Overcoming managed care - regulatory chaos through a restructured federalism

Health Matrix: Journal of Law-Medicine 11 (2):327-350 (2001)
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In the realm of Constitutional Law, federalism can be classified as a perennial issue, its history predating the adoption of the constitution itself. Federalism conveys both a sense of structure and a sense of mandate, and while it is not as constant a presence in constitutional jurisprudence as issues affecting individual rights, it is a concept, nevertheless, which is a deeply rooted one, fundamental to government operations. This article is written to reflect on federalism in health care, and to suggest that the balance between Washington and the states has been skewed in ways that are counter productive to effective governance of this sector, and that such imbalances must not be tolerated as the status quo. The core argument driving the analysis in this piece is that the current regulatory frenzy in managed care presents a picture of uncoordinated, and short sighted efforts, often motivated by political gains which only serve to proliferate intergovernmental conflict, duplication of efforts, spawn unnecessary costs, and move us further away from a coordinated vision of government health care policy. The constitutional purists of the world who may stumble across this article should recognize that it is written by a health law academic who believes that constitutional doctrine underpinning federalism is fungible doctrine that should be changed when it no longer serves the public interest, and that the first step in a journey of a thousand miles may be a slippery one.



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