This article examines the five forms of payment for healthcare that are common in the United States: out-of-pocket, charity, direct public provision, public health insurance, and private health insurance (including employer-sponsored insurance). After discussing the history of each of the five approaches, the article considers their advantages and disadvantages as well as their current status. It examines next the 2010 Affordable Care Act. Although the Affordable Care Act focuses primarily on expanding public health insurance and public financing for private health insurance, it incorporates all five approaches to financing care. Finally this chapter considers why the United States retains this patchwork of different forms of coverage rather than adopting a single coherent system of health care finance and discusses the likely future of the American approach.
Eleanor D. Kinney and Priscilla Keith
This chapter examines the issue of access to healthcare, with particular emphasis on the five dimensions of the model proposed by Roy Penchansky and J. William Thomas: availability, accessibility, accommodation, affordability, and acceptability. It also discusses the constitutional powers of states and the federal government with respect to health, along with relevant health law. It outlines the three categories of law governing access to physicians and hospitals: direct obligations of physicians and hospitals to provide free care to the indigent; federal programs to provide health insurance or health services to vulnerable populations; and laws that affect the delivery of care based on the patient’s physical characteristics and immigration status. The chapter concludes by considering the United States’s failure to realize the human rights aspect of health in international treaties and suggesting that the country’s efforts when it comes to access to physicians and hospitals leave much to be desired.
Marshall B. Kapp
This chapter examines issues arising from an aging population, particularly those affecting the population, community, family, and individuals. It considers the legal and policy challenges relating to an aging population, along with the implications of responses to such challenges for the regulation of clinical care at the individual level and the structure and financing of healthcare delivery for older persons as a group. The chapter provides a demographic background on the elderly, with emphasis on the changing epidemiology of aging and its disability consequences as well as long-term services and supports for the aged. It looks at adverse cognitive changes associated with aging and relevant law relating to older persons’ impaired medical decision-making. It also describes best practices in clinical geriatrics before concluding with an explanation of how physician perceptions of legal standards of care undermine efforts to provide more rational care to the elderly through best practices initiatives.
Lawrence O. Gostin, Daniel Hougendobler, and Anna E. Roberts
This chapter explores U.S. public health law and illustrates how it works in the control and prevention of two salient epidemics: infectious diseases and noncommunicable diseases. It first presents a theory and a definition of public health law, with particular emphasis on the law’s five essential characteristics: government, populations, relationships, services, and power. It then considers the doctrinal boundaries of public health law, and why population health should be a salient public value. It also describes seven models for legal intervention designed to prevent injury and disease, encourage healthful behaviors, and promote public health more generally. Finally, it looks at the use of public health law in infectious disease surveillance and response, as well as the law’s diverse roles in noncommunicable disease prevention and control before concluding with a discussion of the major reasons for social and political opposition to noncommunicable disease interventions.
William M. Sage
This chapter examines the role of antitrust law in the governance of healthcare competition in the United States as the Patient Protection and Affordable Care Act of 2010 (ACA) takes full effect. It provides an overview of U.S. antitrust law before turning to recent and ongoing controversies involving antitrust law and healthcare, including those relating to hospital mergers, consolidation in the health insurance industry, accountable care organizations, and generic drugs. It then steps back to consider deeper questions of competition policy in the post-ACA era that may determine the economic sustainability and quality of the U.S. healthcare system.
This article focuses on debates, both historic and contemporary, surrounding assisted reproductive technologies (ART) and abortion. After providing a historical background on ART and abortion and their integration into modern reproductive life, the article discusses the current usage of both techniques in America. It then compares the populations who avail of ART and abortion before turning to an analysis of the regulatory landscape surrounding the two procedures, along with reproduction as a fundamental right. It also examines the issue of whether the existing jurisprudence concerning the right to avoid procreation can be applied equally to the right to access parenthood through assisted conception. The article concludes with an assessment of three areas in which ART and abortion have overlapped: selective reduction of multiple pregnancy, the personhood movement, and perinatal genetic diagnosis.
This article explores the relationship between respect for individual autonomy and the law governing end-of-life treatment in the United States. It begins with a review of the law governing treatment decision-making for competent adults, incompetent adults, and children. It then turns to the issue of determining death. After that, the article discusses the limitations of the autonomy-based approach in addressing three areas of end-of-life law: “futile” treatment disputes, treatment decisions for incompetent patients, and access to physician-assisted death. It concludes that courts and other legal decision-makers will face pressure to consider the proper role of quality of life, cost, medical judgment, and patient vulnerability in determining end-of-life law.
Mark Barnes and David Peloquin
This article examines federal and state laws on biomedical research in the United States. It also considers the tension among various regulatory regimes and highlights conflicting regulations that could be better harmonized. The article first describes regulatory regimes that govern protections for human subjects, with particular reference to the federal Common Rule and the Food and Drug Administration’s regulations on the protection of human subjects. The discussion then turns to state laws on informed consent; privacy laws; laws on clinical trials registration and data transparency; financial disclosure requirements; research misconduct such as fabrication, falsification, and plagiarism; and animal research requirements. The article concludes by presenting additional considerations related to federal funding of research.
This chapter focuses on key characteristics of U.S. communicable disease control law. It describes federal and state powers, reviews the relative roles of voluntary and coercive public health programs, and describes the scope and limitations of the police power. Next, it examines specific legal provisions particularly relevant to communicable disease control and explores two emerging issues: how to successfully craft legal and policy measures to reduce the negative impact of antibiotic resistance and expanded use of public health surveillance data. The chapter concludes with three ongoing dilemmas that require both technical solutions and thoughtful debate, how to: 1) balance individual rights and effective disease control when using isolation and quarantine; 2) develop legal and policy tools that will incentivize development of novel antibiotics; and 3) assess the benefits and risks of utilizing the explosion of personal data that advances in medicine, public health, and technology have made available.
This chapter examines financial incentives that might result in conflicts of interest (COIs) in treatment and research relationships, along with the regulation of those COIs. It considers financial incentives for healthcare providers to reduce spending on clinical care and incentives for researchers and their institutions to pursue commercially viable biomedical discoveries. The chapter discusses the goals that the law should attempt to achieve through the regulation of potential COIs in treatment and research relationships, such as promoting self-protection among those at risk of harm. The chapter describes the purposes of legal mandates to disclose financial interests in clinical medicine and in biomedical research and assesses the existing law with respect to COI disclosure and advocacy protections. It shows that current law does little to enable patients, insurance beneficiaries, and human subjects to protect themselves. Finally, it proposes changes to the law to prevent COIs in both clinical and research settings.