Application of administrative law to health care reform: the real politik of Crossing the quality chasm.

I. INTRODUCTION In a well-written editorial in the British Medical Journal, (2) Kelley and Tucci provide insight into the deficiencies of the Institute of Medicine's book, Crossing the Quality Chasm: A New Heath Care System for the 21st Century. (3) The authors observed that Crossing the Quality Chasm has, "received only a subdued response," especially when compared with the public outcry after the Institute of Medicine's prior publication To Err is Human: Building a Safer Health Care System, that reported that up to 98,000 Americans die each year from errors in our health care system. (4) Kelly and Tucci offer two interrelated reasons for the divergent public responses between these two Institute of Medicine publications: (1) the ambitions goals of the Institute of Medicine outlined in Crossing the Quality Chasm are supported only by a general outline for an action plan, and (2) the underlying complex adaptive system theory is only in a nascent stage of development. (5) Thus, Kelly and Tucci are suggesting that the generalities associated with an esoteric economic theory do not capture the public's imagination like an excessive body count. (6) This is, without a doubt, true. Accordingly, the authors recommend that we need to, "explore the motivations and incentives of those who provide care" (7) before complex adaptive system theory is allowed to become an integral part of patient care. Unfortunately, while Kelley and Tucci's conclusion is logically sound, it is likely to go unheard by governmental health care reformers because it ignores the "Real Politik" of our health care delivery system. "Real Politik," a term in vogue at the height of the Cold War, contemplates that in practice, governmental bodies attempt to expand their spheres of influence and control by the application of economic leverage. (8) The federal government is clearly interested in expanding its influence into health care because of its cost. (9) Americans spend over one trillion dollars--forty-four percent of which is paid for by the federal government--on health care each year. (10) To control the cost of health care, governmental reformers proposed the Health Securities Act of 1993 (11) as a frontal assault on the American health care system. But, to the reformers' chagrin, the Health Securities Act was dead on arrival, as much from the message as the messenger. (12) Undeterred by having the front door of reform barred by a plurality of interests, the reformers shifted gears to use a side entrance to legislative reform--administrative agency law. Presently, health care reformers are using administrative law to institute many of the core concepts of the Health Securities Act. Thus, to understand the cool media response to the release of Crossing the Quality Chasm, which provides only a general blueprint for health care reform, the Real Politik of administrative agency law must be grasped; moreover, once the machination of agency law is grasped, it is possible to reasonably predict where health care reform is heading. Accordingly, Part H of this Article provides an overview of federal administrative agency procedure; Part III sets forth the argument that if Institute of Medicine had desired a media event associated with the release of the Crossing the Quality Chasm it would have been arranged; Part IV argues that the absence of orchestrated media response was intended to facilitate the health care reform though promulgation of agency regulations. Part V examines the potential for the National Technology Transfer and Advancement Act of 1995 (13) to facilitate the rule making of federal agencies concerned with health care, This Article concludes that Crossing the Quality Chasm is only the first of many public announcements of coming health care reform regulations. Thus, the "Real Politik" of Crossing the Quality Chasm is that all interested parties immediately need to provide comment in health care publications, before the publications form the foundation of a new federal regulation. …