When a state Medicaid agency terminates its provider agreement with a skilled nursing facility, federal regulations give the state the option of providing a pretermination evidentiary hearing; they do not, however, require that a state provide such a hearing. If a state chooses not to grant a pretermination hearing, as a number of states have done, federal regulations require: (1) an informal written reconsideration made by the state and submitted to the skilled nursing facility before the effective date of the termination, and (2) a posttermination evidentiary hearing.

This Article argues that a skilled nursing facility has a right under the due process clauses of the fifth and fourteenth amendments of the U. S. Constitution to an evidentiary hearing before termination of its Medicaid provider agreement. The author claims that a skilled nursing facility's interest in continued receipt of Medicaid reimbursement under its provider agreement is a property interest entitled to constitutional due process protections, and not merely an expectation of economic benefit that does not implicate constitutional due process considerations.

The Article concludes that, except in emergency situations, state Medicaid agencies are constitutionally required to grant a provider a pretermination, rather than a posttermination, evidentiary hearing. This procedure would protect the provider and its patients from the severe effects of an erroneous termination, while furthering the governmental interest in ensuring the health and safety of skilled nursing facility patients. The format for such a hearing should allow for the participation, with the assistance of counsel, of both the skilled nursing facility and its patients.

By 1990 the aggregate supply of physicians in the United States is likely to exceed the population's requirements by 10 percent or more. State and regional aggregate and specialty-specific surpluses may be more extreme. Since the demand for physician services appears to be determined to a significant degree by the supply of physicians, the number of physicians who can maintain financially viable practices in a region is not likely to be limited effectively by the normal market interaction of supply and demand. Excessive physician supplies may, however, have a number of deleterious effects, including rapid escalation of health care costs, fragmentation of patient care, and a decrease in the quality of patient care.

In this Article, the authors review the potential effectiveness of a number of policy interventions that might be employed to optimize physician supplies in areas of excess. They evaluate the following alternatives: (1) a limit on the number of medical school graduates; (2) control of physician residencies by number and by specialty; (3) creation or implementation of incentive policies; (4) control by hospitals—indirectly by limiting the number of beds, or directly by denying staff privileges; (5) widespread development of HMOs; (6) direct employment by the federal government of the majority of practicing physicians; and (7) creation of certificate of need for physician licensure. The authors conclude that, at least in the short term, certificate of need'for physician licensure is the alternative that shows the greatest promise of enabling the number and specialties of physicians providing patient care in areas facing a physician surplus to be managed in such a way that the populations of such areas can obtain adequate medical care at a reasonable cost.

The workers’ compensation systems of several states have been expanded in recent years to include injuries and diseases caused by cumulative injury and occupational stress. This expansion has placed a financial burden on the respective systems, on employers, and on consumers, who ultimately must pay the cost of claims through higher priced products or services. This expansion may not be justified from a social perspective, however; extant medical and sociological evidence is not conclusive as to whether occupational-stress injuries or diseases—such as coronary heart disease, hypertension, stroke, and neuropsychiatric illness—are the direct result of stressful work environments. Using the California workers” compensation system as a model, the authors submit that the underlying premises of liability governing the expanded systems should be reassessed based (1) on economic factors, specifically, the increasing costs of workers’ compensation; (2) on the capacity of the system to process an ever-increasing number of claims; and (3) on the principle on which workers’ compensation systems were established, that of equity between the employer and the employee.

On the basis of these three factors, the authors evaluate three legislative approaches to restructuring the expanded system: presumption of compensability, apportionment of liability, and threshold of compensability. The first recognizes that although certain health problems are related to the workplace, the degree of causation is difficult to prove; under this approach, therefore, causation is presumed, and injury compensated, for all diseases and injuries that the system defines as work-related. The second holds that where a causal relationship between the work and the injury can be proved, the employer nevertheless should be responsible only for that portion of the disability actually caused by the workplace. The third directs that the injured employee be compensated only when a direct causal link between the job and the injury or disease can be proved. The authors recommend that legislators implement this third alternative. For one reason, it is feasible economically; for a second, it would not burden the system or increase litigation; for a third, it is equitable to both employees and employers.

The Chad Green case has again focused national and international attention on the unproven cancer remedy known as laetrile. Laetrile has attracted considerable attention in recent years as a result of claims that it is a nontoxic form of cancer treatment. Twenty-one states have legalized prescription of laetrile within their borders, despite the efforts of the Food and Drug Administration (FDA) to keep laetrile off the market.

The authors examine the claims about laetrile’s effectiveness and comment upon scientific tests concerning its efficacy. They maintain that scientific support for the use of laetrile is almost totally absent and that evidence of the dangers of laetrile is substantial. After reviewing the medical evidence concerning laetrile, the authors describe the efforts of laetrile proponents to use the courts as the battleground to legalize laetrile. In early skirmishes, laetrile proponents were successful in opposing the efforts of the FDA; under a constitutional privacy theory several courts upheld the right of competent adults to select laetrile therapy.

Subsequently, however, as the authors demonstrate, the U.S. Supreme Court, in United States v. Rutherford, and the California Supreme Court, in People v. Privitera, narrowed the federal constitutional privacy right by declining to read into it a right to take laetrile. Finally, the Massachusetts Supreme Judicial Court, in the Chad Green case, considered the question of laetrile’s toxicity to a recipient of the drug.

The authors discuss the interrelationship among the three cases. They argue that the overwhelming proof in Chad Green that laetrile is harmful undermines any statutory or constitutional claims supporting legalization, because such claims assume that even if laetrile is not truly therapeutic outside of the placebo effect, it is not toxic. In light of the three decisions, the authors conclude that supporters of laetrile should not expect that the courts will be sympathetic to future legal efforts to approve or to permit use of laetrile therapy.

In Harris v. McRae, the recent case in which the U.S. Supreme Court upheld the constitutionality of the Hyde Amendment, the Court for the first time was asked to consider whether antiabortion legislation respects the establishment of religion or violates the free exercise thereof. The Court held that the Amendment did not effect an establishment of religion, and found that the plaintiffs lacked standing to raise the free exercise argument.

The writer explores the questions raised, agreeing with the Court's disposal of the establishment argument. He does find considerable.validity in the free exercise challenge, but concludes that the Court as presently constituted is unlikely to accept it. In addition, he believes that the Court, in its treatment of both arguments, either ignored or improperly dis tinguished earlier cases that supported the plaintiffs.

Many hospitals presently find themselves at a vulnerable stage in their development. The increased efficacy of antibiotics, together with the population's increased life span and decreasing birth rate, have reduced the need for the kind of acute inpatient care that hospitals traditionally have provided. Moreover, hospitals now are feeling pressure from federal and state regulatory agencies to eliminate approximately 20 percent of the nation's acute-care beds. Concurrent with the population's changing health needs and with the increasing regulatory pressure from government, the acute-care hospital also must contend with the advent of a rival medical care delivery organization—the health maintenance organization (HMO)—whose primary goal is to provide quality medical services in a costefficient manner. One of the most important ways in which HMOs contain costs is by attempting to reduce significantly the rate of hospitalization of their members, an approach that threatens the very livelihood of some hospitals.

The authors describe five alternative strategies that hospitals can adopt to meet the potential threat of HMOs—filibustering, passive acceptance, direct sponsorship, accommodation, or strong support. They maintain that the latter of these strategies, strong support, places hospitals in the most favorable position to convert the threat of HMO development into an opportunity to build a mutually beneficial relationship.

The relations between physicians and lawyers have deteriorated rapidly over the past several decades, most particularly since the early 70s when the perception that a medical malpractice crisis existed in America became widespread. Some believe that the factors dividing the two professions are linked (1) to professional jealousy, (2) to sometimes conflicting economic interests, or (3) to difficulties in communication, since both professions use many of the same words, or terms of art, but with different intended meanings.

While the authors agree that these factors may have aggravated the problem, they believe that the conflict’s real roots are in the very different ways in which physicians and lawyers are trained and in the different epistemologies that each profession has accepted, as a result of which each reasons and solves problems in a manner that not only diverges from but sometimes contradicts the other’s. The authors conclude that only as the varying epistemologies begin to converge can physicians and lawyers begin to approach problems in more similar ways, and to discover the underlying compatibility of many of their interests and goals.

Health care providers must submit cost reports to the Department of Health and Human Services or its designated intermediary before they can be reimbursed for their services by the Medicare system. These reports closely detail the financial operations of the provider. Whenever third parties have requested copies of the cost reports pursuant to the Freedom of Information Act and the Department of Health, Education and Welfare (now HHS) has declared its intention to comply with the request, the providers have sued to enjoin disclosure.

This Note evaluates whether the cost reports are confidential and therefore exempt from mandatory disclosure under Exemption 4 of the Freedom of Information Act. It concludes that they should not be exempt, but that even if they are, disclosure is mandated by a validly promulgated HEW regulation. This regulation was enacted in compliance with the Administrative Procedure Act, and should not be considered an abuse of the HEW Secretary's discretion.

The American health care delivery system currently suffers from a variety of problems; among the most intractable of these is a maldistribution of health care services. This Note focuses on two aspects of this problem: unnecessary hospital beds, and medically underserved populations. The Note also discusses the related issues of hospital cost inflation and inefficient use of limited resources. It then examines the current statutory remedies for these problems, and subjects their effectiveness to a two-tiered test. The Note concludes that the existing mechanisms, while partially effective, ultimately result in a fragmented, uncoordinated, and unsuccessful health care regulatory system. Moreover, the Note suggests not only that the existing statutes fail to solve the problems they were enacted to correct, but that they actually add to health care inflation and complicate health planning by subjecting the entire health care industry to uncertainty. This Note proposes a comprehensive regulatory approach that will resolve health care imbalances in a manner that avoids the shortcomings inherent in the present system.