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Health care distribution, Federalism, Emerging technologies, Basic minimum, Rationing scheme


Part I of this Article provides a context for understanding health law in 2008. It discusses the complex relationships between the various actors, at both the federal and state levels, which affect the distribution, provision, and regulation of health care, as well as the role of technological devel­opments in these relationships. Individuals familiar with health law may choose to skip this Part.

Parts II and III address the theoretical underpinnings of basic mini­mum and rationing approaches, respectively. Part II discusses the contractarian foundations of basic minimum schemes. It focuses on the distribu­tion of health care goods as primary goods (goods necessary to fulfill all rational life plans), or in order to uphold a certain baseline of biological functioning. Contractarian theories treating basic health care services as primary goods trigger resource drain from other goods and provide little guidance for interpersonal comparisons. Contractarian theories appealing to baselines of functioning, meanwhile, cannot account for patient demand in the sense of patient freedom to choose from a broad range of basic health care services.

Part Ill examines the theoretical foundations for rationing basic health care services: a consequentialist cost-utility approach using Quality Ad­justed Life Year (QALY) measurements. While such an approach has the potential to consider directly a broad range of basic health care services, some studies indicate that in practice it does not. More importantly, the flexibility of the framework is limited; even if it is adjusted to consider a broader range of services, its depth remains shallow, as it restricts access to services by using criteria that discriminate against age and poor health status. It addition, it employs a narrow scale of well-being, making it dif­ficult to know how to value trade-offs between health care and other goods. The possibility of combining such a rationing-based cost-utility approach with a broader theory of welfare is explored and rejected.

Part IV presents the new BCEHC paradigm derived from Amartya Sen' s theory of basic capability equality. BCEHC considers patient de­mand for a broad range and depth of basic health care technologies, while operating within budget limitations. Individuals will make trade-offs among basic health care goods under yearly or lifetime expenditure restrictions. This Article is intended to begin a discussion about the inhe­rent limitations of existing paradigms for health care access and to suggest an alternative theoretical framework. Further work remains to be done with regard to applying the paradigm in practice, including developing health care financing structures derived from basic capability equality for public and private insurance.

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Alabama Law Review