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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.*
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

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