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Achieving Equality: Healthcare Governance in Transition

Published online by Cambridge University Press:  06 January 2021

Louise G. Trubek
University of Wisconsin
Maya Das
University of Wisconsin


Healthcare is not immune to the deeply rooted inequalities in American society. To this day, racial and ethnic differences exist in the quality and outcomes of healthcare that cannot be attributed to socioeconomic or other healthcare access factors. Lawyers committed to social justice have long dedicated energy and attention to these continued disparities. As a lawyer litigating against segregation in healthcare facilities noted in 1966, “The treatment accorded Negroes by Southern medical facilities … reflects a striking contradiction between law and practice.” Past efforts to achieve equality in healthcare through civil rights litigation, education and local organizing have been effective to a degree, but have lost their influence in the current healthcare environment. In a renewed effort to achieve racial and ethnic equality in healthcare, some advocates are turning to quality as an indirect route to attaining this goal. The quality approach requires changing the traditional healthcare framework by incorporating new methods for achieving quality into every level of the system, including the patient level, the clinical level, the healthcare organization level and the governance level.

Research Article
Copyright © American Society of Law, Medicine and Ethics and Boston University 2003

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1 Meltsner, Michael, Equality and Health, 115 U. PA. L. REV. 22, 22 (1966)Google Scholar.

2 Berwick, Donald M., A User's Manual for the IOM's ‘Quality Chasm’ Report, 21 HEALTH AFF. 80, 8488 (2002)Google Scholar.

3 See Gregg Bloche, M., Race and Discretion in American Medicine, 1 YALE J. HEALTH POL’Y L. & ETHICS 95 (2001)Google Scholar; Bowser, Rene, Racial Bias in Medical Treatment, 105 DICK. L. REV. 365 (2001)Google Scholar; Randall, Vernellia R., Slavery, Segregation and Racism: Trusting the American Health Care System Ain't Always Easy! An African American Perspective on Bioethics, 15 ST. LOUIS U. PUB. L. REV. 191 (1996)Google Scholar.

4 The Institute of Medicine has defined “disparities in healthcare” as “racial or ethnic differences in the quality of healthcare that are not due to access-related factors or clinical needs, preferences, and appropriateness of intervention.” INST. OF MED. (IOM), UNEQUAL TREATMENT, 4-5 (2003).

5 See Bowser, supra note 3.

6 IOM, supra note 4, at 35.

7 Schulman, Kevin A. et al., The Effect of Race and Sex on Physicians’ Recommendations for Cardiac Catheterization, 340 NEW ENG. J. MED. 618, 618-26 (1999)Google Scholar. The New England Journal of Medicine eventually retracted portions of the article, Curfman, Gregory D. & Kassirer, Jerome P., Race, Sex and Physicians’ Referrals for Cardiac Catheterization—The Editors Reply, 341 NEW ENG. J. MED. 285, 287 (1999)Google Scholar, but it remained influential.

8 See Bloche, supra note 3, at 95-96.

9 Office of Disease Prevention & Health Promotion, U.S. Dep't of Health & Human Serv. (HHS), Healthy People 2010 (2000), at; IOM, supra note 4.

10 See Gornick, Marian E. et al., Effects of Race and Income on Mortality and Use of Services Among Medicare Beneficiaries, 335 NEW ENG. J. MED. 791, 793-97 (1996)Google Scholar [hereinafter Gornick, Effects of Race]; see also Gornick, Marian E. et al., Understanding Disparities in the Use of Medicare Services, 1 YALE J. HEALTH POL’Y L. & ETHICS 133 (2001)Google Scholar [hereinafter Gornick, Understanding Disparities] (discussing disparities in the use of preventive services by minority and socioeconomically disadvantaged Medicare patients).

11 Bowser, supra note 3; see also Gornick, Understanding Disparities, supra note 10, at 137-39 (comparing utilization patterns of black and white Medicare patients).

12 See Gornick, Effects of Race, supra note 10, at 793-94.

13 See, e.g., Brown v. Board of Educ., 347 U.S. 483, 493 (1954) (holding that segregation of schools based solely on race violates the Fourteenth Amendment of the Constitution).

14 Lado, Marianne Engelman, Unfinished Agenda: The Need for Civil Rights Litigation to Address Race Discrimination and Inequalities in Health Care Delivery, 6 TEX. FORUM CIV. LIB. & CIV. R. 1, 16 (2001)Google Scholar.

15 Simkins v. Moses H. Cone Mem’l Hosp., 323 F.2d 959 (4th Cir. 1963).

16 Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d (2000).

17 Id.

18 Id. § 2000d-1. Title VI implementing regulations for HHS can be found at 45 CFR § 80 (2001).

19 See Watson, Sidney D., Race, Ethnicity and Quality of Care: Inequalities and Incentives, 27 AM. J.L. & MED. 203, 214 (2001)Google Scholar (discussing the impact of Medicare and Medicaid programs as an important federal financial presence that served as an incentive to desegregate hospital and physician practices).

20 Lado, supra note 14, at 19-20.

21 See Watson, supra note 19; Lado, supra note 14, at 27 (2001); Bryan v. Koch, 627 F.2d 612 (2d Cir. 1980); NAACP v. Wilmington Med. Ctr., Inc., 657 F.2d 1322 (3d Cir. 1981).

22 Lado, supra note 14, at 21-22.

23 Bryan v. Koch, 492 F. Supp. 212 (S.D.N.Y. 1980), aff’d, 627 F.2d 612 (2d Cir. 1980). The district court found that “any inconveniences … in this case do not rise to the level of harm necessary to enlist the equitable powers of this court.” Id. at 237.

24 Lado, supra note 14, at 22-26; Telephone Interview with Marianne Engelman Lado, General Counsel, New York Lawyers for Public Interest (Aug. 9, 2002).

25 532 U.S. 275, 289 (2001).

26 Telephone Interview with Marianna Engelman Lado, supra note 24.


28 2 id. at 298, 301.

29 Id. at 77.

30 Id.

31 Id. at 274, 322.

32 Id. at 278, 321-22.

33 Id. at 341.

34 Raynard Kington et al., Increasing Racial and Ethnic Diversity Among Physicians: An Intervention to Address Health Disparities, in IOM, THE RIGHT THING TO DO, THE SMART THING TO DO: ENHANCING DIVERSITY IN HEALTH PROFESSIONS—SUMMARY OF THE SYMPOSIUM ON DIVERSITY IN HEALTH PROFESSIONS IN HONOR OF HERBERT W. NICKENS, M.D. 64-75 (2001).

35 Komaromy, et al., The Role of Black and Hispanic Physicians in Providing Health Care for Underserved Populations, 334 NEW ENG. J. MED. 1305 (1996)Google Scholar.

36 See, e.g., Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978); Hopwood v. Texas, 236 F.3d 256 (2000); see also CAL. CONST., art. I, § 31 (stating that California will not discriminate or grant preferential treatment on the basis of “race, sex, color, ethnicity, or national origin, genderbased qualifications in public employment, education, or contracting”).

37 The AAMC is currently in the process of re-defining underrepresented minority for medical school application purposes. Information on the AAMC programs for minority medical school applicants and students can be found at the Am. Ass’n of Med. Coll. website, at (last visited Mar. 10, 2003).

38 Medical school applications overall have been declining for the past six years. The decrease in the proportion of underrepresented minority students has been even more dramatic. Data tables for characteristics of medical school applicants and matriculants, including by race/ethnicity, can be found at (providing tables with information about, among other things, the gender, race, ethnicity and geographic origin of medical school applicants between the years of 1992 and 2002).

39 Kington et al., supra note 34, at 83.

40 Cross-cultural competence training in medical schools is an area that has received much attention in the past couple of years. The Health Care Fairness Act of 2000 now provides federal grants and awards for the training and education of health professionals for the provision of culturally competent healthcare. 42 U.S.C. § 293e (2000).

41 See, e.g., Gerber, Joseph C. & Stewart, David L., Prevention and Control of Hypertension and Diabetes in an Underserved Population Through Community Outreach and Disease Management: A Plan of Action, 9 J. ASS’N ACADEMIC MINORITY PHYSICIANS 48, 48 (1998)Google Scholar (describing a program with support from Department of Family Medicine at the University of Maryland School of Medicine and other organizations); Univ. of Wisconsin Med. Sch., Welcome to Medic (2001), at (describing their program for providing primary care services to the underserved).

42 See Bowser, supra note 3.

43 See id.

44 Disease Mgmt. Ass’n of America, Definition of Disease Management, at (last visited Mar. 10, 2003).

45 Howard Glecman & John Carey, An Apple a Day—On the Boss, BUSINESSWEEK, Oct. 14, 2002, at 122. This has also been referred to as “patient-centered care.” COMM. ON QUALITY HEALTH CARE, IOM, CROSSING THE QUALITY CHASM 48-51 (2002).

46 Conill, Alicia M. & Horowitz, David A., Disease Management: Origins, Basic Concepts and Practical Considerations, 2 SEMINARS IN MEDICAL PRACTICE 10 (1999)Google Scholar.

47 See generally Evidence-Based Medicine Working Group, Evidence-Based Medicine: A New Approach to Teaching the Practice of Medicine, 268 JAMA 2420, 2420-25 (1992) (discussing the paradigm shift to evidence-based medicine and its influence on clinical practice). The concept of evidence-based medicine in its present form was developed by a workgroup assembled at McMaster University. Id. This paradigm emphasizes applying the evidence from the scientific literature into dayto- day clinical practice. Id. at 2421. The shift to evidence-based medicine is founded on the premise that physicians who possess traditional medical skills of understanding the pathophysiology of human disease and sensitivity to patients’ emotional needs can provide superior care by appropriate interpretation of the results from clinical research. Id. at 2421-22.

48 Id.; COMM. ON QUALITY HEALTH CARE, IOM, supra note 45, at 97-101.

49 This indirect approach is echoed in a recent quote from Donna Brazile, a leading Democratic Party strategist: “Our civil rights agenda can't be based on what happened 30 or 40 years ago … . This country is already polarized along racial lines, and dwelling on that doesn't play to our advantage. What plays in the middle is sensible, sound ideas of how to move America forward. This means focusing on issues that help all races, like educational opportunity and the economy.” Seelye, Katherine Q., Divisive Words: The Democrats; Agile Switch by Senate Republicans Steals Democrats’ Gathering Thunder, N.Y. TIMES, Dec. 24, 2002Google Scholar, at A18.

50 Critics, however, are wary of evidence-based medicine, and consequently disease management programs, because the studies on which the developed guidelines for practice are based focus, primarily, on white male subjects. See, e.g., Bowser, supra note 3. In response to this critique, the National Institutes of Health has published standards for the approval of research protocols that require the inclusion of women and minorities. The first guidelines for the inclusion of women and minorities in research involving human subjects were published in 1994. The most recently amended version of the guidelines was published in October of 2001, available at However, for many common diseases, randomized-controlled trials still have not been conducted on women and minorities. Nonetheless, the provision of some level of uniform care and the basic preventive and primary care services found in many disease management programs are more beneficial than the variability of the past. Disease management also provides the opportunity to incorporate variables, such as race and gender, into guidelines as study results become available.

51 Health Disparities Collaboratives, A National Effort to Improve Health Outcomes for All Medically Underserved People with Chronic Disease., at (A website dedicated to providing information and resources “for poor, minority, and other underserved people”) (last visited Mar. 10, 2003).

52 Office of Disease Prevention & Health Promotion, supra note 9.

53 Telephone Interview with Rebecca Steinfield, IHI (July 8, 2002); Interview with Staff, Holyoke Health Ctr. in Holyoke, Ma. (Oct. 29, 2002) (seventy-five to eighty-five percent of patients are Latino) [hereinafter Holyoke Staff Interview]; Interview with Staff, Lynn Health Ctr. in Lynn, Ma. (Oct. 22, 2002) (sixty percent of patients are Medicaid and five to ten percent are uninsured) [hereinafter Lynn Staff Interview]. The Health Disparities Collaboratives’ partners include IHI, governmental agencies and associations representing organizations and healthcare providers that work with disadvantaged populations, including the National Association of Community Health Centers, Health Care for the Homeless Clinicians’ Network and the Migrant Clinicians Network. The Improving Chronic Illness Care Program (ICIC), funded by the Robert Wood Johnson Foundation and housed at the MacColl Institute, also serves as a partner. ICIC conducts a separate program utilizing the same, or similar, models as the Health Care Disparities Collaboratives for healthcare organizations that are not eligible for the federal program. The Robert Wood Johnson Foundation also provides additional funding through grant programs to community health centers involved in the Health Disparities Collaboratives. Telephone Interview with Eva Cohen, Northeast Cluster Coordinator, Health Disparities Collaboratives (June 29, 2002) [hereinafter Cohen June Interview]; Improving Chronic Illness Care, A Nat’l Program of the Robert Wood Johnson Found., at (A website committed to “[h]elping the chronically ill through quality improvement and research”) (last visited Mar. 10, 2003); Robert Wood Johnson Found., at (last visited Mar. 10, 2003).

54 Cohen June Interview, supra note 53.

55 Health Disparities Collaboratives, supra note 51.

56 Id.

57 Telephone Interview with Eva Cohen, Northeast Cluster Coordinator, Health Disparities Collaborative (Nov. 12, 2002) [hereinafter Cohen Nov. Interview].

58 Telephone Interview with Rebecca Steinfield, supra note 53

59 Health Disparities Collaboratives, supra note 51.

60 Cohen Nov. Interview, supra note 57.

61 Health Disparities Collaboratives, supra note 51.

62 Id.

63 Cohen June Interview, supra note 543; Health Disparities Collaboratives, supra note 51.

64 Cohen Nov. Interview, supra note 57.

65 Health Disparities Collaboratives, supra note 51.

66 Cohen June Interview, supra note 53.

67 Id.

68 Id.

69 Id.

70 IHI, at (A website “offer[ing] resources and services to help health care organizations make dramatic and long-lasting improvements that enhance clinical outcomes and reduce costs”) (last visited Mar. 10, 2003).

71 Cohen June Interview, supra note 53.

72 Health Disparities Collaboratives, supra note 51. The Model for Improvement was developed by the Associates in Process Improvement based on three questions: (1) What are we trying to accomplish?; (2) How will we know that a change is an improvement?; and (3) What changes can we make that will result in any improvement? Telephone Interview with Rebecca Steinfield, supra note 53. This model was combined with the IHI Learning Model to create structure and a support system. Id.

73 Lynn Staff Interview, supra note 53; Holyoke Staff Interview, supra note 53.

74 Cohen June Interview, supra note 53.

75 Id.

76 Id.

77 Id.; Health Disparities Collaboratives, supra note 51.

78 Health Disparities Collaboratives, supra note 51.

79 Cohen June Interview, supra note 53; Health Disparities Collaboratives, supra note 51.

80 Cohen Nov. Interview, supra note 57; Health Disparities Collaboratives, supra note 51.

81 Cohen Nov. Interview, supra note 57.

82 Telephone Interview with Veronica Richardson, IHI Nat’l Collaborative Dir., and Cindy Hupke, IHI Nat’l Collaborative Dir. (Nov. 20, 2002).

83 Health Disparities Collaborative, About Us, at (last visited Mar. 10, 2003) (stating that the delivery of healthcare must “[t]ransform … through models of care, improvement and learning”).

84 Holyoke Staff Interview, supra note 53.

85 Telephone Interview with Ron Harms, Medical Director, Touchpoint Health Plan (Dec. 3, 2002); Promoting Disease Management in Medicare: Hearing on H.R. 4954 Before the Health Subcomm. of the House Comm. on Ways and Means, 107th Cong. 4-9 (2002) (statement of Michael Hillman, Medical Director of Business and Community Health Services), available at

86 ThedaCare, Who We Are, at (last modified Feb. 20, 2003).

87 Id.

88 Bernard Wysocki, Jr., Doctor Prescribes Quality Control for Medicine's Ills, WALL STREET JOURNAL ONLINE, May 30, 2002 available at

89 Nat’l Comm. for Quality Assurance, State of Health Care Quality: 2002 19 (2002), available at

90 Id. at 18; see generally Nat’l Comm. on Quality Assurance (NCQA), at (last visited Mar. 10, 2003). The NCQA is an independent, non-profit organization that administers accreditation and performance measurement programs for managed healthcare plans. Id. Health Plan Employer Data Information Set (HEDIS) is a set of standardized performance measures that is sponsored, supported and maintained by NCQA. Id. It is designed to compare the performance of managed healthcare plans and its measures include many significant public health-related issues and consumer experiences. Id. NCQA accreditation is also used to meet licensing standards in many states. Id.

91 Press Release, Security Health Plan, Security Health Plan Names Among 15 Best HMOs (Sept. 26, 2002), available at

92 Security Health Plan, Facts About Security Health Plan of Wisconsin, Inc., at (last modified Mar. 21, 2002).

93 Marshfield Clinic, NewsRoom Fact Sheet, at (last visited Feb. 20, 2003).

94 Promoting Disease Management in Medicare: Hearing on H.R. 4954 Before the Health Subcomm. of the House Comm. on Ways and Means, supra note 85, at 7.

95 Id. at 6-7.

96 Id. at 6-8.

97 Peterson, John & O’Toole, Laurence J. Jr., Federal Governance in the United States and the European Union: A Policy Network Perspective, in THE FEDERAL VISION 300, 305 (Nicolaidis, Kalypso & Howse, Robert eds., 2001)Google Scholar. These problems have also been called “silo” problems in the United States. Weiss, Joanna & Flint, Anthony, Romney Picks 2 as Agencies’ ‘Chiefs’ Cabinet Structure Gets a Revamping, BOSTON GLOBE, Dec. 20, 2002Google Scholar, at A1.

98 Trubek, Louise G. & Farnham, Jennifer J., Social Justice Collaboratives: Multidisciplinary Practices for the People, 7 CLINICAL L. REV. 227, 257 (2000)Google Scholar.

99 See, e.g., Palmer, Larry I., Patient Safety, Risk Reduction and the Law, 36 HOUS. L. REV. 1609 (1999)Google Scholar; Bartra, Lisa E., Reconsidering the Regulation of Health Professionals in Kansas, 5 KAN. J.L & PUB. POL’Y 155 (1996)Google Scholar.

100 See Trubek, Louise G., Lawyering for a New Democracy: Public Interest Lawyers and New Governance: Advocating for Healthcare, 2002 WIS. L. REV. 575 (2002)Google Scholar.

101 This horizontal movement is sometimes called networked governance. See generally Peterson & O’Toole, supra note 97; Louise G. Trubek, Health Care and Low Wage Work in the U.S.: Linking Local Action for Expanded Coverage, in RECONFIGURING WORK AND WELFARE IN THE NEW ECONOMY: A TRANSATLANTIC DIALOGUE (Jonathan Zeitlin & David M. Trubek eds., 2003).

102 Peterson & O’Toole, supra note 97, at 300.

103 See, e.g., IHI, Resources, Links, at (last visited Mar. 10, 2003) (describing the Group Practice Improvement Network as a shared learning network “that focuses on better clinical outcomes, improved access to care, greater ease of consumer use, costeffectiveness, and high satisfaction among users of the health care system, their families, and the community”).

104 Holyoke Staff Interview, supra note 53; Lynn Staff Interview, supra note 53.

105 Lynn Staff Interview, supra note 53.

106 Holyoke Staff Interview, supra note 53.

107 Lynn Staff Interview, supra note 53.

108 See ThedaCare, Community Education and Service, at (last visited Mar. 10, 2003).

109 See Ctr. for Comm. Outreach, Marshfield Clinic, Community for Community Outreach Organizational Chart, at (last modified Apr. 9, 2001).

110 Ctr. for Comm. Outreach, Marshfield Clinic, Northwoods Coalition, at (last modified Apr. 9, 2001).

111 Ctr. for Comm. Outreach, Marshfield Clinic, Project Forward, at (last modified Apr. 9, 2001).

112 Ctr. for Comm. Outreach, Marshfield Clinic, Youth Development Institute, at (last modified Apr. 9, 2001).

113 Ctr. for Comm. Outreach, Marshfield Clinic, Current Programs of the Community for Community Outreach, at (last modified Apr. 9, 2001).

114 Peterson & O’Toole, supra note 97, at 304-05; Carl Ameringer, Patients, Providers and Attorneys: Holding Managed Care Accountable for Health Care Decisions (Nov. 2001) (unpublished paper, on file with author).

115 The federal government first began funding of community health centers in the 1960s as part of President Johnson's “war on poverty” to accomplish his vision of a “Great Society.” Under the Economic Opportunity Act (EOA), many neighborhood community health centers were established in the early 1970s. The Public Health Service began funding community health centers in 1969 and was granted authority over them in the 1970s. Often struggling, in the 1980s they survived by emphasizing good management and seeking diverse sources of funding. Currently, the federal grant program for community health centers is authorized under the Health Centers Consolidation Act of 1996 as section 330 of the Public Health Service Act and administered through BPHC/HRSA. This Act consolidated Community Health Centers, Migrant Health Centers, Health Care for the Homeless programs and Public Housing Primary Care programs under a single statutory umbrella that provides targeted funding. BPHC/HRSA also recommends certification of community health centers for designation as federally qualified health centers (FQHC) to the Centers for Medicare and Medicaid Services (CMS). As community health centers continue to rely greatly on private support, the Act also gave more flexibility to community health centers in using non-federal funds. See Bureau of Primary Health Care, HHS, at; see also Public Health Service Act § 330, 42 U.S.C. § 254b (2002); Social Security Act § 1905(l)(2)(B), 42 U.S.C. § 1396d (l)(2)(B) (2001).


117 Barbara Zabawa, Making the Health Insurance Flexibility and Accountability (HIFA) Waiver Work Through Collaborative Governance, 13 ANNALS HEALTH L. (forthcoming Spring 2003).

118 See Liz Kowalczyk, Blue Cross to Give Doctors Care-, Cost-Based Bonuses, BOSTON GLOBE, Dec. 17, 2002, at A1; Liz Kowalczyk, For Doctors, Bonuses for Quality Care, BOSTON GLOBE, Nov. 7, 2002, at A1; Bonuses for Better Care, BOSTON GLOBE, Nov. 14, 2002, at A18.

119 Freeman, Jody, Collaborative Governance in the Administrative State, 45 UCLA L. REV. 1, 2122 (1997)Google Scholar.

120 See, e.g., WIS. ADMIN. CODE §§ 9.40(1)(a), 9.40(5) (2002).

121 Joint Commission on Accreditation of Healthcare Organizations (JCAHO) is an independent, not-for-profit organization that has developed professionally based standards and evaluates the compliance of healthcare organizations against these benchmarks. It accredits over 17,000 healthcare organizations and programs in the U.S. JCAHO accreditation is used as a substitute for federal certification surveys for Medicare and Medicaid and fulfills licensing requirements in many states. See JCAHO, at (official commission website) (last visited Mar. 10, 2003). NCQA evaluates healthcare through accreditation, HEDIS and through a comprehensive member satisfaction survey. See NCQA, supra note 90. More than half of the nation's HMOs participate in NCQA's accreditation and certification programs and almost ninety percent of all health plans measure their performance with HEDIS. Id. For additional information on NCQA accreditation, see supra note 90 and accompanying text.

122 For example, in Wisconsin the NCQA standards are incorporated at WIS. STAT. ANN. § 609.32 (West Supp. 2002).

123 Lynn Staff Interview, supra note 53; Holyoke Staff Interview, supra note 53; Richard Bohmer, E2M Health Services (Harvard Business School Case Study), Feb. 28, 2000 (on file with author).

124 COMM. ON QUALITY HEALTH CARE, IOM, supra note 45, at 130-33.

125 Telephone Interview with Ron Harms, supra note 85.

126 Holyoke Staff Interview, supra note 53.

127 See generally Ameringer, Carl F., Devolution and Distrust: Managed Care and the Resurgence of Physician Power and Authority, 5 DEPAUL J. HEALTH CARE L. 187 (2002)Google Scholar (discussing how physicians and their professional associations are regaining some of their lost political clout and economic leverage).

128 See id. at 193-96 (outlining the current revitalization of medical ethics).

129 See Disease Mgmt. Ass’n of America, supra note 44.

130 Gerber & Stewart, supra note 41, at 48.

131 Id.

132 Id.

133 Lynn Staff Interview, supra note 53.

134 A proposed alternative role for consumers is the “consumer driven” model. In this model, financial incentives play a larger role in the patient's self-management with the patient sharing costs through high deductibles and co-payments. See Herzlinger, Regina E., Let's Put Consumers in Charge of Health Care, 80 HARV. BUS. R. 44 (2002)Google Scholar. In response to this proposal, one physician leader points out that placing costs on the consumer could lead to poor policy decisions and could be a tremendous political disaster for the healthcare system. Telephone Interview with Ron Harms, supra note 85. He believes this potential negative effect is one motivation for physicians to support the quality approach for cost containment. Id. The negative effect is especially relevant for equity because minority groups are disproportionately lower-income and will be more affected by the consumer-driven approach.

135 See, e.g., Peter T. Kilborn, Ambitious Effort to Cut Mistakes in U.S. Hospitals, N.Y. TIMES, Dec. 26, 1999, at § 1, at 1.

136 For example, The Leapfrog Group, a consortium of healthcare payors, focused on using its purchasing power to increase quality in healthcare, has recently begun partnering with non-payor healthcare entities such as JCAHO in an attempt to increase its ability to effect change. JCAHO Becomes Formal Partner With the Leapfrog Group, U.S. Newswire, Jan. 16, 2002, available at 2002 WL 4573378.

137 Robert Pear & Robin Toner, Amid Fiscal Crisis, Medicaid is Facing Cuts From States, N.Y. TIMES, Jan. 14, 2002, at A1.

138 Reed Abelson, Hard Decisions for Employers as Costs Soar in Health Care, N.Y. TIMES, Apr. 18, 2002, at C1.

139 Robert Pear, Democratic Governors Seek U.S. Aid, N.Y. TIMES, Dec. 8, 2002, § 1, at 39.

140 Health policy scholars examining quality governance have also endorsed states as the initial arenas for embedding the quality approach. See TROYEN A. BRENNAN & DONALD M. BERWICK, NEW RULES: REGULATION, MARKETS, AND THE QUALITY OF AMERICAN HEALTH CARE (1996).

141 Local and state agencies and governments may be more receptive to the medical establishment because healthcare costs make up a substantial part of their budgets and because the medical industry represents a powerful constituency. See Ameringer, supra note 127.

142 See generally Barron, David J., A Localist Critique of the New Federalism, 51 DUKE L.J. 377 (2001)Google Scholar.

143 Joe Manning, Legislators Target Health Care; Two Public Hearings This Summer Will Look at Costs, MILWAUKEE J. SENTINEL, June 1, 2002, at 1D.

144 Joe Manning, Testimony on Health Care Costs; Lawmakers Hear from Experts, and the News Isn't Good, MILWAUKEE J. SENTINEL, July 17, 2002, at 1D.

145 See Manning, supra note 143; see also Manning, supra note 144.

146 Julie Sneider, Treating a Long-Term Cost Problem, BUS. J. SERVING GREATER MILWAUKEE, Sept. 13, 2002, available at

147 Matt Pommer, AFL-CIO Proposes Unified Care Plan, CAPITAL TIMES, Aug. 13, 2002, at 1A; Phill Trewyn, AFL-CIO Health Plan Gains Steam, BUS. J. SERVING GREATER MILWAUKEE, Oct. 11, 2002, available at

148 Pommer, supra note 147; Trewyn, supra note 147.

149 Press Release, Wisconsin Hosp. Ass’n, Hospital Association Will Collect, Share Hospital Quality, Safety Information (Dec. 18, 2002), available at

150 See William M. Sage, Accountability Through Information: What the Health Care Industry Can Learn from Securities Regulation, Milbank Mem’l Fund (Nov. 2000), at

151 William Sage argues that physicians should not serve as advocates because of their inherent conflicts of interest. Sage believes advocacy in the healthcare context should be left to lawyers. See Sage, William M., Physicians as Advocates, 35 HOUS. L. REV. 1529 (1999)Google Scholar.

152 Cf. id.

153 See, e.g., Anne Barnard, Radical Change in Doctor Training Urged, BOSTON GLOBE, Dec. 8, 2002, at A1; Trubek & Farnham, supra note 98, at 257.

154 For example, the American College of Physician Executives offers short courses for physicians on a wide variety of topics related to management and leadership. Am. Coll. of Physician Executives, List of Courses, at (last visited Mar. 10, 2003).

155 These guidelines, recommendations, policy suggestions and other government systems designed to influence behavior without imposing formal legal obligations are known as “soft law” or “new rules.” See Trubek, supra note 100, at 600; BRENNAN & BERWICK, supra note 140.