Law Commons^™

Let Fifty Flowers Bloom: Health Care Federalism After National Federation Of Independent Business V. Sebelius, Ann Marie Marciarille

Faculty Works

Conventional wisdom is that the American public does not want to think too long or too hard about Medicaid. Medicaid’s reputation has long been big, complicated, and widely misunderstood. The 2012 presidential election campaign has been much about Medicaid, but Medicaid is a subject we love to talk around. Yet, our next president will be compelled to think and speak explicitly and fluently about Medicaid because Medicaid is the budget-buster of government funded health insurance. Its budget busting propensities are most pronounced at the intersection of Medicaid and the government-funded health insurance program we do love to discuss: Medicare.

This …

Funding Health-Related Vr Services: The Potential Impact Of The Affordable Care Act On The Use Of Private Health Insurance And Medicaid To Pay For Health-Related Vr Services, Robert Silverstein

All Institute for Community Inclusion Publications

One of the myriad of issues affecting the administration of the vocational rehabilitation (VR) program by State VR agencies under Title I of the Rehabilitation Act is how to maximize access to and use of all available funding sources to pay for VR services and supports for VR applicants and clients. In March 2010, Congress passed and the President signed into law the "Affordable Care Act" (ACA). 1 On June 28, 2012, the United States Supreme Court upheld all of the provisions of the ACA, with the exception of provisions mandating Medicaid expansion. The Supreme Court held that if a …

The Power To Block The Affordable Care Act: What Are The Limits?, John D. Kraemer, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Though Supreme Court upheld most parts of the Affordable Care Act (ACA), Congress’ goals in enacting it could still be frustrated by non-implementation. During his campaign for president, Governor Romney promised “to issue Obamacare waivers to all fifty states.” While such blanket waivers would likely violate the Constitution’s Take Care Clause, the ACA does permit other waivers. To be lawful, however, they must meet certain requirements designed to enhance access and lower cost. A president who opposes the ACA might be able to limit its implementation by refusing to issue premium subsidies in federally operated insurance exchanges, and this might …

The Supreme Court Opens The Road To Health Care Reform, But Will California Meet The Challenge?, Craig B. Garner

Craig B. Garner

This article provides an overview of the landmark 2012 United States Supreme Court decision National Federation of Independent Business v. Sebelius. Almost 28 months after President Barack Obama signed the Affordable Care Act (ACA) into law, the Supreme Court upheld the constitutionality of health care reform. Though the underlying arguments set forth in the majority opinion venture deep into the labyrinth of constitutional law and test the traditional boundaries of federalism, the holding itself is clear and concise: the ACA’s individual mandate is constitutional; and the Medicaid expansion provisions found within the ACA survive, but the Federal Government is prohibited …

Equality Standards For Health Insurance Coverage: Will The Mental Health Parity And Addiction Equity Act End The Discrimination?, Ellen M. Weber

Ellen M. Weber

Congress enacted the Mental Health Parity and Addiction Equity Act in 2008 to end discriminatory health insurance coverage for persons with mental health and substance use disorders in large employer health plans. Adopting a comprehensive regulatory approach akin to other civil rights laws, the Parity Act requires “equity” in all plan features, including cost-sharing, durational limits and, most critically, the plan management practices that are used to deny many families medically necessary behavioral health care. Beginning in 2014, all health plans regulated by the Affordable Care Act must also comply with parity standards, effectively ending the second-class insurance status of …

The Patient Protection And Affordable Care Act: Why It Is Important For Women’S Health, Mary Fanning

Journal of Interdisciplinary Feminist Thought

President Barack Obama signed into law the Patient Protection and Affordable Care Act (ACA) on March 23, 2010 ending the long history of disparity in access to health care services between insured and uninsured persons. Disparity between women and men in obtaining health insurance coverage is also corrected in the act. Women’s organizations that have focused attention on women’s distinctive health needs over the past century and a half laid the foundation for provisions in the legislation that address women’s health. This article addresses health insurance coverage, its impact on health, the particular challenges women have confronted in seeking coverage, …

The Supreme Court And The Future Of Medicaid, Timothy Stoltzfus Jost, Sara Rosenbaum

Scholarly Articles

Not available.

Justice Roberts’ America, Robin West

Georgetown Law Faculty Publications and Other Works

Less than a week after the Roberts Court issued its decision in National Federation of Independent Business v Sebelius, Jeffrey Toobin, writing in The New Yorker, compared the first part of Chief Justice John Roberts's opinion, in which he found that the Commerce Clause did not authorize Congress to enact the "individual mandate" section of the Affordable Care Act (ACA) that requires all individuals to buy health insurance, with an Ayn Rand screed, noting that the pivotal sections of the argument were long on libertarian rhetoric but short on citations of authority. Roberts held (although "held" might be …

An O’Neill Institute Briefing Paper: The Supreme Court’S Landmark Decision On The Affordable Care Act: Healthcare Reform’S Ultimate Fate Remains Uncertain, Emily W. Parento, Lawrence O. Gostin

O'Neill Institute Papers

The Supreme Court’s decision on the constitutionality of the Patient Protection and Affordable Care Act (ACA) is a landmark on the path toward ensuring universal access to health care in the United States. In a 5-4 decision written by Chief Justice Roberts, the Court upheld the law in its entirety with the sole exception that Congress may not revoke existing state Medicaid funding to penalize states that decline to participate in the Medicaid expansion under the ACA. In this O’Neill Institute Briefing, we explain and analyze the Court’s decision, focusing on the individual purchase mandate and the Medicaid expansion, while …

National Federation Of Independent Business V. Sebelius, Supreme Court Of The United States

Patient Protection and Affordable Care Act Litigation

No abstract provided.

Obamacare And Federalism's Tug Of War Within, Erin Ryan

Erin Ryan

This month, the Supreme Court will decide what some believe will be among the most important cases in the history of the institution. In the “Obamacare” cases, the Court considers whether the Affordable Care Act (“ACA”) exceeds the boundaries of federal authority under the various provisions of the Constitution that establish the relationship between local and national governance. Its response will determine the fate of Congress’s efforts to grapple with the nation’s health care crisis, and perhaps other legislative responses to wicked regulatory problems like climate governance or education policy. Whichever way the gavel falls, the decisions will likely impact …

The Affordable Care Act And Health Promotion: The Role Of Insurance In Defining Responsibility For Health Risks And Costs, Wendy K. Mariner

Faculty Scholarship

This article examines whether insurance is an appropriate mechanism for improving individual health or reducing the cost of health care for payers. The Affordable Care Act contains implicit standards for allocating responsibility for health, especially in provisions encouraging health promotion and wellness programs. A summary of the accumulating evidence of the effects of such programs suggests that wellness programs have been somewhat more effective in making people feel better than in reducing costs. Health promotion should be encouraged, because health is valuable for its own sake. Insurance is not well suited to improve health or manage behavioral risks to health; …

Some Thoughts On Health Care Exchanges: Choice, Defaults, And The Unconnected, Brendan S. Maher

Faculty Scholarship

One feature of the ACA that appealed to observers across the political spectrum was the creation of health insurance “exchanges.” Among other things, exchanges are intended to aid consumers in making simple and transparent choices regarding the purchase of health insurance. This Article considers how exchanges might benefit from the use of “default” options — both online and off. Given the significant number of Americans that have limited or no Internet access, offline defaults may be an attractive way to promote coverage of the “unconnected.”

Healthcare Reform Hangs In The Balance, Lawrence O. Gostin

O'Neill Institute Papers

In this timely new briefing, Professor Lawrence O. Gostin, University Professor and Faculty Director, O’Neill Institute for National and Global Health Law, Georgetown University writes:

Prior to Tuesday’s arguments, I believed that the Supreme Court would uphold the health insurance purchase mandate by a comfortable margin. But now I believe that health care reform hangs in the balance. Here are the key arguments on which the future of President Obama’s health care reform depends: a greater freedom, cost-shifting, the health care market, acts versus omissions, limiting principles, the population-base approach, and what is necessary and proper. If the Court strikes …

Why The Affordable Care Act's Individual Purchase Mandate Is Both Constitutional And Indispensable To The Public Welfare, Lawrence O. Gostin

O'Neill Institute Papers

Integral to the Affordable Care Act's (ACA’s) conceptual design is the individual purchase mandate, which requires most individuals to pay an annual tax penalty if they do not have health insurance by 2014. Despite the vociferous opposition, the mandate is the most “market-friendly” financing device because it relies on the private sector. Ironically, less market-oriented reforms such as a single-payer system clearly would have been constitutional.

It is common sense for everyone to purchase health insurance and thus gain security against the potentially catastrophic costs of treating a serious illness or injury. However, Congress’ method of ensuring that everyone has …

Maximizing Health Care Enrollment Through Seamless Coverage For Families In Transition: Current Trends And Policy Implications, Ann Marie Marciarille, Ken Jacobs, Laurel Lucia, Ann O’Leary

Faculty Works

The Affordable Care Act (ACA) builds on the employment-based health insurance system which is the bedrock of health insurance coverage for most Americans. When these Americans experience a change in their work or family lives, they are at risk for losing their job-based health insurance coverage. The health insurance exchanges established by the ACA provide an unprecedented opportunity to address one of the major sources of gaps in health insurance coverage: transitions in life that result in the loss of health insurance. The uninsured population is not static. Many people who are uninsured cycle in and out of coverage over …

Brief Of Health Care For All, Inc., Health Law Advocates, Inc., The Massachusetts Hospital Association, Inc., The Massachusetts League Of Community Health Centers, Inc., Greater Boston Interfaith Organization, Inc., And Community Catalyst, Inc. As Amici Curiae In Support Of Petitioners Urging Reversal On The Minimum Coverage Provision Issue, Department Of Health And Human Services, Et Al. V. State Of Florida, Et Al., No. 11-398 (Filed Jan. 13, 2012), Wendy E. Parmet, Lorianne Sainsbury-Wong, Kevin Outterson

Wendy E. Parmet

This amicus brief was filed before the Supreme Court in the Affordable Care Act (ACA) litigation on behalf of Health Care for All and other Massachusetts organizations that have been involved in the implementation of Massachusetts’ health 2006 health reform legislation. The brief argues that Massachusetts’ health reform law, upon which the ACA is modeled, has been very effective in expanding insurance coverage within the State, but it required substantial federal support, through a Medicaid waiver, to achieve its success. In addition the Commonwealth’s experience illustrates that the health insurance and health care markets are inherently interstate commerce and that …

Amici Curiae Brief In Support Of Petitioners Urging Reversal On The Minimum Coverage Provision Issue, Department Of Health And Human Services V. State Of Florida, Wendy Parmet, Lorianne Sainsbury-Wong

Faculty Scholarship

This amicus brief was filed before the Supreme Court in the Affordable Care Act (ACA) litigation on behalf of Health Care for All and other Massachusetts organizations that have been involved in the implementation of Massachusetts’ health 2006 health reform legislation. The brief argues that Massachusetts’ health reform law, upon which the ACA is modeled, has been very effective in expanding insurance coverage within the State, but it required substantial federal support, through a Medicaid waiver, to achieve its success. In addition the Commonwealth’s experience illustrates that the health insurance and health care markets are inherently interstate commerce and that …

A Visual Guide To Nfib V. Sebelius, Colin Starger

All Faculty Scholarship

Though Chief Justice Roberts ultimately provided the fifth vote upholding the Affordable Care Act (ACA) under the Tax Power, his was also one of five votes finding the ACA exceeded Congress’ power under the Commerce Clause.

The doctrinal basis for Roberts’ Commerce Clause analysis was hotly contested. While Roberts argued that the ACA’s purported exercise of Commerce power “finds no support in our precedent,” Justice Ginsburg accused the Chief Justice of failing to “evaluat[e] the constitutionality of the minimum coverage provision in the manner established by our precedents.”

These diametrically opposed perspectives on “precedent” might prompt observers to ask whether …

Constitutional Newspeak: Learning To Love The Affordable Care Act Decision, A. Christopher Bryant

Faculty Articles and Other Publications

In his classic dystopian novel, 1984, George Orwell imagines a world in which language is regularly contorted to mean its opposite - as in the waging of war by the Ministry of Peace and infliction of torture by the Ministry of Love. A core claim of Orwell's was that such abuse of language - which in his novel he labeled "Newspeak"-would ultimately channel thought. Whatever the merits of this claim as a theory of linguistics, constitutional developments too recent to be called history demonstrate that as a practical matter Orwell was on to something. The Court's June 28 decision both …

Regulators As Market-Makers: Accountable Care Organizations And Competition Policy, Thomas L. Greaney

All Faculty Scholarship

Of the many elements animating structural change under health reform, Accountable Care Organizations (ACOs) have drawn the greatest attention. The ACO strategy entails regulatory interventions that at once aim to reshape the health care delivery system, improve outcomes, promote adoption of evidence based medicine and supportive technology, and create a platform for controlling costs under payment system reform. Ambitious aims to be sure. Implementation, however, has proved a wrenching process. This article looks at the intersection of markets and regulation under the Affordable Care Act. Specifically, it analyzes regulatory interventions under the MSSP designed to foster commercial market competition. Assessing …

Taming The Beast Of Health Care Costs: Why Medicare Reform Alone Is Not Enough, Susan A. Channick

Faculty Scholarship

The Patient Protection and Affordable Care Act' ("ACA") has, as its primary goal, universal access to health insurance for all American citizens and legal residents. When fully implemented, the ACA will provide insurance to an additional 32 million people who are currently uninsured and to many millions of others who are underinsured. While universal health insurance is certainly a public health goal that this country has sought for many decades, the additional lives that will be added to the insurance rolls as well as new minimum coverage requirements mandated by the ACA will create fiscal burdens for the already expensive …

The Affordable Care Act Individual Coverage Requirement: Ways To Frame The Commerce Clause Issue, Wendy K. Mariner

Faculty Scholarship

No abstract provided.

Tax-Exempt Hospitals, Community Health Needs And Addressing Disparities, Mary Crossley

Articles

The Affordable Care Act (ACA) imposes a number of new requirements on hospitals seeking to maintain their tax-exempt status under federal law. One requirement is that hospitals must conduct a “community health needs assessment” (CHNA) at least every three years and then develop and implement a strategy to address the needs identified in the assessment. This essay explores the potential this provision may offer for identifying, understanding, and reducing health care disparities. By calling on hospitals to focus less on individuals and more on communities, the CHNA requirement may offer a valuable addition to the toolkit for combating disparities. Thinking …

Litigating Federal Health Care Legislation And The Interstices Of Procedure,, Wendy Collins Perdue

Law Faculty Publications

Forward to the 2012 Allen Chair Symposium issue, focused on the litigation challenges to the Patient Protection and Affordable Care Act ("ACA").

Adopting Accountable Care Through The Medicare Framework, Barbara Zabawa, Louise G. Trubek, Felice Borisey-Rudin

Faculty Works

The Patient Protection and Affordable Care Act of 2010 (PPACA) attempts to provoke change in the status quo in American health care delivery and payment. PPACA created two programs, the Medicare Shared Savings Program (MSSP) and the Pioneer ACO model, which work to bring the concept of Accountable Care Organizations (ACOs) to the Medicare program. At its core, accountable care matches payment for care with performance-based measures, a bold move away from current volume-based models. The paper makes the case that the Medicare-based programs serve as a suitable launch pad for the accountable care movement. The paper explores the emergence …

A Proposal For Comprehensive And Specific Essential Mental Health And Substance Use Disorder Benefits, Stacey A. Tovino

Scholarly Works

This Article analyzes the initial efforts of the Federal Department of Health and Human Services to implement the essential mental health and substance use disorder services benefit required by section 1302(b)(1)(E) of the Affordable Care Act and proposes the adoption of a comprehensive and specific essential mental health and substance use disorder benefit set. At a minimum, the benefit set should cover medically necessary and evidence-based inpatient and outpatient mental healthcare services, inpatient substance abuse detoxification services, inpatient and outpatient substance abuse rehabilitation services, emergency mental healthcare services, prescription drugs for mental health conditions, participation in psychiatric disease management programs, …

Beyond Separation In Federalism Enforcement: Medicaid Expansion, Coercion, And The Norm Of Engagement, Charlton C. Copeland

Articles

National Federation of Independent Business v. Sebelius may be known, in both the popular and academic commentaries, as the case about the Affordable Care Act's Individual Mandate provision. History may record it as one of the most significant cases in the jurisprudence of cooperative federalism. In invalidating part of the Medicaid Expansion provision, the Roberts Court became the first to invalidate a federal spending statute as unconstitutionally coercive of state governments. This decision has the potential to impact federal-state cooperative arrangements such as No Child Left Behind, and others far beyond the health care context.

This Article argues that lack …

Bad News For John Marshall, Gary S. Lawson, David Kopel

Faculty Scholarship

In "Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate," we demonstrated that the individual mandate’s forced participation in commercial transactions cannot be justified under the Necessary and Proper Clause as the Clause was interpreted in McCulloch v. Maryland. Professor Andrew Koppelman’s response, "Bad News for Everybody," wrongly conflates that argument with a wide range of interpretative and substantive positions that are not logically entailed by taking seriously the requirement that laws enacted under the Necessary and Proper Clause must be incidental to an enumerated power. His response is thus largely unresponsive to our actual arguments.

Rights To Health Care In The United States: Inherently Unstable, David Orentlicher

Scholarly Works

No abstract provided.