New Governance and Soft Law in Health Care Reform

Abstract

A contemporary health care reform is underway, associated with a set of reformers who are active nationally and locally at the doctor/patient level, the health care institution level, and the policy level. This reformist energy is associated with processes in law and policy that can be called new governance and soft law. These processes are different from previous understandings of how health care can be governed, such as self-regulation, market forces, and new deal command and control regulation. These processes are taking hold and are visible in the public and private sectors and through out the health care industry. The paper discusses the relationship between resolving health care conundrums, such as universal access, eliminating racial and ethnic disparities and embedding information technology, and the new processes. There are six innovations that derive from the interaction between new governance, soft law, and reform processes: alternative sites for deliberation, consumer and patient participation, different roles for government, redesigned organizational forms, and new tools for regulation and resolving disputes. Each of these innovations is discussed in the context of the health care reform stories. The paper discusses the variety of interactions between new governance and the older systems and how they coexist. It describes three ways in which the older processes are maintained, or could be maintained while utilizing the newer more effective processes. One type is the dynamic interaction between the old and new, a second is orchestrating a multi-pronged strategy that incorporates new governance techniques with more traditional incentives. The third interaction is the integration of traditional legal values, such as transparency, inclusion, and equity into the new processes.