The Dynamism of Health Law : Expanded Insurance Coverage as the Engine of Regulatory Reform

Can law improve the delivery of health care? The predominant view is that law serves as a barrier to reforming the health care delivery system. Health law scholars of all stripes blame regulations for impeding innovation, limiting competition, and exacerbating fragmentation in health care.I argue that this view neglects an important—but overlooked—feature of health law: the dynamic relationship between laws that expand health insurance coverage and laws that regulate the delivery of health care. By expanding health insurance coverage and increasing the demand for health care, laws such as Medicare, Medicaid and the Affordable Care Act catalyze policymakers to experiment with reforms to delivery system regulations over time. I chart the evolution of three key areas of delivery system law, and find that insurance expansions have contributed to dramatic changes in each of these areas.Recognizing health law's “dynamism” sheds light on two debates that are central to health care reform. First, contrary to what some scholars have argued, it reveals that expanding health insurance coverage should be viewed as a catalyst for delivery system reform, rather than being in competition with it. Second, it strengthens the case for further expanding health insurance coverage. I argue that a dynamic regulatory system is better able to address problems of access, costs, and quality; to adapt to other changes in the underlying health care system; and to facilitate policy learning