Resource file details and reference questions

Healthcare Legal Issues

Discuss the impact Federalism has on the regulation of health care delivery; how do the different sources of law as they related to the federal and state governments matter, if at all?

In general, federal regulation of health care delivery would be much more appropriate and efficient than state or local law, at least in so far as major aspects of health care delivery are concerned. That is because state laws vary considerably; that makes it impossible to establish a consistent or uniform standard of health care delivery across state lines. Certainly, there are aspects of health care that are appropriate to regulate at the state or even the local level, but there are others that would be much better to regulate on a national or federal level.

One of the best examples of an aspect of health care delivery that should be regulated federally are elements of necessary health care reform such as a shift from the current fee-for-services model of health care compensation to a results-based model. Another example would be the establishment of the so-called "public option" for health insurance to compete against the private health insurance industry or, in the alternative, federal legislation to limit the amount of profit or the maximum rates or maximum increase in health insurance premiums (Reid, 2009). All of those types of reforms would be impractical to establish at the state level because, among other things, that would simply result in the shifting of the choice of locations of health care institutions, areas of practice of individual health care practitioners, and of the entire private health insurance industry to states with laws that are advantageous to them. By contrast, legislation and regulation at the federal level would establish a uniform system of national standards.

Which entity do you think is in the best position to govern healthcare: courts, legislatures or administrative agencies? Explain your conclusions.

Courts would be in the worst position to govern health care for one very simple reason: by definition, courts of law only deal with issues after the fact and on a case-by-case basis. Courts only have the opportunity to address issues retrospectively. Meanwhile, effective governing of health care requires establishing policies, practices, and procedures prospectively and much more generally than on a case-by-case basis as issues arise one at a time. Administrative agencies are effective for governing health care issues in particular areas and within aspects of health care that fall within the authority of administrative agencies. However, in terms of governing the major aspects of health care, the scope of authority of administrative agencies is too narrow to provide the most efficient oversight of the entire health care system, especially at the national level.

Legislative bodies are the more appropriate source of governing the major aspects of health care than courts, precisely because, unlike courts, legislation is designed to deal with potential issues prospectively rather than retrospectively. Likewise, legislation can regulate health care delivery in the broadest sense rather than on a case-by-case basis. The legislative approach to governing health care delivery is also preferable to relying on administrative agencies, because laws are more easily applicable to the entire health care industry than the authority of regulatory agencies.