Social movements and human rights rhetoric in tobacco control.

After achieving breathtaking successes in securing state and local restrictions on smoking in public places and restricting youth access to tobacco products, the tobacco movement faces difficult decisions on its future strategic directions. The thesis of this article is that the tobacco control movement is at a point of needing to secure its recent successes and avoiding any public retrenchment. To do so requires rethinking the movement's strategic direction. We use the familiar trans-theoretical model of change to describe where the movement is currently and the threats it faces. The new tobacco control strategy should encompass a focus on voluntary non-smoking strategies, use human rights rhetoric to its advantage, and strengthen the public health voice to be more effective in political battles. In developing a new strategy, tobacco control advocates need to build a social movement based on a more forceful public health voice, along with the strategic use of human rights rhetoric, to focus on the power of voluntary non-smoking efforts. Using human rights rhetoric can help frame the movement in ways that have traditionally appealed to the American public. Perhaps more importantly, doing so can help infuse the tobacco control movement with a broader sense of purpose and mission.

Cost-effectiveness analysis in the courts: recent trends and future prospects.

This article provides an initial look at how managed care organizations (MCOs) might incorporate cost-effectiveness analysis (CEA) into their decision-making process and how the courts might respond. Because so few medical liability cases directly involve CEA, we must look at other areas of the law to assess potential MCO liability for applying CEA. In general negligence cases, courts rely on a risk-benefit test to determine customary practice. Likewise, in product liability cases, courts use a risk-utility calculus to determine liability for product design defects. And in challenges to government regulation, courts examine how agencies use CEA to set regulatory policy. The results have been mixed. In product liability cases, CEA has led to some punitive damage awards against automobile manufacturers. But courts have integrated it in negligence cases without generating juror antipathy, and generally defer to agency expertise in how to incorporate CEA. The article discusses the implications of these cases for MCO use of CEA and outlines various options for setting the standard of care in the managed care era.

Managed care litigation: legal doctrine at the boundary of tort and contract.

This article summarizes the various approaches to how the law should assign responsibility in a system where health care financing and delivery are combined. Health law scholars have been debating whether conflicts in managed care between individual patient needs and preserving assets for the patient population should be resolved by tort or contract law. Until recently, the literature has been dominated by scholars arguing that managed care should be guided by contractual arrangements and concepts to stimulate the market changes occurring in health care delivery. We summarize the arguments for and against both contract and tort, along with recent attempts to bridge the gap between the two approaches. The case in favor of a contract regime fails to account for the hybrid nature of managed care delivery and the context in which managed care litigation arises. Thus, tort law retains a fundamental monitoring role in the managed care era.

Investing in youth tobacco control: a review of smoking prevention and control strategies.

OBJECTIVE: To provide a comprehensive review of interventions and policies aimed at reducing youth cigarette smoking in the United States, including strategies that have undergone evaluation and emerging innovations that have not yet been assessed for efficacy. DATA SOURCES: Medline literature searches, books, reports, electronic list servers, and interviews with tobacco control advocates. DATA SYNTHESIS: Interventions and policy approaches that have been assessed or evaluated were categorised using a typology with seven categories (school based, community interventions, mass media/public education, advertising restrictions, youth access restrictions, tobacco excise taxes, and direct restrictions on smoking). Novel and largely untested interventions were described using nine categories. CONCLUSIONS: Youth smoking prevention and control efforts have had mixed results. However, this review suggests a number of prevention strategies that are promising, especially if conducted in a coordinated way to take advantage of potential synergies across interventions. Several types of strategies warrant additional attention and evaluation, including aggressive media campaigns, teen smoking cessation programmes, social environment changes, community interventions, and increasing cigarette prices. A significant proportion of the resources obtained from the recent settlement between 46 US states and the tobacco industry should be devoted to expanding, improving and evaluating "youth centred" tobacco prevention and control activities.

ERISA litigation and physician autonomy.

The Employee Retirement Income Security Act (ERISA), enacted in 1974 to regulate pension and health benefit plans, is a complex statute that dominates the managed care environment. Physicians must understand ERISA's role in the relationship between themselves and managed care organizations (MCOs), including how it can influence clinical decision making and physician autonomy. This article describes ERISA's central provisions and how ERISA influences health care delivery in MCOs. We analyze ERISA litigation trends in 4 areas: professional liability, utilization management, state legislative initiatives, and compensation arrangements. This analysis demonstrates how courts have interpreted ERISA to limit physician autonomy and subordinate clinical decision making to MCOs' cost containment decisions. Physicians should support efforts to amend ERISA, thus allowing greater state regulatory oversight of MCOs and permitting courts to hold MCOs accountable for their role in medical decision making.

Licensing telemedicine: the need for a national system.

The expansion of information technology has shattered geographic boundaries, allowing for extraordinarily increased access to health information and expanded opportunities for telemedicine practice across state boundaries. But despite its recent growth, telemedicine technology remains embedded in a state-based licensure system that places severe limits on its expansion. The current system of medical licensure is based primarily on statutes written at the turn of the 20th century. This system is inadequate to address the emerging medical practices and future uses of medical technology in the telecommunications age. To respond to the changes offered by the telecommunications revolution, we need to design a new regulatory structure for the 21st century. The purpose of this article is to propose a policy of national telemedicine licensure. The primary goal here is not to simply develop a policy proposal, but to discuss the rationale for national licensure and place it on the policy agenda. A national licensure system will expand the market for telemedicine, promote both the use and development of new technologies, and simultaneously eliminate many of the legal and regulatory ambiguities that plague and constrain the present system.

Legal issues concerning electronic health information: privacy, quality, and liability.

Personally identifiable health information about individuals and general medical information is increasingly available in electronic form in health databases and through online networks. The proliferation of electronic data within the modern health information infrastructure presents significant benefits for medical providers and patients, including enhanced patient autonomy, improved clinical treatment, advances in health research and public health surveillance, and modern security techniques. However, it also presents new legal challenges in 3 interconnected areas: privacy of identifiable health information, reliability and quality of health data, and tortbased liability. Protecting health information privacy (by giving individuals control over health data without severely restricting warranted communal uses) directly improves the quality and reliability of health data (by encouraging individual uses of health services and communal uses of data), which diminishes tort-based liabilities (by reducing instances of medical malpractice or privacy invasions through improvements in the delivery of health care services resulting in part from better quality and reliability of clinical and research data). Following an analysis of the interconnectivity of these 3 areas and discussing existing and proposed health information privacy laws, recommendations for legal reform concerning health information privacy are presented. These include (1) recognizing identifiable health information as highly sensitive, (2) providing privacy safeguards based on fair information practices, (3) empowering patients with information and rights to consent to disclosure (4) limiting disclosures of health data absent consent, (5) incorporating industry-wide security protections, (6) establishing a national data protection authority, and (7) providing a national minimal level of privacy protections.

Litigation and public health policy making: the case of tobacco control.

Many tobacco control advocates, believing that legislators and regulators have failed to enact and implement sufficiently stringent tobacco control laws, have supported litigation as a means of achieving public health policy goals. In this article, we examine the relationship between litigation and public health policy formulation in the context of the debate over tobacco control policy. The fundamental questions are how social policy should be made regarding the use of tobacco products, and which institutions should be responsible for controlling tobacco use: the market, the political system (i.e., the legislative and regulatory branches of government), or the courts. On balance we conclude that litigation is a second-best solution. We see a distinct role for litigation as a complement to a broader, comprehensive approach to tobacco control policy making, rather than as an alternative to the traditional political apparatus of formulating and implementing public health policy. Our analysis suggests that, in general, public health goals are more directly achievable through the political process than through litigation, though situations such as those concerning tobacco control blur the bounds between litigation and the politics of public health. Litigation has stimulated a national debate over the role of smoking in society and may well move the policy agenda. But we conclude that a sustained legislative and regulatory presence ought to be the foundation of meaningful policy changes.

Legal challenges to managed care cost containment programs: an initial assessment.

The success of managed care cost containment innovations depends on many factors, including how courts decide litigation challenging various cost containment initiatives. Although such litigation is just emerging, enough cases have been reported to enable an initial assessment of court rulings. To date there is no evidence that courts have systematically impeded cost containment initiatives. Few courts seem willing to usurp legislative choices in formulating health policy or to obstruct the market in organizing and delivering health care services. The anticipated role of the courts as policymakers in shaping health care delivery has yet to emerge.

The implementation and enforcement of tobacco control laws: policy implications for activists and the industry.

We examine the process by which antitobacco laws and ordinances were implemented and enforced in seven states and nineteen localities. Our findings indicate that state- and local-level clean indoor air laws were rarely enforced by governmental agencies. Instead, these laws were largely self-enforcing in that changed social norms regarding appropriate smoking behavior led to generally high compliance rates. In contrast, teen access laws were not self-enforcing, but were often enforced through periodic vendor compliance checks. We also found that antitobacco forces did not devote a significant amount of attention of implementation and enforcement issues. Their focus was primarily on enacting new legislation and fighting tobacco industry attempts to weaken existing laws. Our results do not augur well for public health measures that require state-level enforcement and that are opposed by powerful and politically well-connected interests. For tobacco control laws to be effective, public health advocates need to consider the locus of enforcement responsibility and the sanctions available to the enforcement agency, such as license removal by local authorities. These results suggest that failure to specify such mechanisms in the legislation will lead to delays in implementing and enforcing the laws as well as to a number of compliance problems. Antitobacco coalitions will also need to become more actively involved in the implementation and enforcement process.

Fiduciary responsibilities in nonprofit health care conversions.

Conversions of nonprofit hospitals to for-profit status have been controversial because of concerns that community interests are not represented in the deals. As a result, several states have either passed or are considering conversion legislation. However, dramatic variability among states in approaching conversions remains, including the extent of attorney general intervention. Federal or state legislation could standardize rules for nonprofit conversions, but such comprehensive legislation is unlikely. Instead, this article argues that CEOs and trustees of nonprofit organizations undergoing conversions must honor their fiduciary duties to ensure that a conversion represents community interests.

Nurse practitioners and physician assistants as primary care providers in institutional settings.

This paper describes the scope of primary care practice and autonomy of nurse practitioners (NPs) and physician assistants (PAs) at nine health maintenance organizations (HMOs) and multispecialty clinics (MSCs). We found that the larger an institution's managed care population, the greater the NPs' and PAs' scope of practice and autonomy, although patients with complex illnesses or multisystem problems usually were referred directly to a physician. Alternative policies to increase the number of primary care physicians might slow the growth in hiring new NPs and PAs, but are unlikely to reduce their primary care role in managed care settings. Further research is needed to consider whether these results are applicable to a broader range of practice settings.