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6 Yale J. Health Pol'y L. & Ethics 93 (2006)
Managed Process, Due Care: Structures of Accountability in Health Care

handle is hein.journals/yjhple6 and id is 97 raw text is: Managed Process, Due Care: Structures of Accountability in Health Care Nan D. Hunter, J.D.* INTRODUCTION Almost unnoticed, a new kind of adjudication system has appeared in American law. In forty-one states and the District of Columbia, special entities have been established to resolve contract and tort claims. State law created and mandates each system; these are not arbitrations agreed to by contract between the parties. Despite their public nature, however, these systems are not offered or operated by courts; the public function of adjudication is entirely outsourced to private actors. The decision-makers are neither elected nor appointed, nor are they public sector employees; they work in private companies. Most do not write opinions, and they neither establish nor follow precedent. These new entities are the external review systems set up to resolve disputes between patients and managed care organizations (MCOs), which arise when such organizations deny coverage for medical treatment, services, or equipment that the patient, generally upon the recommendation of a physician, believes to be medically necessary. When pre-authorization for care is required, the coverage decision about whether to pay also becomes in effect a treatment decision that determines whether the care will ever be rendered. The payor's decision merges with and trumps what used to be solely the treating physician's decision. It is this massive shift in the ramifications of these disputes that has caused lawmakers to pay much greater attention to the processes for resolving them. This Article examines how legal, political, and economic change produced a new adjudicatory mechanism for resolving disputes between patients and MCOs. It is in essence a case study of the multiple determinants of procedure in a particular field-health law-at a time of rapid change in the underlying * Professor of Law and Co-Director, Center for Health, Science and Public Policy, Brooklyn Law School. I received support for the writing of this Article from the Brooklyn Law School Summer Research Program. Robin Fukuyama, Melissa Gable, and Emily Kern provided excellent research assistance. Many thanks for feedback and support to Sylvia Law and, especially, Chai Feldblum.

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