1 See Is There A Managed Care ‘BacklashŒ’ (visited July 17, 1998) <http://www.kff.org/content/archive/1328/mcarepr.html>. But see National Committee for Quality Assurance ("NCQA"), NCQAs State of Managed Care Quality Report: The State of Managed Care Quality, 2000 (visited Nov. 18, 2000) <http://www.ncqa.org/Pages/Communications/ State%20Of%20Managed%20Care/SOMCReport2000.pdf> (reporting an improvement in consumer satisfaction with managed care plans).

2 See Susan Brink, How Your HMO Could Hurt You, U.S. News & World Rep., Jan. 15, 1996, at 62; M. Stanton Evans et al., The Trouble with HMOs, Consumers' Res., July 1995, at 10; Christine Gorman, Managed Care 1998: Playing the HMO Game, Time, July 13, 1998, at 22; Erik Larson, The Soul of an HMO, Time, Jan. 22, 1996, at 44; More Trouble with Managed Care: Unethical Practices of Health Maintenance Organizations, Consumers' Res., Sept. 1995, at 20; Robert Pear, H.M.O's Refusing Emergency Claims, Hospitals Assert, N.Y. Times, July 9, 1995, at Al ; Ellyn E. Spragins, Beware Your HMO, Newsweek, Oct. 23, 1995, at 54.

3 See, e.g., Pegram v. Herdrich, 120 S. Ct. 2143, 2158-59, rev'g, 154 F.3d 362 (7th Cir. 1998); Shea v. Esensten, 107 F.3d 625, 628 (8th Cir. 1997) (allowing recovery against a managed care organization for failure to refer to a specialist); Fox v. Healthnet, No. 219/692 (Riverside Cty. Sup. Ct. Ca. Dec. 28, 1993), discussed in Collins, Jody C., Comment, Experimental Medical Treatments: Who Should Decide CoverageŒ, 20 Seattle Univ. L. Rev. 451, 451 (1997)Google Scholar (discussing how trial court jury awarded $77 million to patient who was denied experimental bone marrow transplant by HMO). See also Julie Margquis, Widow's Lawsuit Against HMO Ends with $120 Million Verdict, L.A. Times, Jan. 21, 1999, at E7.

4 See Health Care Quality: Grievance Procedures: Hearings Before the Senate Comm. on Labor and Human Resources, 105th Cong. 46-69 (1998) (statement of Molly Stauffer for the Health Policy Tracking Service National Conference of State Legislatures entitled Internal and External Grievance Procedures: A Fifty State Overview). See also Families USA, HMO Consumers at Risk: States to the Rescue (1996); Families USA, The Best From The States II: The Text of Key State HMO Consumer Protection Provisions (last modified Oct. 1998) <http://familiesusa.orgfoest2.html>. See generally Geraldine Dallek, Et Al., Consumer Protections in State HMO Laws (1995) (studying and reporting on the consumer protections in state HMO laws nationwide in order to identify the issues critical to consumers, the degree to which state statutes and regulations address these issues and to recommend consumer protection provisions available for HMOs).

5 See the President'S Advisory Commission on Consumer Protection and Quality in the Health Care Industry, Quality First: Better Health Care for All Americans (1999); Advisory Commission on Consumer Protection and Quality in the Health Care Industry, Consumer Bill of Rights and Responsibilities: Report to the President of the United States (1997).

6 See Memorandum on Federal Agency Compliance with the Patient Bill of Rights, 1 Pub. Papers 260 (Feb. 20, 1998).

7 See U.S. Congress, Congressional Research Services, CRS Issue Brief: Managed Health Care: Major Issues in the 105TH Congress (1998).

8 See id.

9 See Amy Goldstein & Helan Dewar, Senate Kills 'Patients' Rights' Bill, Wash. Post, Oct. 10, 1998, at Al. The Congressional Budget Office estimated the cost of grievance procedures in the President's Bill to be 0.1% of employer-sponsored health plan costs. Congressional Budget Office Cost Estimate, S. 2330 Patients' Bill of Rights Act of 1998 (last modified Sept. 4, 1998) <http:///wwwxbo.gov/showdoc.cfmŒindex=845&sequence=0&from6>.

10 See U.S . Congress, Congressional Research Services, CRS Issue Brief for Congress: Patient Protection and Managed Care: Legislation in the 106TH Congress (1999). See also Jeffords, James, Three Goals for Health Care Reform in 1999, the Hill, Jan. 20, 1999Google Scholar, at 30; Frank Bruni, Curbs on Managed Care Still Divide Two Parties, N.Y. Times, Mar. 17, 1999, at A 18.

11 See generally Jonathan, P. Weiner & Gregory de Lissovy, Razing a Tower of Babel: A Taxonomy for Managed Care and Health Insurance Plans, 18 J. Health Pol., Pol'Y & L. 75 (1993)Google Scholar (arguing that the variety of existing health insurance plans is highly confusing to customers).

12 See Health Ins. Ass'Nof Am., Source Book of Health Insurance Data 1997-1998 59 (1998) (providing table with statistics for the years 1992 through 1995) [hereinafter Health Ins. Ass'N of Am.].

13 See id. at 58 (providing statistics).

14 Health Care Financing Administration, Managed Care in Medicare and Medicaid (last modified Sept. 1996) <http://www.hcfa.gov/facts/n9609.htm>.

15 See Jensen, Gail A. et al., The New Dominance of Managed Care: Insurance Trends in the 1990s, Health Aff., Jan-Feb. 1997, at 125, 125CrossRefGoogle Scholar. See generally Thorpe, Kenneth E., The Health System in Transition: Care, Cost, and Coverage, 22 J. Health Pol., Pol'Y & L. 339 (1997)CrossRefGoogle Scholar (describing the trend in health care as heading toward greater participation in managed care plans).

16 See infra notes 219, 254-55 and accompanying text.

17 See George Anders, Health Against Wealth: HMOs and the Breakdown of Medical Trust (1996) (discussing the development of managed care and strategies for making managed care work in patients' interests); Conflicts of Interest in Clinical Practice and Research 163-321(Roy G. Spece, Jr. et al. eds., 1996) (discussing, in part, the conflicts of interest arising in clinical practice); Am. Med. Ass'n, Council on Ethical and Jud. Aff., Ethical Issues in Managed Care, 273 JAMA 330, 331 (1995) (explaining that "managed care can place the needs of patients in conflict with the financial interests of their physicians" by using bonuses and fee withholds to encourage physicians to recommend less treatment); Emanuel, Ezekiel J. & Dubler, Nancy N., Preserving the Physician-Patient Relationship in the Era of Managed Care, 273 JAMA 323, 326 (1995)CrossRefGoogle Scholar (stating that "physicians who practice in managed care settings may gain financially by ordering fewer tests and performing fewer procedures than is appropriate"). See generally Emanuel, Ezekiel J. & Emanuel, Linda L., What Is Accountability in Health CareŒ, 124 Annals of Internal Med. 229 (1996)CrossRefGoogle Scholar (stating that physicians should be allowed to make independent, objective assessments of their patients without regard to outside concerns); Emanuel, Linda L., A Professional Response to Demands for Accountability: Practical Recommendations Regarding Ethical Aspects of Patient Care, 124 Annals of Internal Med. 240 (1996)CrossRefGoogle Scholar (providing recommendations to improve medical accountability to patients). For law review articles on the subject, see Deven C. McGraw, Financial Incentives to Limit Services: Should Physicians be Required to Disclose these to PatientsŒ 83 GEO.L.J. 1821, 1824 (1995) (finding that the compensation structure of managed care organizations create financial incentives for physicians to limit care); David Orentlicher, Health Care Reform and the Patient-Physician Relationship, 5 Health Matrix 141, 149 (1995) (observing that managed care plans typically reward physicians with bonuses for minimizing their spending on patient care); Rodwin, Marc A., Conflicts in Managed Care, 332 New Eng. J. Med. 604, 605 (1995)CrossRefGoogle Scholar (noting that financial incentives to control costs give rise to a conflict of interests among physicians that can compromise the patients' interests); Rodwin, Marc A., Strains in the Fiduciary Metaphor: Divided Physician Loyalties and Obligations in a Changing Health Care System, 21 Am. J.L. & Med. 241, 252–53 (1995)Google Scholar (explaining that HMOs and other managed care organizations redirect physician loyalty from the patients to the interests of the organization for varied reasons, including the fact that the organization controls the physician's income).

18 See, e.g., Feinstein, Richard A., Economic Credentialling and Exclusive Contracts, Health Law, Fall 1996,Google Scholar at 1, 9 (explaining that when managed care organizations grant exclusive contracts to one physician or group of physicians, they may prevent the physicians who were denied the contract from practicing in the market); Little, John P., Managed Care Contracts of Adhesion: Terminating The Doctor-Patient Relationship and Endangering Patient Health, 49 Rutgers L. Rev. 1397, 1427 (1997)Google Scholar (finding that "many physicians now depend on HMOs [as a source] for patients - a dependency that will only increase").

19 See, e.g., Hillman, Alan L. et al., How Do Financial Incentives Affect Physicians' Clinical Decisions and the Financial Performance of Health Maintenance OrganizationsŒ, 321 NEW ENG. J. MED. 86, 88-91 (1989)CrossRefGoogle Scholar (concluding in part that the use of capitation, where physicians are less likely to receive additional revenue from the patients they hospitalize, plays an important role in physicians' clinical decisions associated with hospitalization); Orentlicher, David, Paying Physicians More to Do Less: Financial Incentives to Limit Care, 30 U. RICH. L. REV. 155, 159 (1996)Google Scholar (describing financial incentives for physicians participating in capitation and salary fee plans).

20 See Bitoun Blecher, Michele, The Gate Swings Wider, Hosp. & Health Networks, June 20, 1997,Google Scholar at 65, 66 (discussing a then new plan instituted by an HMO, Oxford Health Plans, which involved close patient, physician and specialist tracking; Burrows, R.C., DeFacto Gatekeeping and Informed Consent in Intensive Care, 16 Med. & L. 17, 20 (1997)Google Scholar (explaining how limited resources have put physicians in the role of gatekeepers regarding patients' access to intensive care); Edmund Pellegrino, Rationing Health Care: The Ethics of Gatekeeping, 2 J. Contemp. Health L. & Pol'Y 23, 27-28 (1986) (discussing the impact of financial incentives on physicians' gatekeeping role).

21 See Diane Diane E., Emergency Care and Managed Care— A Dangerous Combination, 72 Wash. L. Rev. 315, 327-29 (1997) (discussing the rationales for managed care coverage limitations on emergency care).

22 A complete description of the American health insurance system is beyond the scope of this article. For an excellent description of the system, see Randall Randall R. et al., U.S. Health Care Coverage and Costs: Historical Development and Choices for the 1990s, 2 J.L. Med. & Ethics 141 (1993) (discussing the emergence and proliferation of public and private health insurance plans).

23 See U.S. Census Bureau, Health Insurance Coverage: 1997 (Table I) (last modified Feb. 3, 1999) <http://www.census.gov/hhes/hlthins/hlthin97/hi97tl.html>.

24 See id. See also Health Care Financing Administration, HCFA Statistics: Populations (visited May 13, 1998) <http://www.hcfa.gov/stats/hstats96/blustats.htm> (estimating Medicare enrollment for 1997).

25 See Health Ins. Ass'N of Am., supra note 12, at 21 (Fig. 2.6).

26 See Balanced Budget Act of 1997, §§ 2101-2111, 111 Stat. 251, 552-574 (codified at 42 U.S.C. §§ 1397aa-jj & 1396r-la). See also Children's Health Insurance Program (visited Mar. 11, 1999) <http://www.hcfa.gov/init/kidssum.htm> (discussing the coverage of the Children's Health Insurance Program); Sarah Rosenbaum et al., The Children's Hour: The State Children 's Health Insurance Program, Health Aff., Jan.-Feb. 1998, at 75, 77 ("CHIP targets low-income children whose family incomes do not exceed 200 percent of the federal poverty level. . . ."). See generally Allison Cendali, Implementation of the Children's Health Insurance Program: HHS, States and Lessons for National Health Reform, 50 Admin. L. Rev. 659 (1998) (discussing health care reform to benefit low-income children).

27 See U.S. Census Bureau, supra note 23. See generally Linda J. Blumberg & David W. Liska, the Uninsured in the United States: A Status Report (1996) (breaking down the projected statistics of uninsured Americans for 1996).

28 See id.; U.S. Census Bureau, Health Insurance Coverage: 1996 (visited Nov. 4, 1998) <http://www.census.gov./hhes/hlthins/cover96/c96tabb.html>.

29 See Jensen et al., supra note 15; Blumberg & Liska, supra note 27, at 6. See generally U.S. Gen. Acct. Off., Employment-Based Health Insurance: Costs Increase and Family Coverage Decreases (1997) (discussing the decline in employer's support in providing health insurance for employers' families).

30 See Working Families Struggle to Get Needed Care and Pay Medical Bills, Commonwealth Fund Q., Winter 1997, at 1.

31 See Michael Chernew et al., The Demand for Health Insurance Coverage by Low-Income Workers: Can Reduced Premiums Achieve Full CoverageŒ, 32 HSR: Health Services Res. 453, 461 (1997) (finding that employee participation in insurance plans drops with increased contribution requirements); Philip F. Cooper & Barbara Steinberg Schone, More Offers, Fewer Takers for Employment-Based Health Insurance: 1987 and 1996, Health Aff., Nov .-Dec. 1997, at 142, 147 (contributing falling take-up rates in insurance to rising employee contributions to health insurance premiums); Paul B. Ginsburg et al., Tracking Small-Firm Coverage, 1989-1996, Health Aff., Jan.-Feb. 1998, at 167, 170 (determining that the most important factor behind declining employee enrollment is increased required contributions); Stephen H. Long & M. Susan Marquis, Gaps in Employer Coverage: Lack of Supply or Lack of DemandŒ, Health Aff., Supp. 1993, at 283, 291 (concluding that some employees are unwilling to pay their share of the cost of health insurance). See generally M. Susan Marquis & Stephen H. Long, Worker Demand for Health Insurance in the Non-Group Market, 14 J. Health Econ. 47, 61 (1995) (finding that financial incentives would not induce employees to purchase insurance).

32 See Health Insurance Portability and Accountability Act of 1997, Pub. L. No. 104-191, 110 Stat. 1936 (codified as amended in scattered sections of 26, 29 and 42 U.S.C.). See also Kuttner, Robert, The Kassebaum-Kennedy Bill —The Limits of Incrementalism, 337 New. Eng. J. Med. 64, 64 (1997)CrossRefGoogle ScholarPubMed (pointing out the ineffectiveness of new legislation that was meant to prohibit discrimination against applicants based on health status); Robert Pear, Health Insurers Skirting New Law, Officials Report, N.Y. Times, Oct. 5, 1997, at Al (providing evidence which suggests that insurers are circumventing this system).

33 See supra note 26 and accompanying text.

34 See generally Eleanor D. Kinney, Procedural Protections for Patients in Capitated Health Plans, 22 Am. J.L. & Med. 301 (1996) (outlining capitation as a method of health care financing); U.S. Congress, Congressional Research Services, Managed Health Care: Federal and State Regulation: CRS Report for Congress (Oct. 9,1997).

35 See Felstiner, William L.F. et al., The Emergence and Transformation of Disputes: Naming, Blaming, Claiming. . ., 14 L. & Soc'Y Rev. 631 (1980-81)CrossRefGoogle Scholar.

36 See id. at 633-35.

37 Id. at 636 (emphasis added).

38 See, e.g., Richard L. Abel, The Real Tort Crisis —Two Few Claims, 48 Ohio St. L.J. 443, 448–49 (1987)Google Scholar (citing evidence which shows that claims are often not produced as injuries often go unreported); Kritzer, Herbert M. et al., The Aftermath of Injury: Cultural Factors in Compensation Seeking in Canada and the United States, 25 L. & Soc'Y Rev. 499, 523 (1991)CrossRefGoogle Scholar (revealing a logistic regression model for claiming in the U.S. for which income was a determinant factor).

39 See infra note 82 and accompanying text.

40 See Schulman, Kevin A. et al., The Effect of Race and Sex on Physicians' Recommendations for Cardiac Catheterization, 340 New Eng. J. Med. 618, 623-24 (1999)CrossRefGoogle ScholarPubMed (finding that both the race and sex of a patient may independently affect a physician's treatment of the patient).

41 See Avedis Donabedian, the Criteria and Standards of Quality (1982); Avedis Donabedian, The Definition of Quality and Approaches to its Assessment, in Explorations in Quality Assessment and Monitoring 4-6 (1980) [hereinafter the Definition of Quality],

42 See Avedis Donabedian, The Definition of Quality and Approaches to its Assessment, supra note 41, at 4. « Id.

43 Id.

44 Id.

45 See id. at 4-6.

46 Id. at 5.

47 Id.

48 See infra notes 319-20 and accompanying text.

49 See infra Part III.B.

50 See Hickson, Gerald B. et al., Development of an Early Identification and Response Model of Malpractice Prevention, 60 Law & Contemp. Probs. 7, 19 (1997)CrossRefGoogle Scholar (discussing patient and physician complaints regarding health care and physicians) .

51 See Posner, James R., Trends in Medical Malpractice Insurance, 1970-1985, 49 Law Contemp. Probs. 37, 39 (1986)CrossRefGoogle ScholarPubMed (examining the factors that contributed to the malpractice crisis of the mid-1970s to explain similar trends in the mid 1980s).

52 See U.S. Congress, Off. of Technology Assessment, Defensive Medicine and Medical Malpractice (1994) (providing empirical data regarding malpractice in defensive medicine). See generally Stephen Zuckerman et al., Information on Malpractice: A Review of the Empirical Research on Major Policy Issues, 49 Law & Contemp. Probs. 85 (1986)CrossRefGoogle Scholar (reviewing major empirical studies dealing with medical malpractice); Danzon, Patricia M., The Frequency and Severity of Malpractice Claims: New Evidence, 49 Law & Contemp. Probs. 57 (1986)CrossRefGoogle ScholarPubMed (examining empirical data concerning the frequency and severity of malpractice). See also Patricia M. Danzon, Medical Malpractice: Theory, Evidence and Public Policy 18-96 (1985) (examining empirical data to explain increases in malpractice claims).

53 See Huycke, LaRae I. & Mark M. Huycke, Characteristics of Potential Plaintiffs in Malpractice Litigation, 120 Annals of Internal Med. 792, 795-96 (1994)CrossRefGoogle ScholarPubMed (discussing the economic and non-economic motivations of potential malpractice plaintiffs placing calls to law firm). See generally Frank A. Sloan et al., Suing for Medical Malpractice 66 (1993) (discussing a study of malpractice relating to pediatric complications); David Ross Garr & Frank J. Marsh, Medical Malpractice and the Primary Care Physician: Lowering the Risks, 79 S. Med. J. 1289, 1291 (1986)Google Scholar (discussing the common reasons why patients contact lawyers and the most frequent clinical situations that result in malpractice lawsuits); Hickson, Gerald B. et al., Factors that Prompted Families to File Medical Malpractice Claims Following Perinatal Injuries, 267 JAMA 1359 (1992)CrossRefGoogle ScholarPubMed (discussing reasons for malpractice suits involving perinatal injuries); May, Marilynn L. & Daniel B. Stengel, Who Sues Their DoctorsŒ How Patients Handle Medical Grievances, 24 L. & Soc'Y Rev. 105, 105 (1990)CrossRefGoogle Scholar (discussing a study on who sues for malpractice and why); McNulty, Molly, Are Poor Patients More Likely to Sue for MalpracticeŒ, 262 JAMA 1391, 1391 (1989)Google Scholar (discussing studies indicating that indigent and Medicaid/Medicare patients do not account for disproportionate numbers of claims of medical malpractice); Roy Penchansky & Carol Macnee, Initiation of Medical Malpractice Suits: A Conceptualization Test, 32 Med. Care 813 (1994)CrossRefGoogle Scholar (analyzing reasons for some perceived injuries resulting in malpractice claims over others).

54 See Paul C. Weiler et al., A Measure of Malpractice: Medical Injury, Malpractice, Litigation and Patient Compensation 43 (1993)Google Scholar (reporting studies in various state hospitals, including New York and California); Brennan, Troyen A. et al., Incidence of Adverse Events and Negligence in Hospitalized Patients—Results of the Harvard Medical Practice Study I, 324 New Eng. J. Med. 370, 371 (1991)CrossRefGoogle ScholarPubMed (reporting the rate and reasons for adverse events in hospitals); Localio, A. Russell et al., Relation Between Malpractice Claims and Adverse Events Due to Negligence— Results of the Harvard Medical Practice Study 111, 325 New Eng. J. Med. 245, 246 (1991)CrossRefGoogle ScholarPubMed (discussing incidence of negligence as a cause for adverse events in hospitals). See also Studdert, David M. et al., Can the United States Afford a "No-Fault" System of Compensation for Medical InjuryŒ, 60 Law & Contemp. Probs. 1, 18 (1997)CrossRefGoogle Scholar (reporting similar findings in a subsequent study of Colorado hospitals).

55 See Leape, Lucian L., Error in Medicine, 272 JAMA 1851, 1851 (1994)CrossRefGoogle ScholarPubMed.

56 See Hickson et al., supra note 50, at 18; Wendy Levinson et al., Physician-Patient Communication: The Relationship with Malpractice Claims Among Primary Care Physicians and Surgeons, 277 JAMA 553, 557–58 (1997)Google Scholar (identifying communication behaviors of physicians related to malpractice risks); Levinson, Wendy, Physician Patient Communication: A Key to Malpractice Prevention, 272 JAMA 1619, 1619–20 (1994)CrossRefGoogle ScholarPubMed (finding that patients are more likely to sue their physicians if they have poor communications).

57 See infra notes 99-120 and Part III.A.

58 See Hickson et al., supra note 50, at 14-19.

59 See Johnson, Sandra H., End-of-Life Decision Making: What We Don 't Know, We Make Up: What We Do Know, We Ignore, 31 Ind. L. Rev. 13, 34-36 (1998)Google Scholar (discussing physician-patient communications and medical ethics).

60 See The Support Principal Investigators, A Controlled Trial to Improve Care for Seriously III Hospitalized Patients: The Study to Understand Prognosis and Preferences for Outcomes and Risks of Treatment (Support), 274 JAMA 1591, 1595 (1995) (studying physician-patient communications regarding preferences for end-of-life care and concluding that meaningful communication was seriously lacking).

61 See id. See also Johnson, supra note 59, at 41-47.

62 Avedis Donabedian, The Definition of Quality and Approaches to its Assessment, supra note 41, at 4. « Id.

63 Id.

64 See infra notes 99-131 and Parts 1II.A and II1.B.

65 See supra notes 51-54 and accompanying text.

66 See Restatement (Second) of Torts §§313, 436-436A, 46 (1965). See infra Part V.C .

67 See infra Parts V.B through V.E.

68 See Kinney, Eleanor D., Resolving Consumer Grievances in a Managed Care Environment, 6 Health Matrix 147, 153 (1996)Google Scholar (discussing the relationships between managed care organizations, physicians and patients and the existence of grievance plans).

69 See supra note 8 and infra notes 378-398 and accompanying text.

70 See generally Hall, Mark A. & Gerald F. Anderson, Health Insurers' Assessment of Medical Necessity, 140 U. Pa. L. Rev. 1637 (1992)CrossRefGoogle Scholar (focusing on whether and under what terms insurers will be permitted to impact coverage questions through their own assessment of medical judgments under their coverage polices); J. Gregory Lahr, What is the Method to Their "MadnessΠExperimental Treatment Exclusions in Health Insurance Policies, 13 J. Contemp. Health L. & Pol'Y 613 (1997)Google Scholar (discussing the coverage disputes that exist in the specific area of experimental treatments); Sara Rosenbaum et al., Who Should Determine When Health Care is Medically NecessaryΠ340 New Eng. J. Med. 229, 229 (1999)CrossRefGoogle Scholar (stating that the current policy of insurers deciding what is medically necessary should be replaced by a system guided by clinically accepted standards of medical practice).

71 See infra note 334 and accompanying text.

72 See U.S. Gen. Acct. Off., Rep. No. 160471, HMO Complaints and Appeals, Most Key Procedures in Place, But Others Valued by Consumers Largely Absent 3 (1998).

73 See id.

74 See id.

75 See infra notes 344-346 and accompanying text.

76 See David Richardson Etal, A Study of Coverage Denial Disputes Between Medicare Beneficiaries and HMO S 2-3 (1993).

77 See Hall & Anderson, supra note 70, at 24; Mark A. Hall et al., Judicial Protection of Managed Care Consumers: An Empirical Study of Insurance Coverage Disputes, 26 Seton Hall L. Rev. 1055, 1064 (1996)Google Scholar (finding that patients' complaints regarding claims of coverage denials do not often prevail in appellate courts); William M. Sage, Judicial Opinions Involving Health Insurance Coverage: Trompe L'Oeil or Window on the WorldŒ, 31 Ind. L. Rev. 49, 61-68 (1998) (reporting that empirical studies of judicial decisions are limited by size, long time lags and other types of bias and, consequently, often fail to prove who prevails in coverage disputes and why).

78 See Mehlman, Maxwell J., Getting a Handle on Coverage Decisions: If Not Case Law, Then WhatŒ, 31 Ind. L. Rev. 75, 78-79 (1998)Google Scholar (predicting that there will be no increase in case law regarding coverage denial disputes and that viable sources of information on their resolution will be limited to third-party payors and enrollees).

79 See supra Part II.B.l.

80 See Barry R. Furrow Etal., Health Law, §12.1 (1995). 81 See infra Parts V.D and V.E.

81 See Furrow, Barry, Forcing Rescue: The Landscape of Health Care Provider Obligations to Treat Patients, 3 Health Matrix 31, 31-32 (1993)Google ScholarPubMed (reporting the results of a 1986 study by the Robert Wood Johnson Foundation which found that nearly 14 million people did not seek health care because they would not be able to afford it and noting that the uninsured have difficulty finding care or are turned away when seeking care); Governor Richard D. Lamm, The Good News & The Bad News About Access, 3 Kan. J.L. & Pub. Pol'Y 5, 6 (1993)Google Scholar (citing a 1992 Henry J. Kaiser Foundation survey which reported that "nearly 22 million Americans said they, or someone else in their family, or both, were refused health care because they did not have insurance or could not pay").

82 See, e.g., Bernstein, Nina, New York Faults Hospital For Denying Checkup to Baby Who Starved, N.Y. Times, Oct. 26, 1998,Google Scholar at Bl (discussing a decision by a New York hospital to deny outpatient services to an infant that contributed to the infant's subsequent death by starvation). See also Bernstein, Sharon, 4 Hospitals Required Cash for Epidurals, County Finds, L. A. Times, Aug. 28, 1998Google Scholar, at Al (discussing legislation passed by the California legislature which would forbid doctors from withholding pain relief from women in labor and declare it unethical to deny or threaten to deny pain relief to any patient based on the patient's financial resources); Brandon, Karen, Some Poor Face Cash Demand During Labor, Chi. Trib., Oct. 1, 1998Google Scholar, at I (discussing anesthesiologists who insist on case payments from Medicaid recipients and uninsured patients before administering epidurals during labor).

83 See National Health Law Program, Health Access: An Issue Whose Time Has Come, 26 Clearinghouse Rev. 1211, 1216-17 (1993) (discussing litigation surrounding state and federal health care legislation); National Health Law Program, Reflections on 25 Years of Health Law Advocacy, 26 Clearinghouse Rev. 110 (1992) (discussing the role of the National Health Law Program in assisting legal services advocates in their attempts to secure health care services for low-income patients).

84 See Hickson et al., supra note 50, at 19.

85 See infra Parts V.D and V.E.

86 See infra Part V.C.

87 See Levit, Katharine R. et al., National Health Expenditures, 1996, 19 Health Care Fin. Rev. 161, 174 (1997)Google ScholarPubMed.

88 See Jensen et al., supra note 15.

89 See Levit et al., supra note 88, at 177.

90 See, e.g., Gentry, Carol, Hospital Lets Poor Patients Pay Their Bills in Kind, Wall St. J. Ne, Jan. 28, 1998Google Scholar, at 1 (discussing an alternative payment scheme for patients who can't afford their hospital bills but are unwilling to accept charity in which they "work off their debt" through jobs commensurate with their abilities); Carlton, John G., Tenet Denied Loan for Survey, Woman in Pain was Turned Down Twice, St. Louis Post-Dispatch, Oct. 26, 1997Google Scholar, at 1A (discussing the lengthy delay a young patient with endometriosis endured before having surgery because Tenet Healthcare decided she was not a good enough credit risk to accept a loan from the hospital). See also Brandon, supra note 83, at 1; Sharon Bernstein, supra note 83; at Al .

91 See Kinney, Eleanor D. et al., Serious Illness and Private Health Coverage: A Unique Problem Calling for Unique Solutions, 25 J.L., Med. & Ethics 180, 184 (1997)CrossRefGoogle ScholarPubMed (reporting the story of one survey respondent with breast cancer who was uninsured and incurred a $15,000 debt for medical bills); the Robert Wood Johnson Foundation, Chronic Care in America: A 2 1ST Century Challenge 10-12 (1996) [hereinafter Chronic Care in America].

92 See Chronic Care in America, supra note 92, at 10.

93 See Blendon, Robert J. et al., Paying Medical Bills in the United States: Why Health Insurance Isn 't Enough, 271 JAMA 949, 950 (1994)CrossRefGoogle Scholar.

94 See Hickson et al., supra note 50, at 19.

95 See Hollingsworth et al., Note, The Ohio Small Claims Court: An Empirical Study, 42 U. On . L. Rev. 469, 513 tbl.10 (1973)Google Scholar (finding those rendering medical services accounted for 16.75% of all claims in Hamilton County and 10% of all claims in Clermont County small claims courts); Purdum, Elizabeth, Examining the Claims of a Small Claims Court: a Florida Case Study, 65 Judicature 25, 27, 30 fig.3 (1981)Google Scholar (finding medical services were the most common type of claim in the service category which comprised 24% of the items in dispute).

96 See Hollingsworth et al., supra note 96, at 513 tbl.10 (reporting that 22.71% of the claims of business litigants in Hamilton County and 11.23% of the claims of business litigants in Clermont County to be for medical services).

97 See generally Alexander, Archibald S., Small Claims Courts in Montana: A Statistical Study, 44 Mont. L. Rev. 227 (1983)Google Scholar (discussing a study examining small claims courts from 1978-1980); Haemmel, William G., The North Carolina Small Claims Court—An Empirical Study, 9 Wake Forestl. Rev. 503 (1973)Google Scholar (noting that North Carolina's small claims court was not being used by average citizens, but rather by corporations, professionals and landlords); Vidmar, Neil, The Small Claims Court: A Reconceptualization of Disputes and an Empirical Investigation, 18 L. & Soc. Rev. 515 (1984)CrossRefGoogle Scholar (describing an empirical study of Canadian small claims court which found that consumer issues constituted a substantial portion of the court's caseload, but which did not specifically identify medical claims); Barbara Yngvesson & Patricia Hennessey, Small Claims, Complex Disputes: A Review of the Small Claims Literature, 9 L. & Soc. Rev. 219 (1975)CrossRefGoogle Scholar (examining history and background of small claims courts, numerous empirical studies of small claims courts and reform proposals for small claims courts).

98 See Furrow et al., supra note 80, § 4-24; Timothy S. Jost, Oversight of the Competence of Healthcare Professionals, Regulation of the Healthcare Professions 17, 21 (Timothy S. Jost ed., Health Administration Press 1997) (indicating that public protection from incompetent practitioners is the primary justification for professional licensure); William M. Sage & Linda H. Aiken, Regulating Interdisciplinary Practice, in Regulation of the Healthcare Professions, supra note 99, at 71, 87 (noting that quality assurance is one of the traditional justifications for licensure laws).

99 See Jost, Timothy S., The Joint Commission on Accreditation of Hospitals: Private Regulation of Health Care and the Public Interest, 24 B.C. L. Rev. 835, 841-49 (1983)Google Scholar (concluding that the Joint Commission on Accreditation of Hospitals ("JCAH") continues to positively influence regulation of healthcare but that JCAH quality assessment must be closely monitored because private industry may have motivations beyond the best interests of consumers); Kinney, Eleanor D., Private Accreditation as a Substitute for Direct Government Regulation in Public Health Insurance Programs: When is It AppropriateŒ, 57 Law & Contemp. Probs. 47, 50-55 (1994)CrossRefGoogle Scholar (arguing for the protection of the public's due process rights in accreditation decisions and asserting that private accreditation is appropriate only in circumstances where certain criteria are met).

100 See Furrow Etal, supra note 80, § 4-24.

101 See Kinney, supra note 100, at 55-65. See also Jost, Timothy S., Medicare and the Joint Commission on Accreditation of Healthcare Organizations: A Healthy RelationshipŒ, 57 Law & Contemp. Probs. 15, 18 (1994)CrossRefGoogle Scholar (discussing the positive and negative aspects of the Medicare provider industry by the Joint Commission).

102 See 42 U.S.C. § 1320(c)l-12 (1994); See also Furrow Etal, supra note 80, § 3-26.

103 Larry S. Gage & William H. E. Von Oehsen, Managed Care Manual: Medicaid, Medicare and State Health Reform, 1997-1998 Edition § 2.03(5) (1998).

104 Federal Health Maintenance Organization Act of 1973, Pub. L. No. 93-222, 87 Stat. 914 (1973) (amended at 42 U.S.C. § 300e (1994)). See generally Barbara Allan Shickich, Legal Characteristics of the Health Maintenance Organization in Healthcare Facilities Law: Critical Issues for Hospitals, HMOs, and Extended Care Facilities 1051, 1098-1107 (Anne M. Dellinger ed. 1991) (providing an overview of the Health Maintenance Act of 1973).

105 See Arnold Epstein, Performance Report on Quality— Prototypes Problems and Prospects, 333 New Eng. J. Med. 57, 58 (1995) (arguing that healthcare quality reports, although often imperfect, can be used successfully to assess quality of care); Iglehart, John K., The National Committee for Quality Assurance, 335 New Eng. J. Med. 995, 996 (1996)CrossRefGoogle ScholarPubMed (asserting the NCQA assessment of healthcare programs is flawed though, nevertheless, still valuable because there are currently few other effective quality management programs). See generally Furrow, Barry R., Regulating the Managed Care Revolution: Private Accreditation and a New System Ethos, 43 Vill. L. Rev. 361 (1998)Google Scholar (arguing that private accreditation can be used effectively to improve quality of healthcare).

106 See Chassin, Mark R., Assessing Strategies for Quality Improvement, Health Aff., May-June 1997, at 151, 154Google Scholar (discussing the shift from a single-strategy approach in quality assurance to a multifaceted approach that includes regulation, competition, continuous quality improvement and payment incentives).

107 See generally Brook, Robert H. & Katherine N. Lohr, Ejficacy, Effectiveness, Variations, and Quality: Boundary-Crossing Research, 23 Med. Care 710, 714 (1985)CrossRefGoogle ScholarPubMed (asserting possible reasons for high rates of variation in use of services); Eddy, David M., Variations in Physician Practice: The Role of Uncertainty, Health Aff., Summer 1984, at 74, 86CrossRefGoogle Scholar (discussing the propriety of variation of physician practice in light of patient differences); Wennberg, John E. et al., Are Hospital Services Rationed in New Haven or Over-Utilized in Boston, 1 Lancet 1185, 1188 (1987)CrossRefGoogle ScholarPubMed (detailing discrepancies in care between Boston and New Haven); Wennberg, John E. & Alan Gittelsohn, Small Area Variations in Health Care Delivery: A Population-Based Health Information System Can Guide Planning and Regulatory Decision Making, 182 Science 1102, 1107 (1973)CrossRefGoogle Scholar (emphasizing the importance of health information on total populations for sound health care planning and decision making).

108 See Brook & Lohr, supra note 107, at 714 (discussing the use of outcome measures in various models of medical care quality assessment); Rehlman, Arnold S., Assessment and Accountability: The Third Revolution in Medical Care, 319 New Eng. J. Med. 1220, 1222 (1988)CrossRefGoogle Scholar (proposing outcomes management as a means to improve the quality and effectiveness of health care); Ell, Paul M. wood, Shattuck Lecture—Outcomes Management: A Technology of Patient Experience, 318 New Eng. J. Med. 1549, 1554 (1988)Google Scholar (promoting outcomes management as a means to making sounder decisions in the medical profession). See also Furrow, Barry R., The Changing Role of the Law in Promoting Quality in Health Care: From Sanctioning Outlaws to Managing Outcomes, 26 Hous. L. Rev. 147, 171 (1989)Google Scholar (arguing the new approach of managed care is to focus on outcomes management which consists of quality assessment and feedback); Jost, Timothy S., The Necessary and Proper Role of Regulation to Assure the Quality of Health Care, 25 Hous. L. Rev. 525, 558 (1988)Google Scholar (arguing that the market plays an important role in assuring health care quality); Jost, Timothy S., Oversight of the Quality of Medical Care: Regulation, Management or the Market, 37 Ariz. L. Rev. 825, 855 (1995)Google Scholar (asserting that quality improvement and total quality management are helpful in targeting production process problems); Mehlman, Maxwell J., Assuring the Quality of Medical Care: The Impact of Outcome Measurement and Practice Standards, 18 L., Med. & Health Care 368, 371 (1990)CrossRefGoogle ScholarPubMed (arguing outcome assessment is a new technology that will improve the ability of quality assurance systems to determine causation and fault).

109 See Berwick, Donald M., Controlling Variation in Health Care: A Consultation from Walter Shewhart, 29 Med. Care 1212, 1214 (1991)CrossRefGoogle ScholarPubMed (describing what total quality management would look like as applied to the health care industry). See generally Donald M. Berwick Etal, Curing Health Care: New Strategies for Quality Improvement (1990) (discussing how application of the business model of total quality management could improve the quality of health care); Troyen A. Brennan & Donald M . Berwick, New Rules: Regulation, Markets, and the Quality of American Health Care 30 (1996) (discussing how the design of responsive regulation depends on the ability to understand and integrate modern notions of quality improvement); Mara Minerva Melum & Marie K. Sinioris, Total Quality Management: the Health Care Pioneers (1992) (discussing total quality management from the perspective of experts inside and outside the health care field); Berwick, Donald M., Continuous Improvement as an Ideal in Health Care, 320 New Eng. J. Med. 53 (1989)CrossRefGoogle ScholarPubMed (discussing how total quality management could improve the quality of health care); Glenn Laffel & David Blumenthal, The Case For Using Industrial Quality Management Science in Health Care Organizations, 262 JAMA 2869 (1989)CrossRefGoogle Scholar (discussing how health care could be improved by applying industrial quality control principles).

110 See generally W. Edwards Deming, Out of Crisis 167-82 (1982)Google Scholar (discussing the role of consumer satisfaction in quality assessment)

111 See generally Brennan & Berwick, supra note 110.

112 See U.S. Gen. Acct. Off., "Report Cards" Are Useful But Significant Issues Need to be Addressed 14 (1994) (asserting that a good health care assessment should include an outcome evaluation); Paul B. Ginsburg & Glenn T. Hammons, Competition and the Quality of Care: The Importance of Information, 25 Inquiry 108, 111 (1988) (discussing the importance of informed consumers in a competitive health care industry). See generally Enthoven, Alain, The History and Principles of Managed Competition, Health Aff. Supp. 1993, at 25CrossRefGoogle Scholar (discussing the merits of managed competition in health care).

113 See generally Lebow, Jay L., Consumer Assessments of the Quality of Medical Care, 12 Med. Care 328 (1974)CrossRefGoogle ScholarPubMed (focusing on the consumer evaluation of care); Ware, John E. & Mary K. Snyder, Dimensions of Patient Attitudes Regarding Doctors and Medical Care Services, 13 Med. Care 669 (1975)CrossRefGoogle ScholarPubMed (studying the data compiled by patient satisfaction questionnaires).

114 See, e.g., Cleary, Paul D. & Barbara J. McNeil, Patient Satisfaction as an Indicator of Quality Care, 25 Inquiry 25, 32 (1988)Google ScholarPubMed (concluding that though current data is weak and inconsistent, "[t]he most consistent finding in the satisfaction literature is that characteristics of the provider and the organization that make care more 'personal' are associated with higher levels of satisfaction"); Allyson Ross Davies & John E. Ware, Jr., Involving Consumers in Quality of Care Assessment, Health Aff., Spring 1988, at 33, 44Google Scholar (arguing that consumer perceptions of quality affect their choice among health care alternatives).

115 See, e.g., Turnbull, Joanne E. & William E. Hembree, Consumer Information, Patient Satisfaction Surveys, and Public Reports, 11 Am. J. Med. Qual. S42, S42 (1996)Google ScholarPubMed (asserting that patient satisfaction is measurable and provides valuable information about the quality and effectiveness of healthcare); Weiss, Barry D. & Janet H. Senf, Patient Satisfaction Survey Instrument for Use in Health Maintenance Organizations, 28 Med. Care 434, 435 (1990)CrossRefGoogle ScholarPubMed (crafting a survey with the specific objective of including patient dissatisfaction as a variable predictive of disenrollment from health plans).

116 Nat'L Comm. for Quality Assurance, Health Plan Employer Data and Information Set 3.0 (HEDIS 3.0) (1998).

117 See NCQA News, NCQA Releases HEDIS 3.0/1998: Improvements Will Clarify and Standardize Health Plan Performance Measurement (last visited Sept. 14, 2000) <http://www.ncqa.org/pages/communications/news/98rel.htm> (asserting that the NCQA reviewed plans of the over three quarters of Americans enrolled in HMOs).

118 See Id. Part VI.A.l.

119 See Jacobi, John V., Patients at a Loss: Protecting Health Care Consumers Through Data Driven Quality Assurance, 45 U. Kan. L. Rev. 705, 707 (1997)Google Scholar (stating that quantitative evaluation methods of managed care allow the consumer to "evaluate which providers, procedures and services will provide the highest quality care").

120 See Layton Severson & Malcolm S. Parsons, Claims Management, in Handbook of Health Care Risk Management 235-60 (Glenn T. Troyer & Steven L. Salman eds., 1986) (discussing the foundational steps as well as other considerations for managing health care risks and disputes); Linda Skaggs, Hospital Risk Management Programs In the Age of Health Care Reform, 4-Wtr Kan. J.L. & Pub. Pol'Y 89, 90 (1995) (recognizing that some health care providers have made risk managers responsible for more than simply compiling medical error data); see e.g., Ruth Kilduff, Clinical Risk Management: A Practical Approach (1985); James E. Orlikoff & Audrey M . Vanagunas, Malpractice Prevention and Liability Control for Hospitals (2d ed. 1988).

121 See Severson & Parsons, supra note 121, at 252 (discussing the positive aspects and considerations attaching to out of court medical malpractice resolutions and settlements).

122 See Erica Wood & Naomi Karp, "Fitting the Forum to the Fuss" in Acute and Long-Term Care Facilities, 29 Clearinghouse Rev. 621, 622 (1995)Google Scholar (claiming that the informed grievance process is an elementary form of dispute resolution or prevention).

123 See Severson & Parsons, supra note 121, at 236;Google Scholar Garr, David R. & Frank J. Marsh, Medical Malpractice and the Primary Care Physician: Lowering the Risk, 79 S. Med. J. 1280, 1283 (1986)CrossRefGoogle Scholar (noting that resolving and identifying problems before or soon after they occur is a goal of risk management).

124 See Metzloff, Thomas B., Researching Litigation: The Medical Malpractice Example, 51 Law & Contemp. Probs. 199, 204 (1988)CrossRefGoogle ScholarPubMed (suggesting that insurance companies may offer a modest settlement to avoid the risk of a jury decision); Metzloff, Thomas B., Resolving Malpractice Disputes: Imaging the Jury's Shadow, 54 Law & Contemp. Probs. 43, 51 (1991)CrossRefGoogle ScholarPubMed (surmising that in minor cases, insurance companies were willing to pay a nominal settlement).

125 See Bundy, Stephen M., The Policy in Favor of Settlement in an Adversary System, 44 Hasting L.J. 1, 78 (1992)Google Scholar (arguing that intervention to improve party deliberation or to promote just outcomes is unjustified); Fiss, Owen M., Against Settlement, 93 Yale L.J. 1073, 1075–90 (1984)CrossRefGoogle Scholar (arguing that settlement is a problematic technique for streamlining dockets and is not necessarily preferable to judgment).

126 See Hickson et al., supra note 50, at 8-9;Google Scholar Dauer, Edward A. & Marcus, Leonard J., Adapting Mediation to Link Resolution of Medical Malpractice Disputes with Health Care Quality Improvement, 60 Law & Contemp. Probs. 185, 186 (1997)CrossRefGoogle Scholar (hypothesizing that mediation can make claims resolution more efficient and simultaneously promote quality improvement in health care more effectively than does the litigation/settlement process); Lindgren, Orley H. et al., Medical Malpractice Risk Management Early Warning Systems, 54 Law & Contemp. Probs. 23, 23 (1991)CrossRefGoogle ScholarPubMed (arguing that prompt incident reporting by medical professionals can serve a useful "early warning" function to identify future medical malpractice claims); Morlock, Laura L. & Faye E. Malitz, Do Hospital Risk Management Programs Make a DifferenceŒ: Relationships Between Risk Management Program Activities and Hospital Malpractice Claims Experience, 54 Law & Contemp. Probs. 1, 20-22 (1991)CrossRefGoogle ScholarPubMed (finding that risk management in-hospital educational programs regarding physician and nurse responsibilities resulted in a lower number of malpractice claims).

127 See Hickson et al., supra note 50, at 8-9.

128 See Dauer & Marcus, supra note 127, at 186.

129 See id. at 203-05.

130 See Farber, Henry S. & Michelle J. White, A Comparison of Formal and Informal Dispute Resolution in Medical Malpractice, 23 J. Legal Stud. 777, 789 (1994)CrossRefGoogle Scholar (providing a table illustrating that cases initiated by incident reports had a much better chance of being dropped than those initiated by a complaint or a lawsuit).

131 See Judith Wilson Ross et al., Health Care Ethics Committees: the Next Generation

132 (1993) (noting that ethics committee are only authorized to discuss treatment decisions and to provide education explaining ethical standards underlying those decisions); Hollinger, Paula C., Symposium: Hospital Ethics Committees and the Law, 50 Md. L. Rev. 742, 743-44 (1991)Google Scholar (discussing the provisions of Maryland legislation requiring hospitals to establish patient care and advisory systems).

133 See Annas, George J., Ethics Committees: From Ethical Comfort to Ethical Cover, 21 Hastings Center Rep. 18, 19-21 (1991)CrossRefGoogle ScholarPubMed (discussing the proper role of ethics committees); Blake, David C., The Hospital Ethics Committee: Health Care's Moral Conscience or White ElephantŒ, 22 Hastings Center Rep. 5, 6, 8 (1992)CrossRefGoogle ScholarPubMed (arguing that the model of ethics committees is flawed and should be changed); Moreno, Jonathan D., Institutional Ethics Committees: Proceed with Caution, 50 Md. L. Rev. 895, 895-96, 899-903 (1991)Google Scholar (calling into question the benefits provided by ethics committees); Robin Fretwell Wilson, Hospital Ethics Committees as the Forum of Last Resort: An Idea Whose Time Has Not Come, 76 N.C. L. Rev. 353, 360, 406 (1998)Google Scholar (arguing that hospital ethics committees may be no better in making end-of-life decisions than state and federal courts); Wolf, Susan M., Ethics Committees and Due Process: Nesting Rights in a Community of Caring, 50 Md. L. Rev. 798, 802-06 (1991)Google Scholar (arguing that ethics committees should be restructured to ensure patients receive their due process).

134 See Hoffmann, Diane, Evaluating Ethics Committees: A View from the Outside, 71 MlLbankq. 667, 689 (1993)Google ScholarPubMed (discussing the need to protect patient's interests).

135 See generally Robert Gatter, Unnecessary Adversaries at the End of Life: Mediating End-of-Life Treatment Disputes to Prevent Erosion of Physician-Patient Relationships, 79 B.U. L. Rev. 1091 (1999) (examining how mediation can be used to mitigate erosion of physician-patient relationships in end-of-life decision making); Diane Hoffmann & Naomi Karp, Mediating Bioethics Disputes, Disp. Resol. Mag., Spring 1996, at 10, 12 (analyzing mediation as a means to resolving bioethical disputes); Hoffmann, Diane E., Mediating Life and Death Decisions, 36 Ariz. L. Rev. 821 (1994)Google ScholarPubMed (discussing mediation as a means to resolving life and death decisions); Sims-Taylor, Lynne, Reasoned Compassion in a More Humane Forum: A Proposal to Use ADR to Resolve Medical Treatment Decisions, 9 Ohio St. J. on Disp. Resol. 333, 355-65 (1994)Google Scholar (proposing mediation followed by arbitration to resolve conflicting healthcare interests). See also Nancy N. Dubler & Leonard J. Marcus, Mediating Biomedical Disputes (1994) (noting that within bioethics literature, writers have begun to explore methods of dispute resolution such as facilitation and mediation as creative solutions uniquely suited to the needs of individual patients).

136 See Wood & Karp, supra note 123, at 622-23.See generally Cathy A. Costatino & Christina Sickles Merchant, Designing Conflict Management Systems: A Guide to Creating Productive and Healthy Organizations (1996)Google Scholar (proposing conflict management through alternative dispute resolution methods).

137 See Jay E. Grenig, Alternative Dispute Resolution §§ 16.30-16.34 (1997).

138 Id. at §§ 16.20-16.22. See also Brad Honoroff, Lessons from Mediating Health Care Disputes, Nat'L Inst. Disp. Resol., Forum, Dec. 1997, at 45, 45 (discussing three mediated health care cases involving allegations of wrongful death, HIV discrimination and an HMO as well as the issues raised following their out of court resolution).

139 See, e.g., Ellen J. Waxman & Howard Gadlin, A Breed Apart: An Ombudsman Serves as a Buffer Between and Among Individuals and Large Institutions, Disp. Resol. Mag., Summer 1998, at 21, 23 (noting that the ombudsman, with the opportunity to intervene in the early stages of dispute, will typically become involved before complaints become formal grievances and before the problem); Wiegand, Shirley A., A Just and Lasting Peace: Supplanting Mediation with the Ombuds Model, 12 Ohio St. J. On Disp. Resol. 95, 112-22 (1996)Google Scholar (observing the various contexts in which ombudsmen are utilized such as in governmental offices, universities and other local agencies). See also International Handbook of The Ombudsman: Evolution and Present Function (Gerald E. Caiden ed., 1983) (describing the history of ombudsmen and their current roles in various contexts).

140 See Waxman & Gadlin, supra note 139, at 21.

141 See Admin. Conference of U.S., the Ombudsman: A Primer for Federal Agencies (1991). See, e.g., Walter Gellhorn, the Ombudsman Concept in the United States: Our Kind of Ombudsman (1970); Wiegand, supra note 139, at 110-11.

142 U.S.C. § 3027(a)(12) (1994). See generally Herrington, Elizabeth B., Strengthening the Older Americans Act's Long-Term Care Protection Provisions: A Call for Further Improvement of Important State Ombudsman Programs, 5 Elder L. J. 321 (1997)Google Scholar (discussing the ombudsman program in nursing homes and concluding that as currently operated it is not effective and should be structurally modified to include access to legal remedies).

143 See generally Center for Health Care Rights, Managed Care Ombudsman Programs: New Approaches to Assist Consumers and Improve the Health Care System (1996) (discussing the role of Ombudsmen as a technique for dispute resolution).

144 See Wiegand, supra note 139, at 103.

145 Medicaid Program, Medicaid Managed Care, 63 Fed. Reg. 52,021, 52,054 (1998) (to be codified at 42 C.F.R. pt. 400 et al.) (proposed Sept. 29, 1998).

146 Id. HCFA based this definition on the National Association of Insurance Commissioners' 1996 Model Grievance Act. See infra note 169. HCFA notes that it is "among the most comprehensive and widely-used definition of the term." See also Medicaid Program, Medicaid Managed Care, supra note 145, at 52,054.

147 See, e.g., LEONARD J. MARCUS et al., RENEGOTIATING HEALTH CARE: RESOLVING CONFLICT TO BUILD COLLABORATION 317-63 (1995) (highlighting mediation as a useful, constructive framework for resolving healthcare disputes); Alan Bloom et al., Alternative Dispute Resolution in Health Care, 16 WHITTIER L. REV. 61, 61-65 (1995) (outlining options in drafting ADR agreements); Stephen Meili & Tamara Packard, Alternative Dispute Resolution in a New Health Care System: Will it Work for EveryoneŒ, 10 Ohio St. J. on Disp. Resol. 23, 24-26 (1994)Google Scholar (detailing options to resolve consumer disputes informally under the Health Security Act); Reeves, James W., ADR Relieves Pain of Health Care Disputes, DlSP. RESOL. J., Sept. 1994, at 14, 14Google Scholar (reporting on ADR as used for resolving disputes between physicians and patients).

148 See Berenson, Robert A., Dispute Resolution of Malpractice in Managed Care, NAT'L INST. DISP. RESOL FORUM, Dec. 1997, at 49, 51Google Scholar (discussing in part the use of contractual arbitration by Kaiser Permanente in California); Metzloff, Thomas B., Alternative Dispute Resolution Strategies in Medical Malpractice, 9 Alaska L. Rev. 429, 437-46 (1992)Google Scholar (analyzing the usefulness of six ADR process in malpractice).

149 See Reeves, supra note 147, at 14.

150 See Metzloff, Thomas B., The Unrealized Potential of Malpractice Arbitration, 31 Wake Forest L. Rev. 203, 204 (1996)Google Scholar.

151 See id.

152 See, e.g., id. at 204 (describing a Michigan statute intended to promote malpractice arbitration). See generally Schor, Neil D., Note, Health Care Providers and Alternative Dispute Resolution: Needed Medicine to Combat Medical Malpractice Claims, 4 Ohio St. J. Disp. Resol. 65 (1988)Google Scholar (discussing various purposes of malpractice arbitration and efforts to promote it).

153 See Baum, Jacqueline R., Note, Medical Malpractice Arbitration: A Patient's Perspective, 61 Wash. U. L.Q. 123, 125 (1983)Google Scholar (arguing that through arbitration statutes states may deprive the patient of rights at a time when they are least able to evaluate the wisdom of their decision to arbitrate); Carter, Patricia I., Binding Arbitration in Malpractice Disputes: The Right Prescription for HMO PatientsŒ, 18 Hamline J. Pub. L.& Pol'Y 423, 424 (1997)Google Scholar (arguing that despite the purported advantages of speed and economy, arbitration may compound the patient's problems instead of resolving them); Elliot, Amy E., Arbitration and Managed Care: Will Consumers Suffer if the Two Are Combined, 10 Ohio St. J. on Disp. RESP. 417, 434 (1995)Google Scholar (arguing that support for arbitration is not unanimous and that the benefits of arbitration must be resolved with legal ideals of contractual and constitutional rights).

154 See, e.g., Broemmer v. Abortion Serv. of Phoenix, Ltd., 840 P.2d 1013, 1017 (Ariz. 1992) (en banc) (holding that an adhesion contract to arbitrate malpractice claims fell outside the plaintiffs reasonable expectations and was therefore unenforceable); Engalla v. Permanente Med. Group, Inc., 43 Cal. Rptr.2d 621, 634 (Cal. Ct. App. 1995) (explaining that a claim of fraud directed to the making of an arbitration agreement is a defense to enforcement of that agreement); Moore v. Fragatos, 321 N.W.2d 781, 790-91 (Mich. App. 1982) (holding that a patient's arbitration agreement is unenforceable because the patient was uninformed and in pain when signing the agreement); Cannon v. Lane, 867 P.2d 1235, 1238 (Okla. 1993) (holding an arbitration clause unenforceable because it bound the HMO member to arbitrate any contractual dispute); Buraczynski v. Eyring, 919 S.W.2d 314, 320 (Tenn. 1996) (explaining that adhesion contracts that are oppressive to the weaker party or serve to limit the obligations and liability of the stronger party are unenforceable); Sosa v. Paulos, 924 P.2d 357, 364 (Utah 1996) (holding an arbitration agreement procedurally unconscionable and unenforceable because the patient did not read the agreement, could not remember signing the agreement and never discussed the agreement with the doctor or the staff)- But see Coon v. Nicola, 21 Cal. Reptr. 2d 846, 851 (Cal. App. 5 Dist.1993) (ruling that a retroactive arbitration agreement was not a contract of adhesion).

155 See, e.g., St. Paul Fire & Marine Ins. Co. v. Nat'l Chiropractic Mut. Ins. Co., 496 N.W.2d 411, 416 (Minn. Ct. App. 1993) (affirming a special arbitrator's authority in a contribution dispute between two professional medical malpractice insurers); Herbert v. Kaiser Found. Hosp(s)., 215 Cal. Rptr. 477, 480 (Cal. Ct. App. 1985) (deciding that the insurance policy's arbitration clause is binding on decedent member's heirs who were not members of the group health plan); Wilson v. Kaiser Found. Hosp(s)., 190 Cal. Rptr. 649, 655 (Cal. Ct. App. 1983) (extending the binding effect of an arbitration clause to include claims made on behalf of newborn members); Hawkins v. Kaiser Hosp(s)., 152 Cal. Rptr. 491 (Cal. Ct. App. 1979); Madden v. Kaiser Found. Hosp., 131 Cal. Rptr. 882, 892 (Cal. 1976) (stating that a state employee insured under the state employer's group health insurance plan is bound to the policy's arbitration clause). See generally Kroeker, Mark R., Finding the Parameters: The Scope of Arbitration Agreements in Medical Service Contracts in California, 1994 J. Disp. Resol. 159 (1994)Google Scholar (discussing the cumulative California case law that gives effect to the state's preference for arbitration in medical service contracts).

156 See Farber & White, supra note 131, at 777 (finding the informal dispute resolution process effectively resolves cases while addressing the cost concerns of formal dispute resolution processes).

157 See Elizabeth Rolph et at., Arbitration Agreements in Health Care: Myths and Reality, 60 Law & Contemp. Probs. 153, 180 (1997)CrossRefGoogle Scholar (finding that the prevalence of arbitration agreements is low in the health field).

158 See id.

159 See U.S. Gen. Acct. Off., Medical Malpractice: Alternatives to Litigation 8 (1992) (discussing how some prominent HMOs mandate the use of arbitration with binding decisions for medical malpractice disputes).

160 See infra notes 334, 345-47 and accompanying text.

161 See, e.g., Kenneth Culp Davis & Richard J. Pierce, Jr., Administrative Law Treatise, §§ 9.1—.8 (3rd ed. 1994) (providing background on administrative due process); Williamf. Fox, Jr., Understanding Administrative Law 151-68 (3d ed. 1997) (explaining the ways federal courts evaluate challenges to agency procedures and the resulting due process issues); Peter H. Schuck, Foundations of Administrative Law 111-22 (1994) (describing the different existing as well as new models for evaluating the structures of the administrative state, as well as which visions of justice and governance guide these principles); Bernard Schwartz, Administrative Law § 5.1 (3d ed. 1991) (describing how the courts have constructed formal adjudicatory procedure leading to the virtual judicialization of the administrative procedure, and what rights are required by due process before an administrative agency).

162 See Pub. L. No. 79-15, 59 Stat. 33 (1945) (codified as amended at 15 U.S.C. §§ 1011-1014 (1994).

163 See Kathleen Heald Ettlinger Etal, State Insurance Regulation 8 (1995) (providing a basic understanding of regulation as enforced by state insurance departments and how regulating activities are divided into market conduct regulation and solvency regulation); Banks Mcdowell, the Crisis in Insurance Regulation 31-36 (1994) (explaining that insurer solvency and market conduct are insurance goals).

164 SeeThe NAIC: A Tradition of Consumer Protection (visited Feb. 2, 1999) <http://www.naic.org/lmisc/aboutnaic/about/about01.htm>.

165 See Nat'L Ass'N of Ins. Comm'RS, Compendium Of state Laws on Insurance Topics: Mandated Benefits (2000) (listing statutory coverage requirements by state).

166 See supra note 4 and accompanying text.

167 CLEAR stands for "Consolidated Licensure for Entities Assuming Risk."

168 See Health Care Quality and Consumer Protection: Hearings before the Senate Comm. on Labor and Human Resources, 105th Cong. 66-74 (1997) (statement of Kathleen Sebelius, National Association of Insurance Commissioners).

169 See Utilization Review Model Act (1996), in Nat'L Ass'N of Ins. Comm'Rs, Model Regulation Service 1-73-1 (1998).

170 See Health Carrier Grievance Procedure Model Act (1996), in Nat'L Ass'N of Ins. Comm'Rs, supra note 165, at 1-72-1.

171 See Utilization Review Model Act § 11(B), in Nat'L Ass'N of Ins. Comm'Rs, supra note 165; Health Carrier Grievance Procedure Model Act § 10, in Nat'L Ass'N of Ins. Comm'RS, supra note 165.

172 See Nat'l Ass'N of Ins. Comm'RS, supra note 165, at 1-73-13 - 1-73-16.

173 See Shickich, supra note 105, at § 16.9.

174 See Stayn, Susan J., Securing Access to Care in Health Maintenance Organizations: Toward a Uniform Model of Grievance and Appeal Procedures, 94 Colum. L. Rev. 1674, 1703 & nn. 204–05 (1994)CrossRefGoogle Scholar. See also U.S. Gen. Acer. Off., HMO Complaints and Appeals, supra note 72, at 3.

175 See Model HMO Act (1995), in Nat'L Ass'N of Ins. Comm'RS, supra note 165, at II-430-1; see also Shickich, supra note 105, at § 16.4.

176 See id. §11 .

177 See id.

178 See Model HMO Act Regulations § 9D (1995), in Nat'L Ass'N of Ins. Comm'RS, supra note 165, at 11-432-14.

179 See id.

180 See Stayn, supra note 174, at 1702-03 & n.203.

181 See Federal Health Maintenance Organization Act of 1973, 87 Stat. 914 (1973) (codified as amended at 42 U.S.C. § 300e et seq.). See generally Shickich, supra note 105, at § 16.11.

182 See 42 U.S.C. § 300e(c)(5) (1988); 42 C.F.R. §§ 417.142(a) & 417.143(b)(2) (1992); Stayn, supra note 174, at 1702-03.

183 See Kinney, supra note 34, at 318-19.

184 See U.S. Gen. Acer. Off., HMO Complaints and Appeals, supra note 72, at3.

185 See U.S. Gen. Acct. Off., Indemnity Health Plans: Key Features of Consumer Complaint and Appeal Systems 4 (1998) (noting that some states have regulations or statutes governing complaint and appeal procedures in such plans).

186 See Utilization Review Model Act, in Nat'L Ass'N of Ins. Comm'RS, supra note 165, at I-73-1.

187 See Health Carrier Grievance Procedure Model Act, in Nat'L Ass'N of Ins. Comm'RS, supra note 165, at 1-72-1.

188 See Ettlinger Etal, supra note 163, at 89-127.

189 See Health Care Quality and Consumer Protection: Hearings before the Senate Comm. on Labor and Human Resource, supra note 168, at 66-74 (statement of Kathleen Sebelius, National Association of Insurance Commissioners).

190 See Model Unfair Claims Settlement Practices Act, in Nat'L Ass'N of Ins. Comm'RS, supra note 165, at IV-900-1 (protecting consumers from unfair, deceptive and discriminatory insurance companies).

191 See id. §3 .

192 Unfair Trade Practices Model Act, in Nat'L Ass'N of Ins. Comm'RS, supra note 165, at IV-900-1.

193 See id. §§ K & O.

194 See Health Care Quality and Consumer Protection: Hearings before the Senate Comm. on Labor and Human Resources, supra note 168, at 66-74 (statement of Kathleen Sebelius, National Association of Insurance Commissioners).

195 See U.S. Gen. Acct. Off., Indemnity Health Plans, supra note 185, at 8 (noting that a small proportion of independent plans have recommended features applicable to HMOs and indemnity plans, and that the largest differences between HMOs and indemnity plans are the methods for expedited review and written notice of appeal denials).

196 See Ettlinger Etal, supra note 163, at 102.

197 See id.

198 See U.S. Gen. Acct. Off., Indemnity Health Plans, supra note 185, at 7-8 (discussing the acceptable format of complaints and appeals from members); U.S. Gen. Acct. Off., Rep. No. 160471, HMO Complaints and Appeals, supra note 72, at 23-24 (discussing possible improvements to accessibility of complaint data).

199 See Employee Retirement Income Security Act of 1974 § 503, 29 U.S.C. § 1133 (2000).

200 See id. §§ 1101(a), 1021-1025 (1996) (outlining information to be provided or available to participants and beneficiaries).

201 See id. §1022.

202 See id. § 1104 (describing the duties of fiduciaries under ERISA plans).

203 See 29 U.S.C. § 1133 (1994) (noting that beneficiaries must be given written notice of termination and afforded a review of the claim).

204 See id. See also Health Care Quality: Grievance Procedures: Hearings Before the Senate Comm. on Labor and Human Resources, 105th Cong. 9 (1998) (testimony of Olena Berg, Assistant Secretary of the Pension and Welfare Benefits Administration, DOL) (outlining complaint review procedure); Tracy E. Miller, Center Stage on the Patient Protection Agenda: Grievance and Appeal Rights, 26 J.L. Med. & Ethics 89, 95 (1998) (noting Erisa's minimal procedures).

205 °5 See29C.F.R. § 2560.503-1 (e), (g) (1999).

206 See id. §2560.503-1 (g).

207 See supra note 106 and accompanying text.

208 See 29 C.F.R. § 2560.503-l(j) (1999).

209 See Hearings on Health Care Quality: Grievance Procedures, supra note 204, at 7-12 (discussing lack of external review and resulting problems); U.S. Gen. Acct. Off., Employer-Based Health Plans: Issues, Trends, and Challenges Posed by Erisa (1995).

210 See generally Request for Information, Claims Procedures for Employee Benefit Plans, 62 Fed. Reg. 47,262 (1997) (proposed Sept. 8, 1997) (to be codified at 29 C.F.R. pt. 2560) (discussing how the minimum standards set forth in the ERISA benefit claims procedure regulations should be amended).

211 See supra note 7 and accompanying text.

212 See Employee Retirement Income Security Act of 1974, Rules and Regulations for Administration and Enforcement; Claims Procedure, 63 Fed. Reg. 48,390 (1998) (proposed Sept. 9, 1998). As this article proceeds to printing, the Clinton Administration promulgated the final rule. See 65 Fed. Reg. 70,246-01 (Nov. 21, 2000).

213 See Dept. of Labor, Pension and Welfare Benefits Administration, Press Release, Labor Department Proposes New Regulation to Give Patients Faster Answers and More Information from Their Health Care Plans (Sept. 8, 1998) (visited Sept. 28, 2000) <http://www.dol.gov/dol/opa/public/media/press/pwba/pwb98372.htm> (proposal of new regulation to help patients have fair and faster reviews with their health plans when they have grievance claims).

214 See Memorandum on Federal Agency Compliance with the Patient Bill of Rights, supra note 6 and accompanying text.

215 See Social Security Amendments of 1965, 42 U.S.C. § 1395 (1994 & Supp. IV 1998).

216 42 U.S.C. §§ 1395c - 1395i (1994 & Supp. IV 1998).

217 Id. §§ 1395j- 1395w.

218 Balanced Budget Act of 1997, Pub. L. No. 105-33, §§ 4001-4003, 111 Stat. 251, 275-331 (codified as amended in scattered sections of 42 U.S.C. 1395w-21 (Supp. IV 1998)).

219 See Medicare Appeals Processes: Hearings Before the Subcomm. on Health of the House Comm. on Ways and Means, 105th Cong. 9-14 (1998) (statement of Michael Hash, Deputy Administrator, HCFA).

220 SeeU.S.C. §§ 13951T, 1395u (1996) (setting forth provisions concerning appeals and review of denials of payment and services); Phyllis E. Bernard, Social Security and Medicare Adjudications at HHS: Two Approaches to Administrative Justice in an Ever-Expanding Bureaucracy, 3 Health Matrix 339, 400-412 (1993) (discussing Medicare appeals); Kinney, Eleanor D., The Medicare Appeals System for Coverage and Payment Disputes: Achieving Fairness in a Time of Constraint, 1 Admin. L.J. 1, 35-54 (1987)Google Scholar (discussing the separate procedures for beneficiary appeals under Part A and other appeals under Part B). See also Blanchard, Timothy P., Medical Necessity" Denials as a Medicare Part B Cost-Containment Strategy: Two Wrongs Don 't Make it Right or Rational, 34 St. Louis U. L.J. 939, 964-972 (1990)Google Scholar (describing the various means of appeal under Part B, including "Carrier Review, Carrier 'Fair Hearing,' Administrative Law Judge Hearing, Appeals Council Review and Judicial Review").

221 SeeU.S.C. § 1320c-4 (1996) (Where the reconsideration is adverse to the beneficiary and where the matter in controversy is $200 or more, such beneficiary shall be entitled to a hearing by the Secretary. . . .").

222 See id. § 1395ff (outlining appeals under Parts A and B).

223 See id. § 1395u (stating that carriers will establish ways for individuals to have fair hearings by the carriers for denials of payment under Part B).

224 See Balanced Budget Act of 1997, Pub. L. No. 105-33, 111 Stat. 251, 275-331 (codified at scattered sections of 42 U.S.C. §1391w-21).

225 See Medicare Program; Establishment of the Medicare+Choice Program, 63 Fed. Reg. 34,968,35,021 (1998) (to be codified at scattered sections of42C.F.R. pt. 400,403,410,411,422).

226 See Balanced Budget Act of 1997 § 4002 (codified as 42 U.S.C. § 1395w-21).

227 See id. See generally Jennifer E. Gladieux, Medicare+Choice Appeal Procedures: Reconciling Due Process Rights and Cost Containment, 25 Am. J.L. & Med. 61 (1994) (explaining that the Balanced Budget Act of 1997 provided medicare beneficiaries with access to a variety of health plans in addition to fee-for-service plans).

228 See Balanced Budget Act of 1997 § 4002 (codified as 42 U.S.C. § 1395w-21).

229 See id.

230 See id.

231 See id. §4001 (to be codified at 42 U.S.C. §1395w-22).

232 See id.

233 See Balanced Budget Act of 1997 § 4001 (to be codified as Social Security Act § 1852(g)(4)) (stating that the Secretary shall contract with an independent entity to resolve reconsiderations that affirm denial of coverage).

234 See 42 U.S.C. § 1395mm(c)(5) (1994) (stating that the organization must provide meaningful procedures for hearing and resolving grievances between the organization and members enrolled with the organization); 42 C.F.R. 417.600-638 (1994) (detailing the grievance and appeals process). See also Dep't Health & Human Services, Off. Inspector Gen., Medicare HMO Appeal and Grievance Process—Overview (1996); Geraldine Dallek & Ron Pollack, Medicare Managed Care: Securing Beneficiary Protections, in Policy Options for Reforming the Medicare Program 79, 80-81 (Stuart H. Altman et al. eds., 1997) (describing the HMO appeals process prior to the Medicare+Choice program as inadequate); Stayn, supra note 174, at 1691; Sally Hart Wilson, An Introduction to Medicare Managed Care: Appeal Rights and Other Remedies, the Elder Law Report, April 1997, at 1, 1; Carol S. Jimenez, Medicare HMOS: A Consumer Perspective, 26 Seton Hall L. Rev. 1195, 1208-1211 (1996) (describing Medicare dispute resolution processes and consequent due process issues); Kinney, Eleanor D., Medicare Managed Care from the Beneficiary's Perspective, 26 Seton Hall L. Rev. 1163, 1179 (1996)Google Scholar (describing Medicare publication, grievance and appeal procedures); Chiplin, Alfred J., Jr. & Patricia B. Nemore, Due Process Considerations for Medicare and Medicaid Beneficiaries in Managed Care Systems, 29 Clearinghouse Rev. 629, 632-37 (1995)Google Scholar (delineating Medicare and Medicaid hearing rights in order to advocate due process rights in such managed care systems); Medicare Rights Center, Systemic Problems with Medicare HMOs (visited Sept. 18, 1998) <http://www.medicarerights.org/maincontentpolicysystemichmo.html> (analyzing the 179 cases the Medicare Rights Center handled during the first six months of its National HMO Appeals Hotline to discuss flaws and make corrective recommendations); Medicare Rights Center, Medicare Appeals and Grievances: Strategies for System Simplification and Informed Consumer Decision-Making (visited Oct. 15, 1996) <http://www.medicarerights.org/maincontentpoIicyappealsexecreport.html> (aiming to apprise policy makers and the public of limitations in the current Medicare appeal system and to recommend ways to improve the system).

235 Medicare & Medicaid Guide [1989 Transfer Binder] (CCH) 1 37,809 (CD. Cal., Mar. 14, 1989).

236 See Stayn, supra note 174, at 1694 & n.135.

237 See id.

238 152 F.3d 1115 (9th Cir. 1998), affg 946 F. Supp. 747 (D. Ariz. 1996).

239 See id. at 1119.

240 See id.

241 See id.

242 See 119 S. Ct. 1573 (1999), vacating and remanding, 152 F.3d 1115 (9th Cir. 1998).

243 See ll9S . Ct. 977(1999).

244 See id.

245 See Visocan, Karen, Recent Changes in Medicare Managed Care: A Step Backwards for ConsumersŒ, 6 Elder L.J. 31, 42 (1998)Google Scholar (asserting that because new BBA language does not clarify whether an appeal may be taken from termination or reduction of service, plans may interpret it narrowly). See also Medicare Program; Establishment of an Expedited Review Process for Medicare Beneficiaries Enrolled in Health Maintenance Organizations, Competitive Medical Plans, and Health Care Prepayment Plans, 62 Fed. Reg. 23,368, 23,375 (1997) (to be codified at 42 C.F.R. pt. 417).

246 See Social Security Act, 42 U.S.C. § 1395u, ff(b), mm(c)(5) (1994) (providing for administrative and judicial review of Medicare Part A, Part B and HMOs); Reconsiderations and Appeals Under Medicare Part A, 42 C.F.R. § 405.701-405.753 (1997); Appeals Under the Medicare Part B Program, 42 C.F.R. §405.801-405.877 (1997); Beneficiary Appeals, 42 C.F.R. § 417.600-.638 (1997) (providing for administrative and judicial review of HMOs); Medicare Program; Medicare Appeals of Individual Claims, 62 Fed. Reg. 25,844, 25,844 (1997) (to be codified at 42 C.F.R. pts. 405, 417, 473); Kinney, supra note 220, at 39-53 (detailing the present Medicare appeals system, including appeals under Parts A and B and Waiver of Liability Appeals); Kinney, Eleanor D., Protecting Consumers and Providers under Health Reform: An Overview of the Major Administrative Law Issues, 5 Health Matrix 83, 91, 95 (1995)Google Scholar (alluding to provisions for administrative and judicial review of Medicare beneficiaries' disputes). As this article goes to press, Congress is considering consolidation and reforms of the appeal procedure for Parts A and B. See H.R. 5661, Medicare, Medicaid, and SCHIP Benefits Improvement and Protection Act of 2000, 106th Cong., 2d Sess. (2000).

247 See 42 C.F.R. §405.710(1998).

248 See 42 U.S.C. § 1395ff (1994).

249 716 F.2d 23 (D.C. Cir. 1983) (holding that telephone hearings provided by HHS satisfied due process requirements for all claims except those involving the credibility or veracity of the claimant).

250 See id. at 27.

251 See 42 U.S.C. § 1395ff(b) (1994). See also Bernard, supra note 220, at 385.

252 See Balanced Budget Act of 1997 § 4001 (to be codified as Social Security Act § 1852(g)(5)); Medicare Program: Establishment of the Medicare+Choice Program, 63 Fed. Reg. 34,968, 35,021 (1998) (to be codified in scattered sections of 42 C.F.R. pt. 422).

253 See Social Security Amendments of 1965, Pub. L. No. 89-97, 79 Stat. 286 (codified as amended at 42 C.F.R. § 1396 (1994)).

254 Omnibus Budget Reconciliation Act of 1981, Pub. L. No. 97-35, (j 2175, 95 Stat. 809 (codified as amended at 42 U.S.C. § 1396n(b)(l) (1994)). See Freund, Deborah A. & Edward Neuschler, Overview of Medicaid Capitation and Case-Management Initiatives, Health Care Fin. Rev., 1986 Annual Supp., at 21, 21-22Google Scholar (discussing state initiatives to increase HMO and prepaid health plan enrollment); Robert E. Hurley et al., Managed Care in Medicaid: Lessons for Policy and Program Design 111-13 (1993) (describing positives and negatives of using Medicaid prepaid health plans).

255 Balanced Budget Act of 1997 §§ 4702-4704 (to be codified at 42 U.S.C. § 1396u-2); Medicaid Program, Medicaid Managed Care, 63 Fed. Reg. 52,022, 52,049-52,050 (1998) (proposed Sept. 29, 1998).

256 U.S.C. § 1315(1994).

257 See generally John Holahan et al., Insuring the Poor Through Section 1115 Medicaid Waivers, Health Aff., Spring 1995, at 200 (discussing the obstacles for states in implementing and maintaining the Section 1115 Medicaid program); Rosenberg, Judith M. & David T. Zaring, Managing Medicaid Waivers: Section 1115 and State Health Care Reform, 32 Harv. J. on Legis. 545 (1995)Google Scholar (examining states' use of Medicaid waivers provided by Section 1115); Lisa Axelrod, 77i<Œ Trend Toward Medicaid Managed Care: Is the Government Selling Out the Medicaid PoorŒ, 7 B.U. Pub. Int.L.J. 251, 269 (1998) (discussing the Medicaid managed care problem).

258 See 42 C.F.R. §434.32 (1998); A Health Care Quality Improvement System for Medicaid Managed Care— A Guide for States, [March 1993-November 1993] Medicare & Medicaid Guide (CCH) f 41,669 (July 6, 1993).

259 See, e.g., Jane Perkins, Resolving Complaints in Medicaid Managed Care: The "Brutal Need" for Consumer Protections, Nat'L Inst. Disp. Resol., Forum, Dec. 1997, at 25, 25-28 (describing the barriers patients face in the complaint process); Families USA, Fact Sheet: A Guide to Complaints, Grievances, and Hearings In Medicaid Managed Care (1997) <http://www.familliesusa.org/grievfst.htm>; Jane Perkins Etal, Making the Consumer'S Voice Heard in Medicaid Managed Care: Increasing Participation, Protection and Satisfaction (1996) (analyzing consumer involvement in Medicaid managed care programs). See generally LouiseG. Trubek, The Social HMO for Low-Income Families: Consumer Protection and Community Participation, 26 Set0N Hall L. Rev. 1143 (1996) (discussing the state shift to managed care programs for Medicaid disbursement and how to combine this with the workplace HMO model to create an optimal system).

260 Balanced Budget Act of 1997 § 4702-4704 (to be codified at 42 U.S.C. § 1396u-2).

261 Medicaid Program, Medicaid Managed Care, 63 Fed. Reg. 35,021, 35,049-35,050 (1998) (proposed Sept. 29, 1998).

262 See supra note 6 and accompanying text.

263 See 42 U.S.C. § 1396a(a)(3) (1994); 42 C.F.R. §§ 431.200-431.250 (1998).

264 See Medicaid Program; Medicaid Managed Care, 63 Fed. Reg. 52,021, 52,049-52,050 (1998) (proposed Sept. 29, 1998).

265 See 42 C.F.R. §431.205(1998).

266 See 5 C.F.R. § 890.101 (1998).

267 See 32 C.F.R. §199.10(1998)

268 See 5 C.F.R. § 890.101; Off. of Personnel Management, Federal Employees Health Benefit Program, Standard Contract, § 1.9.

269 See supra note 6 and accompanying text.

270 See 5 U.S.C. §§ 8902-8913; 5 C.F.R. §§ 890.103, 890.105-890.107 (enumerating regulations for administrative personnel regarding correction of errors).

271 See 32 C.F.R. §199.10 (detailing regulations regarding appeal and administrative procedures).

272 See, e.g., Ga. Code Ann. § 45-20-8 (1997); Mass. Gen. Laws ch. 30, § 53 (1992); S.C. Code Ann. § 8-17-330 (Law Co-op. 1976).

273 See supra Part IV.B.l (discussing administrative appeal procedures specified under state insurance codes).

274 See supra note 161 and accompanying text.

275 See 29 U.S.C. §1003(b) (1994), amended by 29 U.S.C. § 1003(b) (Supp. IV 1996) (noting exceptions to the employee benefit plan).

276 See generally Rosenblatt, Rand E., The Courts, Health Care Reform, and the Reconstruction of American Social Legislation, 18 J. Health Pol., Pol'Y & L. 439 (1993)CrossRefGoogle ScholarPubMed (discussing the court's role of protecting the vulnerable individual and groups from powerful pressure to defund their programs and to ignore laws designed to meet their needs).

277 See Davis & Pierce, supra note 161, at §§ 11.1 -.5 (discussing judicial review of agency findings and review's relation to the procedures and rules of evidence used by agency); Schwartz, supra note 161, at §§ 8.9 - .11 (discussing the generous review provisions of the Administrative Procedure Act).

278 See Schwartz, supra note 161, § 8.20.

279 See 5 U.S.C. §§701-706(1994).

280 See Arthur Earl Bonfield, The Federal APA and State Administrative Law, 72 VA. L. REV. 297, 303 (1986) (stating that judicial review is one of the procedures established by a state APA).

281 ' See 5 U.S.C. §706(1994).

282 See Arthur Earl Bonfield & Michael Asimow, State and Federal Administrative Law §§ 9.1-.4 (1989).

283 See 42 U.S.C. § 1395ff(b) (1994).

284 See 28 U.S.C. § 1331 (1996).

285 See 42 U.S.C. § 402(h) (1994); Kinney, supra note 220, at 91-95.

286 See Kinney, supra note 246, at 102 & n.99.

287 See 42 U.S.C. § 1395ff(b) (1994); Kinney, Eleanor D., National Coverage Policy under the Medicare Program: Problems and Proposals for Change, 32 St. Louis U. L.J. 869, 890–92 (1988)Google Scholar (analyzing the process for making national coverage policy under the Medicare program from an administrative and constitutional law perspective).

288 See 42 U.S.C. § 1395ff(b)(3)(B); 5 U.S.C. §§ 552-553 (1994).

289 See 42 U.S.C. § 1395ff(b)(l)— 1395ff(b)(4) (1994).

290 See, e.g., Shalala v. Illinois Council on Long Term Care, 120 S. Ct. 1084, 1094, 1099 (2000) (clarifying and greatly restricting prospective challenges of Medicare program rules and policies outside the scope of statutory provision for administrative and judicial review in the Social Security Act); Heckler v. Ringer, 466 U.S. 602, 614 (1984) (finding that a claim for benefits should be first evaluated under the administrative process); Nat'l Kidney Patients Ass'n v. Sullivan, 958 F.2d 1127, 1137 (D.C. Cir. 1992), cert, denied, 113 S. Ct. 966 (1993) (noting that accordance with the administrative agency's statutory authority is controlling); Abbey v. Sullivan, 978 F.2d 37, 44 (2d Cir.) (mentioning the Supreme Court's concern for "administrative authority"); Roen v. Sullivan, 764F. Supp. 555, 560 (D. Minn. 1991) (highlighting the importance of following administrative procedures).

291 See, e.g., Hughes v. Shalala, No. C-97-20222, 1997 Wl 905157 at *1 (N.D. Cal. 1997) (noting that as long as proper legal standards are applied and the findings are supported by substantial evidence, the court cannot substitute its own conclusion for that of the ALJ); Kelly v. Bowen, 1987 WL 120016 at *3 (W.D. Wash. 1987) (affirming an ALJ finding because the evidence provided substantial support).

292 See supra note 285 and accompanying text.

293 Civil Rights Act of 1871 § 1, 42 U.S.C. § 1983(1988).

294 448 U.S. 1 (1980).

295 See id. at 4.

296 496 U.S. 498 (1990).

297 See id. at 524; see also Erwin Chemerlnsky, Federal Jurisdiction §§ 7.4-7.7 (1994); Payton, Sallyanne, Medical Rationing and the Allocation of Adjudicatory Responsibility under Comprehensive Health Reform in the 103rd Congress: An Administrative Lawyer's Postmortum, 47 Admin. L. Rev. 381, 381 (1995)Google Scholar (noting that Wilder addressed the question of what constitutes a federal right or entitlement).

298 See 5 U.S.C. § 8902(a) (1998).

299 See id. §§ 701-705.

300 See 28 U.S.C. § 1331 (2000).

301 See supra notes 277-80 and accompanying text.

302 See Erisa § 502(e)(1), 29 U.S.C. § 1132(e)(1) (1988). See also Richard Rouco, Available Remedies Under Erisa Section 502(A), 45 Ala. L. Rev. 631, 645 (1994) (discussing how ERISA grants exclusive federal jurisdiction to every action brought under § 502(a) with one exception).

303 See 29 U.S.C. § 1132(a)(2) (1994).

304 See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989)Google Scholar (holding that denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard).

305 See 29 U.S.C. § 1132(a)(3) (1994) (explaining that civil actions may be brought to "(A) enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or(B) to obtain other appropriate equitable relief (1) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan").

306 See Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 52 (1987) (agreeing with Solicitor General of the United States as amicus curiae that state laws within the scope of section 502 of ERISA are preempted because Congress intended section 502 to serve as the exclusive vehicle for action by ERISA plan beneficiaries). See infra Part V.C.4.

307 See 29 U.S.C. § 1144(a). See generally Mary Ann Bobinski, Unhealthy Federalism: Barriers to Increasing Health Care Access for the Uninsured, 24 U.C. DAVIS L. REV. 255 (1990) (noting that ERISA preempts state laws relating to benefit plans); Margaret G. Farrell, ERISA Preemption and Regulation of Managed Health Care: The Case for Managed Federalism, 23 Am J.L. & Med 251 (1997) (stating that ERISA's provision for the preemption of state law burdens interstate employers); Karen A. Jordan, The Shifting Preemption Paradigm: Conceptual and Interpretive Issues, 51 Vand. L. Rev. 1149 (1998) (identifying a shift in how courts interpret the statutory language of preemption); Larry J. Pittman, ERISA's Preemption Clause and the Health Care Industry: An Abdication of Judicial Law-Created Authority, 46 Fla. L. Rev. 355 (1994) (discussing the conflicts between the primary statutory purpose of ERISA and the purpose of the preemption clause, and concluding that federal tort law is necessary to resolve the conflict).

308 See 29 U.S.C. § 1144(b) (1994). See Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 733 (1985) (holding that there is not preemption under either ERISA or the NLRA).

309 See 29 U.S.C. § 1144(c) (1994).

310 See Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 725 (1985).

311 See Patricia McDonnell et al., Self-Insured Health Plans, Health Care Fin. Rev., Winter 1986, at 2, 2 (explaining that if employers self-insure, the ERISA preemption clause will allow them to avoid state regulation); Jensen, Gail A. & Jon R. Gabel, The Erosion of Purchased Health Insurance, 25 Inquiry 328, 329 (1988)Google ScholarPubMed (finding that the passage of ERISA in 1974 prompted employers to self insure, because "employers who elect to self insure are exempt from state insurance laws").

312 See Gabel, Jon R. & Gail A. Jenson, TTieCost of Mandated Benefits, 26 Inquiry 419, 424 (1989)Google ScholarPubMed.

313 See U.S. Gen. Acct. Off., Employer-Based Health Plans: Issues, Trends, and Challenges Posed by Erisa 2 (1995) (discussing issues surrounding ERISA and employer-based health plans).

314 See Weller, Charles D., The Secret Life of the Dominant Form of Managed Care: Self-Insured ERISA Networks, 6 Health Matrix 305, 313 (1996)Google ScholarPubMed (discussing self-insured ERISA networks).

315 See Restatement (Second) of Torts § 917 (1977); W. Page Keeton et al., Prosser and Keeton on the Law of Torts 2 (5th ed. 1984) (defining tort as "a civil wrong other than a breach of contract").

316 See Bovbjerg, Randall R., Legislation on Medical Malpractice: Further Developments and a Preliminary Report Card, 22 U.C. Davis L. Rev. 499, 538 (1989)Google Scholar (describing differences in state reforms occurring during the 1970s and 1980s); Eleanor D. Kinney, Medical Malpractice Reform in the 1990s: Past Disappointments, Future SuccessŒ, 20 J. Health Pol. Pol'Y & L. 99, 110-12, 125-26 (1995) (describing nationwide first-generation malpractice reforms of the 1970s and 1980s, in addition to second-generation tort reform by several states in the 1980s and 1990s).

317 See, e.g., Peter Huber, the Legal Revolution and its Consequences (1988); Stephenj. Carroll & Nicholas Pace, Assessing the Effects of Tort Reforms (1987).

318 See, e.g., Deborah R. Hensler, the Institute for Civil Justice, Summary of Research Results on the Tort Liability System (1986) (emphasizing that the current tort liability system works well for complex cases with multiple legal and factual issues); Deborah R. Hensler, 77ie Real World of Tort Litigation, in Everyday Practices and Trouble Cases 155, 171 (Austin Sarat et al. eds., 1998) (describing satisfaction in ordinary tort cases as moderate); Mark Galanter, Reading the Landscape of Disputes: What We Know and Don 't Know (And Think We Know) About Our Allegedly Contentious and Litigious Society, 31 Ucla L. Rev. 4 (1983) (indicating that only a small portion of disputes become lawsuits and that present litigation levels are not unprecedented); Marc Galanter, Real World Torts: An Antidote to Anecdote, 55 Md. L. Rev. 1093, 1097 (1996) (classifying current proposals for tort reform as flawed and harmful); Deborah R. Hensler, Reading the Tort Litigation Tea Leaves: What's Going on in the Civil Liability SystemŒ, 16 Just. Sys. J. 139, 139 (1993) (asserting that there is not enough empirical research available to conclude that the current tort system is seriously flawed); Saks, Michael J., Do We Really Know Anything About the Behavior of the Tort Litigation System—And Why NotŒ, 140 U. Pa. L. Rev. 1147, 1149 (1992)CrossRefGoogle Scholar (asserting that existing empirical evidence on the adequacy of the tort system can not be used to draw conclusions about how to redesign the system).

319 See supra note 48 and accompanying text.

320 See Kinney, Eleanor D. & Marilyn M. Wilder, Medical Standard Setting in the Current Malpractice Environment: Problems and Possibilities, 22 U.C. Davis L. Rev 421, 438–39 (1989)Google Scholar. The standard of care, as well as its proof and application, in a medical malpractice case is markedly different than in the conventional negligence case. Negligence law leaves the definition of the standard of care and the determination of breach of the standard to members of the medical profession. See id. at 423.

321 See supra note 55 and accompanying text.

322 See Sloan Etal, supra note 53, at 214-17; Weiler, supra note 54, at 61-64.

323 See supra notes 17-19 and accompanying text.

324 See generally Diana J. Bearden & Bryan J. Maedgen, Emerging Theories of Liability in the Managed Health Care Industry, 47 Baylor L. Rev. 285 (1995)Google Scholar; William S. Brewbaker, III, Medical Malpractice and Managed Care Organizations: The Implied Warranty of Quality, Law & Contemp. Probs. 117 (1997) (arguing for the imposition of a tort-based implied warranty of quality on MCOs that would make them liable for selling physician's services that are negligently rendered); William A. Chittenden, III, Malpractice Liability and Managed Health Care: History and Prognosis, 26 Tort & Ins. L.J. 451 (1991) (documenting the history of liability theories with MCOs); Furrow, Barry R., Managed Care Organizations and Patient Injury: Rethinking Liability, 31 Ga. L. Rev. 419 (1997)Google Scholar (critiquing MCO liability theories); Barry R. Furrow, Enterprise Liability and Health Care Reform: Managing Care and Managing Risk, 39 St. Louis U. L.J. 77 (1994) (exploring the legal background for enterprise liability in the health care context); Glenn, Sharon M., Tort Liability of Integrated Health Care Delivery Systems: Beyond Enterprise Liability, 29 Wake Forest L. Rev. 305 (1994)Google Scholar (discussing how to achieve the effects of enterprise liability under alternative tort theories); Sage, William M., Enterprise Liability and the Emerging Managed Health Care System, 60 Law & Contemp. Probs. 159 (1997)CrossRefGoogle Scholar (discussing the ramifications of extending liability to MCOs).

325 See Bovbjerg, supra note 316, at 501; Kinney, supra note 316, at 101-06.

326 See Off. of Technology Assessment, Defensive Medicine and Medical Malpractice 133-139 (1994); see, e.g., Goldschmidt, Jona, Where Have All the Panels GoneŒ A History of the Arizona Medical Liability Review Panel, 23 Ariz. St. L.J. 1013, 1016–18 (1991)Google Scholar; Rasor, Dennis J., Mandatory Medical Malpractice Screening Panels: A Need to Reevaluate, 9 Ohio St. J. on Disp. Resol. 115, 116 (1993)Google Scholar (discussing state-created pretrial medical malpractice screening panels); Stephen Shmanske & Tina Stevens, 77iePerformance of Medical Malpractice Review Panels, 11 J. Health Pol., Pol'Y & L. 525, 525 (1986)CrossRefGoogle Scholar (finding that Arizona's medical malpractice review panels did not make dispute resolution quicker or less costly); U.S. Congress, Off. of Tech. Assessment, Defensive Medicine and Medical Malpractice 133-139 (1994) (summarizing state studies on the effects of medical malpractice tort reforms).

327 See Kinney, Eleanor D. & William P. Gronfein, Indiana's Malpractice System: No-Fault by AccidentŒ, 54 Law & Contemp. Probs. 169 (1991)CrossRefGoogle Scholar; Gronfein, William P. & Eleanor D. Kinney, Controlling Large Malpractice Claims: The Unexpected Impact of Damage Caps, 16 J. Health Pol., Pol'Y & L. 441, 442 (1991)CrossRefGoogle ScholarPubMed (assessing the impact of Indiana's medical malpractice reforms).

328 See Bovbjerg, Randall R. Etal, Administrative Performance of "No-Fault" Compensation for Medical Injury, 60 Law & Contemp. Probs. 71, 72 (1997)CrossRefGoogle Scholar (discussing the implications of implementing a no-fault rule for medical liability occurring during childbirth in Florida and Virginia).

329 See supra note 35 and accompanying text.

330 See supra notes 54-55 and accompanying text.

331 See id.

332 3 See Robert E. Keeton & Alan l. Widiss, Insurance Law: A Guide to Fundamental Principles, Legal Doctrines, and Commercial Practices 628-30 (Practitioner's ed. 1988) (describing how courts construe insurance contracts against the insurer, even in cases without contractual language ambiguity); William M. Shernoff Etal, Insurance Bad Faith Litigation §30.02[3] (1999) (describing unreasonable acts or decisions as the touchstone of bad faith conduct); Milich, Marvin F., The Evolution of the Tort of Bad Faith Breach of Contract: Current Trends and Future Trepidation, 94 Com. L. J. 418, 420 (1989)Google Scholar (summarizing how the insurer's bad faith violation of an insurance contract developed into tort liability); Widiss, Alan I., Obligating Insurers to Inform Insureds About the Existence of Rights and Duties Regarding Coverage for Losses, 1 Conn. Ins. L.J. 67 (1995)Google Scholar.

333 3 See Kenneth S. Abraham, Insurance Law and Regulation: Cases and Materials 429(2ded. 1995).

334 See id. at 429-30.

335 See Fine, Jeffrey E., Opening the Closed Doors: The Duty of Hospitals to Treat Emergency Patients, 24 Wash. U. J. Urb. & Contemp. L. 123, 128 (1983)Google Scholar; Maria O'Brien Hylton, Some Preliminary Thoughts on Deregulation of Insurance to Advantage the Working Poor, 24 Fordham Urb. L.J., Summer 1997, at 627, 702 (arguing that deregulation would allow the insurance industry to function on its own, thereby reducing the number of uninsured); Rothenberg, Karen H., Who CaresŒ: The Evolution of the Legal Duty to Provide Emergency Care, 26 Hous. L. Rev. 21, 75 (1989)Google Scholar (concluding that the COBRA statute imparts a duty to provide emergent care, regardless of ability to pay).

336 See Campbell v. Mincy, 542 F.2d 573, 573 (6th Cir. 1976) (affirming without comment that hospitals have no common law duty to treat every person seeking medical assistance in non-emergency situations); Wilmington General Hosp. v. Manlove , 174 A.2d 135, 140 (Del. 1961) (concluding that a hospital may be liable to a person for refusing medical assistance in the case of an unmistakable emergency); LeJuene Road Hosp., Inc. v. Watson, 171 So.2d 202, 203 (Fla. Dist. Ct. App. 1965) (holding that except in emergencies, a private hospital may refuse services to any applicant for any reason); Hurley v. Eddingfield, 59 N.E.1058, 1058 (Ind. 1901) (finding that defendant-physician was not required by the state to assist the decedent who sent for his assistance, even though the physician was licensed to practice medicine by the state and held himself out to the public as a general practitioner of medicine). See generally Furrow, supra note 80, at §§ 12-14 (noting that courts have held hospitals liable for failure to provide emergency care under detrimental reliance and abandonment theories).

337 See Am. Med. Ass'N, Principles of Medical Ethics § VI (1980); Am. Med. Ass'n, Council on Ethical and Judicial Affairs, Caring for the Poor, 269 JAMA 2533, 2537 (1993) (declaring that "each physician has an obligation to share in providing care to the indigent").

338 See Furrow, supra note 80, at § 12.1 (noting that statutory requirements and regulatory standards may require hospitals to treat indigent persons). See generally Bradford H. Gray, the Profit Motive and Patient Care. (1991) (discussing when hospitals are required to treat nonpaying patients); Robert Charles Clark, Does the Nonprofit Form Fit the Hospital IndustryŒ, 93 Harv. L. Rev. 1416 (1980)CrossRefGoogle Scholar (discussing the regulatory and legal obligations of a not-for-profit hospital).

339 See, e.g., Mercy Med. Ctr. v. Winnebago Cty., 206 N.W.2d 198 (Wis. 1973) (finding a duty to treat in emergency situations); Santurf v. Sipes, 447 S.W.2d 558 (Mo. 1969); Williams v. Hosp. Auth. of Hall County, 168 S.E.2d 336, 336 (Ga. App. 1969) (finding that a public hospital cannot arbitrarily refuse emergency first-aid treatment to a member of the public).

340 See Restatement (Second) Torts § 323 (1965).

341 See, e.g., New Biloxi Hosp., Inc. v. Frazier, 146 So.2d 882, 887 (Miss. 1962) (holding that once a hospital undertakes to render services to a patient, it has a duty to protect that patient's life and well-being); Methodist Hosp. v. Ball, 362 S.W.2d 475, 487 (Tenn. Ct. App. 1961) (finding that a hospital intern has a duty to treat and diagnose a patient who is brought to the emergency room); O'Neill v. Montefiore Hosp. 202 N.Y.S.2d 436, 440 (1960) ("[A] physician who undertakes to examine or treat a patient and then abandons him may be liable for malpractice").

342 See Furrow, supra note 80, §§ 12-14.

343 See 29 U.S.C. § 1144 (1996). See supra notes 308-15 and accompanying text.

344 See supra note 307 and accompanying text. See generally Jacobson, Peter D. & Scott D. Pomfret, Form, Function, and Managed Care Torts: Achieving Fairness and Equity in Erisa Jurisprudence, 35 Hous. L. Rev. 985 (1998)Google Scholar (discussing problems of the "formalistic" analysis currently employed in ERISA preemption jurisprudence, and proposing a more "functional" analysis).

345 481 U.S. 41 (1987).

346 See id. at 45.

347 See id. at 52.

348 See Jordan, Karen A., Tort Liability for Managed Care: The Weakening of ERISA's Protective Shield, 25 J.L., Med. & Ethics 160, 166–73 (1997)CrossRefGoogle ScholarPubMed (concluding that courts allow state tort claims by ERISA plan participants alleging negligence by providers, but ERISA continues to preempt claims alleging negligence in benefit denials); Kilcullen, Jack K., Groping for the Reins: ERISA, HMO Malpractice, and Enterprise Liability, 22 Am. J. L. & Med. 7, 28-50 (1996)Google ScholarPubMed (examining the movement for MCO liability under traditional negligence theories and the effect of Erisa on enterprise liability). See also U.S. Gen. Acct. Off., Erisa'S Effect on Remedies for Benefit Denials and Medical Malpractice 14-21 (1998) (concluding in part that ERISA limits the remedies available to employees of private-sector firms who claim to have been harmed by plans' decisions to deny coverage of a particular service).

349 See supra note 4 and accompanying text.

350 See Corporate Health Ins., Inc. v. Texas Dep't of Ins., 12 F. Supp. 2d 597, 621-26 (S.D. Tex. 1998).

351 See, e.g., Karen Tumulty, Let's Play Doctor, Cnn-Time All Politics, Jul. 13, 1998 <http://www.cnn.com/ALLPOLITICS/1998/07/06/time/healthcare.html>; Lawsuit Issue May Be Key To Managed Care Reform, CNN-TlME ALL POLITICS, Jul. 19, 1998 <http://www.cnn.com/ALLPOLITICS/1998/07/19/hmo/>.

352 See 5 U.S.C. § 8902(m)(l) (1998).

353 See, e.g., Goepel v. National Postal Mail Handlers Union, 36 F.3d 306 (3d Cir. 1994); Howard v. Group Hosp. Serv., 739 F.2d 1508 (10th Cir. 1984) (rejecting preemption); Negron v. Patel, 6 F. Supp. 2d 366 (E.D. Pa. 1998) (rejecting preemption); Kincade v. Group Health Servs. of Oklahoma, 945 P.2d 485, 488-92 (Okla. 1997) (rejecting preemption). Compare Caudill v. Blue Cross and Blue Shield of North Carolina, 999 F.2d 74, 77 (4th Cir. 1993) (finding preemption); Burkey v. Government Employees Hosp. Ass'n, 983 F.2d 656, 659-60 (5th Cir. 1993) (finding preemption); Hanson v. Blue Cross Blue Shield of Iowa, 953 F. Supp. 270, 274-75 (N.D. Iowa 1996) (finding preemption).

354 See, e.g., Ardary v. Aetna Health Plans of Calif., 98 F.3d 496, 499-501 (9th Cir. 1996) (allowing state law claims against private Medicare providers for compensatory and punitive damages); Wartenberg v. Aetna U.S. Healthcare, 2 F. Supp. 2d 273, 280 (E.D.N.Y. 1998) (holding that state law causes of action are not preempted by the Medicare Act where claims are based on the tortious acts of a Medicare benefit administrator).

355 See Hospital Survey and Construction Act, Pub. L. No. 79-725, § 622(0, 60 Stat. 1040, 1043 (1946) (codified as amended at 42 U.S.C. § 291 et seq. (1995)). See also Wing, Kenneth R., The Community Service Obligation of Hill-Burton Health Facilities, 23 B.C.L. Rev. 577, 577-78 (1982)Google Scholar (describing the Hill-Burton program).

356 See 42 U.S.C. § 291(c) (1995).

357 319 F Supp. 603 (E.D. La. 1970) (holding that private civil actions can be maintained under the Hill-Burton Act). See generally Rand E. Rosenblatt, Health Care Reform and Administrative Law: A Structural Approach, 88 Yale L.J. 243 (1978) (discussing the judicial response to the passive enforcement of federally enacted health care standards by administrative agencies).

358 See Cook, 319 F. Supp. at 606; see also Newsom v. Vanderbilt Univ., 653 F.2d 1100, 1122 (6th Cir. 1981) (finding that the Hill-Burton regulations did not prohibit actions challenging the constitutionality of those regulations); Corum v. Beth Israel Med. Ctr., 359 F. Supp. 909 (S.D.N.Y. 1973) (finding corporate plaintiffs asserting interests of persons who were both organization members and members of the injured class had standing to sue under the Hill-Burton Act).

359 See Pub. L. No. 93-641, § 2994, 88 Stat. 2225 (1975).

360 See Pub. L. No. 96-79, 93 Stat. 634 (1979) (codified as amended at 42 U.S.C. § 300s-6 (1994).

361 See 42 U.S.C. § 1395dd (1994). See also Singer, Lawrence E., Look What They've Done to My Law, Ma: Cobra's Implosion, 33 Hous. L. Rev. 113, 115 (1996)Google Scholar (discussing the history of EMTLA); Furrow, Barry R., An Overview and Analysis of the Impact of the Emergency Medical Treatment and Active Labor Act, 16 J. Legal Med. 325, 325-26 (1995)CrossRefGoogle ScholarPubMed; Judith L. Dobbertin, Eliminating Patient Dumping: A Proposal for Model Legislation, 28 Val. U. L. Rev. 291,294(1993).

362 See 42 U.S.C.§ 1395dd(d)(l) (1994) (listing civil penalties incurred by hospital for non-compliance).

363 See id. § 1395dd(d)(2)(A) (a patient may obtain damages for injuries received in the hospital under tort laws of the hospital's location).

364 See, e.g., Burditt v. U.S. Dep't of Health & Human Services, 934 F.2d 1362, 1376 (5th Cir. 1991) (stating that only hospitals that voluntarily participate in the federal government's Medicare program must comply with EMTALA); Melissa K. Stull, Annotation, Construction and Application of Emergency Medical Treatment and Active Labor Act, 104 A.L.R. Fed. 166, 188-89 (1991) (discussing the different issues raised by EMTALA).

365 See, e.g., Fisher v. N.Y. Health & Hosp. Corp., 989 F. Supp. 444, 449 (E.D.N.Y. 1998) (holding that the statute does not provide for a private cause of action against physicians and is not a federal medical malpractice statute); Cooper v. Gulf Breeze Hosp., Inc., 839 F. Supp. 1538, 1538 (N.D. Fla. 1993) (rejecting the plaintiff's claim against a hospital under EMTALA for discharging a patient without first stabilizing his condition); Estate of Enck v. Beggs, No. 94-1568, 1995 WL 519148, at *1(D. Kan. Aug. 30, 1995) (stating the two causes of action recognized by the Tenth Circuit under EMTALA do not include private actions); Lopez-Soto v. Hawayek, 988 F. Supp. 41, 44 (D.P.R. 1997) (EMTALA does not provide a private cause of action against a hospital and physician for misdiagnosis or improper treatment covered by state law). But see Demetrios G. Metropoulos, Note, Son of COBRA: The Evolution of a Federal Malpractice Law, 45 Stan. L. Rev .263, 264 (1992) (arguing that COBRA has really been a federal malpractice law).

366 See Institute of Medicine, Health in A Context of Civil Rights 1 (1981) (noting that Title VI of the Civil Rights Act of 1964 prohibits discrimination in any program or activity receiving federal financial assistance). See generally Wing, Kenneth R., Title VI and Health Facilities: Forms without Substance, 30 Hastings L.J. 137 (1978)Google Scholar (examining the impact of Title VI on health care facilities).

367 U.S.C. § 12112 (1994). See generally David Orentlicher, Destructuring Disability: Rationing of Health Care and Unfair Discrimination Against the Sick, 31 Harv. C.R.-C.L. L. Rev. 49 (1996) (arguing that the ADA prohibits health care rationing on the basis of sickness); Philip G. Peters, Jr., Health Care Rationing and Disability Rights, 70 Ind. L.J. 491 (1995) (considering limits imposed by anti-discrimination laws on the use of effectiveness criteria to allocate health care).

368 See Pub. L. No. 93-112, § 504, 87 Stat. 355 (1990) (amended by 29 U.S.C. § 794 (1994)).

369 See, e.g., Abbott v. Bragdon, 107 F.3d 934, 949 (1st Cir. 1997) (holding that, under the ADA, performing routine dental care for an HIV positive woman does not constitute a "direct threat" to the health of the dentist who refused to treat her in his office); Glanz v. Vernick, 756 F. Supp. 632, 632(D. Mass. 1991) (discussing an HIV positive patient who sued a doctor for refusing to perform surgery); Woolfolk v. Duncan, 872 F. Supp. 1381, 1381 (E.D. Pa. 1995) (discussing an HIV positive patient who sued his primary care physician, hospital and managed care program for refusing to provide care).

370 See generally Philip G. Peters, Jr., When Physicians Balk at Futile Care: Implications of the Disability Rights Laws, 91 Nw. U.L. REV. 798 (1997) (exploring the limits that the disability rights laws place on provider decisions in the area of life-sustaining care); E. Haavi Morreim, Futilitarianism. Exolicare, and Coerced Altruism: The ADA Meets its Limits, 25 Seton Hall L. Rev. 883 (1995) (examining the purpose and special character of the ADA in the health care context and exposing the limits on provider duties towards the disabled).

371 See Schacht, Laura J., The Health Care Crisis: Improving Access for Employees Covered by Self-Insured Health Plans under ERISA and the Americans with Disabilities Act, 45 Wash. U. J. Urb. & Contemp. L. 303, 325–50 (1994)Google Scholar (discussing loopholes inherent in the ADA that enable health insurance companies and self-insured health plans to discriminate based on illness, and suggesting amendments to eliminate such discrimination); H. Farber, Miriam, Subterfuge: Do Coverage Limitations and Exclusions in Employer-Provided Health Care Plans Violate the Americans with Disabilities Act, 69 N.Y.U. L. Rev. 850, 857 (1994)Google Scholar (examining the impact of ADA section 102, which defines prohibited discrimination to include a number of employment practices). But see John Doe & Richard Smith v. Mutual of Omaha Ins. Co., 179 F.3d 557, 564-65 (7th Cir. 1999) (ruling that caps in insurance policies for the care of AIDS or AIDS Related Complex did not violate the ADA provision prohibiting discrimination in public accommodations).

372 See Furrow, supra note 80, §§ 12-13 (discussing state laws regarding the duty to provide emergency treatment and citing state laws that govern hospital transfers).

373 See id. §§ 12-13 (citing a Pennsylvania law that requires licensed hospitals to provide emergency treatment).

374 See id.

375 See Robert F. Williams, Equality and State Constitutional Law, in Developments in State Constitutional Law 71, 79-82 (Bradley D. McGraw ed., 1985).

376 See generally Karen Ignagni & Kathryn Wilber, Encouraging Innovation in Resolving Disputes Between Health Plans and Their Members, Nat'L Inst. Disp. Resol., Forum, Dec. 1997, at 1; Richardson, David, Dispute Resolution Systems: Fitting the Pieces Together, Nat'L Inst. Disp. Resol., Forum, Dec. 1997, at 16Google Scholar.

377 See, E.G., American Hospital Association, State Issues Forum Designing Consumer Protection Standards (1996); National Society for Patient Representation and Consumer Affairs of the American Hospital Association, in the Name of the Patient: Consumer Advocacy in Health Care (1995).

378 See, e.g.. Consumer Coalition for Quality Health Care, Health Plan Complaint Procedure and Administrative and Judicial Review Requirements (1997); Families USA Outlines Eight Protections Needed By Managed Care Consumers (visited Mar. 6, 1997) <http://www.familiesusa.org/press3_6.htm>; Managed Care A Consumer's Guide: AARP's Key Consumer Protections (visited Dec. 17, 1998) <http://www.aarp.org/monthly/managedcare/aarpkeys.html>.

379 See, e.g., AM. Bar Ass'N, the Commission on Legal Problems of the Elderly, Resolution of Consumer Disputes in Managed care: Insights From an Interdisciplinary Roundtable (Naomi Karp & Erica Wood eds., 1997).

380 See infra notes 389-91 and accompanying text.

381 See generally Hyman, David A., Regulating Managed Care: What's Wrong with a Patient's Bill of Rights, 73 Cal. L. Rev. 221 (2000)Google Scholar (criticizing the patient's bill of rights legislation on efficiency and other grounds); Korobkin, Russell, The Efficiency of Managed Care "Patient Protection Laws: Incomplete Contracts Bounded Rationality, and Market Failure, 85 Cornell L. Rev. 1 (1999)Google Scholar (arguing that patient protection laws adversely affect the managed care market to the detriment of consumers); Hyman, David A., Consumer Protection in a Managed Care World: Should Consumers Call 911Œ, 43 Vill. L. Rev. 409 (1998)Google Scholar (criticizing proposed strategies for consumer protection in managed care plans on efficiency and other grounds).

382 See H.R. 3600, Health Security Act, §§ 5201-5243, 103d Cong. (1994). See. e.g., Jost, TimothyS., Administrative Adjudication under Health Care Reform, 47 Admin. L. Rev. 425 (1995)Google Scholar; Kinney, supra note 287; Louise G. Trubek & Elizabeth A. Hoffmann, Searching for a Balance in Universal Health Care Reform: Protection for the Disenfranchised Consumer, 43 Depaul L. Rev. 1081 (1994).

383 See supra note 5 and accompanying text.

384 See supra notes 7-10 and accompanying text.

385 See generally Am. Arbitration Ass'N Etal, Health Care Due Process Protocol: A Due Process Protocol for Mediation and Arbitration of Health Care Disputes (1998) (discussing protocols for the use of ADR techniques to resolve health care disputes).

386 See id.

387 See. e.g., Marc A. Rodwin, Promoting Accountable Managed Health Care: the Potential Role for Consumer Voice (May 2000); Marc A. Rodwin, The Neglected Remedy: Strengthening Consumer Voice in Managed Care, Am. Prospect, Sept.-Oct. 1997, at 45; Marc A. Rodwin, Consumer Protection and Managed Care: The Need for Organized Consumers, Health Aff., 1996, at 110; Marc A. Rodwin, Consumer Protection and Managed Care: Issues, Reform Proposals, and Trade-Offs, 32 Hous. L. Rev. 1319 (1996).

388 See generally Sage, William M., Physicians as Advocates, 35 Hous. L. Rev. 1529 (1999).Google Scholar

389 See generally Mehlman, Maxwell J., Medical Advocates: A Call for a New Profession, 1 Widener L. Symp. J. 299 (1996)Google Scholar (discussing the need for medical advocates as a new profession of patient representatives); Goldberg, Susan L., A Cure for What AilsΠWhy the Medical Advocate is not the Answer to Problems in the Doctor-Patient Relationship, 1 Widener L. Symp. J. 325 (1996)Google Scholar (discussing concerns about the establishment of a new profession of medical advocates). See also 1CA Resource Center, Health Insurance Counseling and Assistance Programs: Resource for Older Persons Caught in the Health Care Maze (1996).

390 See Law, Sylvia A., A Right to Health Care That Cannot Be Taken Away: The Lessons of Twenty-Five Years of Health Care Advocacy, 61 Tenn. L. Rev. 771, 787-88 (1994)Google Scholar (discussing the need for two types of advocacy: assistance with claims disputes and assurance of programs' compliance with federal regulations).

391 See Annas, George J., Patients' Rights in Managed Care—Exit, Voice, and Choice, 337 New Eng. J. Med. 210, 214 (1997)CrossRefGoogle ScholarPubMed (proposing that "[mjechanisms for resolving disputes about medical care should be quick, easy to use, and fair" and that insurers' dispute-resolution procedures should meet or surpass the Grijalva decision); Walter A. Zelman, Consumer Protection in Managed Care: Finding the Balance, Health Aff., Jan-Feb. 1997, at 158, 165 (1997) (noting the obstacles in organizing and promoting advocacy for general health care consumers).

392 See Cerminara, Kathy L., The Class Action Suit as a Method of Patient Empowerment in the Managed Care Setting, 24 Am. J.L. & Med. 7, 11 (1998)Google ScholarPubMed (stating that consumers should assert themselves in the world of health care).

393 See, e.g., Bernard, supra note 220, at 344-45 (discussing procedural mechanisms for resolving disputes over health insurance); Farrell, Margaret G., The Need For a Process Theory: Formulating Health Policy Through Adjudication, 8 J.L. & Health 201, 201–02 (1993)Google Scholar (discussing the importance of procedural issues in health care); Kinney, Eleanor, Resolving Consumer Grievance in a Managed Care Environment, 6 Health Matrix 147, 149 (1996)Google Scholar (discussing procedures for reducing grievances in managed care); Miller, supra note 204, at 89 (discussing grievance and appeal procedures in health care).

394 See supra note 389 and accompanying text.

395 See, e.g., Ignagni & Wilber, supra note 376; Am. Arbitration Ass'N Etal, supra note 385.

396 See, e.g., Marvin Lieberman, The Consumer, Managed Health Care and Dispute Resolution, Nat'L Inst. Disp. Resol., Forum, Dec. 1997, at 21, 22 (stating that Adr may provide consumers a "voice" in the adjudication process); Metzloff, supra note 148, at 437-46; Metzloff, supra note 150, at 204.

397 See Am. Arbitration Ass'N Etal, supra note 385, at 1.

398 See supra notes 152-59 and infra notes 407-08 and accompanying text.

399 See Bundy, supra note 126, at 14 (discussing how a plaintiff may place a high value on his or her day in court and public vindication); Simon, Roy D., Jr., The Riddle of Rule 68, 54 Geo. Wash.L. Rev. 1, 63 (1986)Google Scholar.

400 See supra Part II.A.l.

401 See supra Part II.B.l.

402 See supra Part I1.A.2.

403 See Jacobi, supra note 120, at 782 (discussing the relevancy of data collection in a data driven quality assurance system).

404 See supra notes 52-54 and accompanying text.

405 See, e.g., Epstein, Richard A., Medical Malpractice: Imperfect Information and the Contractual Foundation for Medical Services, 49 Law & Contemp. Probs. 201, 211 (1986)CrossRefGoogle ScholarPubMed (canvassing reasons why competitive markets and voluntary contracts should develop new liability rules superior to traditional tort rules); Clark c. Havighurst, Health Care Choices: Private Contracts as Instruments of Health Reform 201-15, 272-77 (1995) (discussing ADR with respect to coverage questions and use as a means of tort reform in medical malpractice cases). But see Eleanor D. Kinney, Health Care Choices: Private Contracts as Instruments of Health Reform, 17 J. Legal Med. 331, 336 (1996) (reviewing Clark C Havighurst, Health Care Choices: Private Contracts as Instruments of Health Reform (1995) and discussing in part the value of contract reforms in the modification of tort rules).

406 See Am. Arbitration Ass'N Etal, supra note 385, at 1.

407 See, e.g., Diane Archer & Mai Schechter, Dispute Resolution and the Medicare Consumer, Nat'L Inst. DlSp. Resol., Forum, Dec. 1997, at 37; Brodsky, Karen J. & Stephen A. Somers, Conflicts of Inherent to Medicaid Managed Care Governance and the Building Blocks for Resolution, Nat'L Inst. Disp. Resol., Forum, Dec. 1997Google Scholar, at 33; Alan W. Houseman, ADR, Justice and the Poor, Nat' L Inst. Disp. Resol., Forum, Summer/Fall 1993, at 9.

408 See generally Richard L. Abel, The Contradiction of Informal Justice, in 1 The Politics of Informal Justice 267 (Richard L. Abel ed., 1982); Brunet, Edward, Questioning the Quality of Alternative Dispute Resolution, 62 Tul. L. Rev. 1 (1987)Google Scholar (discussing the quality of justice in ADR); Richard Delgado ETAL, Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution, 1985 Wis. L. Rev. 1359 (1985) (suggesting that power imbalance between parties still exists in the ADR setting); Edwards, Harry T., Alternative Dispute Resolution: Panacea or AnathemaŒ, 99 Harv. L. Rev. 688 (1986)CrossRefGoogle Scholar (analyzing suggestions that ADR is promoted to limit the work of courts in areas affecting minority interests and civil liberties); Hermann, Michelle G., The Dangers of ADR: A Three-Tiered System of Justice, 3 J. Contemp. Legal Issues 117 (1989-90)Google Scholar; Lieberman, Jethro K. & Henry, James F., Lessons From the Alternative Dispute Resolution Movement, 53 U. Chi. L. Rev. 424 (1986)CrossRefGoogle Scholar. See also Marc Galanter & John Lande, Private Courts and Public Authority, 12 Studies in Law, Politics and Society 393 (Susan Silbey & Austin Sarat eds.,1992).

409 See Grenig, supra note 137, at § 1.11 (listing multiple situations in which ADR may not be appropriate).

410 See generally Jerold S. Auerbach, Justice Without LawΠ(1983) (utilizing an historical analysis of American ADR since the original seventeenth century settlement of the colonies).

411 See infra Part VI.A.6 (discussing diminishing procedural due process protections of beneficiaries and inadequate access to common law tort remedies).

412 See supra Part IV.B.

413 See id.

414 See supra Part IV.B.2.

415 See supra Part IV.B.4.

416 See supra Part IV.B.3.

417 See supra Part IV.B.l.

418 See supra Part IV.A.

419 See Karen Pollitz Etal, External Review of Health Plan Decisions: an Overview of Key Program Features in the States and Medicare (1998); Geraldine Dallek & Karen Pollitz, External Review of Health Plan Decisions: an Update (2000).

420 See. e.g., Personal Responsibility and Work Opportunity Act of 1996, Pub. L. No. 104-193, §103(a), 110 Stat. 2105 (to be codified at 42 U.S.C. § 401(a)) (discussing program benefits in the federal/state welfare program); Balanced Budget Amendments of 1997, Pub. L. No. 105-33, § 2102(b)(4), 111 Stat. 554 (to be codified at 42 U.S.C. § 1397(bb)) (discussing program benefits in the Children's Health Insurance Program).

421 35 F.3d 106 (2d Cir. 1994) (holding that applicants lacked a claim of entitlement running against the state, and thus do not have a due process property interest). See generally Pierce, Richard J., Jr., The Due Process Counterrevolution of the 1990sŒ, 96 Colum. L. Rev. 1973 (1996)CrossRefGoogle Scholar (explaining the retreat of the court from procedural due process safeguards).

422 See id.

423 See id. 397 u.S. 254 (1970) (recognizing that when welfare is discontinued, an evidentiary hearing provides recipient with procedural due process).

424 See id. at 262.

425 See id.

426 See id. 424 us . 319 (1976) (holding that an evidentiary hearing is not required prior to termination of disability benefits, and that present administrative procedures for such termination fully comports with due process).

427 See id. at 348.

428 See id.

429 See, e.g., Duxbury, Neil, Faith in Reason: The Process Tradition in American Jurisprudence, 15 Cardozo L. Rev. 601 (1993)Google Scholar; Mashaw, Jerry L., Administrative Due Process: The Quest for a Dignitary Theory, 61 B.U. L. Rev. 885 (1981)Google Scholar; Saphire, Richard B., Specifying Due Process Values: Toward a More Responsive Approach to Procedural Protection, 127 U. Pa. L. Rev. 111 (1978)CrossRefGoogle Scholar; Friendly, Henry, Some Kind of Hearing, 123 U. Pa. L. Rev. 1267 (1975)CrossRefGoogle Scholar.

430 See, e.g., Mashaw, Jerry L., The Supreme Court's Due Process Calculus for Administrative Adjudication in Mathews v. Eldridge: Three Factors in Search of a Theory of Value, 44 U. Chi. L. Rev. 28, 47-49 (1976)CrossRefGoogle Scholar (classifying the three factors as imprecise and problematic when administered by courts); Farina, Cynthia R., Conceiving Due Process, 3 Yale J. L. & Feminism 189, 219–20 (1991)Google Scholar (stating that individual autonomy and dignity are not served under the cost-benefit approach).

431 See Jerry L. Mashaw, Due Process in the Administrative State 161-62, 169 (1985) (discussing the ways in which legal processes defining participants and regulating participation must be considered when judging the legitimacy of public decision making); Mashaw, supra note 430, at 47-49; Farina, supra note 430, at 219-20.

432 See, e.g., Robert A. Baruch Bush & Joseph P. Folger, the Promise of Mediation: Responding to Conflict Through Empowerment and Recognition 56, 58 (1994) (arguing that optimal solutions are those that creatively meet the needs of all parties); William L. Ury Etal, Getting Disputes Resolved: Designing Systems to Cut the Costs of Conflict 39 (1988) (discussing the questions to ask when drafting a contractual dispute resolution clause); Robert A. Baruch Bush, The Dilemmas of Mediation Practice: A Study of Ethical Dilemmas and Policy Implications, J. Disp. Resol. 1994, at 1, 3 (stating that mediation can fashion creative solutions of higher quality than a "by-the-rules" court decision); Edward A. Dauer Etal, Strategies and Tools for Cost-Effective Dispute Management, 11 Alternatives To High Cost Litigation, 154, 156-58 (1993) (discussing the potential of ADR in the health dispute context).

433 See Grenig, supra note 137, at §§ 1.2, 1.12 (noting that alternative dispute resolution is most effective when introduced early and that it can by initiated whenever a dispute arises).

434 See, e.g., E. Allan Lind & Tom R. Tyler, the Social Psychology of Procedural Justice (1988) (summarizing this research).

435 See John Thibaut Etal, Procedural Justice as Fairness. 26 Stan. L. Rev. 1271, 1284 (1974) (discussing the powerful feeling associated with control of a case); John Thibaut & Laurens Walker, A Theory of Procedure, 66 Cal. L. Rev. 541, 551 (1978) (noting that the freedom of disputants to control their claims was the best assurance that justice has been done regardless of the verdict); Laurens Walker, Etal, The Relation Between Procedural and Distributive Justice, 65 Va. L. Rev. 1401, 1402, 1415–16 (1979)CrossRefGoogle Scholar (discussing that a litigation model that assigns a high degree of control over the process and final decision to the disputing parties is preferred).

436 See Sheppard, Blair H., Justice is No Simple Matter: Case for Elaborating Our Model of Procedural Fairness, 49 J. Personality Soc. Psychol. 953, 959 (1985)CrossRefGoogle Scholar (concluding that procedures permitting parties an opportunity to present their side of a case and an opportunity to appeal an unfair decision increased the perceived fairness of the overall procedure).

437 See Tyler, Tom R., What Is Procedural JusticeŒ Criteria Used By Citizens to Assess the Fairness of Legal Procedures, 22 L. & Soc. Review 103, 128–31 (1988)CrossRefGoogle Scholar (finding that citizens identify seven distinct aspects of process and that the meaning of procedural justice varies based on circumstances).

438 See Poythress, Norman G. Etal, Procedural Justice Judgements of Alternative Procedures for Resolving Medical Malpractice Claims, 23 J. Applied Soc. Psychol. 1639, 1647 (1993)CrossRefGoogle Scholar (finding that in a survey rating various procedure systems, hybrid procedural models such as the bifurcated trial procedure and judge-appointed experts rated more ideal than the adversary system).

439 See Prechler, Carl T., Physicians, Surgeons, and Healers, 61 Am. Jur. 2d § 347 (1981)Google Scholar (stating that an expert's opinion is confined to an opinion of what might or could have been caused by the facts).

440 See, e.g., Health Care Quality and Consumer Protection, supra note 185; Health Care Quality: Grievance Procedures, supra note 204.

441 See Poythress Etal, supra note 438, at 1647 (concluding that a system of judge-appointed experts rated higher than a system in which the adverse side supplies its own experts).

442 See Sheppard, supra note 436, at 959 (finding that "procedures with an appeals option were more fair than those in which appeals were not available").

443 See id.

444 See Balanced Budget Act of 1997, 42 U.S.C. §§ 1396u-2(b)(4), (c)(l)(A)(ii) (Supp. IV 1998); see also supra notes 261-62 and accompanying text.

445 Medicaid Program, Medicaid Managed Care, 63 Fed. Reg. 52,021 (1998) (proposed Sept. 29, 1998) (proposing to amend Medicaid regulations by allowing states to enroll Medicaid beneficiaries in managed care plans without acquiring waivers).

446 See id. at 52,056 (stating that notices of possible action by MCO on enrollee does not have to contain any references to free legal services that are available).

447 See Reich, Charles A., The New Property, 73 Yale L.J. 733 (1964)CrossRefGoogle Scholar; Charles A. Reich, Individual Rights and Social Welfare, 94 Yale L.J. 1245 (1965).

448 See 397 U.S. 254, 261-63(1970).

449 See Schwartz, supra note 161, at §§ 5.15-5.16.

450 See 424 U.S. 319, 349 (1976); see also supra notes 421-23 and accompanying text.

451 See, e.g., Resnick, Judith, Due Process: A Public Dimension. 39 U. Fla. L. Rev. 405 (1987)Google Scholar; Rubin, Edward L., Due Process and the Administrative State, 72 Cal. L. Rev. 1044 (1984)CrossRefGoogle Scholar; Terrell, Timothy P., Liberty and Responsibility in the Land of "New Property": Exploring the Limits of Procedural Due Process, 39 U. Fla. L. Rev. 351 (1987)Google Scholar; Tribe, Lawrence, Structural Due Process, 10 Harv. C.R.-C.L. L. Rev. 269 (1975)Google Scholar; William Van Alstyne, Cracks in the "New Property": Adjudicative Due Process in the Administrative State, 62 Cornell L. Rev. 445 (1977)Google Scholar. See also Fallon, Richard H., Jr., Some Confusions about Due Process, Judicial Review, and Constitutional Remedies, 93 Colum. L. Rev. 309 (1993)CrossRefGoogle Scholar; Mashaw, supra note 431, at 161-62; Farina, supra note 430, at 219-20.

452 See Richard Epstein, No New Property, 56 Brook. L. Rev. 747, 762 (1990) (claiming "[s]o long as resources are scarce, there is the clear expectation that no recipient has any vested rights in the continuation of present welfare schemes"); Richard B. Stewart & Cass R. Sunstein, Public Programs and Private Rights, 95 Harv. L. Rev. 1193, 1235 (1982) (asserting that redefining common law entitlements is beyond the capacity of a judge's case-by-case evaluation); Stephen Williams, Liberty and Property: The Problem of Government Benefits, 12 J. Legal Stud. 3, 9 (1983) (questioning why the Court should increase the security interest of a government benefits holder).

453 See, e.g., Pierce, supra note 421, at 1981 (noting that the Courts partially retreated as to the "nature of minimum procedural safeguards required to accomplish a deprivation of a protected interest, and the scope of interests protected"); Zietlow, Rebecca E., Giving Substance to Process: Countering the Due Process Counterrevolution, 75 Denv. U. L. Rev. 9, 10 (1997)Google Scholar (criticizing the Court's due process jurisprudence as failing to meet society's needs); Symposium, The Legacy of Goldberg v. Kelly: A Twenty Year Perspective, 56 Brook. L. Rev. (1990) (discussing the evolution of due process protections).

454 See Pierce, supra note 421, at 1973 (noting that the due process equilibrium has become unstable and unendurable).

455 119 S. Ct. 977, 980 (1999).

456 See, e.g., Grijalva v. Shalala, 152 F.3d 1115, 1121 (9th Cir. 1998), vacating and remanding, 119 S. Ct. 1573 (1999) (holding that an HMO is a federal actor when denying medical services to Medicare beneficiaries); Catanzano v. Wing, 103 F.3d 223, 228-29 (2d Cir. 1996) (holding that Certified Home Health Agencies are state actors when there are administrative hearing decisions about due process rights).

457 152 F.3d 1115 (9th Cir. 1998), vacating and remanding, 119 S. Ct. 1573 (1999).

458 See Pub. L. No. 105-33, §§ 4001-4002, 111 Stat. 275, 330 (codified at 42 U.S.C. §§ 1395(e)-(g)). See also supra notes 242-44 and accompanying text.

459 See supra Part V.C.4 (arguing that there is a controversy regarding ERISA enforcement).

460 See supra note 9 and accompanying text.

461 See $60 Million Spent to Fight HMO Reform, Chi. Trib., Nov. 28, 1998, at 15.

462 See supra note 3 and accompanying text (discussing several trials that have resulted in large recoveries for plaintiffs).

463 See generally supra Part II.A (describing that there has been considerable empirical research completed on medical malpractice claims).

464 See supra note 76 and accompanying text.

465 See supra Part II.B.

466 See supra Part III.A.

467 See supra notes 252-55 and accompanying text.

468 See U.S. Congress, Off. of Technology Assessment, supra note 52 (summarizing this research).

469 See Joel C. Cantor Etal, Addressing the Problem of Medical Malpractice, in To Improve Health and Health Care 1997: the Robert Wood Johnson Foundation Anthology 109 (Stephen L. Isaacs & James R. Knickman eds. 1997). See generally Symposium: Medical Malpractice: Lessons for Reform, 54 law & contemp. probs. 1 (1991); Symposium: Medical Malpractice: External Influences and Controls, 60 law & contemp. probs. 1 & 2 (1997). The Harvard Malpractice Study of malpractice in New York hospitals was also partially funded under this program. See supra note 54 and accompanying text.

470 See U.S. dep'T of Health & Human Services, Agency for Health Care Policy and Research, Summary Report: Issues in Medical Liability: A Working Conference 1 (1991).

471 See Kinney, Eleanor D., Behind the Veil Where the Action Is: Private Policy Making and American Health Care, 51 Admin. L. Rev. 145, 196 (1999)Google Scholar (stating that private policy is pervasive in the American health care sector, and shapes the content and quality of health care services).