New Governance and Soft Law in Health Care Reform

Abstract

Health care reform is underway. To resolve longstanding health care problems, reformers are using new technologies, revising the role of public agencies, expanding the use of information, and creating flexible and participatory tools. These processes are different from previous understandings of health care governance. They are based on an emerging set of practices that can be called ''new governance," ''post-regulatory," or ''new proceduralism." New governance includes devolution, public-private partnerships, new types of regulations and incentives, network creation, coordinated data collection and dissemination, benchmarking, monitoring, and active patient participation. One aspect of new governance is a transformation of how we think of law; it includes guidelines and benchmarks that have no formal sanctions.These techniques are intertwined with the reenvisioning of how to improve health care. Reformers are using these new processes to tackle three health care conundrums: universal access, reducing racial and ethnic disparities, and embedding information technology. These new processes consist of six innovative mechanisms that are utilized to resolve the health care conundrums: 1) alternative sites; 2) consumer and patient participation; 3) different roles for government; 4) redesigned organizational forms; 5) alternative methods for dispute resolution; and 6) new regulatory tools. These innovations can be understood in the framework of new governance practices and soft law regulatory reforms.The new governance mechanisms are interacting with the older governance systems. The coexistence of the two systems creates different types of interactions. One interaction is a dynamic rivalry between the old and new, a second is orchestrating a multipronged strategy that incorporates new governance techniques with more traditional incentives, and a third is integrating traditional legal values into the new processes.

Making the Case for Laws That Improve Health: A Framework for Public Health Law Research

“…Yet for others, Gostin's definition may be too narrow. Regulatory researchers, for example, question the importance of distinguishing between public and private actors in health governance (Black 2008; Lobel 2004; Trubek 2006). Other commentators insist that public health law must include the role of law as a determinant and mechanism for the health effects of social and physical environments (Burris, Kawachi, and Sarat 2002; Magnusson 2007; Mariner 2009).…”

“…Although research in regulation and governance has been limited in public health law (Biradavolu et al 2009; Burris 2008; Trubek 2006), its applicability is clear (Magnusson 2009). Public health services are provided by a diversity of public and private actors, and private entities play an important role in practicing and promoting standards of healthy behavior and health‐promoting practices (IOM 2003).…”

“…Public health services are provided by a diversity of public and private actors, and private entities play an important role in practicing and promoting standards of healthy behavior and health‐promoting practices (IOM 2003). We recognize that complex systems like health care cannot simply be managed by top‐down rules but require the use of many flexible tools, like professional self‐regulation, ethics, accreditation, collaborative and deliberative decision making, continuous quality improvement, and market incentives (Braithwaite, Healy, and Dwan 2005; Berwick and Brennan 1995; Lobel 2004; Trubek 2006). Health governance around the world has been dramatically altered by the rise of new public/private hybrid institutions like the Global Fund to Fight AIDS, Tuberculosis and Malaria; the enormous wealth of the Gates Foundation; and the consolidation of authority over national health, safety, and intellectual property law in the World Trade Organization (Hein, Burris, and Shearing 2009; McCoy and Hilson 2009).…”

Making the Case for Laws that Improve Health: A Framework for Public Health Law Research

“…Public health services are provided by a diversity of public and private actors, and private entities play an important role in practicing and promoting standards of healthy behavior and health-promoting practices (IOM 2003). We recognize that complex systems like health care cannot simply be managed by topdown rules but require the use of many flexible tools, like professional self-regulation, ethics, accreditation, collaborative and deliberative decision making, continuous quality improvement, and market incentives (Braithwaite, Healy, and Dwan 2005;Berwick and Brennan 1995;Lobel 2004;Trubek 2006). Health governance around the world has been dramatically altered by the rise of new public/private hybrid institutions like the Global Fund to Fight AIDS, Tuberculosis and Malaria; the enormous wealth of the Gates Foundation; and the consolidation of authority over national health, safety, and intellectual property law in the World Trade Organization (Hein, Burris, and Shearing 2009;McCoy and Hilson 2009).…”

Primary Care and Mental Health Integration in Coordinated Care Organizations

“…To be truly integrated, governance should be diversified, ensuring representation from a variety of stakeholder groups that understand the delivery of health care along its continuum (Savage, Taylor, Rotarius, & Buesseler, 1997;Trubek, 2006). The complexity of these systems requires effective mechanisms for accountability and to facilitate decision-making (Friedman and Goes, 2001;Tuohy, 2003;Trubek, 2006). These professional cultures can be extremely valuable in contexts like health care, in which there are high levels of ambiguity and uncertainty (Abenethy & Stoelwinder, 1994).…”