient surveys. PCP Office Systems, supra note 51, at w566.

187 See Doran, supra note 135, at 376.

188 Smith & York, supra note 137, at 116.

189 Statutory entities called “primary care trusts” inspect practices and conduct random, audits to ensure that practices do not misreport their performance. The primary care trusts also audit practices suspected of incorrect or fraudulent returns. Doran, supra note 135, at 381-82.

190 Id. at 379.

191 Corens, supra note 165, at 138.

192 Use of the GMD-DMG is expected to “optimize the quality of care provided, avoid unnecessary or duplicated care, and contradictory prescriptions.” Id. at 60.

193 The GP charges the patient an annual maintenance fee which is reimbursed entirely by the patient's insurance. Id. at 138.

194 Corens, supra note 165, at 150.

195 PCP Office Systems, supra note 51, at w567.

196 Id. at w567. The United States would begin to move toward a payment system focusing on primary care if recommendations such as the recent one by the Medicare Payment Advisory Commission were adopted. On June 13, 2008, MedPAC recommended to Congress that the payment under the Medicare fee schedule be increased for primary care services furnished by clinicians focused on delivering primary care. Medicare Payment Advisory Comm’n, 110th congress, Report to the Congress Reforming the Delivery System xi (2008).

197 Pham, Hoangmai H. & Ginsburg, Paul B., Unhealthy Trends: The Future of Physician Service, 26 Health Aff. 1586, 1594 (2007)CrossRefGoogle Scholar.

198 Schroeder, Steven A., Primary Care at a Crossroads, 77 Acad. Med. 767, 768 (Aug. 2, 2002)CrossRefGoogle Scholar; MedPac Report: Reforming the Delivery System, supra note 64, at xii; Pham & Gingsburg, supra note 197, at 1589 – 1591.

199 Private insurers like Blue Cross Blue Shield and large employers like IBM and Boeing are implementing the medical home model. Backer, supra note 52, at 39. North Carolina has used the medical home model in its Medicaid program since 1998. Id. at 40.

200 Tax Relief and Health Care Act of 2006, Pub. L. No. 109-432, § 204 (e)(1)-(2), 120 Stat. 2922, 2987.

201 Medical Homes Act of 2007, S. 2376, 110th Cong. § 3 (c)(3)(B)(i) (2007).

202 Goroll, supra note 183, at 412.

203 PCP Office Systems, supra note 51, at w568.

204 Id. at w558.

205 Id. at w558.

206 Id. at w558-559.

207 Grol, supra note 147, at 6; Doran, supra note 135, at 376.

208 Grol, supra note 147, at 6-7; Corens, supra note 165, at 150-51.

209 Crossing the Quality Chasm, supra note 15, at 232.

210 Safe health care does not harm the patient. Effective care is based on scientific knowledge. Patient-centered health care responds to patient preferences and values. Timely care is delivered in a manner to reduce wait times and delays. Efficient care avoids waste. Equitable care does not vary because of gender, ethnicity, geography, or socio-economic status. Crossing the Quality Chasm, supra note 15, at 5-6, 232.

211 NCQA, The Essential Guide to Health Care Quality 8, available at: http://www.ncqa.org/NCQA_Primer_web.pdf. [hereinafter Essential Guide to Quality].

212 S. 2367, 110th Cong. § 3(a)(5)(B); Tax Relief and Health Care Act of 2006, Pub. L. No. 109-432, § 204 (c)(3), 120 Stat. 2922, 2987.

213 The National Committee for Quality Assurance (NCQA) launched a new program in 2008 which is designed to assess how medical practices are functioning as PCMH. The program is entitled Physician Practice Connections-Patient-Centered Medical Home (PPCPCMH). Press Release, National Committee for Quality Assurance, NCQA Program to Evaluate Patient Centered Medical Homes (Jan. 8, 2008), http://www.ncqa.org/tabid/641/Default.aspx.

214 S. 2367, 110th Cong. § 3(a)(5)(B)(iii)(I); Tax Relief and Health Care Act § 204 (c)(3)(B).

215 Grol, supra note 147, at 6.

216 Doran, supra note 135.

217 Practices are reaccredited every three years. In the future the accreditation program will become mandatory and be run by an independent organization. Grol, supra note 147, at 7.

218 Id.

219 Id.

220 Corens, supra note 165, at 150.

221 Id. at 150.

222 S. 2367, 110th Cong. § 3 (a)(5)(B)(vi). As noted previously, practices must adhere to evidence based guidelines selected by the Management Committee and comply with state and local initiatives developed by the Steering Committee to improve the quality of care. Id. at § 3(a)(4), (a)(11).

223 Grol, supra note 147, at 7. Standard 8 of the NCQA PPC-PCMH requires practices to conduct surveys of patient care experiences. National Committee for Quality Assurance, PPCPCMH Content & Scoring, http://www.ncqa.org/tabid/631/Default.aspx (click “Content and Scoring” hyperlink) [hereinafter PPC-PCMH]. Additionally, the UK 2004 GMS Contract provides financial rewards to practices that conduct patient surveys and improve care based on those surveys. Doran, supra note 135, at 376.

224 Congressional Budget Office, Budget Options, Volume 1: Health Care 88-89 (2008); Promoting the Adoption and Use of Health Information Technology: Hearing before the H. Comm. on Ways and Means, 110th Cong. (2008) (statement of Peter R. Orszag, Director of the Congressional Budget Office); Crossing the Quality Chasm, supra note 15, at 164–77; MedPac Report: Reforming the Delivery System, supra note 64, at 41; National Quality Forum, Wired for Quality: The Intersection of Health IT and Healthcare Quality: National Quality Forum Issue Brief No. 8 (2008); PCP Office Systems, supra note 51, at w568.

225 PCP Office Systems, supra note 51, at w557 - 558.

226 Id. at w558-559. The 2008 World Health Report also notes that HIT can improve the provision of primary care. In particular, use of “electronic health records, computerized prescribing systems, and clinical decision aids” enables health care practitioners to “provid[e] safer care.” World Health Report 2008: PHC - Now More Than Ever, supra note 125, at 51.

227 Passage of the American Reinvestment and Recovery Act (ARRA) will dramatically increase the numbers of health care providers that use health information technology in the United States by providing $18 billion in incentives for providers through the Medicare and Medicaid reimbursement system. Under the Medicare program, beginning in 2011, three groups of providers – physicians, hospitals, and critical access hospitals – will be eligible for temporary bonus payments if they demonstrate that they are meaningfully using a certified health information technology system. Also in 2011, physicians that see a high volume of Medicaid patients will be eligible to receive temporary subsidies to help adopt a certified health information technology system. American Reinvestment and Recovery Act, Pub. L. No. 111-5, §§ 4101, 4201, 123 Stat. 467 (2009). Physicians in the Medicare program who do not adopt health information technology by 2014 will incur a penalty. Id. The Congressional Budget Office estimates that the ARRA incentive mechanisms coupled with the existing mechanisms will increase adoptions rates among physicians to 90% by 2019. Letter from Robert A. Sunshine, Acting Dir. Congressional Budget Office to the Honorable Charles B. Rangel, Chairman, Comm. on Ways and Means at 3 (January 21, 2009).

228 Standard 9 of the PPC-PCMH governs advanced electronic communications. This standard includes use of a website, electronic patient identification, or electronic care management support. This is not a mandatory requirement. PPC-PCMH, supra note 223, at 1.

229 Tax Relief and Health Care Act of 2006, Pub. L. No. 109-432, § 204 (c)(3)(C), 120 Stat. 2922, 2987.

230 Id.

231 Id. § 204 (d)(2)(A).

232 S. 2376, 110th Cong. §§ 3 (a)(1)(A), 3(d)(2)(A)(i)(IV).

233 Id. § 2(6).

234 Id.

235 S. 2376, 110th Cong. § 3(d)(2)(A)(VI).

236 Alma-Ata Declaration, supra note 108, at ¶ VI.

237 PCP Office Systems, supra note 51, at w556.

238 Goenewegen, supra note 130, at 205.

239 Adults’ HC Experiences, supra note 159, at 722. This survey assessed the experiences of adults in seven countries, the Netherlands, the UK, the United States, Australia, Canada, Germany, and New Zealand. Id.

240 GAO Concierge Report, supra note 3, at 12.

241 See supra Part VII.A.1.

242 Doran, supra note 135, at 376-379.

243 Tax Relief and Health Care Act of 2006, Pub. L. No. 109-432, § 204 (e)(1) 120 Stat. 2922, 2988; S. 2367, 110th Cong. § 3(c)(3)(B)(i).

244 Tax Relief and Health Care Act § 204 (e)(1)-(2).

245 Yarnall, supra note 21.

246 Minihan, Paula M. et al., What Does the Epidemic of Childhood Obesity Mean for Children with Special Health Care Needs, 35 J. L. Med. & Ethics 61, 71-72 (2007)CrossRefGoogle ScholarPubMed.

247 Starfield, supra note 10, at 459-484. MHA requires medical homes to be designed to reduce inappropriate emergency room care. S. 2367, 110th Cong. § 2.

248 Atun, supra note 13, at 4; Crossing the Quality Chasm, supra note 15, at 52, 202; MedPac, Report to Congress: Increasing the Value of Medicare 41 (2006); Medicare Physician Hearing, supra note 43 (testimony of Glenn M. Hackbarth, Chairman, Medicare Payment Advisory Commission).

249 Comm. on Monitoring Access to Pers. Health Care Serv., Inst. of Med., Access to Health Care in America 4 (Michael Millman ed., 1993), available at http://books.nap.edu/openbook.php?record_id=2009&page=R1. For an analysis of barriers to care for people of color see Majette, Gwendolyn Roberts, Access to Health Care: What a Difference Shades of Color Make, 12 Annals of Health L. 121 (2003)Google Scholar.

250 Id.

251 Access to care can also have a financial and geographic component. The financial component considers the cost associated with health care. Forrest, Christopher B. & Starfield, Barbara, Entry Into Primary Care and Continuity: The Effects of Access, 88 Am. J. Pub. Health 1330, 1331 (1998)CrossRefGoogle Scholar. The previous section of this paper, VII (B) – Cost of Care, addresses the financial aspect of access. See discussion supra Part VII(B).

252 Forrest & Starfield, supra note 251, at 1331.

253 Goenewegen, supra note 130, at 210.

254 Corens, supra note 165, at 139.

255 Grol, supra note 147, at 4.

256 PCP Office Systems, supra note 51, at w564.

257 Id. at w564.

258 Id. at w563.

259 S. 2367, 110th Cong. § 3(d)(3)(A)(ii) (2007).

260 Tax Relief and Health Care Act of 2006 , Pub. L. No. 109-432, § 204 (a) 120 Stat. 2922, 2988.

261 Id. § 204(c)(3)(C).

262 Kahn, supra note 16, at s15.

263 Tax Relief and Health Care Act § 204 (c)(2)(b) (emphasis added).

264 GAO Concierge Report, supra note 3, at 13.

265 While I recommend expansion of the benefits of the PCMH to all beneficiaries, I also recognize the cost-effectiveness of beginning the provision of such a benefit with the beneficiaries that cost the Medicare program the most.

266 Standard 8 is entitled Performance Reporting and Improvement. PPC-PCMH, supra note 223, at 60. The other eight standards listed include (1) Access and Communication, (2) Patient Tracking and Registry Functions, (3) Care Management, (4) Patient Self-Management Support, (5) Electronic prescribing, (6) Test Tracking; (7) Referral Tracking; (8) and Advanced Electronic Communications. Id.

267 Id. Some of the other listed factors by which medical homes are evaluated with respect to performance and improvement include: (a) whether the home measures clinical and/or service performance by physician or across the practice, (b) whether the medical home reports performance across the practice or by physician, and (c) whether the medical home sets goals and takes actions to improve performance. Id.

268 A possible source of funding can be a percentage of any savings generated from use of the PCMH model.

269 See supra note 171, and accompanying text.

270 State level initiatives could be implemented by expanding the scope of duties given to the steering committee created in the Medical Homes Act. See supra notes 98-100, and accompanying text. The expanded duties would include the creation and administration of incentives directed toward Medicaid and SCHIP beneficiaries to engage in behavior that improves their health outcomes.

271 Starfield, supra note 10, at 459-84.

272 See supra Part VI.A.

273 World Health Report 2008: PHC – Now More than Ever, supra note 125.