The Privatization of Health Care Reform: Legal and Regulatory Perspectives

By M. Gregg Bloche | Go to book overview

this is not a book about whether or to what degree health care should be provided or paid for by government versus the private sector. Rather, the essays in this volume address challenges that rapid change in the medical marketplace present for the law and for regulatory policymakers. The authors start from the premise that systemic, state-sponsored overhaul of the American way of paying for and providing health care is unlikely in the foreseeable future. Courts and regulators, the authors therefore presume, must make do with the current patchwork of legal regimes that cover health care.

The legislators and judges who crafted these legal regimes did so without medical care specifically in mind. Indeed, the drafters of the statutory schemes that have most shaped the medical marketplace had no inkling that their handiwork would apply to the health sphere. American health law is thus a story of unintended consequences. The confusion, incoherence, and serendipity that have ensued is a central theme of the essays in this book. Another, related theme is the mismatch between law's pursuit of consistency within doctrinal spheres—for example tort and contract, antitrust, and the statutory scheme governing employees' fringe benefits—and the singular complexities of health care markets and institutions. The resulting fragmentation of health care lawmaking has foreclosed coordinated, system-wide policy responses. Beyond this, lack of national consensus on many of the central questions in health care policy has translated into legal contradiction and bitter controversy. These questions include the extent to which access to medical care should track (or depart from) prevailing distributions of wealth; how doctors, hospitals, and health care payers should limit clinical spending; how regulatory powers ought to be spread among federal, state, and local government; and when autonomy, privacy, and other ethical concerns should constrain public and private decision makers.

The speed of entrepreneurial development poses further challenges for health care lawmaking, challenges that several of the chapters in this volume consider. Courts, legislatures, and regulatory agencies are slow, unwieldy decision makers, rarely able to keep pace with private innovation. The very constraints that render judicial and regulatory authority legitimate in a democratic society—norms of due process, reasoned decision making, citizen participation, and political accountability—limit government's ability to gather information and to act quickly and efficiently.1

Some might object to this book's treatment of the medical marketplace as a given—and to the authors' inattention to the possibility of state action to supplant the role of market forces. In the eyes of many market skeptics, government's failure to so act has little to do with popular preferences and much to do with corporate political influence. Seen from this vantage point, analysis aimed at making markets work better errs by accepting a way of doing things that serves the wealthy and the powerful at the public's expense. To be sure, corporate money and webs of influence helped to quash the Clinton Administration's health reform

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