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Id. at 114–15. Professor Paul Weiler was the reporter for the ALI study and he, along with Professor Kenneth Abraham, has written extensively and trenchantly on hospital-based enterprise liability. See Weiler, supra note 2; Abraham, and Weiler, supra note 25; Abraham, K. and Weiler, P., “Enterprise Liability and the Choice of the Responsible Enterprise,” American Journal of Law & Medicine, 20 (1994): 29–39.Google Scholar

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It could be argued that the shift from a regime in which the employer chooses one or a handful of plans for employees to one in which employees have unfettered access (cost aside) to every licensed plan will improve quality by encouraging competition among plans. In light of the well-understood information deficits standing in the way of an individual consumer's informed choice of a plan, advocates of quality improvement have emphasized the role of an informed sponsor in culling plans and organizing competition. See Enthoven, A., “The History and Principles of Managed Competition,” Health Affairs (Supp. 1993): 24–48, at 30–32 (describing the role of the sponsor in managed competition model). Without any sponsor to monitor or assist in consumer choice, and with plans clearly competing on the basis of price rather than quality (see Havighurst, supra note 69, at 13), the gains to be expected in quality would be slim to none. The steep price differential between group and individual health insurance is probably sufficiently high to discourage mass movement in this direction, however, and talk of the effects of employee choice on quality is therefore probably academic.Google Scholar

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Medical savings accounts, or MSAs, were created as a demonstration project in 1996 as part of the Health Insurance Portability and Accountability Act, Pub. L. No. 104-191. MSAs permit mid-sized employers to offer a tax-sheltered benefit to employees in the form of funds deposited in a savings account, for use in paying for health care. The employees are required to pay a deductible, and are protected from large expenses by catastrophic insurance coverage after they reach a high attachment point. The funds in their medical savings account, if unspent in the year deposited, roll over from year to year, and may be used by the employee in future years for medical expenses or retirement savings. See generally Jefferson, R., “Medical Savings Accounts: Windfalls for the Healthy, Wealthy & Wise,” Catholic University Law Review, 48 (1999): 685–726. The number of MSA enrollees is capped at 750,000. Set by the terms of the statute to expire in 2000, the MSA experiment was extended two years, to 2002, and MSAs were renamed “Archer MSAs.” Legislation has been introduced to make MSAs permanendy available to all, a measure that has the support of the Bush administration. See H.R. 1524, 107th Congress, 1st Sess. Disintermediated plans are also akin to flexible spending accounts (FSAs), through which employees may dedicate pre-tax income to payment of medical expenses not covered by health insurance. The accounts are typically administered by a financial agent. Any funds not used in the course of a year are forfeited. See Internal Revenue Code § 105(b).Google Scholar

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For example, punitive damages would seem unavailable if the managed care organization took reasonable steps to encourage safety. This assumes, of course, that the enterprise liability system would include a punitive damages feature.Google Scholar

See e.g., OIG Compliance Program for Individual and Small Group Physician Practices, 65 Fed. Reg. 59,434 (October 5, 2000). OIG Compliance Program for Nursing Facilities, 65 Fed. Reg. 14,289 (March 16, 2000); OIG Compliance Program for Hospices, 64 Fed. Reg. 54,031 (October 5, 1999); OIG Compliance Program Guidance for Hospitals, 63 Fed. Reg. 8,987 (February 23, 1998).Google Scholar

McGlynn, E. and Brook, R., “Keeping Quality on the Policy Agenda,” Health Affairs, 20, no. 3 (2001): 82–90, at 82.CrossRefGoogle Scholar

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