Managed care, assisted suicide, and vulnerable populations

Notre Dame Law Review

Volumn 73, Issue 5, 1998, Pages 1275-1309

  Kaveny, M Cathleen ^a  

^a NOTRE DAME LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ANALYTICAL APPROACH; ARTICLE; ASSISTED SUICIDE; DEATH AND EUTHANASIA; DOCTOR PATIENT RELATION; ECONOMICS; ETHICS; HEALTH CARE AND PUBLIC HEALTH; HEALTH INSURANCE; HUMAN; LEGAL ASPECT; TERMINAL CARE; TREATMENT WITHDRAWAL; UNITED STATES; VULNERABLE POPULATION;

ANALYTICAL APPROACH; DEATH AND EUTHANASIA; HEALTH CARE AND PUBLIC HEALTH;

HUMANS; MANAGED CARE PROGRAMS; PHYSICIAN-PATIENT RELATIONS; SUICIDE, ASSISTED; TERMINAL CARE; UNITED STATES; VULNERABLE POPULATIONS; WITHHOLDING TREATMENT;

EID: 0032222304     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (105)

1. See Felice Freyer, A Time to Die, PROVIDENCE J. BULL., Feb. 16, 1997, at 1I (a five part special report).
2. See Timothy E. Quill, M.D., Death and Dignity - A Case of Individualized Decision Making, 324 NEW ENG. J. MED. 691 (1991).
3. See Timothy Egan, As Memory and Music Faded, Oregon Woman Chose Death, N.Y. TIMES, June 7, 1990, at A1.
4. Physician-assisted suicide is commonly defined as occurring when a patient ends her own life by ingesting lethal medication prescribed for that purpose by a physician. If the physician administers the lethal medication to the patient in order to end her life, it is no longer physician assisted suicide, but euthanasia. One of the most difficult aspects of the contemporary debate is the significant divergence in the way such terms as euthanasia are used. For a discussion of the moral meaning of the terms and their relation to decision-making in a a legal context, see M. Cathleen Kaveny, Assisted Suicide, Euthanasia, and the Law, 58 THEOLOGICAL STUD. 124 (1997).
5. The Task Force to Improve the Care of Terminally Ill Oregonians has recently issued a guidebook of professional standards for physician-assisted suicide. See TASK FORCE TO IMPROVE THE CARE OF TERMINALLY ILL OREGONIANS, OREGON DEATH WITH DIGNITY ACT: A GUIDEBOOK FOR HEALTH CARE PROVIDERS (1998). The Guidebook is published by the Center for Ethics in Health Care at Oregon Health Sciences University. In my view, developing guidebooks on such matters as assisted suicide is very much a double-edged sword. On the one hand, they may detail procedures that are helpful in minimizing abuses of the law. On the other hand, they encourage physicians to treat this as one more health care decision folded into a web of policies and procedures that increasingly engulf the practice of medicine today. I fear that after the novelty of the practice wears off, physicians will follow - or ignore - policies and procedures in the case of physician assisted suicide precisely to the same degree that they do so with respect to other policies and procedures.
6. Washington v. Glucksberg, 117 S. Ct. 2258 (1997); Vacco v. Quill, 117 S. Ct. 2293 (1997); Washington v. Glucksberg, 117 S. Ct. 2302 (1997) (O'Conner, Stevens, Ginsburg, and Breyer, JJ., concurring in judgments) (concurrences to both Glucksberg and Vacco were published separately from the majority opinions).
7. Glucksberg, 117 S. Ct. at 2273. For a discussion of the pedagogical value of the Supreme Court's opinions, particularly with respect to the equal dignity of all persons, see M. Cathleen Kaveny, Assisted Suicide, the Supreme Court, and the Constitutive Function of the Law, HASTINGS CENTER REP., Sept.-Oct. 1997, at 29.
8. Glucksberg, 117 S. Ct. at 2275.
9. By a ballot initiative authorized by the Oregon Constitution, Oregon voters narrowly approved the Oregon Death with Dignity Act in November 1994, which legalized physician-assisted suicide for competent, terminally ill persons. The Act is codified at Oregon Revised Statutes 127.800-897. Three years later, in the fall of 1997, Oregon voters rejected a heavily contested ballot initiative that would repeal the Death with Dignity Act (Ballot Measure 51, Or. H.B. 2954-1997). During the time period between the first and second ballot initiatives, the Act was subjected to a constitutional challenge that postponed its implementation. Judge Michael Hogan issued an injunction permanently barring the implementation of the Act, on the grounds that it violated the equal protection clause of the Constitution. See Lee v. Oregon, 891 F. Supp.1429 (D. Or. 1995) (equal protection opinion and declaratory judgment and permanent injunction). In Lee v. Oregon, 107 F.3d 1382 (9th Cir. 1997), the Ninth Circuit vacated the injunction and remanded with instructions to dismiss the plaintiff's claims on the grounds that they did not have standing to bring the suit. In October 1997, the Supreme Court declined to hear the plaintiff's appeal from the Ninth Circuit, thereby clearing the way for the implementation of the Act in the late fall of 1997. See Lee v. Harcleroad, 118 S. Ct. 328 (1997). However, opponents of the Act have recently asked Judge Hogan to add a new plaintiff to the suit rather than dismissing it. On February 17, 1998, he asked them for additional briefing on their motion to add a new plaintiff to the case. Experts do not expect a ruling from Judge Hogan until April 1998. See Federal Judge Postpones Final Decision on Fate of Controversial Assisted Suicide Law, Health Care Daily Rep. (BNA) (Feb. 19, 1998). In addition to challenging the Act on constitutional grounds, its opponents also contend that physicians who prescribe lethal doses of medication will violate the Federal Controlled Substances Act. In the fall of 1997, Thomas Constantine, the head of the Drug Enforcement Agency, expressed his opinion that the Oregon Act conflicted with the federal law. In response, Attorney General Janet Reno appointed an internal review team at the Department of Justice to investigate the matter. As of March 10, 1998, she has issued no final report, although Oregon Senator Ron Wyden has indicated that the internal review team has concluded that no conflict exists. See American Political Network, Inc., Oregon: Will DEA Be Overruled on Assisted- Suicide?, HEALTH LINE, Jan. 26, 1998.
10. By a ballot initiative authorized by the Oregon Constitution, Oregon voters narrowly approved the Oregon Death with Dignity Act in November 1994, which legalized physician-assisted suicide for competent, terminally ill persons. The Act is codified at Oregon Revised Statutes 127.800-897. Three years later, in the fall of 1997, Oregon voters rejected a heavily contested ballot initiative that would repeal the Death with Dignity Act (Ballot Measure 51, Or. H.B. 2954-1997). During the time period between the first and second ballot initiatives, the Act was subjected to a constitutional challenge that postponed its implementation. Judge Michael Hogan issued an injunction permanently barring the implementation of the Act, on the grounds that it violated the equal protection clause of the Constitution. See Lee v. Oregon, 891 F. Supp.1429 (D. Or. 1995) (equal protection opinion and declaratory judgment and permanent injunction). In Lee v. Oregon, 107 F.3d 1382 (9th Cir. 1997), the Ninth Circuit vacated the injunction and remanded with instructions to dismiss the plaintiff's claims on the grounds that they did not have standing to bring the suit. In October 1997, the Supreme Court declined to hear the plaintiff's appeal from the Ninth Circuit, thereby clearing the way for the implementation of the Act in the late fall of 1997. See Lee v. Harcleroad, 118 S. Ct. 328 (1997). However, opponents of the Act have recently asked Judge Hogan to add a new plaintiff to the suit rather than dismissing it. On February 17, 1998, he asked them for additional briefing on their motion to add a new plaintiff to the case. Experts do not expect a ruling from Judge Hogan until April 1998. See Federal Judge Postpones Final Decision on Fate of Controversial Assisted Suicide Law, Health Care Daily Rep. (BNA) (Feb. 19, 1998). In addition to challenging the Act on constitutional grounds, its opponents also contend that physicians who prescribe lethal doses of medication will violate the Federal Controlled Substances Act. In the fall of 1997, Thomas Constantine, the head of the Drug Enforcement Agency, expressed his opinion that the Oregon Act conflicted with the federal law. In response, Attorney General Janet Reno appointed an internal review team at the Department of Justice to investigate the matter. As of March 10, 1998, she has issued no final report, although Oregon Senator Ron Wyden has indicated that the internal review team has concluded that no conflict exists. See American Political Network, Inc., Oregon: Will DEA Be Overruled on Assisted- Suicide?, HEALTH LINE, Jan. 26, 1998.
11. These states include Colorado, Connecticut, Hawaii, Illinois, Maine, Massachusetts, Michigan, Nevada, New Hampshire, Rhode Island, Vermont, and Wisconsin. As of March 1998, it does not appear likely that any of these states will legalize assisted suicide in the immediate future.
12. For a fuller description of the shift from fee-for-service to managed care, see M. Cathleen Kaveny & James Keenan, S.J., Ethical Issues in Health-Care Restructuring, 56 THEOLOGICAL STUD. 136-50 (1995).
13. See Katharine R. Levit et al., Health Care Spending in 1994: Slowest in Decades, HEALTH AFFAIRS, Summer 1996, at 132.
14. See Increase in Capitation Likely, 2 Managed Care Rep. (BNA) No. 43, at 1039 (Oct. 30, 1996).
15. The HCFA press release announcing these requirements can be found at 〈http://www.hcfa.gov/news/n961018b.htm〉.
16. Visit 〈http://www.ncqa.org/hedis/30exsum.htm〉 for a summary of HEDIS 3.0.
17. See, e.g., William L. Roper & Charles M. Cutler, Health Plan Accountability and Reporting: Issues and Challenges: Despite the New Measures of Health Plan Performance, the "Accountability Movement" is Still Less than a Unified Front, HEALTH AFFAIRS, Mar.-Apr. 1998. The idea of a system that can produce useful, comparative information about health plans and services and that can track changes in performance over time is clearly appealing. However, what some saw a few years ago as a readily accomplishable agenda for outcomes management and improvement has turned out to be much more difficult to achieve in actual practice.
18. Arnold Epstein, Performance Reports on Quality - Prototypes, Problems, and Prospects, 333 NEW ENG. J. MED. 1, 58-59 (1995).
19. See American Association of Health Plans, Managed Care Facts (visited Jan. 1998) 〈http://www.aahp.org/menus/index.cfm〉.
20. See id.
21. Employee Retirement Security Act (ERISA) of 1974, 29 U.S.C.A. §§1001-461 (1998). In general, a claim that benefits were wrongly denied would fall under ERISA, which limits a plaintiff's damages to the cost of the wrongly denied treatment. State tort law continues to apply to malpractice claims. The law is unsettled about whether an ERISA plan can be held vicariously liable for the treatment decisions made by providers under contract with them. For further discussion, see Karl Polzer & Patricia A. Butler, Employee Health Plan Protections Under ERISA; How Well Are Consumers Protected Under Managed Care and "Self-Insured" Employer Insurance Plans?, HEALTH AFFAIRS, Sep.-Oct. 1997.
22. Sections 1855 and 1856 of the Balanced Budget Act of 1997 allow HCFA to contract with risk-bearing provider-sponsored organizations (PSOs), which are essentially IDNs formed by providers. Generally speaking, those organizations must be licensed under state law. However, the Secretary of the Department of Health and Human Services is directed to develop solvency standards for PSOs, and to grant time-limited exemptions from state solvency requirements to PSOs that meet the federal standards. The HCFA is expected to issue its proposed rule regarding such standards by April 1998. Medicare PSO Panel Reaches Consensus; Sends Outline of Rule to HCFA, Health Care Daily (BNA) (March 9, 1998).
23. See Alicia Ault Barnett, Who Needs the Middleman? Third-Party Players in the Doctor-Patient Relationship, 15 Bus. & HEALTH 34 (1997). But see supra note 21 (explaining that the Balanced Budget Act of 1997 directs the HCFA to set solvency requirements for provider-sponsored networks with Medicare managed care contracts).
24. The Internal Revenue Service has set forth certain community benefit requirements that hospitals must meet in order to preserve their tax-exempt status. See, e.g., Rev. Rul. 69-545, 1969-2 C.B. 117. See also Gen. Couns. Mem. 38,669 (March 30, 1981). These criteria are also relevant to the tax-exempt status of HMOs, the basic test for which is based on Sound Health Ass'n v. Commissioner, 71 T.G. 158 (1978), acq., 1981-2 C.B. 2, as amplified by Sound Health Association, Gen. Couns. Mem. 38,735, (May 29, 1981) and by Rev. Rul. 69-545, 1969-2 C.B. 117. Some local governments have questioned the claim of hospitals to be exempt from property taxes, attempting to exact payments in lieu of taxes. In the fall of 1997, the state of Pennsylvania became the first in the nation to enact a law specifying the criteria a hospital must meet in order to be exempt from local taxation. The Institution of Purely Public Charity Act, H.R. 55, 181st Leg., 1st Reg. Sess. (Pa. 1997).
25. The differences in mission likely have widespread influence on how the institutions are run. A recent study by the American Hospital Association and the Ernst & Young accounting firm showed that for-profit and non-profit institutions can have significantly different approaches to issues ranging from how trustees are selected to what is expected of management. Ron Shinkman, Governance Gap: For-Profits, Not-for-Profits Run Differently, MODERN HEALTHCARE, Feb. 23, 1998, at 44.
26. See Karen Pallarito, Venture Capitalists Letting Bets Ride on Healthcare Firms, MODERN HEALTHCARE, May 20, 1996, at 108, 110.
27. One of the most dramatic stories of 1997 was the precipitous decline and fall of Columbia/HCA Healthcare Corp., which had led the industry in profitability in 1996. See 1997: The Year in Review, MODERN HEALTHCARE, Dec. 22, 1997, at 52. Significant losses were also experienced in 1997 by not-for-profit Kaiser Permanente and the for-profit Oxford Health Plans, due in part to the inability of these plans to manage the enormous growth in enrollment. See Louise Kertesz, Enrollment Albatross: Kaiser's 1997 Loss Shows Downside of Record Growth, MODERN HEALTHCARE, Feb. 23, 1998, at 12.
28. One of the most dramatic stories of 1997 was the precipitous decline and fall of Columbia/HCA Healthcare Corp., which had led the industry in profitability in 1996. See 1997: The Year in Review, MODERN HEALTHCARE, Dec. 22, 1997, at 52. Significant losses were also experienced in 1997 by not-for-profit Kaiser Permanente and the for-profit Oxford Health Plans, due in part to the inability of these plans to manage the enormous growth in enrollment. See Louise Kertesz, Enrollment Albatross: Kaiser's 1997 Loss Shows Downside of Record Growth, MODERN HEALTHCARE, Feb. 23, 1998, at 12.
29. For trade analysis, see Outlook '98: Industry Faces Assaults on All Fronts; Fights Back with Premium Hikes, Flexible Products, Risk-Shifting, MANAGED CARE WEEK, Jan. 12, 1998, at 8.
30. 42 U.S.C. §1320a-7b (1994) (commonly called the federal Anti-Kickback Law).
31. See 42 U.S.C. §1395nn (1994) (commonly called the Stark Law). A useful survey of state and federal laws prohibiting physician self-referral can be found in James C. Dechene & Karen P. O'Neill, "Stark II "and State Self-Referral Restrictions, 29 J. HEALTH & HOSP. L. 65 (1996).
32. Some scholars suggest that health fraud costs private and public payors some $80 billion per year. See Theodore R. Marmor & Jerry L. Mashaw, Conceptualizing, Estimating, and Reforming Fraud, Waste, and Abuse in Healthcare Spending, 11 YALE J. REG. 455, 487-88 (1994). For a practical description of the different fraudulent practices likely to arise under managed care by a lawyer who represents a managed care entity, see Alan D.B. Bloom, Fraud in Managed Care - New Games by Old Players, 1 No. 10 MEALY'S LITIG. REF.: MANAGED CARE 16 (1997).
33. Some scholars suggest that health fraud costs private and public payors some $80 billion per year. See Theodore R. Marmor & Jerry L. Mashaw, Conceptualizing, Estimating, and Reforming Fraud, Waste, and Abuse in Healthcare Spending, 11 YALE J. REG. 455, 487-88 (1994). For a practical description of the different fraudulent practices likely to arise under managed care by a lawyer who represents a managed care entity, see Alan D.B. Bloom, Fraud in Managed Care - New Games by Old Players, 1 No. 10 MEALY'S LITIG. REF.: MANAGED CARE 16 (1997).
34. The Balanced Budget Act of 1997 requires the Health Care Financing Administration (HCFA) to implement a risk-adjusted payment system for all Medicare managed care plans, which will tie a plan's capitation rate to the health of the population it serves. The HCFA is currently working on the project, with the goal of initiating it in the year 2000. However, there are significant drawbacks to the risk-adjustment process that the HCFA will likely adopt, including the fact that it factors in the costs of chronic illness only in the case of patients who are hospitalized. Because only twenty percent of beneficiaries are hospitalized in any given year, payment for the other eighty percent will remain tied to traditional demographic factors that do not try to account for health status. Consequently, accurate risk adjustment in setting Medicare capitation rates is years away. See Medicare HCFA Eyeing Inpatient Risk Adjuster for Managed Care Payments in 2000, Health Care Daily (BNA) (Feb. 2, 1998).
35. See Bruce Japsen & Lisa Scott, System Growth a Close Race: 1997 Multi-Unit Providers Survey Finds Not-for-Profits Ahead by a Nose, 26 MODERN HEALTHCARE, May 26, 1997, at 51, 58.
36. See Susan M. Wolf, Health Care Reform and the Future of Physician Ethics, 24 HASTINGS CENTER REP. 28-41 (1994).
37. For example, the HCFA did not issue its final rule pertaining to physician incentive plans used by HMOs serving Medicare and Medicaid HMOs until December 31, 1996. The rule can be found at 61 C.F.R. 69034. These regulations were called for by sections 4204(a) and 4731 of the Omnibus Budget Reconciliation Act (OBRA) of 1990, Pub. L. No. 101-508, 104 Stat. 1388 (1990), which also set forth other requirements, effective January 1, 1992, for regulating such plans.
38. Newborns' and Mothers' Health Protection Act of 1996, Pub. L. No. 104-204, 110 Stat. 2935 (1996).
39. See New Round of "Anti-Managed Care Bills Await Action in States," Blues Survey Finds, 3 Managed Care Rep. (BNA) No. 8, at 174 (Feb. 2, 1997).
40. See Ursual Himali, Fraud and Abuse: Advisory Group Gives Seal of Approval to Managed Care Anti-Kickback Safe-Harbor, 7 Health Law Rep. (BNA) No. 5, at 155 (Jan. 29, 1998). The HCFA was required to develop a safe-harbor through a negotiated rule-making process by the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, 110 Stat. 2007 (1996).
41. See Soon-to-be-Released Anti-Kickback Safe Harbor to Offer Narrow Exception, 7 Health Law Rep. (BNA) No. 1, at 17 (Jan. 1, 1998).
42. See Lisa M. Rockelli, Fraud and Abuse: Self-Referral: HCFA Stark II Proposal Seeks Zero Risk of Abuse From Self-Referrals, 7 Health Law Rep. (BNA) No. 7, at 245 (Feb. 12, 1998).
43. See infra note 43. This statistic was taken from Vice-President Gore's report to the President.
44. See 〈http://www.hcfa.gov〉.
45. See David Nather, Quality Assurance: Clinton Orders Federal Health Programs to Comply with "Consumer Bill of Rights," 6 Health Care Policy Rep. (BNA) No. 9, at 359 (Mar. 2, 1998).
46. Highlights of Reports of Five Agencies' Record of Compliance with Consumer Bill of Rights in Implementation of Federal Health Programs, Forwarded from Vice-President Gore to President Clinton, Feb. 20, 1998, 6 Health Care Policy Rep. (BNA) No. 9, at 390 (Mar. 2, 1998).
47. See HMO Grievance and Appeals Process Is Top HCFA Priority, Conference Told, 2 Managed Care Rep. (BNA) No. 38, at 912-13 (Sept. 25, 1996).
48. Congress took a significant step toward stabilizing eligibility for insurance for those who receive it through their employment by enacting the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, 110 Stat. 1937 (1996). Among other things, this Act greatly limited the ability of group health plans to exclude persons from coverage on the basis of pre-existing conditions, or to discriminate on the basis of health status in offering coverage. A major consequence is that persons insured through one employer will be able to change jobs without worrying that the plan offered by their new employer will impose onerous waiting periods or exclusions before covering them. However, the law does not prevent insurers from charging premiums commensurate with the costs of insuring high-risk patients.
49. See 22 HEALTH LEGIS. & REG., Oct. 2, 1996, at 3.
50. For an argument that the burgeoning of Medicaid managed care programs harms the uninsured segment of the population by reducing the funds available for providers to construct a "safety net" for those without coverage, see Note, The Impact of Medicaid Managed Care on the Uninsured, 110 HARV. L. REV. 751 (1997).
51. See Managed Care Can Save Stales Over 30 Percent, Actuaries Say, 2 Managed Care Rep. (BNA) No. 18, at 427 (May 1, 1996).
52. Managed Care: Report Predicts Rocky Industry Future Despite Continued Short Term Growth, Health Care Policy Rep. (BNA) at 2 (Feb. 9, 1998), quoting HEALTH TRENDS' 1998 GUIDE TO MANAGED CARE MARKETS (1998).
53. Managed Care: Report Predicts Rocky Industry Future Despite Continued Short Term Growth, Health Care Policy Rep. (BNA) at 2 (Feb. 9, 1998), quoting HEALTH TRENDS' 1998 GUIDE TO MANAGED CARE MARKETS (1998).
54. See Medicaid: HHS IG Suggests Research Needed on Aiming Cost Control at Disabled, Health Care Policy Rep. (BNA) at 2 (Aug. 11, 1997) (quoting Report, Office of the Inspector General, Department of Health and Human Services, Aug. 11, 1997).
55. For a discussion of the challenges facing states as they move Medicaid populations into managed care, see Arnold M. Epstein, Medicaid Managed Care and High Quality: Can We Have Both?, 278 JAMA 1617 (1997).
56. See States Confront Major Challenges as Medicaid Embraces Managed Care, 3 Managed Care Rep. (BNA) No. 8, at 170-72 (Feb. 19, 1997).
57. See D. Ward Pimley, Legislation and Other Developemetns, Medicare Rep. (BNA) No. 32, at 18 (Aug. 8, 1997).
58. See MCOs Face Opportunities, Challenges, in Medicare, Medicaid Markets, Report Says, 2 Managed Care Rep. (BNA) No. 45, at 1078-81 (Nov. 13, 1996).
59. See Unified Agenda of Federal Regulatory and Deregulatory Actions, 62 Fed. Reg. 57,458 (1997).
60. For example, a recent study concludes that although most disabled persons in Medicare HMOs do not experience access problems and they are more likely to report such problems than disabled persons in fee-for-service Medicare plans. See Marsha Gold et al., Disabled Medicare Beneficiaries In HMOs: The First Comprehensive Look at how Disabled Medicare Beneficiaries Fare Under Medicare Managed Care, HEALTH AFFAIRS, July-Aug. 1997.
61. Jane E. Sisk et al., Evaluation of Medicaid Managed Care: Satisfaction, Access, and Use, 276 JAMA 54 (1996).
62. See David M. Carlisle, HMO vs. Fee-for-Service Care of Older Persons with Acute Myocardial Infarction, 82 AM. J. PUB. HEALTH 1626-30 (1992).
63. See John E. Ware, Jr. et al., Differences in 4-Year Health Outcomes for Elderly and Poor, Chronically Ill Patients Treated in HMO and Fee-For-Service Systems: Results from the Medical Outcomes Study, 276 JAMA 1039-47 (1996).
64. See Federal Oversight Needed to Ensure Managed Care Quality, Senate Panel Told, 2 Managed Care Rep. (BNA) No. 46, at 1106 (Nov. 20, 1996).
65. See James R. Webster, Jr. & Joseph Feinglass, Stroke Patients, "Managed Care," and Distributive Justice, 278 JAMA 161 (1997).
66. See Lyle Nelson et al., Access to Care in Medicare HMOs, 1996: Elderly Americans Give Medicare Managed Care a Mixed Assessment, HEALTH AFFAIRS, March-Apr. 1997.
67. See Analee E. Beisecker, Aging and the Desire for Information and Input in Medical Decisions: Patient Consumerism in Medical Encounters, 28 GERONTOLOGIST 330 (1988).
68. See Vernellia Randall et al., Section 1155 Medicaid Waivers: Critiquing the Stale Applications, 26 SETON HALL L. REV. 1069, 1140-42 (1996).
69. See Gloria Shur Bilchik, Dollars and Death: Physician-Assisted Suicide and Spending for Critically Ill Patients, HOSP. & HEALTH NETWORKS, Dec. 20, 1996, at 18.
70. See Ezekiel J. Emanuel, Cost-Savings at the End of Life: What Do the Data Show?, 275 JAMA 1907, 1913 (1996).
71. See RONALD DWORKIN, LIFE'S DOMINION (1993).
72. Compassion in Dying v. Washington, 79 F.3d 790, 793 (9th Cir. 1996).
73. The Joint Commission on the Accreditation of Healthcare Organizations is an independent, not-for-profit entity that evaluates and accredits more than 18,000 health care providers in the United States, including hospitals, long-term care facilities, networks, and home care programs. In 1997, it launched the ORYX program, which aims to integrates outcomes measurement and other performance measures into the accreditation process. The program will be phased-in over time. For the year 1997, each accredited network is required to select and begin to use at least ten performance based measures. For more information on the ORYX program, visit 〈http:/ /www.jcaho.org/perfmeas/oryx/oryx_frm.htm:〉.
74. In developing Health Plan Employer Data and Information Set (HEDIS) 3.0, the set of performance measures designed to enable employers and other health care purchasers to compare the quality of managed care plans, the National Committee for Quality Assurance (NCQA) emphasized the inclusion of a number of measures designed to consider patient satisfaction. According to NCQA, this emphasis "reflects the opinion that encounters with the health plan should occur in a manner that is responsive to and respectful of the preferences and interests of its members, and that its members' satisfaction is the most revealing summary of the extent to which this is so." Visit 〈http://www.ncqa.org/hedis/30exsum.htm〉, the NCQA's web page, which contains a helpful description of the goals of HEDIS.
75. See ELISABETH KUBLER-ROSS, ON DEATH AND DYING (1993).
76. See OR. REV. STAT. 127.810 § 2.02 (Supp. 1996).
77. See Daniel Callahan & Margot White, The Legalization of Physician-Assisted Suicide: Creating a Regulatory Potemkin Village, 30 U. RICH. L. REV. 1 (1996).
78. See Or. REV. STAT. 127.885 § 4.01 (Supp. 1996). While the exertion of coercion and undue influence are specifically exempted from the immunity provided by the Act, OR. REV. STAT. 127.890 § 4.02(2) (Supp. 1996), it is not clear how these practices would be identified or proven in light of the fact that the Act imposes no duty to report suspected abuse. See Callahan & White, supra note 73, at 56-61. They contrast the lack of reporting requirements here with the existence of such requirements in many states with respect to child abuse and elder abuse.
79. See Or. REV. STAT. 127.885 § 4.01 (Supp. 1996). While the exertion of coercion and undue influence are specifically exempted from the immunity provided by the Act, OR. REV. STAT. 127.890 § 4.02(2) (Supp. 1996), it is not clear how these practices would be identified or proven in light of the fact that the Act imposes no duty to report suspected abuse. See Callahan & White, supra note 73, at 56-61. They contrast the lack of reporting requirements here with the existence of such requirements in many states with respect to child abuse and elder abuse.
80. THE NEW YORK STATE TASK FORCE ON LIFE AND THE LAW, WHEN DEATH is SOUGHT: ASSISTED SUICIDE AND EUTHANASIA IN THE MEDICAL CONTEXT vii-viii (1994).
81. See Quill v. Vacco, 97 F.3d 708 (2nd Cir. 1996), rev'd 117 S. Ct. 2293 (1997).
82. Derek Humphry, Letter, N.Y. TIMES, Dec. 3, 1994, at 22. This was the position taken by Derek Humphry, the founder of the Hemlock Society, immediately after Oregon voters decided to legalize assisted suicide.
83. The roots of this expansion of the right are clearly identifiable in the overruled Ninth Circuit en banc opinion in Compassion in Dying, 85 F.3d 1440 (1996), rev'd sub nom. Washington v. Glucksberg, 117 S. Ct. 2258 (1997), as I have argued in M. Cathleen Kaveny, Assisted Suicide, Euthanasia, and the Law, supra note 4.
84. The roots of this expansion of the right are clearly identifiable in the overruled Ninth Circuit en banc opinion in Compassion in Dying, 85 F.3d 1440 (1996), rev'd sub nom. Washington v. Glucksberg, 117 S. Ct. 2258 (1997), as I have argued in M. Cathleen Kaveny, Assisted Suicide, Euthanasia, and the Law, supra note 4.
85. For discussions critical of assisted suicide by advocates for persons with disabilities, see Stephen L. Mikochik, Assisted Suicide and Disabled People, 46 DEPAUL L. REV. 987 (1997) and Paul Steven Miller, The Impact of Assisted Suicide on Persons with Disabilities - Is it a Right Without Freedom?, 9 ISSUES L. & MED. 47 (1993). For a discussion supporting legal recognition of that right from the perspective of such an advocate, see Andrew I. Batavia, Disability and Physician-Assisted Suicide, 336 NEW ENG. J. MED. 1671-73 (1997). After surveying arguments on both sides of the issue, a position paper issued by the National Council on Disability concludes that it is too dangerous to legalize assisted suicide at the current time. See National Council on Disability, Assisted Suicide: A Disability Perspective, March 24, 1997.
86. For discussions critical of assisted suicide by advocates for persons with disabilities, see Stephen L. Mikochik, Assisted Suicide and Disabled People, 46 DEPAUL L. REV. 987 (1997) and Paul Steven Miller, The Impact of Assisted Suicide on Persons with Disabilities - Is it a Right Without Freedom?, 9 ISSUES L. & MED. 47 (1993). For a discussion supporting legal recognition of that right from the perspective of such an advocate, see Andrew I. Batavia, Disability and Physician-Assisted Suicide, 336 NEW ENG. J. MED. 1671-73 (1997). After surveying arguments on both sides of the issue, a position paper issued by the National Council on Disability concludes that it is too dangerous to legalize assisted suicide at the current time. See National Council on Disability, Assisted Suicide: A Disability Perspective, March 24, 1997.
87. For discussions critical of assisted suicide by advocates for persons with disabilities, see Stephen L. Mikochik, Assisted Suicide and Disabled People, 46 DEPAUL L. REV. 987 (1997) and Paul Steven Miller, The Impact of Assisted Suicide on Persons with Disabilities - Is it a Right Without Freedom?, 9 ISSUES L. & MED. 47 (1993). For a discussion supporting legal recognition of that right from the perspective of such an advocate, see Andrew I. Batavia, Disability and Physician-Assisted Suicide, 336 NEW ENG. J. MED. 1671-73 (1997). After surveying arguments on both sides of the issue, a position paper issued by the National Council on Disability concludes that it is too dangerous to legalize assisted suicide at the current time. See National Council on Disability, Assisted Suicide: A Disability Perspective, March 24, 1997.
88. For discussions critical of assisted suicide by advocates for persons with disabilities, see Stephen L. Mikochik, Assisted Suicide and Disabled People, 46 DEPAUL L. REV. 987 (1997) and Paul Steven Miller, The Impact of Assisted Suicide on Persons with Disabilities - Is it a Right Without Freedom?, 9 ISSUES L. & MED. 47 (1993). For a discussion supporting legal recognition of that right from the perspective of such an advocate, see Andrew I. Batavia, Disability and Physician-Assisted Suicide, 336 NEW ENG. J. MED. 1671-73 (1997). After surveying arguments on both sides of the issue, a position paper issued by the National Council on Disability concludes that it is too dangerous to legalize assisted suicide at the current time. See National Council on Disability, Assisted Suicide: A Disability Perspective, March 24, 1997.
89. This and other helpful statistics can be found in Cynthia M. Taeuber & Jessie Allen, Women in Our Aging Society: The Demographic Outlook, in WOMEN ON THE FRONT LINES: MEETING THE CILVLLENGE OF AN AGING AMERICA 11-45 (Jessie Allen & Alan Pifer eds., 1993) [hereinafter WOMEN].
90. See id. at 28.
91. See BARBARA J. LOGUE, LAST RIGHTS: DEATH CONTROL AND THE ELDERLY IN AMERICA 268 (1993).
92. See Patricia G. Miller, Why Women Get Poorer With Age, PITTSBURGH POST-GAZETTE, Oct. 21, 1995, at A9. See also AMANDA S. BARUSH, Introduction to OLDER WOMEN IN POVERTY: PRIVATE LIVES AND PUBLIC POLICIES (1994).
93. See Patricia G. Miller, Why Women Get Poorer With Age, PITTSBURGH POST-GAZETTE, Oct. 21, 1995, at A9. See also AMANDA S. BARUSH, Introduction to OLDER WOMEN IN POVERTY: PRIVATE LIVES AND PUBLIC POLICIES (1994).
94. See Leslie Laurence, Longetivity a Mixed Blessing: Older Women Risk Depression, ARIZONA REPUBLIC, Jan. 10, 1995, at D1.
95. See Susan E. Foster & Jack A. Brizius, Caring Too Much? American Women and the Nation's Caregiving Crisis, in WOMEN, supra note 80
96. See R. I. Stone & Peter Kemper, Spouses and Children of Disabled Elders: How Large a Constituency for Long-Term Care Reform, 67 MILBANK Q. 485-506 (1989).
97. See Dying Well in the Hospital: The Lessons of SUPPORT, 25 HASTINGS CENTER REP. S1-S36 (1995) (special supplement).
98. See IRA BYOCK, DYING WELL: THE PROSPECT FOR GROWTH AT THE END OF LIFE (1997).
99. See MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW 99-104 (1987).
100. 79 F.3d 790 (9th Cir. 1996) (en banc).
101. See id. at 827. ("[M]ost, if not all, doctors would not assist a terminally ill patient to hasten his death as long as there were any reasonable chance of alleviating the patient's suffering or enabling him to live under tolerable conditions.")
102. On February 26, 1998, the Oregon Health Services Commission, which is the group responsible for determining the scope of services covered by the Medicaid program in the state, voted 10:1 to make assisted suicide a covered service. In response to a question about the cost of providing coverage, Hersh Crawford, the head of the Oregon Office of Medical Assistance Programs, said "these are cheap prescriptions, and health care provider time will not be significant." Brad Cain, Oregon Officials Say Suicide Should Be a Tax-Funded Benefit, ROCKY MOUNTAIN NEWS, Feb. 28, 1998, at 38A. There is no indication that Mr. Crawford recognized any irony in his remark. Oregon will need to cover the service entirely from state funds, since President Clinton signed a law prohibiting the use of federal funds to pay for physician-assisted suicide in April 1997. The Assisted Suicide Funding Restriction Act of 1997, Pub. L. No. 105-12, 111 Stat. 23 (1997).
103. See Compassion in Dying, 79 F.3d at 825. ("The argument that disadvantaged persons will receive more medical services than the remainder of the population in one, and only one, area - assisted suicide - is ludicrous on its face.")
104. For example, the en banc court writes, "[a] competent, terminally ill adult, having lived nearly the full measure of his life, has a strong liberty interest in choosing a dignified and humane death rather than being reduced at the end of his existence to a childlike state of helplessness, diapered, sedated, incontinent." Id. at 814. Such a statement immediately places all those living in such a state of helplessness in the rhetorical position of justifying why they would choose not to die.
105. See Leon R. Kass, M.D., Neither for Love Nor Money: Why Doctors Must Not Kill, in MERCY OR MURDER? EUTHANASIA, MORALITY, AND PUBLIC POLICY (Kenneth R. Overberg, S.J. ed., 1993)