A Not So Quiet Revolution: The Role of the Courts in Health

System Change

David HymanUniversity of Maryland/Illinois

Schools of LawFederal Trade Commission

What Bodies of Law are we talking about?

• Insurance Law (McCarran-Ferguson Act/ERISA)

• Pilot Life v. Dedeaux (1987) • Pegram v. Herdrich (2000)• Rush Prudential v. Moran (2002)• Kentucky Assn. Health Plans v. Miller (2003)• Davila v. Aetna/Prudential (2004)

• Malpractice • Competition Law (Antitrust)• Fraud/Abuse

What’s at stake?

• Federalism

• Tort v. Contract

• Lawyers/Doctors v. MCOs

• Fundamental Structural Issues

• Politics

How Do Courts Affect The Medical Market?

• Market Entry/Exit (CON, AWP, FOC, Licensure, SSH)

• Structure/Substantive Content • Mergers • Fiduciary Obligations (PBMs)• Class Actions• Licensure/Malpractice

• Price/Quality

Sources of Regulatory Oversight

1/6 Federal (Medicare)

1/6 None (Uninsured)

1/4 Federal: Self-Funded

1/6 Federal/State: Medicaid

1/4 Federal/State: Insured (Employment-based and Individual)

What Role for HSR? What Role for HSR?

Quality as an empirical proposition Quality as an empirical proposition Quality from a population perspectiveQuality from a population perspective Study ERISA plansStudy ERISA plans Get Involved! Get Involved!

What if What if Better Better Information Information Was Was Available Available from HSR? from HSR?