James F. Blumstein

Government's Role in Organ Transplantation Policy

This paper initially considers ways of thinking about organ transplantation: Should it be treated as a catastrophic disease or as an ordinary and accepted medical procedure? The analysis then shifts to the role the government has played in influencing organ transplantation policy. The federal governments involvement initially stemmed from its role as payer for end-stage renal disease services. In recent years, the rationale for intervention has changed, and the mechanism for implementing regulatory oversight has shifted to a private network run for the government by the United Network for Organ Sharing (UNOS). The government has delegated much policymaking authority to UNOS, although the author demonstrates that this is not required by the applicable legislation. The article raises questions about the relationship between UNOS and the federal government, about potential conflicts between UNOS guidelines and state laws under the Uniform Anatomical Gift Act, and about the ideological stance undergirding much of current federal policy in the organ transplantation arena.

Public Choice in Health: Problems, Politics, and Perspectives on Formulating National Health Policy

Development of health policy goals necessitates a choice among normative premises--an accommodation of conflicting values. Any debate that does not identify underlying assumptions or link policy prescriptions to a theoretical perspective is destined to degenerate into uncommunicative and unproductive rhetorical posturing. A sensible approach toward formulating national health policy requires that competing values be identified and discussed explicitly. This article will examine the effect that selection of different theoretical perspectives can have on the identification of problems and on the formulation of prescriptive policies in the health field. It will also focus on the different values that are promoted by different policy perspectives and consider alternative models for implementing value choices.

Perspectives on Government Policy in the Health Sector

Health expenditures and prices have accelerated markedly in recent years, both in absolute and relative terms. The pressures for some form of governmental intervention have generated widespread debate about national health policy. Determinants of health are complex, and policy development must follow the identification of issues and review of theoretical policy analysis. Formation of a theoretical basis will have a significant impact on substantive policy outcomes. Unfortunately, past and current proposals and policies have given insufficient attention to the traditional public finance criteria for government intervention; as a result, the importance of market forces has frequently been overlooked. Before wholesale rejection of the market as a means of promoting rationality, government should examine alternatives that foster increased efectiveness of the market mechanism. Even within this context, however, some forms of regulation will be necessary; also, traditional public finance norms would allow certain kinds of expanded government intervention. Market-perfecting policy instruments would result in different kinds of government programs, and much of future policy will be shaped by political decisions about substantive health policy issues.

Certificate-of-Need in an Antitrust Context

Recent cases such as National Gerimedical Hospital and Gerontology Center v. Blue Cross of Kansas City have found that certificate-of-need (CON) legislation did not intend to remove antitrust considerations. This note discusses the exemptions from antitrust provided by the state action doctrine of Parker v. Brown as well as the Noerr-Pennington doctrine, both of which appear to protect provider input into the CON process. Providing information that assists decision-making must be carefully distinguished from providing data that serve the interests of physicians and hospitals.

Constitutional Perspectives on Governmental Decisions Affecting Human Life and Health

in economic productivity and safety; in effect, this standard allows for more accidents (and thus more death) than would occur under a more stringent standard.2 If it be acknowledged that the law allows-even encourages-accidents that might be preventable from a technological viewpoint,3 it becomes apparent that government implicitly has decided not to assign a value to life that is beyond price in all circumstances. Recognizing that government often makes the choice to favor more

Antitrust and hospital peer review.

C. Risks of Peer Review by the Hospital Medical Staff 14 1. Historical Perspective 15 2. Economic Models of the Hospital 18 3. Sociological and Organizational Perspectives 22 4. Implications 24 III. Antitrust Doctrine: An Overview of the General Issues ......... 25 A. The Nature and Scope of Permissible Justificiations ......... 28 B. Potential Immunity from Antitrust Liability 32 1. The Health Care Quality Improvement Act 32 2. State Action Immunity 34 IV. Application of Antitrust Doctrine to Hospital Peer-Review Activity 37 A. The Capacity to Conspire: A Threshold Issue 39 B. Substantive Doctrine 53

The Constitutionality of the ACA's Medicaid-Expansion Mandate

The Supreme Court has promised to review not only the constitutionality of the Affordable Care Acts individual mandate but also the issue, raised by Florida and 25 other states, of whether the ACAs Medicaid expansion violates the U.S. Constitution.

Commentary: Liver-Donors Liver Transplants

with a son, brother, or any other person. The only exception, acceptable although also questionable, are doubts regarding the donors psychic fitness. The first partial liver transplantations from living donors in Brazil have not been subject to cost/benefit analysis, and the procedure is certainly not yet accepted as eligible for payment by social security funds. The cost of such transplantation and subsequent medications is still far too high for this procedure to be considered accessible by the general population. Partial liver transplantation from living donors is a pioneering surgery aimed at creating new therapeutic options for both Brazil and the rest of the world.

Response: On the Other Hand: Some Comments on Sigelman's Palmistry

Responding to a negative assessment by Daniel W. Sigelman of the social impact of current efforts to promote competition in the medical marketplace, Blumstein argues that, since the competitive strategy is designed to rationalize health care delivery, it should be evaluated independently of the issue of financing health care for the poor.

Certain Legal Considerations As Applied To Diagnostic Medical Imaging: Emphasis Upon New Technology

The application of biomedical techniques developed in physics, chemistry, engineering and computer sciences has been the subject of this symposium. In general, these provide exciting new opportunities for participants in the health care field but they also represent challenges. This communication will discuss the basic principles of the laws of agency and evidence and how these might be applied to the specific technology discussed in this symposium. Since the resources necessary for these imaging devices and other improvements in data acquisition, information transmission and archiving are of such magnitude, public policies have been enacted to assure both public access to and protection from inappropriate acquisition and distribution of this technology. We will consider the combined effects of these initiative in relation to the present social changes providing the environment in which these policies will be enacted.