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101 Geo. L.J. 519 (2012-2013)
Beside Bureaucrats: Why Medicare Reform Hasn't Worked

handle is hein.journals/glj101 and id is 547 raw text is: ARTICLES Bedside Bureaucrats: Why Medicare Reform Hasn't Worked NICHOLAS BAGLEY* Notwithstanding its obvious importance, Medicare is almost invisible in the legal literature. Part of the reason is that administrative law scholars typically train their attention on the sources of external control over agencies' exercise of the vast discretion that Congress so often delegates to them. Medicare's adminis- trators, however wield considerably less policy discretion than the agencies that feature prominently in the legal commentary. Traditional administrative law thus yields slim insight into Medicare's operation. But questions about external control do not-or at least they should not- exhaust the field. An old and often disregarded tradition in administrative law focuses not on external constraints, but on the internal control measures that agencies employ to shape the behavior of the bureaucrats who implement government programs on the ground. A robust set of internal controls is necessary whenever central administrators seek to align the actions of line officers with programmatic goals. And they are all the more necessary when, as is so often the case in the modern administrative state, implementation authority is vested in private actors, not government officers. So it is with Medicare, whose street-level bureaucrats are hundreds of thousands of private physicians with strong professional commitments and no particular allegiance to governmental priorities. Yet Congress's persistent fail- ure to address weaknesses in Medicare's administrative structure has stymied a series of major reform efforts that have sought to make the program's physi- cians more attentive to the cost and quality of the medical care for which it pays. This dismal history suggests that crafting an effective internal law for Medicare will require Congress to refashion the program around private organi- zations with the capacity, incentives, and legitimacy to align the practice patterns of private physicians-its bedside bureaucrats-with federal priorities. Measured against that baseline, the set of Medicare reforms included in the Affordable Care Act is a disappointment. A more muscular thoughtful, and sustained effort is needed. * Assistant Professor of Law, University of Michigan Law School. O 2013, Nicholas Bagley. For their helpful comments, many thanks to Rachel Barkow, Lisa Bressman, Nathan Cortez, Kristina Daugirdas, David Fontana, Scott Hershovitz, Don Herzog, Jill Horwitz, Nina Mendelson, Julian Mortenson, Bill Novak, Nicholas Parrillo, Richard Primus, Adam Pritchard, Carl Schneider, Kevin Stack, David Super, and Chris Walker. The Article also benefited from feedback from the Vanderbilt Faculty Workshop; the Harvard Health Law, Policy, Biotechnology, and Bioethics Workshop; and the Michigan Governance Roundtable. 519

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