Managed Care and African Americans

ROBYN L. DENT
Copyright @ 1997 Robyn L. Dent. All Rights Reserved.

        After reviewing this bibliography and reading these articles, the reader can expect to have a strong grasp of the history behind the current U.S. health care system and its weaknesses. In addition, these articles should also heighten the awareness of the economic, legal and medical issues raised by health care reform and managed care in the African American community. African Americans must be aware of the impact that these issues will have on the African American community and be prepared to reassess their role in the health care arena. At a minimum, board certification and all other eligibility requirements must be met. 

        Without active, aggressive and responsible participation in the health care process by African Americans on all levels, cost-effectiveness will continue to have a negative impact on this community. 

James F. Blumstein, The Fraud and Abuse Statute in an evolving Health care Marketplace: Life in the Health Care Speakeasy, 22 Am. J. L. and Med. 205 (1996). 

Christine C. Dodd, THE EXCLUSION OF NON-PHYSICIAN HEALTH-CARE PROVIDERS FROM INTEGRATED DELIVERY SYSTEMS: GROUP BOYCOTT OR LEGITIMATE BUSINESS PRACTICE?, 64 U. CIN. L. REV. 983 (1996). 

Ronald Horn, MD, Managed Care: Implications For Under Represented Physicians, Journal of Health Care for the Poor and Under Served, Vol.5, No.3, Page 154, (1994). 

Jack K. Kilcullen, Groping for the Reins: ERISA, HMO Malpractice, and Enterprise Liability, 22 Am. J. L. And Med. 7 (1996). 

Ann G. McGinley, ASPIRATIONS AND REALITY IN THE LAW AND POLITICS OF HEALTH CARE REFORM: EXAMINING ASYMPOSIUM ON (E)QUAL(ITY) CARE FOR THE POOR, 60 Brooklyn L. Rev. 7, (1994). 

MeHarry Medical College, Journal of Health Care For The Poor And Undeserved, Volume 5, Number 3, (1994). 

Vernellia R. Randall, SECTION 1115 MEDICAID WAIVERS: CRITIQUING THE STATE APPLICATIONS, 26 Seton Hall L.Rev. 1069 (1995). 

Vernellia R. Randall, Impact of Managed Care Organizations on Ethnic Americans and Undeserved Population, Journal of Health Care for the Poor and Undeserved, Vol.5, No.3, Page 224,(1994) 

Vernellia R. Randall,DOES CLINTONS HEALTH CARE REFORM PROPOSAL ENSURE EQUALITY OF HEALTH CARE FOR ETHNIC AMERICANS AND THE POOR?, 60 Brooklyn L.Rev. 167(1994). 

Sidney D. Watson, Health Care In The Inner City: Asking The Right Question, 71 N.C.L. Rev. 1647 (1993). 

Judith M. Rosenberg and David T. Zaring, Managing Medicatid Waivers: Section 115 and State Health Care Reform, 32 Harv. J. on Legis. 545 (1995). 

The Impact Of Managed Care On Doctors Who Serve Poor And Minority Patients, 108 Harv. L.Rev. 1625 (1995). 

Mark D. Smith, MD, MBA, Managed Care And The Poor, Journal of Health Care for the Poor and Under served, vol.5, No.3, page 147, 1994. 

Louise G. Trubek & Elizabeth A. Hoffman,Searching for a Balance in Universal Health Care Reform - Protection for the Disenfranchised Consumer, 43 DePaul L.Rev. 1081 (1995). 

Sidney D. Watson, Medicaid Physician Participation: Patients, poverty, and physician self-Interest, 21 Am. J.L. and Med. 191 (1995). 

Thomas P. Weil, PhD, Managed Competition For The Poor: More Promise Than Value?, Journal of Health Care for the Poor and Under Served, Vol.5, No.3, Page 158, 1994. 

UNIVERSAL ACCESS TO HEALTH CARE, 108 Harv. L. Rev. 1323 (1995). 

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MeHarry Medical College, Journal of Health Care For The Poor And Undeserved, Volume 5, Number 3, 1994.
 
 

This journal memorializes several timely presentations at the Sixth National Conference on Health Care for the Poor and Undeserved in Nashville, Tennessee. The topic of the conference was managed care. While not all of the presentations will be summarized herein, they are very informative and worthy of review. The journal categorizes the presentations by providing: an overview of managed car;, the impact of managed care on Medicaid; issues of quality in managed care; the economics of managed care; and training implications for managed care. The following excerpts provide some insight into the interesting issues that were covered at the conference. [back]

Mark D. Smith, MD, MBA, Managed Care And The Poor, Journal of Health Care for the Poor and Under served, vol.5, No.3, page 147, 1994.
 
 

In a presentation entitled, Managed Care and the Poor, Mark D. Smith, MD, MBA, provides a candid introduction to his opinion about what he sees as the realities involving managed care organizations. More specifically, he discusses the importance of refining managed care, so that the interests of government, big business, the middle class and the poor will be served. He addresses four issues that are heavily involved in the debate over managed care. They include: cost-sharing; prevention; traditional providers for the poor; and premium adjustment. Cost-sharing provides patients with a comprehensive benefits package that covers many procedures as long as a recipient complies with the rules of the plan. Failure to comply results in the penalty of non-payment by the plan. This method of managed care presumes that people have discretionary money to pay for health care services. This assumption overlooks the poor, who do not have discretionary income. Providing more preventive services is a fundamental theme of managed care. However, in reality, many members of managed care organizations are not receiving preventive care. The third issue, traditional providers for the poor, addresses the future of minority physicians, Community Health Centers, and minority teaching hospitals. Minority physicians are having a very difficult time joining managed care organizations because of racist and exclusionary membership requirements. These requirements threaten the ability of minority physicians to compete. Finally, poor patients with chronic illnesses are less likely to receive services, because managed care organizations prefer to enroll healthy patients as a cost saving measure. Managed care is not concerned with the needs of the poor, but their needs must be addressed. [back ]

Ronald Horn, MD, Managed Care: Implications For Under Represented Physicians, Journal of Health Care for the Poor and Under Served, Vol.5, No.3, Page 154, 1994.
 
 

In this paper, Dr. Horn identifies recent health care trends and their impact on under-represented physicians,⁽¹⁾ and recommend ways of handling the changes that will occur in health care. Specifically, Dr. Horn believes that managed care will impact the health care industry in the following ways: there will be an increase in the number of primary care physicians; primary care physician salaries will increase to attract more medical students and resident; HMOs will recruit primary care physicians heavily; planning for health care in the further will be a more comprehensive process, combining health care and insurance to ensure universal access, cost containment, and quality; cost-shifting to patients in the plan will be eliminated; physicians and administrators will be open to liability; the administration of the plans will be uniform; physicians in private practice will be forced to join group practices or HMOs; solo or small group practitioners will have difficulty competing with the larger entities; only board certified physicians will be allowed to join managed care organizations and joining will become very competitive; physician-patient relationships will be jeopardized by the gatekeeper mechanisms the managed care organizations require; and good middle aged physicians may retire early or change careers.⁽²⁾
 
 

All of these changes severely threaten the Black community because under-represented physicians -- women, Blacks, and other minorities -- "make up a large percentage of primary care specialties, although the numbers of Blacks and other minorities entering primary care fields" is decreasing.⁽³⁾ In addition, minority medical school graduates traditionally intend to practice in their communities. However, for many economic reasons that relate to cost-effectiveness and because of the demanding medical needs of the Black community, managed care organizations will probably reduce the number of Black physicians they hire.⁽⁴⁾
 
 

Consequently, Dr. Horn recommends that the recruitment and retention of under-represented medical school students must increase, to increase the number of under-represented physicians. Under-represented physicians must involve themselves in the management of the managed care organizations.⁽⁵⁾ In addition, under-represented physicians must meet all of the eligibility requirements of managed care organizations -- i.e. achieving board certification. Finally, private practitioners should join larger practice groups in order to compete for managed care contracts.⁽⁶⁾ [back]

The article explains the concept of managed competition. Managed competition is different than managed care in that it shifts the focus from "amenities and perceived quality to measured differences in price and in outcomes of patient care."⁽⁷⁾
 
 

The author stresses the point that the results of the involvement in the health care industry of Medicaid recipients, report higher costs than fee-for service arrangements. This complicates the ability to incorporate under-represented groups into the managed competition process because their needs are considered counter-productive by managed competition systems.⁽⁸⁾ The author proposes a progressive, yet idealistic solution - linking global budgetary targets and social equity. [back]

Dr. Randall begins her article with a few anecdotes that illustrate the inequities between having adequate health insurance and receiving adequate health care.⁽⁹⁾   This inequity is largely caused by managed care organizations (HMOs, PPOs, IPAs) rationing patient care. The fundamental purpose of managed care organizations is cost saving through strict utilization review and financial risk-shifting.⁽¹⁰⁾ These cost saving mechanisms may have an adverse impact on the health status of ethnic and undeserved populations.⁽¹¹⁾ Furthermore, physicians will be required to act as "gatekeepers", limiting overutilization of recommended services.⁽¹²⁾
 
 

It has been demonstrated that ethnic Americans underutilize, rather than over-utilize, health care services. This underutilization combined with poorer health status, mean that providing quality health care to these groups will be costly which undermines the purpose of managed care.⁽¹³⁾ However, this undermining is also attributable to the fact that managed care does not incorporate multi-cultural perspectives into its cost savings plan. Without these perspectives, it can never effectively improve the health care status of ethnic or undeserved Americans.⁽¹⁴⁾
 
 

This article goes on to discuss managed care organizations and health care reform. Statistics have proven that lower-income individuals or families pay higher out-of-pocket costs than lower-income families.⁽¹⁵⁾ One reason for this discrepancy is that health care has not been rationed for those how have the ability to pay.⁽¹⁶⁾   The next section focuses on utilization review, financial risk-shifting and the affect they will have on the needs of ethnic Americans. Managed care will perpetuate existing disparities among these groups if not monitored correctly.⁽¹⁷⁾ In addition, the standards used to measure managed care outcomes are not representative of ethnic Americans, and must be changed to accommodate culturally relevant care.⁽¹⁸⁾ [back]

This article discusses the current efforts of state governments toward utilizing HMOs as the main source of health care instead of fee-for-service. It further focuses on the transformation from fee-for-service to managed care has caused "managed care groups ro recruit physicians based on selection criteria that undervalue the work of doctors who serve large numbers of poor and minority patients - patients who generally require costlier health care." ⁽¹⁹⁾ It is anticipated that these minority doctors are made extremely vulnerable under the HMO system and may be eliminated.⁽²⁰⁾ Their elimination will mean that the quality of health care delivered to disadvantaged and poor communities will be impaired and health care costs will increase.⁽²¹⁾ The first part of this article evaluates the disproportionate impact the lack of regulation will have on minority physicians and physicians who serve poor and minority communities.⁽²²⁾ This sections considers issues race and socio-economic status in relation to minority doctors, and concludes that the transformation of health care to managed care will result in racial discrimination against minority doctors. This discrimination is largely because these physicians serve people who are considered to be undesirable to HMOs because they are sicker and more costly then other patients. 
 
 

The second part of this article evaluates "the consequences of the disproportionate exclusion of both minority providers and providers who serve poor and minority patients from HMOs."⁽²³⁾ Th disproportionate impact will cause many of these providers to leave the health care industry, which will cause the quality of health care received by their patients to be reduced. This is a senseless consequence, especially for Medicaid HMOs who primarily service recipients of state ⁽²⁴⁾funding who are poor and members of minority groups. 
 
 

The final part of this articles addresses remedies for the disproportionate impact on minority doctors. These remedies reflect both the "prejudice against minority providers and the systematic exclusion of providers who serve poor and minority populations,"⁽²⁵⁾ and focus on the establishment of new laws that will ensure quality, monitor doctor- HMO relationships and "ensure adequate representation of minority physicians and other physicians" serving these communities.⁽²⁶⁾ Surprisingly, Title VII is not among the available remedies. [back]

Vernellia Randall, et. al.,  SECTION 1115 MEDICAID WAIVERS: CRITIQUING THE STATE APPLICATIONS, 26 Seton Hall L.Rev. 1069.
 
 

This article begins by introducing the definition of managed care as "a health delivery system designed to cut cost by eliminating 'unnecessary care"⁽²⁷⁾ and emphasizes the need for managed care organizations to be carefully designed to prevent "an adverse impact on quality of care and patient rights."⁽²⁸⁾ While state Medicaid reform measures such as Section 1115 waivers appear to improve on the recipients access to health care, they actually may not remove nonfinancial obstacles and may result in the perpetuation of institutional racism that already exists in the health care system.⁽²⁹⁾
 
 

This article continues by providing a history of the Medicaid system beginning with the enactment of Title XI in 1964. This section also draws a nexus between federal and state funding for Medicaid and the increasingly high expense associated with it.⁽³⁰⁾ The article continues on by providing an overview of state section 1115 waivers in seven states, including: Florida; Hawaii; Illinois; Missouri; New York; Oregon; and Tennessee. The purpose of the assessment of the waivers in these states is to determine if their effectiveness in improving upon the legitimate Medicaid objectives or whether they disadvantage the recipients.⁽³¹⁾ Within this analysis of the changes brought about by the waivers, this article evaluates: the eligibility requirements; the benefits; the cost sharing requirements; the treatment of providers; changes in managed care; the treatment of special populations; the amount duration and scope of the covered services; categorical eligibility; upper income eligibility limitations; waiver of income deeming rules; HMO enrollment composition; Hospice treatment limits; Freedom of Choice; UPSTATE treatment services; utilization and quality care review; and many other relevant elements of the waiver requirements.⁽³²⁾
 
 

This article proceeds by defining access to care and giving a comprehensive explanation of: adequate provider fees⁽³³⁾; the availability of services across the state⁽³⁴⁾; comparability requirements; sufficient services.⁽³⁵⁾ Next, the financial barriers and nonfinancial barriers to health care are reviewed. The nonfinancial barriers include: language; socio-cultural patient perspectives; insufficient health care resources; and racism.⁽³⁶⁾ Next the article provides a critique of the waivers to determine whether they provide:" (1) mechanisms for recipients to maintain their existing patient-provider relationships; (2) standards by which health care plans will be evaluated to determine whether recipients have adequate access; (3) for the availability of 'Culturally Competent health care; (4) for adequate case management and continuity of care; (5) for adequate provider participation including providers of color; (6) for comprehensive health care services; and (7) allow for cost sharing which might be a financial barrier to health care."⁽³⁷⁾
 
 

The articles concludes with a summation of the faults associated with the state waivers in the areas of access to health care, quality assurance; and cost containment, in spite of the positive appearance of them on paper. [back]

This article provides an analysis of the negative effect that managed cares cost-saving measures have on the poors access to health care. It focuses on the strength f the disenfranchised consumer. "The category of disenfranchised consumers includes those consumers who suffer from a marginalization which prevents them from becoming full members of society."⁽³⁸⁾ "Consumers who are considered disenfranchised in the health care system include persons with Acquired Immune Deficiency Syndrome ("AIDS") or Human Immunodeficiency Virus ("HIV"), the mentally and physically disabled, women of color, the poor, and children."⁽³⁹⁾ These consumers wish to secure health care that caters to their particular needs. They believe that universal coverage, quality health care for all consumers, is too broad and does not adequately represent their needs. However, the authors believe that universal coverage is essential because "in order to have universal coverage, there must be a coordinated system to allocate the resources and ensure that everyone is part of the system."⁽⁴⁰⁾ While the United States does not currently have a universal health care system, the authors believe that such a comprehensive system would reduce the negative stigma of undesirability on the disenfranchised.⁽⁴¹⁾ This is just one example of the positive effect a universal system could have on the disenfranchised. They currently complain about the legal and regulatory support, having a political base, and receiving the support of competent providers.⁽⁴²⁾
 
 

The article continues by conducting an analysis of the health care needs of each disenfranchised group and makes the point that without comprehensive accommodation of each groups needs, the universal system will not be effective.⁽⁴³⁾ This section of the article concludes by stating that each of the disenfranchised consumer groups collectively present an agenda for health care reform that focuses on "prevention, priority to community based and culturally sensitive providers, a non-hierarchical arrangement which gives all health care providers status and recognition, maintaining patient health as opposed to curing their diseases, patient control and education, and an understanding of the patient in the socio-economic and family context."⁽⁴⁴⁾   The article concludes by stating that specifying the needs of disenfranchised consumers will strengthen health care reform legislation.⁽⁴⁵⁾ [back]

Vernellia R. Randall, DOES CLINTONS HEALTH CARE REFORM PROPOSAL ENSURE EQUALITY OF HEALTH CARE FOR ETHNIC AMERICANS AND THE POOR?, 60 Brooklyn L.Rev. 167.
 
 

        President Clinton proposed the Health Security Act (HSA) on November 20, 1993 in response to "concerns about the uninsured and under-insured, about uncompensated care and about cost containment."⁽⁴⁶⁾   This article addresses the effectiveness of the HSA in resolving the economic inequities in the distribution of health care. It also addresses the other social inequities that affect ethnic minorities in the health care system and states that health care reform, ultimately, must be evaluated on how effectively it removes (or at least, significantly reduces) barriers to (e)qual(ity) health care.⁽⁴⁷⁾ This article uses the HSA as a basis for analyzing the potential for health care reform to improve access to health care for ethnic Americans.⁽⁴⁸⁾ The authors analysis includes a description of the HSA as a bill that sets forth the framework for a national health care system. 
 
 

It continues by reviewing the structure of the HSA, and the coverage and benefits it proposes.⁽⁴⁹⁾ Part II of this article addresses the ideologically flawed nature of the HSA. Dr. Randall asserts that by framing the HSA in a manner that appeals to middle class Americans, the needs of the poor and ethnic Americans are not being met and are undermined because it fails to deal with issues like race, culture and class.⁽⁵⁰⁾ These stated ideological goals of the HSA amount to nothing more than political rhetoric and do not address improved health status of Americans.⁽⁵¹⁾ Part III of the article addresses how the HSA perpetuates an inadequate and fragmented health care system that makes no provision for the preservation or modification of the public health structure for delivery of services.⁽⁵²⁾   Finally, this article concludes that HSA will not improve the health care status of ethnic Americans and the poor because "it maintains a structurally and ideologically flawed system; it perpetuates a fragmented system with inadequate infrastructure; it maintains a culturally incompetent system based on illness care; it rations health care through a tiered system based on private interests; and it inadequately protects against health care discrimination."⁽⁵³⁾ [back] 

Sidney D. Watson, Health Care In The Inner City: Asking The Right Question, 71 N.C.L. Rev. 1647 (1993).
 
 

        This article introduces the issues discussed in the Symposium and begins with the problem of access to quality health care with a story about June Kirchik, a poor woman with breast cancer who cannot get treatment from public hospitals and eventually dies. Next, the article discusses the problem of race and health care, focusing on the difficulty inner city African American's have because of racial, poverty and geographic barriers to health care. The high poverty rate among African Americans directly correlates with health care discrimination based on race.⁽⁵⁴⁾ Statistics show that "only about half of all Blacks have private health insurance; one in five have Medicaid or Medicare; and one in five have no health coverage."⁽⁵⁵⁾ "Blacks are 50 percent more likely than whites to have no health insurance and 5 times as likely to be covered by Medicaid."⁽⁵⁶⁾ Furthermore, inner city Blacks have greater health care needs because they are exposed to more environmental pollution than suburban dwellers. They are exposed to the following environmental health hazards: bad air; polluted water; crime; and drugs. As a result, they suffer from the following conditions at a higher rate than people living in the suburbs: hypertension; heart disease; chronic bronchitis, emphysema; sight and hearing impairments; cancer; and congenital anomalies.⁽⁵⁷⁾ This is just a sample of the comprehensive examples of the condition of inner-city Blacks as related to health care.
 
 

        The article suggests several things that would improve health care for Black inner-city residents that compliments the proposal of the Kerner Commission, including: providing jobs; increasing incomes and improving socio-economic status.⁽⁵⁸⁾ "Good health correlates primarily with higher socio-economic status; poor health correlates directly with poverty."⁽⁵⁹⁾
 
 

        These socio-economic goals are further discussed by the other contributors to this Symposium. However, Watson does state that in order for any reform effort for minorities to be effective, the following four issues must be addresses: (1) health care financing; (2) attracting sufficient health care providers into the inner city; (3) combating discrimination in the delivery of health care, and (4) developing new health care delivery systems responsive to the needs of inner city residents^.(60)
 
 

        Furthermore, certain characteristics must be included in the reform package for improvements to occur, including: universal coverage for all residents ; comprehensive coverage of preventive and primary health care; no serious financial barriers to participation; and provider reimbursement rates for any public system comparable to those of privately provided insurance.⁽⁶¹⁾ The article goes on to identify and discuss methods of attracting providers as well as to discuss the feasibility of civil rights enforcement of health care discrimination against inner-city Blacks. Finally, the article candidly concludes that increasing access to health care, by itself, will not improve the health status of inner-city Blacks. Other socio-economic strategies need to be implemented to ensure that the health of poor inner-city minorities is improved. [back]

Ann G. McGinley, ASPIRATIONS AND REALITY IN THE LAW AND POLITICS OF HEALTH CARE REFORM: EXAMINING ASYMPOSIUM ON (E)QUAL(ITY) CARE FOR THE POOR, 60 Brooklyn L. Rev. 7, (1994).
 
 

        This article is part of a symposium sponsored by Brooklyn Law entitled, Ensuring (E)qual(ity)Health Care for Poor Americans. It begins with a story of a pregnant woman who had no insurance, no money, no prenatal care, and whom the local private hospital did not want to admit. From this story, the article introduces the reality that health care for the poor is neither equal nor quality. Medicaid is not extended to all poor people.⁽⁶²⁾ In addition, public hospital emergency rooms are only required to perform a standard screening, not full treatment of a patient.⁽⁶³⁾ These hospitals are also moving out of the inner-city areas rapidly. This leaves many of the sick poor untreated and untreatable.⁽⁶⁴⁾
 
 

        This article goes on to "begin a dialogue toward change" by setting out a brief history leading up to health care reform becoming a priority. ⁽⁶⁵⁾ Due to the fact that the middle class was receiving insufficient health care, a coalition between the poor and the middle class was proposed. However, there was some concern regarding the political feasibility of this type of ^{Part II} of this article evaluates President Clinton's Security Act and other viable health care reform initiatives that were being considered at the time.⁽⁶⁶⁾ "Part III focuses on the coalition and whether it would actually disadvantage the poor."⁽⁶⁷⁾    Part IV describes the state's role and its effect upon ensuring the poor's access to (e)qual(ity) health care; Part V discusses the types of health care systems that poor people need; and Part IV suggests how lawyers can change the health status of the poor."⁽⁶⁸⁾ In conclusion, this article emphasizes the difference in the scope and focus of health care needs between the poor and the middle class.⁽⁶⁹⁾ For instance, it states that "the poor and under served need broad-based reform that also includes well-drafted discrimination provisions prohibiting states, health alliances, health plans and individual providers from intentionally discriminating against them because of their race, gender, sexual preference, national origin, age, health, occupation, language or economic status."⁽⁷⁰⁾ The conclusion also suggests that community based infrastructures which provide services to the poor, need to be built, as an example of the types of changes that need to be implemented in order to effectuate better health care for the poor.⁽⁷¹⁾ Ultimately, without these types of changes, true reform will not be achieved.⁽⁷²⁾ [back]

        Part I of this article is introduced with the negative effect that Medicaid managed care has had on the poor due to the lack of willing participation by doctors to participate in the program. The author suggests that financial incentives will entice physicians to take poor patients^. Tenncare is the sample program used by the author to show the viability of this approach.⁽⁷³⁾
 
 

        Physicians in Tennessee has resisted Tenncare because they feel that the financial burden of the poor is being shifted onto them and they are losing middle class patients. Physicians feel that their autonomy is threatened by the coercive Tenncare program because its just another form of government interference in the workplace.⁽⁷⁴⁾ Society views the physician complaints as a perpetuation of the dual track medical system in which the poor receive public care and those who can afford it receive care from private physicians.⁽⁷⁵⁾ Medicaid proposed an effective way of opening up access to private care for the poor.⁽⁷⁶⁾ However, it failed in its endeavor because it did not attract physicians . Physicians either refuse to take Medicaid patients or limit the number of Medicaid patients they are willing to take because of low Medicaid reimbursement.⁽⁷⁷⁾
 
 

        Part II of this article provides a history of Medicaid physician reimbursement and participation. The financial and physical outcomes of the lack of physician participation are also evaluated,⁽⁷⁸⁾and reveal that if Medicaid were to reimburse at a higher rate, more physicians would be attracted to the program.   Part III evaluates Congress statutory amendment to Section 1396a(30)(A) of the Medicaid Act and concludes that higher reimbursement rates actually would not remedy the lack of physician participation. This section concludes by stating that it is the responsibility of the states to induce physician participation by way of effective financial incentives.⁽⁷⁹⁾  Part IV provides a detailed outline of the Tenncare waiver application. "Tenncare focuses on group purchasing power to encourage physicians to treat Tenncare enrollees."⁽⁸⁰⁾ While this progressive approach could potentially end the current unequal system of medical care, the Tennessee Medical Association does not support it.⁽⁸¹⁾ This section of the article provides a detailed background and an overview of the Tenncare program.⁽⁸²⁾   Part V describes the legal dispute between the state of Tennessee and the physicians over the Tenncare program. Finally, Part VI concludes with some general recommendations as to the most effective and least coercive way to encourage physicians to treat Medicaid patients.⁽⁸³⁾[back]

^{Christine C. Dodd, THE EXCLUSION OF NON-PHYSICIAN HEALTH-CARE PROVIDERS FROM INTEGRATED DELIVERY SYSTEMS: GROUP BOYCOTT OR LEGITIMATE BUSINESS PRACTICE?, 64 U. CIN. L. REV. 983 (1996).}
 
 

This article begins by providing the reader with a historical background of the origins and structure of HMOs. It continues by "focusing on the practice of selective contracting by HMOs and examines whether this practice constitutes an illegal group boycott under the Sherman Act."⁽⁸⁴⁾ It then evaluates the courts' rationale behind its rulings on the antitrust implications of selective contracting.⁽⁸⁵⁾ This article argues that "the current analytic framework, which focuses solely on the market power of one entity, is a narrow approach that is confined by the straitjacket of precedent."⁽⁸⁶⁾ Furthermore, the author contends that this framework inadequately addresses market power in terms of the reality of the marketplace.⁽⁸⁷⁾ The article "then proposes a new doctrinal approach: analyzing the market power of an HMO not as an isolated entity, but in light of market trends toward increased managed care penetration and with an appreciation of the parallel behavior exhibited by competing entities."⁽⁸⁸⁾ The author poses a solution to this inadequacy which reflects a compromise between the competitive free market and regulation through the enactment of the any willing provider legislation.⁽⁸⁹⁾ The "any willing provider" legislation is also evaluated and the weaknesses are pointed out. "The solution, which calls for evaluating market power in a different light, will confront the current problem -- the failure of the antitrust law to address the exclusion of an entire class of providers from the emerging landscape for health-care delivery."⁽⁹⁰⁾ [back]

Judith M. Rosenberg and David T. Zaring, RECENT DEVELOPMENT: MANAGING MEDICAID WAIVERS: SECTION 1115 AND STATE HEALTH CARE REFORM, 32 Harv. J. on Legis. 545 (1995).

This article begins with a basic introduction of the evolution of the Section 1115 Medicaid waivers. It explains that the waivers were implemented by the Department of Health and Human Services to allow states to experiment with "demonstration projects" without having to deal with all of strict requirements of the federal Medicaid program.⁽⁹¹⁾ This article explains the general procedure for applying for and some of the limitations on the waivers. Generally, the government supports these waivers as a cost saving measure, locking recipients into Medicaid HMOs.⁽⁹²⁾ While more people are able to receive Medicaid under this program, they are not necessarily quality and comprehensive health care.⁽⁹³⁾ [back]

UNIVERSAL ACCESS TO HEALTH CARE, 108 Harv. L. Rev. 1323 (1995). 
 
 

This article briefly reflects on the failure of Congress during the Fall of 1994 to pass a health care reform bill and the public's concerns over the implementation of universal coverage. This article identified these concerns, and also addresses a more fundamental concern -- "why, morally, should access to health care be guaranteed to all citizens." ⁽⁹⁴⁾
 
 

This article "discusses the prospects for and the problems with justifying universal access to health care"⁽⁹⁵⁾ and "attempts to provide a moral framework that supports guaranteed access to health care."⁽⁹⁶⁾ The first section of the article focuses on the "general problems associated with the distribution of health care and the growing insecurity in health insurance in the United States."⁽⁹⁷⁾ "Part II establishes the moral basis of universal access and sets forth a communitarian justification that is sensitive to the unique nature and structure of health care services."⁽⁹⁸⁾ Thus it promotes universal health care through ideas of "shared identify, the common good, and civic responsibility."⁽⁹⁹⁾ Finally, a framework for implementing national reform is suggested.⁽¹⁰⁰⁾ This framework requires every citizen to adopt an invested (as opposed to detached), posture on health care reform in or to overcome the problems the current health care arena poses.⁽¹⁰¹⁾ [back]

James F. Blumstein, The Fraud and Abuse Statute in an evolving Health care Marketplace: Life in the Health Care Speakeasy, 22 Am. J. L. and Med. 205 (1996).
 
 

This note discusses how fraud and abuse in the health care market can be prevented through managed care systems. The structure of a capitated payment system, which supports the avoidance of overutilization of health care services, is the source of this reduction in fraud and abuse.⁽¹⁰²⁾ This article examines the history and provisions of the Fraud and Abuse Statute.⁽¹⁰³⁾ This article goes on to evaluate the impact of the Greber and Hanlester Network cases on the Fraud and Abuse statute and generally concludes that the formation of managed care organizations threatens to violate this statute, especially if hospitals provide financial assistance to physicians or physician groups.⁽¹⁰⁴⁾ Therefore, the Department of Health and Human Services needs to develop a "safe harbor" so that managed care organizations do not violate the law.⁽¹⁰⁵⁾ [back]

Jack K. Kilcullen, Groping for the Reins: ERISA, HMO Malpractice, and Enterprise Liability, 22 Am. J. L. And Med. 7 (1996).
 
 

This article asserts a timely discussion of the legal relationship between the physician and the HMO which dictates the parameters of his/her medical practice.⁽¹⁰⁶⁾   This relationship represents a single enterprise and affects patient care.⁽¹⁰⁷⁾ The second part of this article "describes the genesis of enterprise liability amid economic modernization and highlights its compelling principle of risk distribution."⁽¹⁰⁸⁾ The third part "reviews the parallel modernization of the health sector with the introduction of the third-party liability under traditional negligence when the third-party's acts affect medical decisions."⁽¹⁰⁹⁾ "Part V examines ERISA's vitiation of liability for payers when they operate under self-funded employer health care plans."⁽¹¹⁰⁾ "Parts VI and VII conclude with a proposal to incorporate enterprise liability into ERISA to fairly reflect a true private sector approach to health care reform."⁽¹¹¹⁾ A failure to incorporate such a proposal would remove incentives to provide quality health care and leave patients without any means of seeking remedies when the HMO or the physician is responsible.⁽¹¹²⁾ [back]

Endnotes

1. Ronald Horn, MD, Managed Care: Implications For Under Represented Physicians, Journal of Health Care for the Poor and Under Served, Vol.5, No.3, Page 154, 1994. 

2. Id. at 155. 

3. Id. at 155. 

4. Id. at 156. 

5. Id.

6. Id.

7. Thomas P. Weil, PhD, Managed Competition For The Poor: More Promise Than Value?, Journal of Health Care for the Poor and Under Served, Vol.5, No.3, Page 158,159, 1994. 

8. Id. at 162-163. 

9. Impact of Managed Care Organizations on Ethnic Americans and Undeserved Population, Journal of Health Care for the Poor and Under Served, Vol.5, No.3, Page 224,225, 1994. 

10. Id. at 225. 

11. Id.

12. Id. at 226. 

13. Id.

14. Id.

15. Id.

16. Id. at 227. 

17. Id. at 234-235. 

18. Id. at 235. 

19. ⁰ 108 Harv. L.Rev. 1625. (1995). 

20. ⁰ Id. at 1626. 

21. ⁰ Id.

22. ⁰ Id.

23. ⁰ Id. at 1626. 

24. ⁰ Id.

25. ⁰ Id. at 1636. 

26. 0 Id.

27. Vernellia Randall, MEDICAID MANAGED CARE: SYMPOSIUM OF CONSUMER PROTECTION IN MANAGED CARE: MECHANISMS OF CONSUMER PROTECTION--THE MARKETPLACE AND REGULATION: SECTION 1115 MEDICAID WAIVERS: CRITIQUING THE STATE APPLICATIONS, 26 Seton Hall L.Rev. 1069. 

28. ⁰ Id.

29. ⁰ Id. at 1070. 

30. ⁰ Id. at 1071. 

31. ⁰ Id. at 1075-1076. 

32. ⁰ Id. at 1075-1089. 

33. ⁰ Id. at 1089. 

34. ⁰ Id. at 1090. 

35. ⁰ Id. at 1091. 

36. ⁰ Id. at 1093-1096. 

37. ⁰ Id. at 1096. 

38. ⁰ Louise G. Trubek & Elizabeth A. Hoffman, SYMPOSIUM: VITAL ISSUES IN NATIONAL HEALTH CARE REFORM: ARTICLE: SEARCHING FOR A BALANCE IN UNIVERSAL HEALTH CARE REFORM: PROTECTION FOR THE DISENFRANCHISED CONSUMER, 43 DePaul L.Rev. 1081. 

39. ⁰ Id. at 1082. 

40. ⁰ Id. at 1083. 

41. ⁰ Id.

42. ⁰ Id.

43. ⁰ Id. at 1085-1093. 

44. ⁰ Id. at 1094. 

45. ⁰ Id. at 1106. 

46. ⁰ Vernellia R. Randall, SYMPOSIUM: DOES CLINTONS HEALTH CARE REFORM PROPOSAL ENSURE EQUALITY OF HEALTH CARE FOR ETHNIC AMERICANS AND THE POOR?, 60 Brooklyn L.Rev. 167. 

47. ⁰ Id. at 170. 

48. ⁰ Id.

49. ⁰ Id. at 171-176. 

50. ⁰ Id. at 176. 

51. ⁰ Id. at 180-181. 

52. ⁰ Id. at 192. 

53. ⁰ Id. at 170, 236-237. 

54. ⁰ Sidney D. Watson, Health Care In The Inner City: Asking The Right Question, 71 N.C.L. Rev. 1647, 1648 (1993). 

55. ⁰ Id. at 1648. 

56. ⁰ Id. 

57. ⁰ Id. at 1648-1649. 

58. ⁰ Id. at 1649. 

59. ⁰ Id.

60. ⁰ Id. at 1654 -1662. 

61. ⁰ Id. at 1656. 

62. ⁰ Ann G. McGinley, ASPIRATIONS AND REALITY IN THE LAW AND POLITICS OF HEALTH CARE REFORM: EXAMINING A SYMPOSIUM ON(E)QUAL(ITY) CARE FOR THE POOR, 60 Brooklyn L. Rev. 7, 12 (1994). 

63. ⁰ Id. at 13. 

64. ⁰ Id.

65. ⁰ Id. at 16. 

66. 0 Id. at 18. 

67. ⁰ Id. at 16-17. 

68. ⁰ Id.

69. ⁰ Id. at 66. 

70. ⁰ Id.

71. ⁰ Id. at 68. 

72. 0 Id. at 69. 

73. ⁰ Sidney D. Watson, Medicaid Physician Participation: Patients, poverty, and physician self-Interest, 21 Am.J.L. and Med. 191 (1995). 

74. ⁰ Id. at 192. 

75. ⁰ Id.

76. ⁰ Id.

77. ⁰ Id. at 193. 

78. ⁰ Id.

79. ⁰ Id. at 202. 

80. ⁰ Id.

81. ⁰ Id.

82. ⁰ Id. at 202-210. 

83. ⁰ Id. at 216-220. 

84. ⁰ Christine C. Dodd, The Exclusion of Non-Physician Health Care Providers From Integrated Delivery Systems: Group Boycott or Legitimate Business Practice?, 64 U. Cin. L. Rev. 983 (1996). 

85. Id. at 987. 

86. Id.

87. Id.

88. Id.

89. Id.

90. Id.

91. Judith M. Rosenberg and David T. Zaring, RECENT DEVELOPMENT: MANAGING MEDICAID WAIVERS: SECTION 1115 AND STATE HEALTH CARE REFORM, 32 Harv. J. on Legis. 545 (1995). 

92. Id. at 550. 

93. Id. at 554. 

94. UNIVERSAL ACCESS TO HEALTH CARE, 108 Harv. L. Rev. 1323, 1324 (1995). 

95. Id.

96. Id.

97. Id. 

98. Id.

99. Id.

100. Id.

101. Id. at 1339,1340. 

102. James F. Blumstein, The Fraud and Abuse Statute in an evolving Health care Marketplace: Life in the Health Care Speakeasy, 22 Am. J. L. and Med. 205, 206 (1996). 

103. Id. at 206-219. 

104. Id. at 230. 

105. Id. at 231. 

106. K. Kilcullen, Groping for the Reins: ERISA, HMO Malpractice, and Enterprise Liability, 22 Am. J. L. And Med. 7, 8 (1996). 

107. Id. at 10. 

108. Id.

109. Id.

110. Id.

111. Id.

112. Id. at 50. 

Robyn Dent was a 3^rd Year Law Student at
The University of Dayton School of Law in the
FALL of 1996.