[SOLVED] healthcare – Business Finance

Q1Jacobson v. Massachusetts is a product of the early 20th century, and the public health law principles supporting it are vestiges of an even earlier time. This, coupled with a century of subsequent civil liberties jurisprudence and societal advancement, has led some commentators to question whether Jacobson should continue to retain its iconic role in terms of the scope of government police powers. At the same time, other public health law experts call for Jacobson’s continued vitality, arguing that it is settled doctrine and a still-appropriate answer to the individual rights/public good question. What do you think?Q2Describe how the law can create or perpetuate health-harming social conditions. Explain how the law can be used to ameliorate health harming social conditions.Q3Depending on one’s personal experience in obtaining health care, one’s view of the role of physicians in society, of law as a tool for social change, the scope of medical ethics, or the United States’ place in the broader global community, the no-duty principle might seem appropriate,, irresponsible, or downright wrong.Imagine you are traveling in a country where socialized medicine is the legal norm, and your discussion with a citizen of that country turns to the topic of your countries’ respective health systems. When asked, how will you account for the fact that health care is far from being a fundamental right rooted in American law? Q4Large scale health legislation is often difficult to enact in the United States. How do the features of the U.S. legal system further and/or hinder that process?ESSENTIAL PUBLIC HEALTH
Series Editor: Richard Riegelman
Essentials of
Health Policy
and Law
FOURTH
EDITION
Sara E. Wilensky, JD, PhD
Department of Health Policy and Management, Milken Institute
School of Public Health, The George Washington University
Joel B. Teitelbaum, JD, LLM
Department of Health Policy and Management, Milken Institute
School of Public Health, The George Washington University
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Library of Congress Cataloging-in-Publication Data
Names: Teitelbaum, Joel Bern, author. | Wilensky, Sara E., author.
Title: Essentials of health policy and law / Sara E. Wilensky, Joel B. Teitelbaum.
Description: Fourth edition. | Burlington, Massachusetts: Jones & Bartlett Learning, [2020] |
Joel B. Teitelbaum’s name appears first in previous edition. | Includes bibliographical references and index.
Identifiers: LCCN 2018058317 | ISBN 9781284151619
Subjects: | MESH: Health Policy—legislation & jurisprudence | Insurance,
Health—legislation & jurisprudence | Social Determinants of Health |
Health Care Reform | United States
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Contents
Prologue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii
About the Editor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix
Preface. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi
Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xv
About the Authors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xvii
Contributors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xix
PART I  Setting the Stage:
An Overview of Health
Policy and Law
The Health Bureaucracy. . . . . . . . . . . . . . . . . . . . . . . . . . . .25
The Federal Government. . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
State and Local Governments. . . . . . . . . . . . . . . . . . . . . . . 28
Interest Groups . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
References. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Endnotes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Chapter 3  Law and the Legal System. . . . . . . . 33
1
Chapter 1  Understanding the Role of
and Conceptualizing Health
Policy and Law. . . . . . . . . . . . . . . . . . . 3
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Role of Policy and Law in Health Care
and Public Health. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Conceptualizing Health Policy and Law. . . . . . . . . . . . . 5
The Three Broad Topical Domains of Health
Policy and Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Social, Political, and Economic Historical Context. . . . . 6
Key Stakeholders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
References. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
The Role of Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34
The Definition and Sources of Law. . . . . . . . . . . . . . . . . 35
Defining “Law”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Sources of Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Key Features of the Legal System . . . . . . . . . . . . . . . . . . 39
Separation of Powers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Federalism: Allocation of Federal
and State Legal Authority. . . . . . . . . . . . . . . . . . . . . . . . . 40
The Role of Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
References. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Endnotes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Chapter 4  Overview of the
United States Healthcare
System . . . . . . . . . . . . . . . . . . . . . . . . 49
Endnotes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Healthcare Finance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Chapter 2  Policy and the
Policymaking Process. . . . . . . . . . . . 11
Health Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Direct Services Programs. . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Defining Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Identifying Public Problems . . . . . . . . . . . . . . . . . . . . . . . . . 11
Structuring Policy Options . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Public Policymaking Structure and Process. . . . . . . . . 13
State-Level Policymaking. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
The Federal Legislative Branch. . . . . . . . . . . . . . . . . . . . . . 14
The Federal Executive Branch . . . . . . . . . . . . . . . . . . . . . . . 21
Healthcare Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
The Uninsured. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
The Underinsured. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Insurance Coverage Limitations. . . . . . . . . . . . . . . . . . . . . 61
Safety Net Providers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Workforce Issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Healthcare Quality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Key Areas of Quality Improvement. . . . . . . . . . . . . . . . . . 68
Assessment of Efforts to Improve Quality. . . . . . . . . . . . 71
iii
iv
Contents
Comparative Health Systems . . . . . . . . . . . . . . . . . . . . . . 71
A National Health Insurance System: Canada . . . . . . . . 71
A National Health System: Great Britain. . . . . . . . . . . . . . 73
A Socialized Insurance System: Germany . . . . . . . . . . . . 74
The Importance of Health Insurance Design. . . . . . . . . 75
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
References. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Chapter 5  Public Health Institutions
and Systems. . . . . . . . . . . . . . . . . . . . 81
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
What Are the Goals and Roles
of Governmental Public Health Agencies? . . . . . . .
What Are the 10 Essential Public Health Services?. . .
What Are the Roles of Local and State Public
Health Agencies?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
What Are the Roles of Federal Public Health
Agencies? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
What Are the Roles of Global Health
Organizations and Agencies?. . . . . . . . . . . . . . . . . . . .
How Can Public Health Agencies Work Together?. . .
What Other Government Agencies
Are Involved in Health Issues?. . . . . . . . . . . . . . . . . . . .
What Roles Do NGOs Play in Public Health? . . . . . . . .
81
81
83
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
Individual Rights and Health Care: A Global
Perspective. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
Individual Rights and the Healthcare System. . . . . . 117
Rights Under Healthcare and Health
Financing Laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
Rights Related to Freedom of Choice and
Freedom From Government Interference . . . . . . . 119
The Right to Be Free From Wrongful
Discrimination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
Individual Rights in a Public Health Context. . . . . . . 128
Overview of Police Powers . . . . . . . . . . . . . . . . . . . . . . . . 128
The Jacobson v. Massachusetts Decision. . . . . . . . . . . . 129
The “Negative Constitution” . . . . . . . . . . . . . . . . . . . . . . . 130
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
References. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
85
Endnotes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
87
Chapter 7  Social Determinants of Health
and the Role of Law in
Optimizing Health. . . . . . . . . . . . . . 137
90
91
91
92
Nongovernmental Organizations. . . . . . . . . . . . . . . . . . . . 92
How Can Public Health Agencies Partner
With Health Care to Improve the Response
to Health Problems?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
How Can Public Health Take the Lead in
Mobilizing Community Partnerships
to Identify and Solve Health Problems? . . . . . . . . . . 95
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
Social Determinants of Health . . . . . . . . . . . . . . . . . . . . 139
Defining Social Determinants of Health . . . . . . . . . . . 139
Types of SDH. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
The Link Between Social Determinants and
Health Outcomes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
Law as a Social Determinant of Health . . . . . . . . . . . . 142
Right to Criminal Legal Representation
vs. Civil Legal Assistance . . . . . . . . . . . . . . . . . . . . . . . . 144
Combating Health-Harming Social Conditions
Through Medical-Legal Partnership. . . . . . . . . . . . . 146
References. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
The Evolution of an “Upstream” Innovation . . . . . . . . 147
The Benefits of MLPs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
Endnotes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
Further Reading. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
References. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Other Sources Consulted. . . . . . . . . . . . . . . . . . . . . . . . . .
Source for Political Affiliation of Senate. . . . . . . . . . . .
Source for Political Affiliation of the
House of Representatives. . . . . . . . . . . . . . . . . . . . . . .
109
109
109
109
109
PART II  Essential Issues in Health
Policy and Law
111
Chapter 6  Individual Rights in Health Care
and Public Health . . . . . . . . . . . . . . 113
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
References. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
Endnotes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
Chapter 8  Understanding Health
Insurance . . . . . . . . . . . . . . . . . . . . . 153
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
A Brief History of the Rise of Health
Insurance in the United States. . . . . . . . . . . . . . . . . . 154
How Health Insurance Operates . . . . . . . . . . . . . . . . . . 156
Basic Terminology. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Uncertainty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Risk. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Setting Premiums. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Medical Underwriting. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
156
157
158
160
161
Contents
Managed Care. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
Cost Containment and Utilization Tools. . . . . . . . . . . . 163
Utilization Control Tools. . . . . . . . . . . . . . . . . . . . . . . . . . . 164
Common Managed Care Structures. . . . . . . . . . . . . . . 166
The Future of Managed Care . . . . . . . . . . . . . . . . . . . . . . 169
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
References. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
Endnotes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
Chapter 9  Health Economics in a
Health Policy Context. . . . . . . . . . . 173
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
Health Economics Defined. . . . . . . . . . . . . . . . . . . . . . . . 174
How Economists View Decision Making. . . . . . . . . . . 174
How Economists View Health Care . . . . . . . . . . . . . . . . 176
Economic Basics: Demand. . . . . . . . . . . . . . . . . . . . . . . . 176
Demand Changers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
Elasticity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
Health Insurance and Demand. . . . . . . . . . . . . . . . . . . . 179
Economic Basics: Supply. . . . . . . . . . . . . . . . . . . . . . . . . . 180
Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Supply Changers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Profit Maximization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Health Insurance and Supply. . . . . . . . . . . . . . . . . . . . . .
180
180
180
181
Economic Basics: Markets. . . . . . . . . . . . . . . . . . . . . . . . . 182
Health Insurance and Markets. . . . . . . . . . . . . . . . . . . . . 182
Market Structure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
Market Failure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
References. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
Endnotes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
Chapter 10  Health Reform in the
United States. . . . . . . . . . . . . . . . . 189
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189
Difficulty Achieving Health Reform
in the United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190
Culture. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
U.S. Political System. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Interest Groups . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Path Dependency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
191
191
193
193
Unsuccessful Attempts to Pass
National Health Insurance Reform . . . . . . . . . . . . . . 194
The Stars Align (Barely): How the ACA
Became Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
Commitment and Leadership. . . . . . . . . . . . . . . . . . . . . 197
Lessons From Failed Health Reform Efforts. . . . . . . . . 199
Political Pragmatism. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
v
Overview of the ACA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
Individual Mandate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
State Health Insurance Exchanges/
Marketplaces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Employer Mandate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Changes to the Private Insurance Market. . . . . . . . . .
Financing Health Reform. . . . . . . . . . . . . . . . . . . . . . . . . .
Public Health, Workforce, Prevention,
and Quality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
203
206
213
214
215
216
The U.S. Supreme Court’s Decision in the
Case of National Federation of Independent
Business v. Sebelius . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217
States and Health Reform. . . . . . . . . . . . . . . . . . . . . . . . . 218
Key Issues Going Forward. . . . . . . . . . . . . . . . . . . . . . . . . 219
Congressional Activity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220
Insurance Plan Premium Rates . . . . . . . . . . . . . . . . . . . . 222
ACA Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
References. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
Chapter 11  Government Health Insurance
Programs: Medicaid, CHIP,
and Medicare. . . . . . . . . . . . . . . . . 231
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232
Medicaid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233
Program Administration. . . . . . . . . . . . . . . . . . . . . . . . . . .
Eligibility. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Benefits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Amount, Duration, and Scope,
and Reasonableness Requirements. . . . . . . . . . . . .
Medicaid Spending . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Medicaid Financing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Medicaid Provider Reimbursement. . . . . . . . . . . . . . . .
Medicaid Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Future of Medicaid. . . . . . . . . . . . . . . . . . . . . . . . . . . .
233
234
238
241
242
243
244
247
248
Children’s Health
Insurance Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 248
CHIP Structure and Financing . . . . . . . . . . . . . . . . . . . . .
CHIP Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
CHIP Benefits and Beneficiary Safeguards. . . . . . . . . .
CHIP and Private Insurance Coverage. . . . . . . . . . . . . .
CHIP Waivers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Future of CHIP. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
249
250
251
252
252
252
Medicare. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253
Medicare Eligibility. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Medicare Benefits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Medicare Spending. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Medicare Financing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Medicare Provider Reimbursement. . . . . . . . . . . . . . . .
The Future of Medicare. . . . . . . . . . . . . . . . . . . . . . . . . . . .
253
255
258
258
262
265
vi
Contents
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265
References. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265
Endnotes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268
Chapter 12  Healthcare Quality Policy
and Law . . . . . . . . . . . . . . . . . . . . . 271
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Quality Control Through Licensure
and Accreditation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Medical Errors as a Public
Health Concern. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Promoting Healthcare Quality Through the
Standard of Care. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
271
272
273
275
The Origins of the Standard of Care. . . . . . . . . . . . . . . . 275
The Evolution of the Standard of Care. . . . . . . . . . . . . 276
Tort Liability of Hospitals, Insurers, and MCOs . . . . . 278
Hospital Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278
Insurer Liability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279
Managed Care Liability. . . . . . . . . . . . . . . . . . . . . . . . . . . . 280
Federal Preemption of State Liability
Laws Under ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281
Overview of ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281
ERISA Preemption. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282
The Intersection of ERISA Preemption
and Managed Care Professional
Medical Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 283
Measuring and Incentivizing Healthcare Quality. . . . 284
Quality Measure Development. . . . . . . . . . . . . . . . . . . .
Quality Measurement. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Public Reporting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Value-Based Purchasing. . . . . . . . . . . . . . . . . . . . . . . . . . .
National Quality Strategy. . . . . . . . . . . . . . . . . . . . . . . . . .
Private Payer Efforts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Role of Health Information Technology. . . . . . . . . . . .
286
286
286
287
288
289
289
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290
References. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290
Endnotes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291
Threats to Public Health . . . . . . . . . . . . . . . . . . . . . . . . . . 295
CBRN Threats . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Naturally Occurring Disease Threats. . . . . . . . . . . . . . .
Natural Disasters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Man-Made Environmental Disasters. . . . . . . . . . . . . . .
295
299
300
303
Public Health Preparedness Policy . . . . . . . . . . . . . . . . 303
Federal Response Agencies and Offices. . . . . . . . . . .
Preparedness Statutes, Regulations,
and Policy Guidance. . . . . . . . . . . . . . . . . . . . . . . . . . . .
Presidential Directives. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
International Agreements. . . . . . . . . . . . . . . . . . . . . . . . .
303
305
307
308
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310
References. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311
PART III  Basic Skills in Health
Policy Analysis
315
CHAPTER 14  The Art of Structuring
and Writing a Health Policy
Analysis. . . . . . . . . . . . . . . . . . . . . 317
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317
Policy Analysis Overview. . . . . . . . . . . . . . . . . . . . . . . . . . 317
Client-Oriented Advice. . . . . . . . . . . . . . . . . . . . . . . . . . . .
Informed Advice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Public Policy Decision. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Providing Options and a
Recommendation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Your Client’s Power and Values . . . . . . . . . . . . . . . . . . . .
Multiple Purposes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
317
318
318
318
318
319
Structuring a Policy Analysis . . . . . . . . . . . . . . . . . . . . . . 319
Problem Identification . . . . . . . . . . . . . . . . . . . . . . . . . . . . 320
The Background Section . . . . . . . . . . . . . . . . . . . . . . . . . . 322
The Landscape Section. . . . . . . . . . . . . . . . . . . . . . . . . . . . 323
The Options Section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 326
The Recommendation Section. . . . . . . . . . . . . . . . . . . . 330
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 330
Chapter 13  Public Health Preparedness
Policy . . . . . . . . . . . . . . . . . . . . . . . 293
References. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 330
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 293
Defining Public Health Preparedness. . . . . . . . . . . . . . 294
Glossary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 331
Index. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 337
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Prologue
The fourth edition of Essentials of Health Policy and
Law is a textbook that describes and analyzes the transformations taking place across the healthcare delivery
and public health systems in the United States. Building on the core content and engaging style of earlier
editions, this edition is by necessity influenced by the
shifts (both proposed and actual) occurring as a result
of the 2016 election cycle, including of course the ways
in which the Patient Protection and Affordable Care
Act (commonly known as the ACA) is being interpreted and implemented.
Professors Sara Wilensky and Joel Teitelbaum are
both experienced in analyzing and communicating
about the ACA and many other aspects of health policy and law, and this edition benefits from their expertise. Beyond the issue of national and state health
reform, Essentials of Health Policy and Law, Fourth
Edition takes a broad approach to the study of health
policy and law and provides a coherent framework for
grappling with important healthcare, public health,
and bioethical issues in the United States.
Health policies and laws are an inescapable and
critical component of our everyday lives. The accessibility, cost, and quality of health care; the country’s
preparedness for natural and human-caused disasters;
the safety of the food, water, and medications we consume; the right to make individual decisions about
one’s own health and well-being; and scores of other
important issues are at the heart of health policy and
law, and in turn at the heart of individual and community health and well-being. Health policies and laws
have a strong and lasting effect on the quality of our
lives as individuals and on our safety and health as a
nation.
Professors Wilensky and Teitelbaum do a marvelous job of succinctly describing not only the
nation’s policy- and law-making machinery and the
always-evolving healthcare and public health systems, but also the ways in which policy and law affect
health care and public health, and vice versa. They
have a unique ability to make complex issues accessible to various readers, including those without a background in health care or public health. Their training
as policy analysts and lawyers shines through as they
systematically describe and analyze the complex field
of health policy and law and provide vivid examples to
help make sense of it all.
Equally apparent is their wealth of experience
teaching health policy and law at both the undergraduate and graduate levels. Between them, they have
designed and taught many different health policy and/
or law courses, supplemented the content of health
policy and law by integrating writing and analytic
skills into their courses, designed and directed a bachelor of science degree program in public health, and
received teaching awards for their efforts. Readers of
this textbook are the beneficiaries of their experience,
enthusiasm, and commitment, as you will see in the
pages that follow.
Essentials of Health Policy and Law, Fourth Edition
stands on its own as a text. Even so, the accompanying
Essential Readings in Health Policy and Law provides
abundant illustrations of the development, influence,
and consequences of health policies and laws. The
carefully selected articles, legal opinions, and public
policy documents in the supplemental reader allow
students to delve deeper into the topics and issues
explored in this book.
I am pleased that Essentials of Health Policy and
Law is a part of the Essential Public Health series.
From the earliest stages of the series’ development,
Professors Wilensky and Teitelbaum have played a
central role. They have closely coordinated efforts with
other series authors to ensure that the series provides a
comprehensive approach with only intended overlap.
This is well illustrated by the numerous additions and
revisions that have taken place with the publication
of this Fourth Edition, a description of which can be
found in the Preface.
I am confident that you will enjoy reading and
greatly benefit from Essentials of Health Policy and
Law. Whether you are studying public health, public
policy, healthcare administration, or a field within the
clinical health professions, this textbook is a key component of your education.
—Richard Riegelman, MD, MPH, PhD
Editor, Essential Public Health Series
vii
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About the Editor
Richard K. Riegelman, MD, MPH, PhD, is professor
of epidemiology-biostatistics, medicine, and health
policy, and founding dean of the George Washington
University Milken Institute School of Public Health
in Washington, DC. He has taken a lead role in
developing the Educated Citizen and Public Health
initiative, which has brought together arts and sciences and public health education associations to
implement the Health and Medicine Division of
the National Academies’ recommendation that “all
undergraduates should have access to education in
public health.” Dr. Riegelman also led the development of the George Washington University’s undergraduate major and minor and currently teaches
Public Health 101 and Epidemiology 101 to undergraduate students.
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© Mary Terriberry/Shutterstock
Preface
I
n the context of health care and public health, the
dozen years since the first edition of this textbook
was published can be summed up in a well-worn
phrase: change is the only constant. The first edition
of Essentials of Health Policy and Law did not even
include mention of the Patient Protection and Affordable Care Act—commonly known as the Affordable
Care Act or ACA—because it was still 3 years from
passage. Now hailed as the most important set of
changes to health insurance since the 1965 enactment
of Medicare and Medicaid, the ACA was signed into
law by President Barack Obama in March of 2010.
Since that time, the ACA itself has been on quite a
journey, given the policy shifts and legal challenges
it has undergone in a relatively short time. Broadly
speaking, the ACA represents two landmark achievements in health policy: major reform of the private
health insurance market and, relatedly, a redistribution of resources to groups and individuals who, by
virtue of indigence and/or illness, have historically
been excluded from the health insurance market and/
or healthcare system. Additionally, the law includes
dozens of other important reforms and programs
unrelated to insurance. For example, more efficient
and higher-quality health care, population health,
healthcare access, long-term care, the health workforce, health disparities, community health centers,
healthcare fraud and abuse, comparative effectiveness
research, health information technology, and more all
receive attention by the ACA. Indeed, it is fair to say
that a fully implemented ACA would move the nation
toward a more affordable, equitable, and stable insurance system, not only for the millions of individuals
who have and are expected to gain insurance, but also
for the tens of millions of people who no longer face
the threat of a loss or lapse of coverage.
▸▸
Implementation of the ACA
Yet, full implementation of the ACA is still just a
goal, as many federal and state policymakers and a
substantial bloc of the voting public continue their
efforts to ­undermine—if not totally destroy—the law.
To understand these efforts, readers must understand
that many ACA reforms required a reordering of
the relationships that lie at the heart of the nation’s
healthcare and public systems. Individuals, providers,
insurers, employers, governments, and others were
forced to alter once-normative behaviors in response
to the policy and legal decisions underpinning the
law. These types of major policy and legal shifts—
such as, in the case of the ACA, the creation of the
“individual insurance mandate,” new prohibitions
that prevent private insurers from using discriminatory enrollment practices, the creation of new health
insurance “exchanges,” and the expansion of Medicaid
eligibility standards—are basically destined to create
backlash, given the very nature of how people respond
to change and the vast amounts of money that, for
some industries, are at stake. Add to this the fact that
(as described more fully in Chapter 10) the ACA bill
that eventually became law passed in Congress by
the slimmest of margins after months of rancorous
debate, and fully half the states in the United States
actively opposed the ACA’s implementation after its
passage. Even now, at the time of this writing, more
than 8 years since the ACA became law, courts across
the country have ACA-related cases on their dockets,
the Trump administration has made a habit of slowing
or reversing dozens of Obama-era ACA policy decisions, and the ACA continues to be used as a cudgel
on the campaign trail. Needless to say, the outcomes
of these lawsuits and policy debates will no doubt be
discussed in both the national media and in the health
policy and law courses in which you register, and they
will be devoted space in the pages of this book in
future editions.
▸▸
Other Changes in the Health
Care and Public Health
Landscape
Of course, the ACA is not the only significant shift
in the healthcare/public health landscape since the
first edition of this book. Just as that edition did not
mention the ACA (for obvious reasons), neither did
xi
xii
Preface
it include the term “social determinants of health,”
which is a growing focus of healthcare and public
health systems nationwide and now has an entire
chapter in this book to show for it. Furthermore, the
2007 edition included just a single reference to public health emergency preparedness, a topic that also
is now rewarded with its own chapter. Back in 2005,
when the first outline of the first draft of this book
took shape, health informatics and health information
technology were, relatively speaking, fringe topics in
courses on medical care and public health. Not so
today. And finally, of course, the country experienced
a mainly unanticipated election at the very top of the
ticket in 2016, a result that injected many new policies and legal interpretations into an already complex,
costly, and oftentimes inequitable web of healthcare
services and public health protections.
▸▸
Shifts in Public Health
Education
Important shifts in public health education have taken
place since 2007, as well. One particular change that
is relevant to this textbook (and the entire Essentials
of Public Health series) is the effort undertaken by
the Association of American Colleges and Universities (AAC&U) and the Association of Schools and
Programs of Public Health (ASPPH) to develop the
Educated Citizen and Public Health Initiative. This
initiative seeks to integrate public health perspectives
into a comprehensive liberal education framework and
to develop and organize publications, presentations,
and resources to help faculty develop public health
curricula in the nation’s colleges and universities. As a
result, public health perspectives generally, and health
policy and law specifically, are increasingly being integrated into courses as diverse as political science, history, sociology, public policy, and a range of courses
that prepare students for the health professions. We are
proud that this textbook has played a role in shaping
(and supplying) the market for health policy and law
education as part of a liberal education framework,
and we aim with this Fourth Edition to make the material as accessible to these diverse audiences as possible.
▸▸
Addressing Health Policy
Challenges
On the topic of health system complexity, we offer four
factors for your consideration as you delve into the
chapters that follow. First, like most challenging public
policy problems, pressing health policy questions simultaneously implicate politics, law, ethics, and social mores,
all of which come with their own set of competing interests and advocates. Second, health policy debates often
involve deeply personal matters pertaining to one’s quality—or very ­definition—of life, philosophical questions
about whether health care should be a market commodity or a social good, or profound questions about how
to appropriately balance population welfare with closely
guarded individual freedoms and liberties. Third, it is
often not abundantly clear how to begin tackling a particular health policy problem. For example, is it one best
handled by the medical care system, the public health
system, or both? Which level of government—federal or
state—has the authority or ability to take action? Should
the problem be handled legislatively or through regulatory channels? The final ingredient that makes health
policy problems such a complex stew is the rapid developments often experienced in the areas of healthcare
research, medical technology, and public health threats.
Generally speaking, this kind of rapid evolution is a confounding problem for the usually slow-moving American policy- and law-making machinery.
Furthermore, the range of topics fairly included
under the banner of “health policy and law” is breathtaking. For example, what effect is healthcare spending having on national and state economies? How
should finite financial resources be allocated between
health care and public health? How can we ensure
that the trust funds established to account for Medicare’s income and disbursements remain solvent in
the future as an enormous group of baby boomers
becomes eligible for program benefits? What kind of
return (in terms of quality of individual care and the
overall health of the population) should we expect
from the staggering amount of money we collectively
spend on health? Should individuals have a legal entitlement to health insurance? How should we attack
extant health disparities based on race, ethnicity, and
socioeconomic status? What policies will best protect the privacy of personal health information in an
increasingly electronic medical system? Can advanced
information technology systems improve the quality
of individual and population health? Should the right
to have an abortion continue to be protected under
the federal Constitution? Should physician assistance
in dying be promoted as a laudable social value? Will
mapping the human genome lead to discrimination
based on underlying health status? How prepared is
the country for natural and man-made catastrophes,
like pandemic influenza or bioterrorism attacks?
What effect will chronic diseases, such as diabetes and
Preface
obesity-related conditions, have on healthcare delivery and financing? How should we harness advancing
scientific findings for the benefit of the public’s health?
As seen from even this partial list of questions, the
breadth of issues encountered in the study of health
policy and law is virtually limitless, and we do not
grapple with all of the preceding questions in this book.
We do, however, introduce you to many of the policies
and laws that give rise to them, provide an intellectual
framework for thinking about how to address them
going forward, and direct you to additional relevant
readings. Given the prominent role played by policy
and law in the health of all Americans, and the fact
that the Health and Medicine Division of the National
Academies recommends that students of public health
and other interdisciplinary subjects (for example,
public policy or medicine) receive health policy and
law training, the aim of this book is to help you understand the broad context of American health policy
and law, the essential issues impacting and flowing
out of the healthcare and public health systems, and
how health policies and laws are influenced and formulated. Broadly speaking, the goal of health policy
is to promote and protect the health of individuals
and of populations bound by common circumstances.
Because the legal system provides the formal structure through which public policy—including health
policy—is debated, effected, and interpreted, law is an
indispensable component of the study of health policy. Indeed, law is inherent to the expression of public
policy: major changes to policies often demand the
creation, amendment, or rescission of laws. As such,
students studying policy must learn about policymaking and the law, legal process, and legal concepts.
▸▸
About the Fourth Edition
As a result of the changes just described and also in
response to comments we received from users of previous editions of the textbook, this edition of Essentials of Health Policy and Law has undergone updates
to many chapters, including revised and expanded
content; updated figures, tables, timelines, and discussion questions; and updated references and readings.
Part I
Part I of this textbook includes five preparatory chapters. Chapter 1 describes the influential role of policy
and law in health care and public health and introduces various conceptual frameworks through which
the study of health policy and law can take place. The
xiii
chapter also illustrates why it is important to include
policy and law in the study of health care and public
health. However, an advanced exploration of health
policy and law in individual and population health
necessitates both a basic and practical comprehension
of policy and law in general—including the policymaking process and the workings of the legal system—and
an understanding of the nation’s rather fragmented
healthcare and public health systems. Thus, Chapter 2
discusses both the meaning of policy and the policymaking process, including the basic functions, structures, and powers of the legislative and executive
branches of government and the respective roles of
the federal and state governments in policymaking.
Chapter 3 then describes the meaning and sources of
law and several key features of the American legal system, including the separation of powers doctrine, federalism, the role of courts, and due process. Chapter 4
provides an overview of the healthcare system, including basic information on healthcare finance, access,
and quality, and examples of how the U.S. system differs from those in other developed nations. Part I closes
with an overview, in Chapter 5, of the public health
system, including its evolution and core functions.
Part II
Part II offers several chapters focusing on key substantive health policy and law issues. Chapter 6 examines the ways in which the law creates, protects, and
restricts individual rights in the contexts of health care
and public health, including a discussion of laws (such
as Medicaid and Medicare) that aim to level the playing field where access to health care is concerned. The
chapter also introduces the “no-­duty-to-treat” principle, which holds that there is no general legal duty on
the part of healthcare providers to render care and that
rests at the heart of the legal framework pertaining to
healthcare rights and duties. Chapter 7 describes how
social factors play a critical role in the attainment (or
not) of individual and population health, discusses the
ways in which law can both exacerbate and ameliorate
negative social determinants of health, and introduces
readers to the concept of medical-legal partnership.
Chapters 8 and 9 cover the fundamentals of health
insurance and health economics, respectively, and set
up a subsequent thematic discussion in Chapters 10
and 11. Specifically, ­Chapter 8 describes the function
of risk and uncertainty in health insurance, defines the
basic elements of health insurance, discusses important health policy issues relating to health insurance,
and more; Chapter 9 explains why it is important for
health policymakers to be familiar with basic economic
xiv
Preface
concepts; the basic tenets of supply, demand, and markets; and the way in which health insurance affects
economic conditions.
The focus of Chapter 10 is on health reform,
including the ACA. The chapter discusses the reasons
why for decades the United States failed to achieve
national health reform prior to the ACA, how and why
the ACA passed given this history, and what the ACA
aims to achieve. Chapter 11 explains how federal
and state policymakers have created health insurance
programs for individuals and populations who otherwise might go without health insurance coverage.
The basic structure, administration, financing, and
eligibility rules of the three main U.S. public health
insurance programs—Medicaid, the Children’s Health
Insurance Program, and Medicare—are discussed, as
are key health policy questions relating to each program. Chapter 12 reflects on several important policy and legal aspects of healthcare quality, including
the advent of provider licensure and accreditation of
health facilities (both of which represent quality control through regulation), the evolution of the standard of care, tort liability for healthcare providers and
insurers, preventable medical errors, and, with the
ACA as the focal point, efforts to improve healthcare
quality through quality improvement and provider
incentive programs. Part II concludes with a chapter
on public health preparedness policy, including discussions about how to define preparedness, the types
of public health threats faced by the United States,
policy responses to these threats, and an assessment
of where the country stands in terms of preparedness.
Part III
The textbook concludes in Part III by teaching the
basic skills of health policy analysis. The substance
of health policy can be understood only as the product of an infinite number of policy choices regarding
whether and how to intervene in many types of health
policy problems. As such, Chapter 14 explains how
to structure and write a short health policy analysis, which is a tool frequently used by policy analysts
when they assess policy options and discuss rationales
for their health policy recommendations.
▸▸
New to this Edition
This Fourth Edition addresses the many changes
related to health reform; the health care system; the
ACA’s effect on Medicaid, Medicare, and CHIP; as
well as health care quality and private payer reform
efforts.
The chapter on Public Health Preparedness Policy
has been significantly revised, reflecting an increased
focus on natural disasters, controlling infectious diseases, and military emergencies.
The chapter on writing a policy analysis has been
updated with new detailed examples.
For instructors, we offer thoroughly updated
­PowerPoint lecture slides for classroom use, as well as
an updated Test Bank for each chapter.
The resources in the accompanying Navigate 2
Advantage platform have also been thoroughly
updated. These are available for either independent
student study or for use in an instructor-led, online
course. These materials include an interactive eBook
with personalization tools such as highlighting, bookmarking, notes, and end-of-chapter quizzes to assess
learning. Also included are Slides in PowerPoint format, an interactive glossary, practice quizzes, and
more. These materials are available by redeeming the
code found on the card inside this book.
© Mary Terriberry/Shutterstock
Acknowledgments
We are grateful to the many people who generously
contributed their guidance, assistance, and encouragement to us during the writing of this book. At the
top of the list is Dr. Richard Riegelman, founding dean
of the Milken Institute School of Public Health at the
George Washington University (GW) and Professor of
Epidemiology and Biostatistics, Medicine, and Health
Policy. The Essential Public Health series was his
brainchild, and his stewardship of the project as Series
Editor made our involvement in it both enriching and
enjoyable. We are indebted to him for his guidance
and confidence.
We single out one other colleague for special
thanks. Sara Rosenbaum, the Harold and Jane Hirsh
Professor of Health Law and Policy and a past chair of
GW’s Department of Health Policy and Management,
has been a wonderful mentor, colleague, and friend
for decades. We are indebted to her for supporting
our initial decision to undertake the writing of this
textbook.
During the writing of the various editions of this
book, we have been blessed by the help of several
stellar research assistants. The First Edition could not
have been completed without V. Nelligan Coogan,
Mara B. McDermott, Sarah E. Mutinsky, Dana E.
Thomas, and Ramona Whittington; Brittany Plavchak
and Julia Roumm were essential to the completion of
the ­Second Edition; Jacob Alexander’s assistance was
key to the Third Edition; and Joanna Theiss was instrumental in updating the current edition. To all of them
we send our deep appreciation for their research assistance and steady supply of good cheer.
Our gratitude extends also to Mike Brown, publisher for Jones & Bartlett Learning, for his guidance
and encouragement, and to his staff, for their patience
and technical expertise.
Finally, we wish to thank those closest to us.
Sara gives special thanks to Trish Manha—her wife,
cheerleader, reviewer, and constant supporter—and to
Sophia, and William, who make life fun, surprising,
and ever-changing. Joel sends special thanks to his
family: Laura Hoffman, Jared Teitelbaum, and Layna
Teitelbaum, his favorite people and unending sources
of joy and laughter.
xv
© Mary Terriberry/Shutterstock
About the Authors
Sara Wilensky, JD, PhD, is special services faculty for
undergraduate education in the Department of Health
Policy and Management at the Milken Institute School
of Public Health at the George Washington University
(GW) in Washington, DC. She is also the director of
the Undergraduate Program in Public Health.
Dr. Wilensky has taught a health policy analysis
course and health systems overview course required
of all students in the Master of Public Health–Health
Policy degree program, as well as the health policy
course required of all undergraduate students majoring in public health. She has been the principal investigator or co-principal investigator on numerous
health policy research projects relating to a variety of
topics, such as Medicaid coverage, access and financing, community health centers, childhood obesity,
HIV preventive services, financing of public hospitals,
and data sharing barriers and opportunities between
public health and Medicaid agencies.
As director of the Undergraduate Program in
Public Health, Dr. Wilensky is responsible for the dayto-day management of the program, including implementation of the dual BS/MPH program. In addition,
she is responsible for faculty oversight, course scheduling, new course development, and student satisfaction.
Dr. Wilensky is involved with several GW service
activities: she has taught a service learning in public health course in the undergraduate program; she
has been heavily involved in making GW’s Writing
in the Disciplines program part of the undergraduate major in public health; and she is the advisor to
students receiving a master in public policy or a master in public administration with a focus on health
policy from GW’s School of Public Policy and Public
Administration.
Prior to joining GW, Dr. Wilensky was a law clerk
for federal Judge Harvey Bartle III in the Eastern District of Pennsylvania and worked as an associate at
the law firm of Cutler and Stanfield, LLP, in Denver,
Colorado.
Joel Teitelbaum, JD, LLM, is associate professor,
director of the Hirsh Health Law and Policy Program,
and co-director of the National Center for
­Medical-Legal Partnership at the George Washington
University Milken Institute School of Public Health
in Washington, DC. He also carries a faculty appointment in the GW School of Law, and for 11 years
served as vice chair for academic affairs in the School
of Public Health’s Department of Health Policy and
Management, a role in which he provided oversight
of the Department’s graduate degree programs, curriculum development, and faculty and student support services. As director of the Hirsh Health Law
and Policy Program, he oversees a program designed
to foster an interdisciplinary approach to the study
of health law, health policy, health care, and public
health through educational and research opportunities for law students, health professions students, and
practicing lawyers. In his role at the National Center
for ­Medical-Legal Partnership, he helps direct national
efforts to embed civil legal services into healthcare
delivery as a way of ameliorating social determinants
that negatively affect individual and population health.
Professor Teitelbaum has taught law, graduate, or
undergraduate courses on healthcare law, healthcare
civil rights, public health law, minority health policy,
and long-term care law and policy. In 2009 he became
the first member of the School of Public Health faculty to receive the University-wide Bender Teaching
Award. He is also a member of the GW Academy of
Distinguished Teachers and a Fellow in the University’s Cross-Disciplinary Cooperative; he has received
the School’s Excellence in Teaching Award and was an
inaugural member of the School’s Academy of Master
Teachers; he was inducted in 2007 into the ASPPH/
Pfizer Public Health Academy of Distinguished
Teachers; and he has been named one of the “Stars”
of undergraduate teaching at GW by an undergraduate leadership group. He is regularly invited to lecture at top universities and at national conferences
and meetings.
In addition to Essentials of Health Policy and
Law, Professor Teitelbaum is co-author of Essentials
of Health Justice (2019), also published by Jones &
Bartlett Learning. He has authored or co-authored
xvii
xviii
About the Authors
dozens of peer-reviewed articles and reports in addition to many book chapters, policy briefs, and blogs
on civil rights issues in health care, health reform
and its implementation, medical-legal partnership,
insurance law and policy, and behavioral healthcare
quality, and he has directed many health law and policy research projects. In 2000, he was co-recipient of
The Robert Wood Johnson Foundation Investigator
Award in Health Policy Research, which he used to
explore the creation of a new framework for applying
Title VI of the 1964 Civil Rights Act to the modern
healthcare system.
In 2016, during President Obama’s second term,
Professor Teitelbaum was named to the U.S. Department of Health and Human Services Secretary’s
Advisory Committee on National Health Promotion
and Disease Prevention Objectives for 2030 (i.e.,
Healthy People 2030, the national agenda aimed at
improving the health of all Americans over a 10-year
span). He also serves as Special Advisor to the American Bar Association’s Commission on Veterans’ Legal
Services and as a member of the Board of Advisors
of PREPARE, a national advanced care planning
organization.
Professor Teitelbaum is a member of Delta Omega,
the national honor society recognizing excellence in
the field of public health; the American Constitution
Society for Law and Policy; the American Society of
Law, Medicine, and Ethics; and the Society for American Law Teachers.
© Mary Terriberry/Shutterstock
Contributors
▸▸
Chapter 5: Public Health
Institutions and Systems
Richard Riegelman, MD, PhD, MPH
The George Washington University
Washington, DC
▸▸
Chapter 13: Public Health
Preparedness Policy
Rebecca Katz, PhD, and Claire Standley, PhD
Georgetown University
Washington, DC
xix
PART I
Setting the Stage:
An Overview of
Health Policy
and Law
Part I of this textbook includes five contextual chapters aimed at preparing
you for the substantive health policy and law discussions in Chapters 6–13
and for the skills-based discussion of policy analysis in Chapter 14.
Chapter 1 describes generally the role of policy and law in health care and
public health and introduces conceptual frameworks for studying health
policy and law. Chapter 2 describes the meaning of policy and also the policymaking process itself. Chapter 3 provides an overview of the meaning
and sources of law and of several important features of the legal system.
Part I closes with overviews of the U.S. healthcare system (Chapter 4) and
public health system (Chapter 5).
© Mary Terriberry/Shutterstock
1
© Mary Terriberry/Shutterstock
CHAPTER 1
Understanding the Role of
and Conceptualizing Health
Policy and Law
LEARNING OBJECTIVES
By the end of this chapter you will be able to:
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■■
▸▸
I
Describe generally the important role played by policy and law in the health of individuals and populations
Describe three ways to conceptualize health policy and law
Introduction
n this chapter, we introduce the role played by policy and law in the health of individuals and populations and describe various conceptual frameworks
with which you can approach the study of health policy and law. In the chapters that follow, we build on
this introduction to provide clarity in areas of health
policy and law that are neither readily discernable—
even to those who use and work in the healthcare and
public health systems—nor easily reshaped by those
who make, apply, and interpret policy and law.
The goals of this chapter are to describe why it is
important to include policy and law in the study of
health care and public health and how you might conceptualize health policy and law when undertaking
your studies. To achieve these goals, we first briefly
discuss the vast influence of policy and law in health
care and public health. You will have a much better
feel for how far policy and law reach into these areas
as you proceed through this text, but we dedicate a few
pages here to get you started. We then describe three
ways to conceptualize health policy and law which, as
you will discover, are interwoven, with no one framework dominating the discussion.
▸▸
Role of Policy and Law in
Health Care and Public Health
The forceful influence of policy and law on the health
and well-being of individuals and populations is undeniable. Policy and law have always been fundamental
in shaping the behaviors of individuals and industries,
the practice of health care, and the environments
in which people live and work. They have also been
3
4
Chapter 1 Understanding the Role of and Conceptualizing Health Policy and Law
vital in achieving both everyday and landmark public
health improvements.
For example, centuries-old legal principles have,
since this country’s inception, provided the bedrock
on which healthcare quality laws are built, and today
the healthcare industry is regulated in many different ways. Indeed, federal and state policy and law
shape virtually all aspects of the healthcare system,
from structure and organization, to service delivery,
to financing, to administrative and judicial oversight.
Whether pertaining to the accreditation and certification of individual or institutional healthcare providers,
requirements to provide care under certain circumstances, the creation of public insurance programs, the
regulation of private insurance systems, or any other
number of issues, policy and law drive the healthcare
system to a degree unknown by most people.
In fact, professional digests that survey and report
on the subjects of health policy and law typically include
in their pages information on topics like the advertising and marketing of health services and products,
the impact of health expenditures on federal and state
budgets, antitrust concerns, healthcare c­ ontracting,
employment issues, patents, taxation, healthcare discrimination and disparities, consumer protection,
bioterrorism, health insurance, prescription drug
regulation, physician-assisted suicide, biotechnology,
human subject research, patient privacy and confidentiality, organ availability and donation, and more.
Choices made by policymakers and decisions handed
down through the judicial system influence how we
approach, experience, analyze, and research all of these
and other specific aspects of the healthcare system.
Once you have read the next four preparatory chapters—one on policy and the policymaking process, one
on law and the legal system, and one each covering the
structure and organization of the healthcare and public health systems—and begin to digest the substantive
chapters that follow them, the full force of policy and
law in shaping the individual healthcare system will
unfold. For now, simply keep in the back of your mind
the fact that policy and law heavily influence the way
in which overall health and well-being are achieved
(or not), health care is accessed, medicine is practiced,
treatments are paid for, and much more.
The role of policy and law in public health is no
less important than in individual health care, but their
influence in the field of public health is frequently less
visible and articulated. In fact, policy and law have long
played a seminal role in everyday public health activities. Think, for example, of food establishment inspections, occupational safety standards, policies related
to health services for persons with chronic health
conditions such as diabetes, and policies and laws
­affecting the extent to which public health ­agencies
are able to gauge whether individuals in a community
suffer from certain health conditions. Similarly, policy
and law have been key in many historic public health
accomplishments such as water and air purification,
reduction in the spread of communicable diseases
through compulsory immunization laws, reduction
in the number of automobile-related deaths through
seat belt and consumer safety laws, and several other
achievements.a Public health professionals and students quickly learn to appreciate that combating public health threats requires both vigorous policymaking
and adequate legal powers.
Additionally, in recent years, enhanced fears about
bioterrorism and newly emerging infectious diseases
have increased the public’s belief that policy and law
are important tools in creating an environment in
which people can achieve optimal health and safety.
Of course, policies and laws do not always cut in
favor of what many people believe to be in the best
interests of public health and welfare. A policy or law
might, for example, favor the economic interests of a
private, for-profit company over the personal interests
of residents of the community in which the company
is located.b Such situations occur because one main
focus of public health policy and law is on locating
the appropriate balance between public regulation of
private individuals and corporations and the ability of
those same parties to exercise rights that allow them to
function free of overly intrusive government intervention. Achieving this balance is not easy for policymakers, as stakeholders disagree on things like the extent
to which car makers should alter their operations to
reduce environmentally harmful vehicle emissions, or
the degree to which companies should be limited in
advertising cigarettes, or whether gun manufacturers
should be held liable in cases where injuries or killings
result from the negligent use of their products.
How do policymakers and the legal system reach
a (hopefully) satisfactory balance of public health and
private rights? The competing interests at the heart of
public health are mainly addressed through two types
of policies and laws: those that define the functions and
powers of public health agencies and those that aim to
directly protect and promote health.c State-­level policymakers and public health officials create these types
of policies and laws through what are known as their
police powers. These powers represent the inherent
authority of state and local governments to regulate
individuals and private business in the name of public
health promotion and protection. The importance of
police powers cannot be overstated; it is fair to say that
Conceptualizing Health Policy and Law
they are the most critical aspect of the sovereignty that
states retained at the founding of the country, when
the colonies agreed to a governmental structure consisting of a strong national government. Furthermore,
the reach of police powers should not be underestimated: they give government officials the authority—
in the name of public health and welfare—to coerce
private parties to act (or refrain from acting) in certain
ways. However, states do not necessarily need to exercise their police powers in order to affect or engage
in public health–related policymaking. Because the
public’s health is impacted by many social, economic,
and environmental factors, public health agencies also
conduct policy-relevant research, disseminate information aimed at helping people engage in healthy
behaviors, and establish collaborative relationships
with healthcare providers and purchasers and with
other government policymaking agencies.
Federal policy and law also play a role in public
health. Although the word health does not appear in the
U.S. Constitution, the document confers powers on the
federal government—to tax and spend, for ­example—
that allow it to engage in public health promotion and
disease prevention activities. For example, the power
to tax (or establish exemptions from taxation) allows
Congress to incentivize healthy behaviors, as witnessed
by the heavy taxes levied on packages of cigarettes; the
power to spend enables Congress to establish executive
branch public health agencies and to allocate publichealth–specific funds to states and localities.
▸▸
Conceptualizing Health Policy
and Law
You have just read about the importance of taking policy and law into account when studying health care
and public health. The next step is to begin thinking
about how you might conceptually approach the study
of health policy and law.
There are multiple ways to conceptualize the many
important topics that fall under the umbrella of health
policy and law. We introduce three conceptual frameworks in this section: one premised on the broad topical domains of health policy and law, one based on
prevailing historical factors, and one focused on the
individuals and entities impacted by a particular policy or legal determination (BOX 1-1).
We draw on these frameworks to various degrees
in this text. For example, the topical domain approach
of Framework 1 is on display in the sections about
individual rights in health care and public health and
healthcare quality policy and law. Framework 2’s f­ ocus
5
BOX 1-1 Three Conceptual Frameworks for Studying
Health Policy and Law
Framework 1. Study based on the broad topical
domains of:
a. Health care
b. Public health
c. Bioethics
Framework 2. Study based on historically dominant
social, political, and economic perspectives:
a. Professional autonomy
b. Social contract
c. Free market
Framework 3. Study based on the perspectives of
key stakeholders:
a. Individuals
b. The public
c. Healthcare professionals
d. Federal and state governments
e. Managed care and traditional insurance
companies
f. Employers
g. Healthcare industries (e.g., the pharmaceutical
industry)
h. The research community
i. Interest groups
j. Others
on historical perspectives is highlighted in the chapters
on health reform and government health insurance
programs. Finally, Framework 3, which approaches
the study of health policy and law from the perspectives of key stakeholders, is discussed in the policy and
policymaking process section and also in the chapter
dedicated to the social determinants of health. We
turn now to a description of each framework.
The Three Broad Topical Domains
of Health Policy and Law
One way to conceptualize health policy and law is as
consisting of three large topical domains. One domain
is reserved for policy and law concerns in the area
of health care, another for issues arising in the public
health arena, and the last for controversies in the field
of bioethics. As you contemplate these topical domains,
bear in mind that they are not individual silos whose
contents never spill over into the others. Indeed, spillage of one domain’s contents into another domain
is common (and, as noted, is one reason why fixing
health policy problems can be terribly c­ omplicated).
We briefly touch on each domain.
6
Chapter 1 Understanding the Role of and Conceptualizing Health Policy and Law
Healthcare Policy and Law
In the most general sense, this domain is concerned
with an individual’s access to care (e.g., What policies and laws impact an individual’s ability to access
needed care?), the quality of the care the person
receives (e.g., Is it appropriate, cost-effective, and non-­
negligent?), and how the person’s care will be financed
(e.g., Is the person insured?). However, “access,” “quality,” and “financing” are themselves rather large subdomains, with their own sets of complex policy and
legal issues; in fact, it is common for students to take
semester-long policy and/or law courses focused on
just one of these subdomains.
Public Health Policy and Law
The second large topical domain is that of public health
policy and law. A central focus here is on why and how
the government regulates private individuals and corporations in the name of protecting the health, safety,
and welfare of the general public. Imagine, for example,
that the federal government is considering a blanket
policy decision to vaccinate individuals across the country against the deadly smallpox disease, believing that
the decision is in the best interests of national security.
Would this decision be desirable from a national policy
perspective? Would it be legal? If the program’s desirability and legality are not immediately clear, how would
you go about analyzing and assessing them? These are
the kinds of questions with which public health policy
and law practitioners and scholars grapple.
Bioethics
Finally, there is the bioethics domain to health policy
and law. Strictly speaking, the term bioethics is used to
describe ethical issues raised in the context of medical practice or biomedical research. More comprehensively, bioethics can be thought of as the point at
which public policy, law, individual morals, societal
values, and medicine intersect. The bioethics domain
houses some of the most explosive questions in health
policy, including the morality and legality of abortion,
conflicting values around the meaning of death and
the rights of individuals nearing the end of life, and
the policy and legal consequences of mapping the
human genetic code.
Social, Political, and Economic
Historical Context
Dividing the substance of health policy and law into
broad topical categories is only one way to conceptualize them. A second way to consider health policy and
law is in historical terms, based on the social, political, and economic views that dominate a particular
era.d Considered this way, health policy and law have
been influenced over time by three perspectives, all of
which are technically active at any given time, but each
of which has eclipsed the others during specific periods in terms of political, policy, and legal outcomes.
These perspectives are termed professional autonomy,
social contract, and free market.e
Professional Autonomy Perspective
The first perspective, grounded in the notion that the
medical profession should have the authority to regulate itself, held sway from approximately 1880 to 1960,
making it the most dominant of the three perspectives
in terms of both the length of time it held favored status and its effect in the actual shaping of health policy
and law. This model is premised on the idea that physicians’ scientific expertise in medical matters should
translate into legal authority to oversee essentially
all aspects of delivering health care to individuals; in
other words, according to proponents of the physician autonomy model, legal oversight of the practice
of medicine should be delegated to the medical profession itself. During the period that this perspective
remained dominant, policy- and lawmakers were generally willing to allow physicians to control the terms
and amount of payments for rendered healthcare
services, the standards under which medical licenses
would be granted, the types of patients they would
treat, the type and amount of information to disclose
to patients, and the determination as to whether their
colleagues in the medical profession were negligent in
the treatment of their patients.
Social Contract Perspective
The second perspective that informs a historical conceptualization of health policy and law is that of the
“modestly egalitarian social contract” (Rosenblatt,
Law, & Rosenbaum, 1997, p. 2; the authors write that
the American social contract lags behind those of
other developed countries, and thus use the phrase
“modestly egalitarian” in describing it). This paradigm
overshadowed its competitors, and thus guided policymaking, from roughly 1960 to 1980, a time notable
in U.S. history for social progressiveness, civil rights,
and racial inclusion. At the center of this perspective
is the belief that complete physician autonomy over
the delivery and financing of health care is potentially dangerous in terms of patient care and healthcare expenditures, and that public policy and law can
and sometimes should enforce a “social contract”
Conceptualizing Health Policy and Law
at the expense of physician control. Put differently,
this perspective sees physicians as just one of several
stakeholders (including but not limited to patients,
employers, and society more broadly) that lay claim to
important rights and interests in the operation of the
healthcare system. Health policies and laws borne of
the social contract era centered on enhancing access
to health care (e.g., through the Examination and
Treatment for Emergency Medical Conditions and
Women in Labor Act), creating new health insurance
programs (Medicare and Medicaid were established in
1965), and passing antidiscrimination laws (one of the
specific purposes of Title VI of the federal 1964 Civil
Rights Act was wiping out healthcare discrimination
based on race).
Free Market Perspective
The final historical perspective—grounded in the twin
notions of the freedom of the marketplace and of market competition—became dominant in the 1990s and
continues with force today (though one could argue
that the Affordable Care Act evidences a curbing of the
free market perspective and an elevation, again, of the
social contract perspective). It contends that the markets for healthcare services and for health insurance
operate best in a deregulated environment, and that
commercial competition and consumer empowerment will lead to the most efficient healthcare system.
Regardless of the validity of this claim, this perspective
argues that the physician autonomy model is falsely
premised on the idea of scientific expertise, when in
fact most healthcare services deemed “necessary” by
physicians have never been subjected to rigorous scientific validation (think of the typical treatments for
the common cold or a broken leg). It further argues
that even the modest version of the social contract
theory that heavily influenced health policy and law
during the civil rights generation is overly regulatory.
Furthermore, market competition proponents claim
that both other models are potentially inflationary: in
the first case, self-interest will lead autonomous physicians to drive up the cost of their services, and in the
second instance, public insurance programs like Medicare would lead individuals to seek unnecessary care.
To tie a couple of these historical perspectives
together and examine (albeit in somewhat oversimplified fashion) how evolving social and economic
mores have influenced health policy and law, consider
the example of Medicaid, the joint federal–state health
insurance program for low-income individuals. In
1965, Medicaid was born out of the prevailing societal
mood that it was an important role of government to
expand legal rights for the poor and needy. Its ­creation
7
exemplified a social contract perspective, which in the
context of health promotes the view that individuals
and society as a whole are important stakeholders in
the healthcare and public health systems. Medicaid
entitled eligible individuals to a set of benefits that,
according to courts during the era under consideration, was the type of legal entitlement that could be
enforced by beneficiaries when they believed their
rights under the program were infringed.
These societal expectations and legal rights and
protections withstood early challenges during the
1970s, as the costs associated with providing services
under Medicaid resulted in state efforts to roll back
program benefits. Then, in the 1980s, Medicaid costs
soared higher, as eligibility reforms nearly doubled the
program’s enrollment and some providers (e.g., community health centers) were given higher payments
for the Medicaid services they provided. Still, the
social contract perspective held firm, and the program
retained its essential egalitarian features.
As noted, however, the gravitational pull of the
social contract theory weakened as the 1980s drew
to a close. This, coupled with the fact that Medicaid
spending continued to increase in the 1990s, led to
an increase in the number of calls to terminate program members’ legal entitlement to benefits.f Also in
the 1990s, federal and state policymakers dramatically
increased the role of private managed care companies
in both Medicaid and Medicare, an example of the
trend toward free market principles.
Key Stakeholders
A third way to conceptualize health policy and law
issues is in terms of the stakeholders whose interests
are impacted by certain policy choices or by the passage or interpretation of a law. For example, imagine that in the context of interpreting a state statute
regulating physician licensing, your state’s highest
court ruled that it was permissible for a physician to
not treat a patient who was in urgent need of care,
even though the doctor had been serving as the
patient’s family physician. What stakeholders could be
impacted by this result? Certainly the patient, as well
as other patients whose treatment may be colored by
the court’s decision. Obviously the doctor and other
doctors practicing in the same state could be impacted
by the court’s conclusion. What about the state legislature? Perhaps it unintentionally drafted the licensing
statute in ambiguous fashion, which led the court to
determine that the law conferred no legal responsibility on the physician to respond to a member of a family that was part of the doctor’s patient load. Or maybe
the legislature is implicated in another way—maybe
8
Chapter 1 Understanding the Role of and Conceptualizing Health Policy and Law
it drafted the law with such clarity that no other outcome was likely to result, but the citizenry of the state
was outraged because its elected officials have created
public policy out of step with constituents’ values.
Note how this last example draws in the perspective of
another key stakeholder—the broader public.
Of course, patients, healthcare providers, governments, and the public are not the only key stakeholders in important matters of health policy and law.
Managed care and traditional insurance companies,
employers, private healthcare industries, the research
community, interest groups, and others all may have a
strong interest in various policies or laws under debate.
▸▸
receiving high-quality prenatal health care, and experiencing a successful delivery is crucial not only to the
physical, mental, and emotional health and well-being
of individuals and families, but to the long-term economic and social health of the nation. It also implicates
a dizzying number of interesting and important policy
questions. Consider the following:
■■
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Conclusion
The preceding descriptions of the roles played by policy
and law in the health of individuals and populations,
and of the ways to conceptualize health policy and law,
were cursory by design. But what we hope is apparent
to you at this early stage is the fact that the study of
policy and law is essential to the study of both health
care and public health. Consider the short list of major
problems with the U.S. health system as described in a
book edited and written by a group of leading s­ cholars:
the coverage and financing of health care, healthcare
quality, health disparities, and threats to population
health (Mechanic, Rogut, Colby, & Knickman, 2005,
p. 10). All of the responses and fixes to these problems—and to many other healthcare- and public
health–related concerns—will invariably and necessarily involve creative policymaking and rigorous legal
reform (and indeed, the Affordable Care Act, about
which you will read in various sections, addressed
each of these topics to one degree or another). This fact
is neither surprising nor undesirable: policy and law
have long been used to effect positive social change,
and neither the healthcare nor public health field is
immune to it. Thus, going forward, there is little reason to expect that policy and law will not be two of the
primary drivers of health-related reform.
Policy and legal considerations are not relevant
only in the context of major healthcare and public
health transformations, however—they are critical
to the daily functioning of the health system, and to
the health and safety of individuals and communities
across a range of everyday life events. Think about
pregnancy and childbirth, for example. There are
approximately 11,000 births each day in this country, and thus society views pregnancy and childbirth
as more or less normal and unremarkable events. In
fact, the process of becoming pregnant, accessing and
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Should there be a legal right to health care in the
context of pregnancy, and, if so, should that right
begin at the point of planning to get pregnant, at
the moment of conception, at the point of labor,
or at some other point?
Regardless of legal rights to care, how should the
nation finance the cost of pregnancy care? Should
individuals and families be expected to save
enough money to pay out-of-pocket for what is
a predictable event? Should the government help
subsidize the cost of prenatal care? If so, in what
way? Should care be subsidized at the same rate
for everyone, or should subsidy levels be based on
financial need?
Regarding the quality of care, what is known
about the type of obstetrical care women should
receive, and how do we know they are getting that
care? Given the importance of this type of care,
what policy steps are taken to ensure that the care
is sound? What should the law’s response be when
a newborn or pregnant woman is harmed through
an act of negligence? When should clinician errors
be considered preventable and their commission
thus tied to a public policy response? And what
should the response be?
What should the legal and social response be to
prospective parents who act in ways risky to the
health of a fetus? Should there be no societal
response because the prospective parents’ actions
are purely a matter of individual right? Does it
depend on what the actions are?
Is it important to track pregnancy and birth
rates through public health surveillance systems?
Why or why not? If it is an important function,
should the data tracking be made compulsory or
voluntary?
How well does the public health system control
known risks to pregnancies, both in communities
and in the workplace?
Finally, who should answer these questions? The
federal government? States? Individuals? Should
courts play a role in answering some or all of
them, and, if so, which ones? Whose interests are
implicated in each question, and how do these
stakeholders affect the policymaking process?
Endnotes
There are scores of topics—pregnancy and childbirth among them, as you can see—that implicate a
range of complex health policy questions, and these
are the types of questions this text prepares you to
ask and address. Before you turn your attention to
the essential principles, components, and issues of
health policy and law, however, you must understand
something about policy and law generally, and about
the organization and purposes of the healthcare and
public health systems. The next two chapters provide
a grounding in policy and law and supply the basic
information needed to study policy and law in a health
context. In those chapters, we define policy and law,
discuss the political and legal systems, introduce the
administrative agencies and functions at the heart of
the government’s role in health care and public health,
and more. With this information at your disposal, you
will be better equipped to think through some of the
threshold questions common to many policy debates,
including the following questions: Which sector—
public, private, or not-for-profit (or some combination of them)—should respond to the policy problem?
If government responds, at what level—­federal or
state—should the problem be addressed? What branch
of government is best suited to address, or is more
attuned to, the policy issue? When the government
takes the lead in responding to a policy concern, what
is the appropriate role of the private and not-for-profit
sectors in also attacking the problem? What legal barriers might there be to the type of policy change being
contemplated? Once you have the knowledge to critically assess these types of questions, you will be able
to focus more specifically on how the healthcare and
public health systems operate in the United States, and
on the application of policy and law to critical issues in
health care and public health.
References
Mechanic, D., Rogut, L. B., Colby D. C., & Knickman, J. R.
(Eds.). (2005). Policy challenges in modern health care. New
Brunswick, NY: Rutgers University Press.
Rosenblatt, R. E., Law, S. A., & Rosenbaum, S. (1997). Law and the
American health care system. Westbury, CT: The Foundation
Press.
▸▸
a.
Endnotes
See, for example, Parmet W. E. (2006). Introduction: The interdependency of law and public health. In R. A. Goodman, R. E. Hoffman,
W. Lopez, G. W. Matthews, M. A. Rothstein, &
K. L. Foster (Eds.), Law in public health ­practice
b.
c.
d.
e.
f.
9
(2nd ed., pp. xxvii–xxvii). Oxford, England:
Oxford University Press.
For a nonfictional and utterly engrossing example of the ways in which law and legal process
might stand in the way of effective public health
regulation, we recommend Harr, J. (1995). A
civil action. New York, NY: Vintage Books.
See, for example, Gostin, L. O., Thompson, F. E.,
& Grad, F. P. (2006). The law and the public’s
health: The foundations. In R. A. Goodman,
R. E. Hoffman, W. Lopez, G. W. Matthews, M. A.
Rothstein, & K. L. Foster (Eds.), Law in public
health practice (2nd ed., pp. 25–44). Oxford,
England: Oxford University Press.
The particular historical framework described
here was developed to apply to health care rather
than to public health. We do not mean to imply,
however, that it is impossible to consider public
health from a historical, or evolutionary, vantage
point. In fact, it is fair to say that public health
practice may have just entered its third historical phase. Throughout the 1800s and most of the
1900s, protection of the public’s health occurred
mainly through direct regulation of private
behavior. In the latter stages of the 20th century, strict reliance on regulation gave way to an
approach that combined regulation with chronic
disease management and public health promotion, an approach that necessitated a more active
collaboration between…
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