¹ Barbara J. Zabawa, Countering Wellness Bias Through Wellness-Legal Partnerships, 38 J.L. & Health 33, 54–56 (2024).

² Id. at 58.

³ For example, a recent article by Axios highlights “long wait times for doctor appointments, crowded emergency departments, complicated insurance requirements and a dearth of local providers” that make health care access tough on patients. Caitlin Owens, U.S. Health Care Is Increasingly Like a Casino, Axios (May 12, 2024), https://www.axios.com/2024/05/10/health-insurance-quality-care.

⁴ Harris Poll, The Patient Experience: Perspectives on Today’s Healthcare 7 (2023), https://www.aapa.org/download/113513/?tmstv=1684243672. This poll was conducted in English and Spanish online in the United States and surveyed 2,519 adults age 18+ between February 23 and March 9, 2023. Id. at 4.

⁵ Id. at 7.

⁶ Lunna Lopes et al., Issue Brief: Americans’ Challenges with Health Care Costs, KFF (Mar. 1, 2024), https://www.kff.org/health-costs/issue-brief/americans-challenges-with-health-care-costs/ [https://perma.cc/MVD5-PT8F].

⁷ Sarah Kliff & Josh Katz, Hospitals and Insurers Didn’t Want You to See These Prices. Here’s Why, N.Y. Times (Aug. 22, 2021), https://www.nytimes.com/interactive/2021/08/22/upshot/hospital-prices.html.

⁸ Id.

⁹ See Amitai S. Miller et. al., Hospital Noncompliance with U.S. Price Transparency Regulations, 12 Lancet Reg’l Health Ams. art. no. 100275, at 1 (2022) (referencing 45 C.F.R. § 180.50 (2024)).

¹⁰ Kliff & Katz, supra note 7 (pointing out that in many cases patients are getting prices that are higher than they would if they were uninsured).

¹¹ U.S. Dep’t of Health & Hum. Servs., Addressing Health Worker Burnout: The U.S. Surgeon General’s Advisory on Building a Thriving Health Workforce 7 (2022), https://www.hhs.gov/sites/default/files/health-worker-wellbeing-advisory.pdf. According to the Advisory, “burnout” is defined as “an occupational syndrome characterized by a high degree of emotional exhaustion and depersonalization (i.e., cynicism), and a low sense of personal accomplishment at work.” Id.

¹² Id. at 11.

¹³ Id. (“A 2022 survey of over 1,500 U.S. physicians that found that 61% feel they have little to no time and ability to effectively address their patients’ social determinants of health, and 83% believe that addressing patients’ social determinants of health contributes to physician burnout rates; and 87% want greater time and ability to do so in the future.”) (citation omitted).

¹⁴ Id. at 7.

¹⁵ Id. at 12 fig.2 (presenting “[f]actors associated with burnout among health workers”).

¹⁶ See, e.g., Sean P. Keehan et. al., National Health Expenditure Projections, 2022-31: Growth to Stabilize Once the COVID-19 Public Health Emergency Ends, 42 Health Affs. 886, 886 (2023) (stating that over the course of 2022-2031 average growth in National Health Expenditures (5.4 percent) is projected to outpace that of average GDP growth (4.6 percent) resulting in an increase in the health spending share of GDP from 18.3 percent in 2021 to 19.6 percent in 2031).

¹⁷ Owens, supra note 3; see also U.S. Dep’t of Health & Hum. Servs., supra note 11, at 10 (noting the alarming gaps in primary care).

¹⁸ See generally Erin C. Fuse Brown, & Mark A. Hall, Private Equity and the Corporatization of Health Care, 76 Stan. L. Rev. 527, 533 (2024) (arguing that recent private equity investment takes the trends of corporatization or “financialization” of healthcare “to a new extreme by targeting the heart of medical practice—physicians treating patients in their professional offices and clinics”).

¹⁹ Id. at 533–38.

²⁰ Paul Starr, The Social Transformation of American Medicine 240 (1982) (noting that the “general rule” of state and local government regarding health care is to leave as much to private and voluntary action as possible and that historically, American hospitals remained mainly private in contrast to hospitals in Europe, which became mainly governmental and tax supported).

²¹ Health Insurance Coverage of the Total Population, KFF, https://www.kff.org/other/state-indicator/total-population/ (last visited Mar. 3, 2025).

²² Id. (select Timeframe for 2022).

²³ Hospitals by Ownership Type, KFF, https://www.kff.org/other/state-indicator/hospitals-by-ownership/ (last visited Mar. 3, 2025).

²⁴ Id.

²⁵ Id.

²⁶ See W. Pete Welch et al., Assistant Sec’y for Plan. & Evaluation, Data Point HP-2023-14, Ownership of Hospitals: An Analysis of Newly-Released Federal Data & a Method for Assessing Common Owners 4 tbl.1, 6 tbl.3 (2023) (listing hospital types and hospital chains and showing a mix of religious and nonreligious-based hospitals); see also Terry L. Corbett, Healthcare Corporate Structure and the ACA: A Need for Mission Primacy through a New Organizational Paradigm?, 12 Ind. Health L. Rev. 103, 109 (2015) (noting that most “early hospitals were nonprofit by virtue of their religious affiliation”).

²⁷ Corbett, supra note 26, at 130–31, 142.

²⁸ David Blumenthal, Private Equity’s Role in Health Care, Commonwealth Fund (Nov. 17, 2023) https://www.commonwealthfund.org/publications/explainer/2023/nov/private-equity-role-health-care.

²⁹ See id.

³⁰ See id.; see also Setting the Record Straight: Private Equity and Health Insurers Acquire More Physicians than Hospitals Infographic, Am. Hosp. Ass’n (June 2023) [hereinafter Setting the Record Straight], https://www.aha.org/infographics/2023-06-26-setting-record-straight-private-equity-and-health-insurers-acquire-more-physicians-hospitals [https://perma.cc/RQ5E-E4J7] (contending that private equity and insurer acquisitions of physician practices far exceed those by hospitals).

³¹ Fuse Brown & Hall, supra note 18, at 530.

³² Id. at 537–38.

³³ Id. at 538–39.

³⁴ See Blumenthal, supra note 28 (reasoning that private equity is investing in health care in part to bring “energy, fresh perspective, and capital … offer[ing] hope for change in a system that is failing in terms of access, quality and costs); see also Michael Kroin & Ezra Simmons, Industry Voices—Private Equity Investment in Healthcare Is Making a Positive Impact … Especially for Doctors, Fierce Healthcare (Apr. 28, 2023, 1:00 PM) https://www.fiercehealthcare.com/finance/industry-voices-private-equity-investment-healthcare-making-positive-impact-especially (discussing advantages of private equity in healthcare including better market power and technological advancements).

³⁵ Blumenthal, supra note 28. It is worth noting that private equity firms rely more heavily on debt to finance operations than publicly traded healthcare companies. According to the Private Equity Stakeholder Project, private equity debt levels on leveraged buyouts reached a 15-year high in 2022 of 7.1x earnings (EBITDA), while average debt-to-EBITDA ratios for publicly traded healthcare companies are around 3x. See Eileen O’Grady, Private Equity Healthcare Bankruptcies are on the Rise, Priv. Equity Stakeholder Project (Apr. 17, 2024), https://pestakeholder.org/reports/private-equity-healthcare-bankruptcies-are-on-the-rise/.

³⁶ Blumenthal, supra note 28; Rebecca Pifer, Private Equity Investing in Healthcare Continues to Slow, Healthcare Dive (May 8, 2024), https://www.healthcaredive.com/news/private-equity-healthcare-investing-pace-pitchbook/715280/ (“Physician practices owned by [private equity] firms have also suffered some of the largest healthcare bankruptcies in 2023, including KKR’s Envision Healthcare and American Physician Partners, which is owned by Brown Brothers Harriman Capital Partners.”).

³⁷ Blumenthal, supra note 28.

³⁸ Fuse Brown & Hall, supra note 18, at 538.

³⁹ Id.

⁴⁰ Id. at 537–38; see also Joseph D. Bruch et al., Workforce Composition in Private Equity-Acquired Versus Non-Private Equity-Acquired Physician Practices, 32 Health Affs. 121 (2023) (stating that private equity firms “sell companies for sizable profits over three-to-seven-year time frames”); Fred Schulte, Sick Profit: Investigating Private Equity’s Stealthy Takeover of Health Care Across Cities and Specialties, KFF Health News (Nov. 14, 2022), https://kffhealthnews.org/news/article/private-equity-takeover-health-care-cities-specialties/ (“Private equity firms pool money from investors … [and] use that money to buy into businesses they hope to flip at a sizable profit, usually within three to seven years, by making them more efficient and lucrative.”).

⁴¹ Carol K. Kane, Recent Changes in Physician Practice Arrangements: Shifts Away from Private Practice and Towards Larger Practice Size Continue Through 2022, at 6 (Am. Med. Ass’n, Pol’y Rsch. Persp., July 2023); see also Lynn Jeffers, Am. Med. Ass’n Bd. of Trustees, CMS Report 2-I-22, Report of the Council on Medical Service on Corporate Practice of Medicine (Resolution 721-A-22) (2022). There has been a recent decline in private equity investments in health care, primarily due to boosted enforcement efforts by certain states and the federal government. See e.g., Kara Hartnett, M&A, Private Equity Deals Likely to Keep Law Firms Busy: Survey, Mod. Healthcare, Apr. 2024, at 36, 36; Pifer, supra note 36 (mentioning recent federal and state actions tamping down on anticompetitive activity). For example, several states are enacting laws to curb private equity investment in health care. In 2024, the Minnesota legislature introduced a bill that prohibits private equity firms and real estate investment trusts from acquiring operational or financial control over health care providers. H.F. 4206, 93d Leg., Reg. Sess. (Minn. 2024). Also in 2024, the Oregon legislature introduced a bill that prohibits companies from controlling medical work. H.B. 4130, 82d Leg. Assemb., Reg. Sess. (Or. 2024). New Mexico passed a law requiring advance notice and approval from the New Mexico Office of the Superintendent of Insurance of any transaction involving a hospital merger, acquisition or change of control. S.B. 15, 56th Leg., 2d Sess. (N.M. 2024). Finally, California introduced a bill to require private equity groups or hedge funds to notify and obtain consent from the Attorney General before any change of control or acquisition of a health care facility or provider group occurs. A.B. 3129, 2023-2024 Leg., Reg. Sess. (Cal. 2024). Governor Gavin Newsom vetoed A.B. 3129 on September 28, 2024, preferring the Office of Health Care Affordability (OHCA) to be the office to review health care consolidation transactions rather than the Attorney General. Letter from Office of the Governor to Members of California State Assembly (Sept. 28, 2024), https://www.gov.ca.gov/wp-content/uploads/2024/09/AB-3129-Veto-Message.pdf.

⁴² See, e.g., Hayden Rooke-Ley, Medicare Advantage and Vertical Consolidation in Health Care, Am. Econ. Liberties Project 18–19 (2024), https://www.economicliberties.us/wp-content/uploads/2024/04/Medicare-Advantage-AELP.pdf.

⁴³ Setting the Record Straight, supra note 30.

⁴⁴ Id.; see also Rooke-Ley, supra note 42, at 19 (“UnitedHealth now comprises both the nation’s largest health insurance company and the largest employer of physicians.”).

⁴⁵ Anna Wilde Matthews & Dave Michaels, U.S. Opens UnitedHealth Antitrust Probe, Wall St. J. (Feb. 27, 2024), https://www.wsj.com/health/healthcare/u-s-launches-antitrust-investigation-of-healthcare-giant-unitedhealth-ff5a00d2.

⁴⁶ Pifer, supra note 36. Incidentally, this physician practice acquisition is the result of another private equity health system purchase gone bad. Specifically, on May 6, 2024, Steward Health Care filed for Chapter 11 bankruptcy after being acquired by private equity firm Cerberus Capital Management of New York in 2010, converting the nonprofit health system run for decades by the Boston Archdiocese to a for-profit network of institutions. See Robert Weisman & Jessica Bartlett, Steward Files for Bankruptcy, Leaving Its Eight Massachusetts Hospitals in Limbo, Bos. Globe (May 6, 2024), https://www.bostonglobe.com/2024/05/06/business/steward-bankruptcy/. “The company said it was forced into bankruptcy because of a delay in a plan to sell its nationwide physician group, called Stewardship Health, which would have brought additional capital to pay off its lenders.” Id.

⁴⁷ Caitlin Owens, Major Health Insurance Companies are Nearing Too Big to Fail Status, Axios (April 19, 2024), https://www.axios.com/2024/04/19/health-insurance-companies-uhg-aetna-cigna.

⁴⁸ Letter from Lovisa Gustafsson, Christina Ramsay & Sara Federman of the Commonwealth Fund to the DOJ, DHHS and FTC in response to ATR 102, at 3–4 (May 14, 2024) (on file with author).

⁴⁹ Id.

⁵⁰ Letter from U.S. Women’s Health Alliance to DOJ, DHHS & FTC in response to ATR 102, at 5–6 (undated) (citing Avalere Health, Medicare Payment Differentials Across Outpatient Settings of Care (2016), https://www.physiciansadvocacyinstitute.org/Portals/0/assets/docs/Payment-Differentials-Across-Settings.pdf; Anna Wilde Matthews & Melanie Evans, The Hidden System That Explains How Your Doctor Makes Referrals, Wall St. J. (Dec. 27, 2018), https://www.wsj.com/articles/the-hidden-system-that-explains-how-your-doctor-makes-referrals-11545926166) (on file with author).

⁵¹ Zachary Levinson et al., Ten Things to Know About Consolidation in Health Care Provider Markets, KFF (Apr. 19, 2024), https://www.kff.org/health-costs/issue-brief/ten-things-to-know-about-consolidation-in-health-care-provider-markets/.

⁵² Rebecca Pifer, Amazon Closes $3.9B Buy of One Medical, Healthcare Dive (Feb. 22, 2023), https://www.healthcaredive.com/news/amazon-closes-39b-buy-of-one-medical/643245/; CVS Health Completes Acquisition of Signify Health, Signify Health News (Mar. 29, 2023, 7:33 AM), https://www.signifyhealth.com/news/cvs-health-completes-acquisition-of-signify-health.

⁵³ Kenneth J. Arrow, Uncertainty and the Welfare Economics of Medical Care, 53 Am. Econ. Rev. 941, 965–66 (1963).

⁵⁴ Id.

⁵⁵ Id. at 965.

⁵⁶ Fuse Brown & Hall, supra note 18, at 533 (“At bottom, all corporate investors—whether PE, retailers, conglomerate health systems, or health insurers—seek to maximize profits.”).

⁵⁷ Anaeze C. Offodile II et al., Private Equity Investments in Health Care: An Overview of Hospital and Health System Leveraged Buyouts, 2003-17, 40 Health Affs. 719, 725 (2021) (“The ‘social contract’ of health care—that is, an expectation that safe, effective, and equitable services will be made available to a community—contrasts sharply with private equity profit-making strategies.”); Fuse Brown & Hall, supra note 18, at 578–80.

⁵⁸ Rooke-Ley, supra note 42, at 7.

⁵⁹ Corrine Lewis et al., Value-Based Care: What It Is, and Why It’s Needed, Commonwealth Fund (Feb. 7, 2023), https://www.commonwealthfund.org/publications/explainer/2023/feb/value-based-care-what-it-is-why-its-needed (noting that the Centers for Medicare and Medicaid Services is taking the lead on the value-based care movement).

⁶⁰ Rooke-Ley, supra note 42, at 18.

⁶¹ Id. at 25–27.

⁶² Id.

⁶³ Id. at 28.

⁶⁴ 15 U.S.C. §§ 1–2.

⁶⁵ 15 U.S.C. § 18.

⁶⁶ 15 U.S.C. § 45(a)(1) (prohibiting unfair methods of competition and unfair or deceptive acts or practices).

⁶⁷ Brietta R. Clark et al., Health Law: Cases, Materials and Problems 732–34 (abr. 9th ed., West 2022).

⁶⁸ Id. at 732 (“The largest number of cases are brought by private plaintiffs who can receive treble damages and attorneys’ fees for successful litigation.”).

⁶⁹ Id. at 733.

⁷⁰ Id. at 633.

⁷¹ 31 U.S.C. § 3729–3733.

⁷² 42 U.S.C. § 1320a-7b.

⁷³ 42 U.S.C. § 1395nn.

⁷⁴ Clark et al., supra note 67, at 634.

⁷⁵ Id. at 633.

⁷⁶ Id.

⁷⁷ Fuse Brown & Hall, supra note 18, at 562–66; Jane M. Zhu, Hayden Rooke-Ley & Erin Fuse Brown, A Doctrine in Name Only—Strengthening Prohibitions Against the Corporate Practice of Medicine, 389 New Eng. J. Med.

965, 966 (2023) (presenting a 50-state map indicating extent of the prohibition on CPOM).

⁷⁸ Fuse Brown & Hall, supra note 18, at 563.

⁷⁹ Id.

⁸⁰ Id.

⁸¹ Id. at 579–84 (noting that resources for enforcing antitrust laws are limited, that states should help with enforcement efforts and that there is “widespread lack of enforcement of [corporate practice of medicine] laws in the United States”).

⁸² See Exec. Order No. 14,036, 3 C.F.R. 609 (2022).

⁸³ Andrew Forman, Deputy Assistant Att’y Gen. for the U.S. Dep’t of Just., Keynote Speech at the ABA’s Antitrust in Healthcare Conference (June 3, 2022), https://www.justice.gov/opa/speech/deputy-assistant-attorney-general-andrew-forman-delivers-keynote-abas-antitrust.

⁸⁴ Press Release, FTC, Federal Trade Commission, The Department of Justice and the Department of Health and Human Services Launch Cross-Government Inquiry on Impact of Corporate Greed in Health Care (Mar. 5, 2024), https://www.ftc.gov/news-events/news/press-releases/2024/03/federal-trade-commission-department-justice-department-health-human-services-launch-cross-government. This latest request for information (RFI) builds upon the Centers for Medicare and Medicaid Services’ RFI on consolidation and vertical integration in the Medicare Advantage market and the FTC and DHHS RFI regarding market concentration among large health care group purchasing organizations and drug wholesalers. See Medicare Program; Request for Information on Medicare Advantage Data, 89 Fed. Reg. 5907 (Jan. 30, 2024); Solicitation for Public Comment to Understand Lack of Competition and Contracting Practices that May be Contributing to Drug Shortages, FTC Nonrulemaking Docket No. FTC–2024-0018 (Feb. 14, 2024), https://www.regulations.gov/docket/FTC-2024-0018.

⁸⁵ Pifer, supra note 36 (“The argument that antitrust scrutiny will cause provider [mergers and acquisitions] to stop is undercut by a number of recent deals.”); see also Susan Ladika, The Private Equity Bet on Healthcare, Managed Healthcare Exec., Aug. 2022, at 40, 41 (citing a KPMG report that found that “private equity companies slowed their investments in hospitals and health systems due to rising labor and supply costs, although interest in health care IT and physician practices remained strong”).

⁸⁶ Ladika, supra note 85, at 40–41.

⁸⁷ See infra Section I.E.3.b.

⁸⁸ J. Warren Salmon & Stephen L. Thompson, The Corporatization of American Health Care: The Rise of Corporate Hegemony and the Loss of Professional Autonomy, 115–16 (2020).

⁸⁹ For purposes of this article, “health care purchasers” are those who buy health care and insurance, such as individual patients and employer-sponsored group health plans (or union-sponsored plans).

⁹⁰ Health Insurance Costs Are Increasing as Markets Become More Concentrated with Fewer Insurance Companies, U.S. Gov’t Accountability Off. Blog (Oct. 4, 2022), https://www.gao.gov/blog/health-insurance-costs-are-increasing-markets-become-more-concentrated-fewer-insurance-companies-interactive-map.

⁹¹ Fuse Brown & Hall, supra note 18, at 543–44 (citing Joseph D. Bruch, Suhas Gondi and Zirui Song, Changes in Hospital Income, Use, and Quality Associated with Private Equity Acquisition, 180 J. Am. Med. Ass’n Internal Med. 1428, 1432–33 (2020)).

⁹² Id. at 544.

⁹³ Id. at 545.

⁹⁴ Levinson et al., supra note 51.

⁹⁵ Yashaswini Singh et al., Association of Private Equity Acquisition of Physician Practices with Changes in Health Care Spending and Utilization, 3 J. Am. Med. Ass’n Health F. art. no. e222886, at 8 (2022).

⁹⁶ Id.

⁹⁷ Levinson et al., supra note 51; see also Erin E. Trish & Bradley J. Herring, How Do Health Insurer Market Concentration and Bargaining Power with Hospitals Affect Health Insurance Premiums?, 42 J. Health Econ. 104, 104–14 (2015).

⁹⁸ Gary Claxton et al., KFF, Employer Health Benefits 2023 Annual Survey 33 (2023), https://files.kff.org/attachment/Employer-Health-Benefits-Survey-2023-Annual-Survey.pdf. The average premium for single coverage in 2023 was $8,435, which grew by 22 percent over the last five years. Id. at 33, 41.

⁹⁹ Drew Altman, Why Affordability is the Big Tent, KFF (Feb. 20, 2024), https://www.kff.org/from-drew-altman/why-affordability-is-the-big-tent/ (finding 48% of surveyed voters ranked lowering out of pocket health care costs as the number one health priority).

¹⁰⁰ N.C. State Health Plan, Hospitals Profit During COVID-19, at 4–6 (2022), https://www.shpnc.org/documents/files/north-carolina-hospitals-profit-during-covid-19-report/download?attachment.

¹⁰¹ Id. at 6.

¹⁰² Kliff & Katz, supra note 7.

¹⁰³ Id.

¹⁰⁴ Id.; see also Claxton et al., supra note 98, at 143 fig.8.4 (finding that enrollment in high deductible health plans and health reimbursement arrangements has increased over the past decade, from 20% of covered workers in 2013 to 29% in 2023, and only 24% of covered workers in 2023 are enrolled in Health Savings Account-qualified high deductible health plans).

¹⁰⁵ Kliff & Katz, supra note 7.

¹⁰⁶ Sarah Klein & Martha Hostetter, Tackling High Health Care Prices: A Look at Four Purchaser-Led Efforts, Commonwealth Fund (Apr. 1, 2022), https://www.commonwealthfund.org/publications/2022/apr/tackling-high-health-care-prices-look-four-purchaser-led-efforts (citing study performed by RAND Corp. at the request of the Robert Wood Johnson Foundation and The Employers’ Forum of Indiana, a coalition of 154 self-insured organizations).

¹⁰⁷ Id.; see, e.g., 42 C.F.R. § 413.65 (2025) (describing requirements for a determination that a facility or an organization has provider-based status for Medicare payment purposes); see also Brady Post et al., Hospital-Physician Integration and Medicare’s Site-Based Outpatient Payments, 56 Health Servs. Rsch. 7, 11 (2021) (finding that by acquiring physician practices, hospitals gain $114,000 more in Medicare revenue per acquired physician per year).

¹⁰⁸ Kliff & Katz, supra note 7 (noting that if employers want to find out what the prices are, they must spend a lot of money to get that information).

¹⁰⁹ Anna Wilde Mathews, Hospital to Union: Pay Up or You’re Stuck with Us in Your Health Plan, Wall St. J. (May 21, 2024, 5:30 AM), https://www.wsj.com/health/healthcare/new-york-presbyterian-hospital-payment-union-3b2100f5.

¹¹⁰ Id.

¹¹¹ Tina Reed, Fight Between Union and Hospital Heats Up Post-Breakup, Axios (May 22, 2024), https://www.axios.com/2024/05/22/union-hospital-insurer-health-costs.

¹¹² Wilde Mathews, supra note 109 (noting that employers and unions “end up living with the conditions in the contracts, which are typically secret, and paying prices that are often double or more what the government spends for the same medical services”).

¹¹³ Susanna Vogel, Hospital Price Transparency Continues to Drop: Report, Healthcare Dive (Nov. 22, 2024), https://www.healthcaredive.com/news/hospital-price-transparency-continues-drop-patient-rights-advocate/733703/ (according to a report from Patient Rights Advocate, “[t]he percentage of hospitals in full compliance with federal price transparency rules fell from February to November [2024], from 34.5% to 21.1%”); Justin Lo et al., Ongoing Challenges with Hospital Price Transparency, Peterson-KFF Health Sys. Tracker (Feb. 10, 2023), https://www.healthsystemtracker.org/brief/ongoing-challenges-with-hospital-price-transparency/ (analyzing the hard-to-use formats in which hospitals make price data available). It should be noted, however, that beginning July 1, 2024, price data must be in a template developed by the Centers for Medicare and Medicaid Services (CMS). See 45 C.F.R. § 180.50(c)(2) (2025). Whether that improves accessibility and readability of the data remains to be seen.

¹¹⁴ Hospital Price Transparency Frequently Asked Questions, Ctrs. for Medicare & Medicaid Servs. 30 (Jan. 3, 2025), https://www.cms.gov/files/document/hospital-price-transparency-frequently-asked-questions.pdf.

¹¹⁵ Kliff & Katz, supra note 7 (highlighting that “N.Y.U. Langone, a system of five inpatient hospitals that ha[d] not complied with the transparency law in 2021, reported $5 billion in revenue in 2019”).

¹¹⁶ Id. (“Sixteen percent of insured families currently have medical debt, with a median amount of $2,000.”); see also Lopes et al., supra note 6 (“About four in ten adults (41%) report having debt due to medical or dental bills including debts owed to credit cards, collection agencies, family and friends, banks, and other lenders to pay for their health care costs.”).

¹¹⁷ Lopes et al., supra note 6 (noting that one in four adults have skipped or postponed needed health care because of cost).

¹¹⁸ Sneha Kannan et al., Changes in Hospital Adverse Events and Patient Outcomes Associated with Private Equity Acquisition, 330 J. Am. Med. Ass’n 2365, 2371–72 (2023).

¹¹⁹ Jodi L. Liu et al., RAND Corp., Environmental Scan on Consolidation Trends and Impacts in Health Care Markets 70–72 (2022), https://www.rand.org/pubs/research_reports/RRA1820-1.html.

¹²⁰ Id. at vii, 70–72. As noted by Levinson et al., supra note 51, interpreting evidence on quality is complicated by the fact that “there are many dimensions and measures of quality that have been or could be used to assess the effects of consolidation and that it could take time for changes in quality to materialize.”

¹²¹ Liu et al., supra note 119, at vii. However, it should be noted that studies of patient outcomes after nursing home private equity acquisitions have shown increased mortality, higher rates of hospitalizations, and emergency room visits. Fuse Brown & Hall, supra note 18, at 544.

¹²² See Liu et al., supra note 119, at vii.

¹²³ Alexander Borsa et al., Evaluating Trends in Private Equity Ownership and Impacts on Health Outcomes, Costs, and Quality: Systematic Review, 382 Brit. Med. J. art. no. e075244, at 13 (2023).

¹²⁴ Liu et al., supra note 119, at 22, 26.

¹²⁵ Id. at 17.

¹²⁶ Id.

¹²⁷ Weisman & Bartlett, supra note 46.

¹²⁸ O’Grady, supra note 35.

¹²⁹ Weisman & Bartlett, supra note 46.

¹³⁰ Id.

¹³¹ Id.

¹³² Id.

¹³³ O’Grady, supra note 35.

¹³⁴ Id.

¹³⁵ Id.

¹³⁶ Id.

¹³⁷ Id. (citing Isaac Arnsdorf, Medical Staffing Companies Cut Doctors’ Pay While Spending Millions on Political Ads, ProPublica (April 20, 2020), https://www.propublica.org/article/medical-staffing-companies-cut-doctors-pay-while-spending-millions-on-political-ads).

¹³⁸ First Amended Complaint for Unfair Business Practices and for Injunctive and Declaratory Relief ¶¶ 79–80, Am. Acad. of Emergency Med. Physician Grp., Inc. v. Envision Healthcare Corp., No. 3:22-cv-00421 (N.D. Cal. Feb. 18, 2022) [hereinafter Envision Complaint].

¹³⁹ O’Grady, supra note 35.

¹⁴⁰ Id.

¹⁴¹ Id. Long wait lists were also listed as a consequence of private equity investment in health care by Wisconsin board for People with Developmental Disabilities in response to the FTC request for information. Letter from Beth Swedeen, Exec. Dir. of Wis. Bd. for People with Developmental Disabilities, to DOJ., DHHS & FTC in response to ATR 102, at 3 (May 1, 2024) (on file with author). This is the result of private equity owners shifting client bases toward more private-pay clients leaving few provider options, and thus longer wait times, for Medicaid patients. Id.

¹⁴² O’Grady, supra note 35. The increase in patient-to-clinician ratio is corroborated by allegations from the emergency physician lawsuit against Envision Healthcare. Envision Complaint, supra note 138, ¶ 47 (alleging also that Envision increased patient utilization of physician assistants to replace more costly physician coverage and increased billings to patients, insurers and third-party payors for physician services).

¹⁴³ O’Grady, supra note 35.

¹⁴⁴ Joseph Bruch, Dan Zeltzer & Zirui Song, Characteristics of Private Equity-Owned Hospitals in 2018, 174 Annals Internal Med. 277, 279 (2020).

¹⁴⁵ Giles Bruce, Change Healthcare Confirms Ransomware Attack, Hackers Claim Massive Data Haul, Becker’s Hosp. Rev. (Feb. 29, 2024), https://www.beckershospitalreview.com/cybersecurity/change-healthcare-confirms-ransomware-attack-hackers-claim-massive-data-haul.html.

¹⁴⁶ Tina Reed, Lawmakers Target Mergers in First Hearing on Change Healthcare Hack, Axios (Apr. 17, 2024), https://www.axios.com/2024/04/17/congress-change-healthcare-cyberattack.

¹⁴⁷ Neelam Bohra, Delayed Care, Closed Pharmacies, Hospitals on Diversion: Two Weeks into the Ransomware Attack on Ascension, Healthcare Brew (May 22, 2024), https://www.healthcare-brew.com/stories/2024/05/22/delayed-care-closed-pharmacies-hospitals-on-diversion-two-weeks-into-the-ransomware-attack-on-ascension.

¹⁴⁸ Id.

¹⁴⁹ Susanna Vogel, Ascension Hit with Lawsuits Days After Ransomware Attack, Healthcare Dive (May 16, 2024), https://www.healthcaredive.com/news/ascension-lawsuits-ransomware-attack-cybersecurity/716248/; Borha, supra note 147. Change Healthcare was also hit with multiple class-action lawsuits because of its cyberattack, as was HCA Healthcare for a cyberattack that occurred in 2023. Brendan Pierson, Lawsuits over Change Healthcare Data Breach Centralized in Minnesota, Reuters (June 7, 2024, 4:18 PM) (noting the centralization of 49 lawsuits accusing Change Healthcare of failing to protect personal data), https://www.reuters.com/legal/litigation/lawsuits-over-change-healthcare-data-breach-centralized-minnesota-2024-06-07.

¹⁵⁰ Jane M. Zhu, Andrew Zeveney & Susan Read, Physician Perspectives on Private Equity Investment in Health Care, 184 J. Am. Med. Ass’n Internal Med. 579, 579 (2024).

¹⁵¹ Id. at 579.

¹⁵² Id.

¹⁵³ Id. at 581. Indeed, another study found higher turnover of physicians in private equity-acquired practices than non-private-equity-acquired practices. See Joseph Dov Bruch et al., Workforce Composition in Private Equity-Acquired Versus Non-Private Equity-Acquired Physician Practices, 41 Health Affs., 121, 127 (2023).

¹⁵⁴ Medicare Payment Advisory Comm’n, Report to the Congress: Medicare and the Health Care Delivery System 100 (2021), https://www.medpac.gov/wp-content/uploads/import_data/scrape_files/docs/default-source/reports/jun21_medpac_report_to_congress_sec.pdf.

¹⁵⁵ Id.

¹⁵⁶ See Envision Complaint, supra note 138.

¹⁵⁷ O’Grady, supra note 35.

¹⁵⁸ Envision Complaint, supra note 138, ¶ 38. As noted in the First Amended Complaint, “California (and many other states) bar lay entities from owning physician practice groups, employing physicians, or violating the Corporate Practice of Medicine Bar” and that Envision’s business model is to circumvent the corporate practice of medicine by creating a separate subsidiary licensed Professional Medical Corporation. Id. ¶ 27.

¹⁵⁹ Kane, supra note 41, at 7 (finding responses to the 2022 Benchmark Survey “indicated that the need to better negotiate favorable (higher) payment rates with payers, better manage payers’ regulatory and administrative requirements, and improve access to costly resources were the most important motivations for private practices selling to hospitals or health systems”).

¹⁶⁰ Id. at 8–9.

¹⁶¹ Robert I. Field et al., Private Equity in Healthcare: Barbarians at the Gate?, 15 Drexel L. Rev. 821, 838 (2023).

¹⁶² See id.; see also Jeffrey M. Smith, Eric A. Boe & Ryan Will, Physician Wellness in Orthopedic Surgery: Challenges and Solutions, 52 Orthopedic Clinics N. Am. 41, 48 (2021) (stating that physicians experience “moral injury … from the ‘death by a thousand cuts’ of electronic medical records, administrative burdens, and competing business demands versus patient care”).

¹⁶³ A Roadmap for New Physicians: Physician Relationships with Payers, Off. of Inspector Gen., https://oig.hhs.gov/compliance/physician-education/i-physician-relationships-with-payers/ (last visited Apr. 25, 2025).

¹⁶⁴ See generally Maxwell J. Mehlman, Why Physicians Are Fiduciaries for Their Patients, 12 Ind. Health L. Rev. 1 (discussing the majority viewpoint that the patient-physician relationship is fiduciary in nature and arguing against sources that treat the relationship as non-fiduciary); Phyllis C. Borzi, Ctr. For Health Servs. Rsch. & Poly, Geo. Wash. Univ. Med. Ctr., ERISA Health Plans: Key Structural Variations and Their Effect on Liability 17–26 (2002) (describing the fiduciary duty of group health plans under ERISA).

¹⁶⁵ See supra note 150–53 and accompanying text.

¹⁶⁶ See supra Sections I.E.1.a (cost), I.E.1.b (quality and access).

¹⁶⁷ Aditi P. Sen, Jessica Y. Chang & John Hargraves, Health Care Service Price Comparison Suggests that Employers Lack Leverage to Negotiate Lower Prices, 42 Health Aff. 1241, 1247 (2023) (finding self-insured plans pay moderately higher prices for most services when compared to insured plans).

¹⁶⁸ Id.

¹⁶⁹ Id. (citations omitted).

¹⁷⁰ Id. at 1242, 1247 (citations omitted).

¹⁷¹ See, e.g., Setting the Record Straight, supra note 30; supra Section I.B (discussing vertical integration of health insurance industry).

¹⁷² Sen, Chang & Hargraves, supra note 167, at 1247.

¹⁷³ Chris Hamby, In Battle Over Health Care Costs, Private Equity Plays Both Sides, N.Y. Times (Apr. 7, 2024), https://www.nytimes.com/2024/04/07/us/health-insurance-medical-bills-private-equity.html.

¹⁷⁴ Id. (describing repricing tool Data iSight, which sets provider prices based on pre-determined treatment costs, causing providers to receive lower than their usual and customary rates and for employers and patients to pay higher out-of-pocket costs).

¹⁷⁵ Complaint ¶ 69, Kraft Heinz Co. Emp. Benefits Admin. Bd. v. Aetna Life Ins. Co., No. 23-cv-317 (E.D. Tex. filed June 30, 2023) (“Aetna never refunds, credits, or reconciles with the Plans the difference between any amount taken from the Plans and the amount ultimately paid to the provider pursuant to the reprocessed claims.”). The plaintiffs in this case voluntarily dismissed the action under FRCP 41(a). Order, Kraft Heinz Co. Emp. Benefits Admin. Bd. v. Aetna Life Ins. Co., No. 23-cv-317 (E.D. Tex. filed Dec. 15, 2023) (granting Plaintiffs’ Notice of Dismissal under FRCP 41(a)(1)(A)(i)). Other ERISA breach of fiduciary duty lawsuits brought by group health plans against plan administrators include suits against Elevance, Inc. and Blue Cross Blue Shield of Massachusetts. See Sara Hansard, Employer Lawsuits Heat Up Against Health Plan Administrators, Bloomberg L. (July 6, 2023), https://news.bloomberglaw.com/employee-benefits/employer-lawsuits-heat-up-against-health-plan-administrators.

¹⁷⁶ Emergency Physician Servs. of N.Y. v. UnitedHealth Grp., No. 20-cv-9183, 2021 WL 4437166 at *3 (S.D.N.Y. Sept. 28, 2021) (“United compensates MultiPlan based on the amount by which the claims were underpaid- that is, MultiPlan was paid a fee equal to between 6% and 9% of the difference between the target amount that United sent and the amount of the new, lower payment that MultiPlan calculated using Data iSight. Both companies profit: United profits by lowering its costs, while MultiPlan profits when United shares money obtained through the scheme.”) (citations omitted). The court dismissed the physicians’ claim under the federal Racketeer Influenced and Corrupt Organizations Act (RICO) but allowed the claims involving unjust enrichment and declaratory judgment to go forward. Id. at *13.

¹⁷⁷ 29 U.S.C. § 1104(a)(1).

¹⁷⁸ U.S. Dep’t of Lab., Understanding Your Fiduciary Responsibilities Under A Group Health Plan 1 (2023), https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/publications/group-health-plan-fiduciary-responsibilities.pdf.

¹⁷⁹ Id.

¹⁸⁰ Id. at 2.

¹⁸¹ Id.

¹⁸² Id. at 3.

¹⁸³ Class Action Complaint, Lewandowski v. Johnson & Johnson, No. 24-cv-671 (D.N.J. Jan. 24, 2025).

¹⁸⁴ Id. ¶ 3.

¹⁸⁵ Id. at 32–33.

¹⁸⁶ Id.

¹⁸⁷ Id. ¶ 98.

¹⁸⁸ Id. ¶¶ 197–98 (“In making decisions about the prescription-drug program, Defendants were required to consider all relevant factors and options under the circumstances, including alternative arrangements that were available to the Plans, the conflicts of interest of its vendors, whether the prices of drugs under its contract were reasonable, and steps taken by other companies that successfully lowered their prescription-drug costs.”).

¹⁸⁹ Class Action Complaint at 1–2, S.M.O. v. Mayo Clinic, No. 24-cv-1124 (D. Minn. Apr. 2, 2024).

¹⁹⁰ Id. at 19–25.

¹⁹¹ 29 C.F.R. § 2590.725-4 (2024) (prescription drug and health care spending reporting requirement); 29 U.S.C. § 1185m(a)(3) (gag clause attestation requirement defining gag clauses as agreements that restrict health plans from providing provider-specific cost or quality of care information or data to health care purchasers); see also Consolidated Appropriations Act, 2021 (CAA), Ctrs. for Medicare & Medicaid Servs., https://www.cms.gov/marketplace/about/oversight/other-insurance-protections/consolidated-appropriations-act-2021-caa (last modified Sept. 19, 2024, 1:44 PM).

¹⁹² 29 C.F.R. § 2590.725-4(5) (2024).

¹⁹³ Press Release, Employers Want Greater Accountability from Intermediaries to Ensure CAA Compliance per National Alliance of Healthcare Purchaser Coalitions Survey, National Alliance of Healthcare Purchaser Coalitions (May 16, 2024), https://www.nationalalliancehealth.org/news/employers-want-greater-accountability-from-intermediaries-to-ensure-caa-compliance-per-national-alliance-of-healthcare-purchaser-coalitions-survey/.

¹⁹⁴ Id. (finding that 77% of surveyed employers are worried about health care costs, 39% are worried about fiduciary duties, and 35% are worried about recent litigation).

¹⁹⁵ See Mehlman, supra note 164, at 2–3 & n.6.

¹⁹⁶ Maxwell J. Mehlman, Can Law Save Medicine?, 36 J. Legal Med. 121, 136 (2015).

¹⁹⁷ Id. at 139.

¹⁹⁸ Id.

¹⁹⁹ Professor Mehlman points out that several legal authorities, including the U.S. Supreme Court, in Pegram v. Herdrich, 530 U.S. 211, 215 (2000), has declined to apply a fiduciary relationship to physicians and instead applies a malpractice and/or confidentiality standard. Id. at 140–47; Mehlman, supra note 164, at 23–27.

²⁰⁰ Mary Anne Bobinski, Law and Power in Health Care: Challenges to Physician Control, 67 Buff. L. Rev. 595, 646 (2019) (“Affirming the physician-patient relationship’s fiduciary character could support efforts by physicians to strengthen their ability to follow non-market ethical principles and to protect the treatment relationship itself from the impact of swirling market forces and pressures.”).

²⁰¹ Laura O. Karas, The Private Equity Takeover of Medicine, in 1 Systemic Just. Project, Systemic Justice Journal: Critical Corporate Theory Collection 17–18 (2021), https://systemicjustice.org/wp-content/uploads/2021/10/Karas_FinalPaper.pdf.

²⁰² Louise G. Trubek, Public Interest Lawyers and New Governance: Advocating for Healthcare, 2002 Wis. L. Rev. 575, 591–92.

²⁰³ Id. at 589.

²⁰⁴ Id.; see also id. at 590 (“Consumers were seeking some guarantee that the commercialized, competitive [MCO] system would still give them quality service.”).

²⁰⁵ Id. at 592.

²⁰⁶ Id. at 591–92.

²⁰⁷ Id. at 593.

²⁰⁸ Id. at 600–01.

²⁰⁹ Cary Conway, Employer/Physician Collaborative Announces Strategies to Work Together to Improve Patient Care, Nat’l All. of Healthcare Purchaser Coals. (Feb. 2, 2021), https://www.nationalalliancehealth.org/news/collaborative-announces-strategies/ [https://perma.cc/5MKY-JBHE]. It should be noted that CAPP operations are currently paused because of the impact of COVID-19. Better Together Health, https://bettertogetherhealth.org/ [https://perma.cc/8V3R-SG8E] (last visited Apr. 25, 2024) (announcing that that the Board of Directors of CAPP decided on September 1, 2021 to “pause CAPP operations indefinitely).

²¹⁰ See Stephen Parodi et al., Council of Accountable Physician Practices & Nat’l All. of Healthcare Purchaser Coals., Better Together: Exploring Employer-Physician Collaborations to Deliver Quality Care (2020), https://accountablecaredoctors.org/wp-content/uploads/2020/07/capp_bth_employer-physician-collabs.pdf [https://perma.cc/FW8N-ELMH].

²¹¹ Id. at 22.

²¹² See id. A review of the “Strategic Partners and Collaborators” of NAHPC shows that although some partners and collaborators of NAHPC claim they have consumer representation, one such group did not have any consumer or public interest legal group listed as a member (Better Solutions for Healthcare), the Centers for Disease Control (CDC) is a government agency that protects the public’s health, one coalition included a union as a member (Coalition Against Surprise Billing included Unite Here, a union organization), one NAHPC member included a consumer health interest group as a member (Health Care Payment Learning and Action Network included Families USA as a member) and one NAHPC member was merely an educational website (National Coalition on Health Care). See Strategic Partners and Collaborators, Nat’l All. of Healthcare Purchaser Coals., https://www.nationalalliancehealth.org/strategic-partners/ [https://perma.cc/KS7F-MZ46] (last visited Mar. 18, 2025). None of the strategic partners or collaborators included any public interest law groups or lawyers.

²¹³ See discussion infra notes 297–308 and accompanying text.

²¹⁴ See infra note 301 and accompanying text.

²¹⁵ Louise G. Trubek, Barbara Zabawa & Paula Galowitz, Transformations in Health Law Practice: The Intersections of Changes in Health Care and Legal Workplaces, 12 Ind. Health L. Rev. 183, 184–86 (2015). These three worksites are not exhaustive. Health care lawyers also work as litigators on malpractice or provider contracting disputes, for state and federal regulatory entities, and for other health care stakeholders. Discussing these other categories of worksites is beyond the scope of this article. Instead, this article focuses on the three worksites identified by id.

²¹⁶ Id.

²¹⁷ Id. at 185.

²¹⁸ Id. at 195–96.

²¹⁹ See id. at 198–99.

²²⁰ William W. Horton, Serving Two (or More) Masters: Professional Responsibility Challenges for Today’s In-House Healthcare Counsel, 3 J. Health & Life Scis. L. 187, 201 (2010) (citing Model Rules of Pro. Conduct r. 1.13(a), (f) (Am. Bar Ass’n 2009)).

²²¹ Id.

²²² Hugh Gunz & Sally Gunz, Ethical Challenges in the Role of In-House Counsel, 69 Case W. Res. L. Rev. 953, 956–57 (2019).

²²³ Id.

²²⁴ Barry R. Furrow, The Role of the Lawyer as Deal Maker in Health Care Acquisitions: From Amoral to Immoral?, 52 J.L. Med. & Ethics 333, 342 (2024) (stating that lawyers are not simply agents of clients but also licensed fiduciaries of the legal system and have obligations to third parties); Model Rules of Pro. Conduct r. 1.6(b) (Am. Bar Ass’n 2025).

²²⁵ See Furrow, supra note 224, at 342.

²²⁶ Id.

²²⁷ See supra Section I.E.3.a.

²²⁸ Gunz & Gunz, supra note 222, at 970–72.

²²⁹ Id. at 968, 970.

²³⁰ Id. at 970–71.

²³¹ Id.

²³² Id. at 972.

²³³ Furrow, supra note 224, at 335.

²³⁴ Id. at 343.

²³⁵ Trubek, Zabawa & Galowitz, supra note 215, at 199.

²³⁶ Fuse Brown & Hall, supra note 18, at 566–68.

²³⁷ Id. at 567.

²³⁸ Trubek, Zabawa & Galowitz, supra note 215, at 203–09.

²³⁹ Id. at 203; see also Jennifer Trott, Alanna Peterson & Marsha Regenstein, Nat’l Ctr. for Med. Legal P’ship, Med. Legal P’Ship Fundemantals Series Issue Brief No. 2, Financing Medical-Legal Partnerships: View from the Field 1 (2019), https://medical-legalpartnership.org/wp-content/uploads/2019/04/Financing-MLPs-View-from-the-Field.pdf [https://perma.cc/AYT4-ZD4B] (“The [MLP] model embeds attorneys specializing in civil law into the health care setting to address patients’ unmet legal needs. MLP attorneys [are] usually sourced by civil legal aid nonprofits or law schools.”).

²⁴⁰ See, e.g., Monica Carmean, Medical-Legal Partnerships: Unmet Potential for Legislative Advocacy, 19 Geo. J. on Poverty L. & Pol’y 499, 499–501 (2012).

²⁴¹ Trubek, Zabawa & Galowitz, supra note 215, at 204.

²⁴² Id. at 208; see also Carmean, supra note 240, at 501 (“Medical-legal partnerships stand at the intersection of poverty and healthcare and are especially well situated to assist low-income clients.”).

²⁴³ Trubek, Zabawa & Galowitz, supra note 215, at 205–06 (citing I.R.C. § 501(c)(3) and the community needs assessment requirements); see also Trott, Peterson & Regenstein, supra note 239, at 3 (noting that the Affordable Care Act requires nonprofit hospitals to complete and document a community health needs assessment every three years and about half of nonprofit hospitals with MLPs feature MLPs in their community benefit annual reports).

²⁴⁴ See The Partnerships, Nat’l Ctr. for Med. Legal P’ship, https://medical-legalpartnership.org/partnerships/ [https://perma.cc/W2RN-9H8A] (showing that 175 of the 450 MLPs in the United States are with hospitals or health systems) (last visited Mar. 18, 2024).

²⁴⁵ See supra notes 25–28 and accompanying text.

²⁴⁶ Indeed, a number of MLPs are funded by sources whose mission is to serve low-income individuals and families, such as Legal Services Corporation funding, Interest on Lawyers’ Trust Accounts (IOLTA) Funds, and funding from the federal Health Resources & Services Administration (HRSA). Trott, Peterson & Regenstein, supra note 239, at 4. As a result, representing group health plan purchasers or physicians would not serve the mission of most, if not all, MLPs.

²⁴⁷ See, e.g., John C. Dernbach, Irma Russell & Matt Bogoshian, Lawyering to Make a Difference: Ethics and Leadership for a Sustainable Society, 23 Wake Forest J. Bus. & Intell. Prop. L. 20 (2022) [hereinafter Dernbach, Russell & Bogoshian, Lawyering to Make a Difference]; Irma Russell, John C. Dernbach & Matt Bogoshian, The Lawyer’s Duty of Competence in a Climate-Imperiled World, 92 UMKC L. Rev. 859 (2023) [hereinafter Russell, Dernbach & Bogoshian, Lawyer’s Duty of Competence].

²⁴⁸ Dernbach, Russell & Bogoshian, Lawyering to Make a Difference, supra note 247, at 31.

²⁴⁹ Id. at 22.

²⁵⁰ Id. at 25–27 & n.37 (citing Model Rules of Pro. Conduct, pmbl. [6] (Am. Bar. Ass’n 2020) (stating lawyers “should cultivate knowledge of the law beyond its use for clients, [and] employ that knowledge in reform of the law”)).

²⁵¹ Russell, Dernbach & Bogoshian, Lawyer’s Duty of Competence, supra note 247, at 865.

²⁵² Id. at 866.

²⁵³ Id. at 888 (“Part of leadership work is being creative and finding new ways to add value for clients and communities while simultaneously reducing greenhouse gas emissions and adapting to a changing climate.”); see also Dernbach, Russell & Bogoshian, Lawyering to Make a Difference, supra note 247, at 23 (noting that innovative solutions are often generated from individuals and small groups of dedicated people).

²⁵⁴ Dernbach, Russell & Bogoshian, Lawyering to Make a Difference, supra note 247, at 25.

²⁵⁵ Lindsay F. Wiley, Health Law as Social Justice, 24 Cornell J.L. & Pub. Pol’y 47, 88 (2014) (“Putting access to health care in its place as one among many social determinants of health runs counter to decades of health law reform, activism, and scholarship.”).

²⁵⁶ See Dernbach, Russell & Bogoshian, Lawyering to Make a Difference, supra note 247, at 31 (“Sustainable development transforms the decision-making process because it incorporates the environment into the decision-making process instead of treating it as an afterthought or an issue where damage is tolerable as long as it does not arouse significant opposition.”).

²⁵⁷ See supra note 164 and accompanying text; supra Section I.E.3.b.

²⁵⁸ Furrow, supra note 224, at 342.

²⁵⁹ Supra note 222 and accompanying text.

²⁶⁰ Supra note 223 and accompanying text.

²⁶¹ Furrow, supra note 224, at 334.

²⁶² Id. at 335.

²⁶³ See id. at 342 (quoting Doreen McBarnet, Financial Engineering or Legal Engineering? Legal Work,

Legal Integrity and the Banking Crisis, in The Future of Financial Regulation 67, 80 (Iain MacNeil & Justin O’Brien eds., 2010) (“In the mindset of the legal engineer, law or regulation is not a legitimate and authoritative command to be taken at face value, respected and obeyed. It is simply a nuisance, an obstacle to be overcome, a material to be worked with and reshaped to one’s advantage, a challenge in a regulatory cat and mouse game.”)).

²⁶⁴ Wiley, supra note 255, at 51.

²⁶⁵ See id. at 91.

²⁶⁶ Id. at 52 (describing social justice as “a communitarian approach (in its emphasis on collective problems and collective problem-solving) to ensuring the essential conditions for human well-being, including redistribution of social and economic goods and recognition of all people as equal participants in social and political life,” and arguing that “social justice is emerging as a core value of health law and policy writ large”).

²⁶⁷ Id. at 52 & n.17, 84–87.

²⁶⁸ Id. at 51, 88.

²⁶⁹ Id. at 96–97; see also id. at 72 n.140 (“[c]omparing the communication- and education- focused ‘behavioral model’ that dominated public health in the second half of the twentieth century with the ‘ecological model’—emphasizing the social, environmental, and cultural factors that influence health behaviors—that is the focus of new public health”).

²⁷⁰ Id. at 97–98.

²⁷¹ Id. at 94 (advocating for health justice scholarship to “push for expansive and rigorous examination of the causal pathways by which social disadvantage translates into poor health, and of the role of law and policy (and not merely health law and policy) in reinforcing or disrupting those pathways”). “Rhetoric that frames health disparities in terms of personal responsibility for unhealthy behavior choices also implicates class, racial, and other forms of bias and structural disadvantage.” Id. at 98.

²⁷² Id. at 100.

²⁷³ See id. at 101.

²⁷⁴ Id.

²⁷⁵ Trubek, supra note 202, at 600 (“Implicit in the new model is a loss of the vision of the lawyer as a heroic, independent figure.”).

²⁷⁶ Alicia Turlington, Jonathan Young & Dina Shek, Quantifying “Community Power” and “Racial Justice” in the Medical-Legal Partnership Literature, 51 J.L. Med. & Ethics 748, 749 (2023) (“Much of the foundational health justice scholarship has grown out of the work of many MLP scholars and practitioners.”).

²⁷⁷ Trubek, Zabawa & Galowitz, supra note 215, at 206 (citing Interview with David R. Williams, Professor of Public Health, Harvard School of Public Health (July 10, 2013) (“Medical care is only responsible for approximately 10 to 15 percent of what determines health… physicians cannot do it all by themselves. The need to work collaboratively with other professionals to address the root causes of disease.”)).

²⁷⁸ Barbara Zabawa, Health Care Corporatization as a Catalyst for Wellness Legal Partnerships, 50 Am. J.L. & Med. (forthcoming 2025) (manuscript at 34), https://ssrn.com/abstract=5006982.

²⁷⁹ Turlington, Young & Shek, supra note 276, at 749.

²⁸⁰ The author acknowledges that MLPs may occasionally assist patients who have group health plan coverage, but that is not the defining factor or characteristic of the assistance.

²⁸¹ Claxton et al., supra note 98, at 66.

²⁸² See e.g., Al Lewis, The Outcomes, Economics and Ethics of the Workplace Wellness Industry, 27 Health Matrix 1, 9–13 (2017) (noting that research involving corporate wellness programs does not confirm or show positive returns on investment).

²⁸³ Claxton et al., supra note 98, at 193.

²⁸⁴ Id. at 193 & fig.12.9 (defining “small firms” as those with 3-199 workers and “large firms” as those with 200 or more workers).

²⁸⁵ Id.

²⁸⁶ Kathryn Mayer, How Much Are Employers Investing in Wellness Programs?, Hum. Res. Exec. (June 10, 2021), https://hrexecutive.com/how-much-are-employers-investing-in-wellness-programs/ [https://perma.cc/3GGH-BQCE].

²⁸⁷ Keeping Benefits Packages Competitive, Soc’y of Hum. Res. Mgmt., https://www.shrm.org/topics-tools/research/employee-benefits-survey [https://perma.cc/9VDZ-N8HV] (last visited June 25, 2024).

²⁸⁸ 2024 Large Employer Health Care Strategy Survey: Executive Summary, Bus. Grp. on Health (Aug. 22, 2023), https://www.businessgrouphealth.org/resources/2024-large-employer-health-care-strategy-survey-executive-summary (stating that employers are focusing on outcomes improvement, lowering the total cost of care, reduction in unnecessary services and prioritization of prevention and primary care and that 95% of surveyed employers will implement at least one strategy to address health inequities by 2024).

²⁸⁹ Anya E. R. Prince, Hidden Trade-Offs in Insurance Wellness Programs, 2021 Mich. St. L. Rev. 341, 364–65 (2021) (noting that some employers may invest in wellness programs because they believe those programs may improve employee health, reduce absenteeism, and reduce health care plan expenditures, while some employers may want to establish a culture of health and wellbeing where employees feel valued and important, translating into greater worker loyalty and productivity).

²⁹⁰ Id. at 345 (“Wellness programs are designed to incentivize individuals to take personal responsibility for their health behaviors, but they do little to address the underlying social determinants of health that may have led to those unhealthy behaviors, making lasting and meaningful improvement across the board difficult.”).

²⁹¹ Id. at 346; see also Lewis, supra note 282, at 27 (noting that workplace wellness programs allow employers “to take money from employees who refuse to submit to wellness or cannot lose sufficient weight in the form of forfeitures” and that “[e]mployees from lower socioeconomic strata are disproportionately the victims of this forfeiture”).

²⁹² Prince, supra note 289, at 408–09. I dive into this unjust outcome of many workplace wellness programs in my Wellness Bias Article. See generally Zabawa, supra note 1. Specifically, I focus on the first and second prongs of the three-fold approach to WLPs—individual employee assistance and organizational change—to combat racial and ableist bias in workplace wellness programs. I show that racial and ableist bias is rampant in current workplace wellness programs, particularly with the use of racially biased measures like Body-Mass Index (BMI), lifestyle and behavior focus, stereotypical body images and cultural appropriation of popular wellness activities like yoga and meditation. This embedded bias in much of workplace wellness programming ignores the social and structural drivers of wellbeing and I argue that the first and second prongs of the WLP three-fold approach can begin to correct that. In this article, I contend that the utility of WLPs to address workplace wellness program still holds true but expand the model to also address health care corporatization by leaning heavily into the third prong of the three-fold WLP approach. Thus, WLPs offer a much-needed shift in workplace wellness programming from a focus on individual behavior change to a view of wellness that includes addressing social and structural drivers of wellbeing.

²⁹³ Prince, supra note 289, at 345 (“[Wellness] programs have the potential to collect copious amounts of data and shift costs to policyholders under the guise of health promotion and personal responsibility—all without a guarantee that they will actually improve health… .”).

²⁹⁴ See supra note 41 and accompanying text.

²⁹⁵ Fuse Brown & Hall, supra note 18, at 566 (“[B]ecause the corporate practice prohibition remains on the books in most states, the doctrine can be revived and redeployed to address the commercialization concerns over [Private Equity’s] increasing investment in and influence over physician practices.”).

²⁹⁶ Id. at 580–91 (identifying legal opportunities for reform relating to greater transparency of corporate ownership, closing Medicare Part B payment loopholes, altering tax treatment of private equity, and sharpening antitrust enforcement tools and the corporate practice of medicine prohibition).

²⁹⁷ Alison M. Howard, Back to the Future: Provider-Employer Alliance Direct Contracting for Health Benefits, Health Law., Apr. 2018, at 1, 3.

²⁹⁸ Jessie Gibbons, Wis. Legis. Ref. Bureau, Wis. Pol’y Project No. 3.2, Direct Primary Care: State Approaches to Regulating Subscription-Based Medicine, Wisconsin Legislative Reference Bureau 1 (2020) (“Direct Primary Care (DPC) is a health care payment model in which physicians contract directly with patients to provide care outside the traditional insurance-based system.”).

²⁹⁹ Id.; see also Howard, supra note 297, at 3 (stating that other modes of financial risk in direct contracting arrangements include “capitation, fee-for-services with a substantial withhold, a percentage of premium paid, or bonuses/penalties associated with meeting cost/utilization goals”).

³⁰⁰ Todd Shryock, High Cost of Health Care may be Boosting Direct Primary Care Membership, Med. Econ. (Apr. 28, 2022). It is important to note that a direct contracting movement also occurred in the 1990s in response to managed care. Howard, supra note 297, at 1. However, many of these direct contracting between employer and providers failed because they could not compete with insurers, achieve economies of scale and the values of employers and providers were not aligned around reimbursement and utilization rates. Id. at 3. As acknowledged by Alison Howard, times have changed with the corporate takeover of health care, employer and physician groups may be more aligned to make direct contracting more viable. Id. at 3 (“The [Provider Sponsored Organization] of today is not much different from its younger nineties self, but the environs may be more welcoming.”). Furthermore, in April 2018, the Centers for Medicare and Medicaid Services (CMS) requested information from the public on adopting a direct provider contracting model for Medicare and Medicaid. See Direct Provider Contracting Models - Request for Information, Ctrs. for Medicare & Medicaid Servs., https://www.cms.gov/priorities/innovation/innovation-models/direct-provider-contracting [https://perma.cc/5AG2-65R4] (last visited Mar. 18, 2025). Comments received in response to the request were unretrievable.

³⁰¹ Howard, supra note 297, at 4 (“[Direct contracting] purports to give employers more control over the way in which they spend healthcare dollars, improve access to high-quality care at affordable and more transparent cost, increase provider accountability through provider risk-bearing, and encourage competition and choice in the healthcare market.”); see also Gibbons, supra note 298, at 3 (stating that direct primary care can reduce administrative burden for physicians and allows them more time to spend with patients, noting that one study of a large DPC model found patients spend an average of 35 minutes per visit with DPC providers and an average of eight minutes in more traditional practices).

³⁰² See Wisconsin’s Free Market Health Plan, Self Fund Health Plan, https://selffundhealth.com/plan [https://perma.cc/QX62-EXEQ] (last visited Mar. 18, 2025).

³⁰³ Id.

³⁰⁴ Telephone Interview with Brian Woodbridge, Owner, Customized Health Care Servs., LLC (June 28, 2024).

³⁰⁵ Id.

³⁰⁶ Howard, supra note 297, at 6 (noting that “one commentator suggests that most [Provider Sponsored Organization] direct contracting arrangements are currently illegal, at least under some states’ law”).

³⁰⁷ See DPC Coal., https://dpcare.org [https://perma.cc/G447-WZ9C] (last visited May 2, 2025).

³⁰⁸ In fact, one state prohibits DPC arrangements between providers and employers. In Idaho, DPC arrangements are allowed only between providers and individual patients. See Idaho Code § 39-9208 (2025).

³⁰⁹ See, e.g., Certain Medical Care Arrangements, 85 Fed. Reg. 35398, 35402 (June 10, 2020).

³¹⁰ See Howard, supra note 297, at 4 (noting that in direct contracting, these administrative and regulatory responsibilities are left to Primary Services Organization providers and employers).

³¹¹ Zabawa, supra note 1, at 63.

³¹² Id. at 64.

³¹³ Eric W. Orts, Toward a Theory of Plural Business Purposes, 23 J. Corp. L. Stud. 437, 494 (2023).

³¹⁴ Id.

³¹⁵ Id. at 451 (citing Principles of Corporate Governance: Analysis and Recommendations § 2.01 (Am. L. Inst. 1994).

³¹⁶ Who We Are: Business Coalitions, Nat’l All. of Healthcare Purchaser Coals., https://www.nationalalliancehealth.org/who-we-are/business-coalitions/ [https://perma.cc/WD3D-J5VV] (last visited May 2, 2025).

³¹⁷ Id.

³¹⁸ Zabawa, supra note 1, at 63 (noting that employers often contract with wellness vendors to provide or lead wellness programs and activities such as diet, exercise, or stress relief programs).

³¹⁹ See id. at 37–40.

³²⁰ Id.

³²¹ Id. at 39.

³²² Trott, Peterson & Regenstein, supra note 239, at 3 (“[V]irtually all health care organizations with an MLP devote some amount of resources to the partnership, often through in-kind support.”).

³²³ See id. at 5 (highlighting innovative Medicaid financing models where the Medicaid managed care contract or other value-based payment arrangement or innovative delivery system reform model integrate legal services into the contracts).

³²⁴ The best evidence to support that funding WLPs is possible is the fact that employers continue to pay for workplace wellness programs even after mounds of evidence shows they do not work. There are likely some pioneering health care purchaser or physician stakeholders who would be willing to try WLPs as an alternative to exclusively behavior-focused wellness programs and a way to address health care corporatization harms. See supra, notes 282–288 and accompanying text.

³²⁵ Model Rules of Pro. Conduct r. 5.4 (Am. Bar Ass’n 2025).

³²⁶ See Stacy L. Brustin, Legal Services Provision through Multidisciplinary Practice—Encouraging Holistic Advocacy While Protecting Ethical Interests, 73 U. Colo. L. Rev. 787, 838–39 (2002) (“Lawyers practicing in a non-profit [Multidisciplinary Practice] must agree on the types of information that will be kept strictly confidential and take steps to ensure that this information will not be shared with nonlawyer staff members without the client’s consent.”).

³²⁷ See id. at 840–41.

³²⁸ Model Rules of Pro. Conduct r. 1.7(b) (Am. Bar Ass’n 2025).