The second social construction of HIV disease has begun. In the first fifteen years of the HIV epidemic, many viewed the disease “as the modern plague.” Now, as the epidemic matures and new “miracle treatments" are heralded, the disease is beginning to conjure a very different set of images. Where once AIDS was dreaded as the inexplicable cataclysm of the end of the millennium, now, as the virus appears amenable to treatment, we are beginning to see the disease as something both preventable and controllable, no longer beyond human direction. And, where the disease was once synonymous with death, disability, and decline, we now witness stories of miracle recoveries and long-term survival. In the minds of many, the terminal disease has become the chronic disease; the dreaded plague has become but another social problem.

In most respects, the new social construction of HIV, emerging from the advent of potentially effective medical interventions, is a positive development.

Spurred by President Ronald Reagan's 1986 Executive Order seeking to establish a drug-free workplace and by the growing empirical data purporting to show a loss of time, money and productivity due to the adverse effects of substance abuse, employers in both the public and private sector have implemented drug testing programs on an unprecedented scale. Today, employers subject an estimated thirty million workers to some type of employer-sponsored drug and alcohol testing in the workplace. A 1996 survey by the American Management Association reports that eighty-one percent of all major corporations now employ some type of drug testing program, a fourfold increase in nine years.

While drag testing in the health care sector is rising, it still lags behind other industries. When a hospital does test, it often exempts a crucial job classification—physicians. This Article's thesis centers on the potential liability hospitals face by failing to include drug testing in its hiring and credentialing process.

As the delivery of health care continues to be driven by the search for an effective means of reducing costs and delivering quality care to the greatest number of people, the industry’s most beloved buzzword, perhaps ironically, has a root suggestive of a focus on the individual: capitation. Capitation is widely regarded as a method of realigning economic incentives to produce fair prices, real value, reasonable profits and predictable growth in costs. Beyond being a mere payment mechanism, though, capitation represents a philosophical shift to an accountability approach for health care delivery, whereby focus is increasingly directed on prepayment of capitated amounts to risk-bearing delivery systems. Theoretically, the premise makes a great deal of sense: to achieve optimal levels of care delivered and costs expended, incentivize persons or entities with the capacity to affect such levels so that economic reward follows effective management of resources.

Placing, for the moment, faith in the innovative capacities of the marketplace to seek out new and improved ways of delivering health care, the evolution of the capitated arrangement indicates that what makes sense in theory may also make sense in practice.

Justice Stewart’s 1966 dictum about the inevitability of government success in challenging mergers under Section 7 of the Clayton Act held true for another fifteen years or so. In the early 1980s, however, federal enforcement agencies, the Department of Justice (DOJ) and the Federal Trade Commission (FTC), began to find the federal courts less hospitable to antitrust merger cases as more sophisticated economic inquiries and changing proof burdens complicated the task of identifying anticompetitive mergers. Indeed, since the early 1980s, the government has lost more litigated merger cases than it has won and has come under criticism from some quarters for becoming gun shy and not adequately policing the wave of consolidations that have occurred over the past decade.

Hospital mergers, however, are a different story. Until two years ago, the government rode a streak of important victories in federal courts and FTC administrative proceedings, and had obtained consent decrees from scores of hospitals that had announced plans to merge.

Discovering the genetic basis of a particular disease is not only of great interest to the medical community; private health insurers are also anxiously awaiting the results of genetic linkage studies. Apart from the scientific value of DNA studies, the results of genetic linkage research are relevant to health care delivery in two principal ways. First, identifying the genetic origin of a disease may allow doctors to detect the disease earlier. If doctors know that an individual is genetically predisposed to a particular disease, then health care providers can increase screening efforts and watch for early symptoms. Second, if an individual has a genetic predisposition to a particular disease, health care providers may employ preventive or “prophylactic" measures to reduce or eliminate the risk of developing the disease or condition to which the individual is genetically predisposed. Genetic linkage studies will soon allow more individuals to learn of their own genetic predispositions to certain diseases. Currently genetic predisposition tests (both pedigrees of family history and DNA analysis) can indicate that an individual is at high risk for developing a disease.

Two recent circuit court decisions have reinvigorated the debate over the constitutional, practical and ethical ramifications of physician-assisted suicide. In Compassion in Dying v. Washington, the Ninth Circuit Court of Appeals held that a liberty interest exists in choosing the time and manner of one’s death. The court found this right to outweigh all asserted state interests, and concluded that, with respect to competent, terminally ill adults, Washington’s prohibition of assisted suicide violates the Due Process Clause of the U.S. Constitution. The ruling effectively strikes down laws against assisted suicide in all of the states in the Ninth Circuit.

In April 1996, in Quill v. Vacco, the Second Circuit Court of Appeals held that New York’s prohibition of assisted suicide violates the U.S. Constitution’s Equal Protection Clause.

The pressures encountered by hospitals in the current era of reimbursement declines and stiffened competition are well known. As the “ultimate” payors—primarily employers and government—aggressively continue to seek low cost care, the response of the hospital industry has been to move toward consolidation and efficiency-enhancing mechanisms.

Increasingly, nonprofit, tax-exempt hospitals have come to believe that they are at a significant disadvantage vis-á-vis their for-profit brethren in their ability to attract the capital needed to compete in the market. A growing trend among nonprofit hospitals, therefore, is to sell to or enter into a joint venture with a proprietary organization, or alternatively to convert to for-profit status. In 1995, fifty-eight nonprofit hospitals became for-profit; hospital conversions to for-profit status in 1996 are projected to outstrip the pace established the prior year.

The conversion trend has not gone unnoticed at the state level. Recently, several states have proposed or enacted laws regulating sales and conversions of nonprofit hospitals, and many more states are contemplating such legislation.

Accompanying its expansive growth over the last fifteen years, the health maintenance organization (HMO) industry transformed from collections of HMOs in local markets into an increasingly national system under the control of centralized corporations. During that time, HMOs established national chains in an effort to capture market share. The move toward nationalization of the HMO industry suggests the need for a critical analysis of the current HMO regulatory structure to determine whether it effectively safeguards the proper functioning of HMOs. As national and regional HMOs compete among themselves and with local HMOs, the need for unified, consistent financial protections with respect to HMOs and similar entities becomes acute. Competition from national HMOs creates increased financial risk for the smaller HMOs whose regional markets were previously insulated from broad-based competition. The need for preventative rules to offset this added risk, as well as a means by which to adjudicate consistently cases of HMO and insurance insolvency, became sufficiently acute that in March 1993 the U.S. House of Representatives sought to regulate federally the solvency of insurance companies by proposing a Federal Insurance Solvency Commission. In addition, to deal effectively with these problems, various industry participants and regulatory entities currently seek other remedies and attempt action of varying degrees.

In the words of its sponsor, Senator Jacob Javits, the Employee Retirement Income Security Act (ERISA) was enacted in 1974 “to maintain the voluntary growth of private [pension and employee benefit] plans while at the same time making needed structural reforms in such areas as vesting, funding, termination, etc. so as to safeguard workers against loss of their earned or anticipated benefits....” Ironically, one of ERISA’s provisions—its indeterminate provision for the preemption of state law—has probably created more uncertainty about the adequacy and security of health care benefits than any other piece of legislation. Neither ERISA nor any other federal statute comprehensively regulates the content of employer provided health care plans, including benefits provided through managed care organizations (MCOs).

Dr. Julia Green is a primary care physician (PCP) licensed to practice medicine in the Commonwealth of Massachusetts. On October 1, 1994, Dr. Green signed a one-year, renewable contract with Allcare Health Plan (AHP). Pursuant to the terms of the contract, on January 1, 1995, AHP placed her on its select list of PCPs available to its 100,000 covered lives (“enrollees”). Dr. Green provided for all primary care and specialist referrals for those enrollees who chose her as their physician. AHP paid her on a fee-for-service (FFS) basis for all preapproved procedures and treatments.

Dr. Green felt that this contract might decrease her autonomy slightly; however, she also felt that it would increase her patient pool significantly and lessen the burden of collecting fees directly from patients. Dr. Green knew that choosing not to sign the contract would preclude AHP enrollees from making her their PCP because AHP only covered treatment provided by its own physicians. She further feared that as enrollment in managed care organizations (MCOs) increases, and more of her colleagues sign managed care contracts, her pool of potential patients would decrease drastically.

Two competing public policies, an individual’s right to choice of medical provider and the need to reduce health care costs, have collided as the federal government and the states implement health care reform. During his first year in office, President William J. Clinton focused on health care reform; however, Clinton was unsuccessful in implementing his “Health Security Act" and national debate dissolved into partisan bickering. With the failure to establish a coherent national policy on health care, the states and private and public health care entities are reshaping the market. Simultaneously, the courts and administrative agencies entertain public policy arguments favoring choice or cost reductions.

Fee-for-service (FFS) medical care allows individuals to receive medical care from their provider of choice. Under the FFS model, individuals chose their health care provider, receive care, and the provider bills an indemnity insurance plan on the basis of service provided. The emergence of managed care organizations (MCOs) narrowed and, in some cases, eliminated this right to choose one’s health care provider.

Massachusetts recently became the first state in the United States to publish physician malpractice histories and hospital disciplinary records. On August 9, 1996, Governor William F. Weld signed the Physician Profile Act (Profile Act or Act) into law, making “profiles” of the Commonwealth’s approximately twentyseven thousand doctors available to the public. Under the Act, the Massachusetts Board of Registration in Medicine (Board) provides information on physicians’ insurance plans, specialties, training, honors, and malpractice histories over a toll-free telephone number, through the Internet and on CD-ROM.

The Act developed partially as a legislative response to a series of Boston Globe articles appearing in late 1994 which savaged the Board. Spotlighting a number of high-profile iatrogenic incidents, this highly charged series of articles, accompanied by a blistering editorial, alleged that some patients suffered substandard medical care at the hands of physicians who had been sued repeatedly for malpractice but never disciplined by the Board.

In the United Kingdom, how does the National Health Service (NHS or the Service) respond to the pressures imposed on it by patients, doctors and the government? What techniques for distributing resources have been adopted for managing these pressures? Part I of this Article explains the administrative evolution of the NHS. Part II discusses the legal framework surrounding the allocation of resources throughout the different tiers of the NHS: (1) from the Secretary of State for Health to health authorities, (2) from health authorities to hospitals and general practitioners (GPs), and (3) from doctors to patients. Part III comments on the case for a standing committee to advise the government on matters of resource allocation within the NHS. It also considers the legal, political, and managerial contributions to the debate and, in particular, comments on the future of the traditional notion of clinical freedom.

Section A describes the culture that developed within the NHS, Section B discusses the pressure for reform that developed during the 1980s, and Section C reviews the system of the “internal market” for health that was introduced in 1990.

What proportion of health care resources should go to programs likely to benefit older citizens, such as treatments for Alzheimer’s disease and hip replacements, and what share should be given to programs likely to benefit the young, such as prenatal and neonatal care? What portion should go to rare but severe diseases that plague the few, or to common, easily correctable illnesses that afflict the many? What percentage of funds should go to research, rehabilitation or to intensive care? Many nations have made such hard choices about how to use their limited funds for health care by explicitly setting priorities based on their social commitments. In the United States, however, allocation of health care resources has largely been left to personal choice and market forces. Although the United States spends around 14% of its gross national product (GNP) on health care, the United States and South Africa are the only two industrialized countries that fail to provide citizens with universal access.

In December 1995, the Eighth Circuit decided Kennedy v. Schafer, holding that a teenage patient who committed suicide while under treatment at a state psychiatric facility had a constitutionally protected liberty interest in a safe and humane environment under the Due Process Clause of the Fourteenth Amendment if her status changed from voluntary to involuntary during the course of her admission. The fifteen year old patient, Kathleen Kennedy, had been identified as a suicide risk, and had been placed on “Protective Suicide Precautions,” which required a designated staff member to keep her in constant eyesight and to interact with her at fifteen to twenty minute intervals. Despite these stringent requirements for supervision and contact, Kathleen was found dead in her room more than two hours after her last contact with a staff member. Her parents brought suit under 42 U.S.C. § 1983 against state and hospital officials, alleging that chronic understaffing and falsification of the records used to determine staffing levels amounted to a pattern of deliberate indifference to patient safety which violated their daughter’s protected liberty interest in a safe and humane environment.