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Articles 1 - 30 of 52
Full-Text Articles in Law
No One Statute Should Have Too Much Power: How Electing Not To Amend 42 U.S.C § 1320(A)–7(B) May Frustrate The Purpose Of The Patient Protection And Affordable Care Act, Amber C. Dawson
University of Miami Business Law Review
The over breadth of the Federal Anti-Kickback statute as amended by the Patient Protection and Affordable Care Act (PPACA) holds dangerous implications for the future of the health care marketplace. When a statute permits criminal, civil and administrative punishment for an overbroad category of innocuous actions, such a statute must also take into account the specific, rather than general, intent of the actor, or the ensnaring of innocents is ultimately likely to result. Historically, the statute required a finding of specific intent to be found to uphold a violation of the statute. With the passing of Greber v. US and …
The Health Impact Fund Proposal: Application In The United States' Era Of Comparative Effectiveness, Katherine Jeanne Racz
The Health Impact Fund Proposal: Application In The United States' Era Of Comparative Effectiveness, Katherine Jeanne Racz
Journal of Intellectual Property Law
No abstract provided.
The Contraception Mandate Accomodated: Why The Rfra Claim In Zubik V. Burwell Fails, Caroline Mala Corbin
The Contraception Mandate Accomodated: Why The Rfra Claim In Zubik V. Burwell Fails, Caroline Mala Corbin
Short Works
No abstract provided.
The Affordable Care Act Is Not Tort Reform, Andrew F. Popper
The Affordable Care Act Is Not Tort Reform, Andrew F. Popper
Catholic University Law Review
On March 23, 2010, President Obama signed The Patient Protection and Affordable Care Act (PPACA). Prior to the enactment of the PPACA, Congress held several hearings focused on subrogation and relaxation of collateral source restrictions as well as caps on damages in an effort to promote tort reform. While the ACA included provisions on medical liability reform, the suggested tort reform was thwarted, and the ACA had no actual legal effect on limiting medical malpractice liability. This article argues that the reality is that the PPACA has done nothing to change the admissibility of collateral sources nor has it enhanced …
Deference To Claims Of Substantial Religious Burden, Caroline Mala Corbin
Deference To Claims Of Substantial Religious Burden, Caroline Mala Corbin
Articles
No abstract provided.
Health Care And The Myth Of Self-Reliance, Nicole Huberfeld, Jessica L. Roberts
Health Care And The Myth Of Self-Reliance, Nicole Huberfeld, Jessica L. Roberts
Law Faculty Scholarly Articles
King v. Burwell asked the Supreme Court to decide if, in providing assistance to purchase insurance “through an Exchange established by the State,” Congress meant to subsidize policies bought on the federally run exchange. With its ruling, the Court saved the Patient Protection and Affordable Care Act’s low-income subsidy. But King is only part of a longer, more complex story about health care access for the poor. In a move toward universal coverage, two pillars of the ACA facilitate health insurance coverage for low-income Americans, one private and one public: (1) the subsidy and (2) Medicaid expansion. Although both have …
Instrumental And Transformative Medical Technology, Nicole Huberfeld
Instrumental And Transformative Medical Technology, Nicole Huberfeld
Law Faculty Scholarly Articles
This Article considers how medical technologies impact universality in health care. The universality principle, as embodied in the Patient Protection and Affordable Care Act (ACA), eliminated widespread discriminatory practices and provided financial assistance to those otherwise unable to become insured—a democratizing federal act that was intended to stabilize health care policy nationwide. This Article posits that medical technology, as with all of medicine, can be universalizing or exclusionary and that this status roughly correlates to its being “instrumental technology” or “transformative technology.” Instrumental technology acts as a tool of medicine and often serves an existing aspect of health care; in …
Assets, Costs, And Affordability: Why Magi-Based Medicaid Benefits Don't Account For True Need, Sara K. Hunkler
Assets, Costs, And Affordability: Why Magi-Based Medicaid Benefits Don't Account For True Need, Sara K. Hunkler
Indiana Journal of Law and Social Equality
In 2014, Mary, an asset-wealthy individual, will qualify for Medicaid ahead of Bob, a needier individual with less net wealth and significantly higher medical costs, solely because Bob’s income is slightly higher. The current income-based eligibility standards for Medicaid mandated by the Patient Protection and Affordable Care Act (PPACA) do not adequately reflect an individual’s need for federal assistance because they neglect to consider an individual’s assets, debts, and the circumstantial cost of their healthcare. Thus, these new federal standards permit significant disparities in the treatment of similarly situated impoverished individuals and allow prioritization of asset-wealthy individuals over their more …
An Empirical Perspective On Medicaid As Social Insurance, Nicole Huberfeld
An Empirical Perspective On Medicaid As Social Insurance, Nicole Huberfeld
Faculty Scholarship
This paper is a contribution to the symposium entitled Scalpel to Gavel: Exploring the Modern State of Health Law. This essay quantifies and explores the central role Medicaid now plays in our health insurance system. For its first forty-nine years, Medicaid covered less than half of the nation’s poor. Today, one in five Americans have Medicaid coverage during the course of a year, and that number soon will increase to one in four given the insurance expansions enacted through the Patient Protection and Affordable Care Act. Medicaid now effectively functions as social insurance for many of its enrollees. In this …
An Empirical Perspective On Medicaid As Social Insurance, Nicole Huberfeld, Jessica L. Roberts
An Empirical Perspective On Medicaid As Social Insurance, Nicole Huberfeld, Jessica L. Roberts
Law Faculty Scholarly Articles
This Essay begins to explore how Medicaid, after the Patient Protection and Affordable Care Act, metamorphoses from exclusion and limitations in access and benefits to a form of social insurance that implicates theories of social justice. The social justice aspect of universality provides an important lens for understanding these numbers, both in terms of the states that are expanding and the states that are opting out. States that refuse to expand their Medicaid programs are denying millions of Americans the benefit of a precious legal entitlement. It is essential that the states understand the power—and the potential—of this evolving social …
Dangers In Justifying A Means For An End: U.S. Supreme Court Faces Risky Interpretation Question With Ppaca, Exchanges, And Premium Tax Credits, Erin M. Peterson
Dangers In Justifying A Means For An End: U.S. Supreme Court Faces Risky Interpretation Question With Ppaca, Exchanges, And Premium Tax Credits, Erin M. Peterson
Georgia Law Review
This Note examines the text of the Patient Protection and Affordable Care Act to determine whether Congress intended for premium tax credits to be available on only state Exchanges, or on both state and federal Exchanges. This Note argues that strict textualism reveals that Congress clearly intended to limit premium tax credits to what the text defines as "an Exchange established by the State under section 1311 of the Patient Protection and Affordable Care Act," which does not include federal Exchanges. However, this interpretation of the text nearly eliminates an essential function of the Patient Protection and Affordable Care Act …
When Condoms Fail: Making Room Under The Aca Blanket For Prep Hiv Prevention, Jason Potter Burda
When Condoms Fail: Making Room Under The Aca Blanket For Prep Hiv Prevention, Jason Potter Burda
Faculty Publications
Given the alarming upward trend in HIV infection rates and the downward trend in condom usage, we need a new approach to HIV prevention in the United States. One such approach, HIV Pre-Exposure Prophylaxis (commonly known as “PrEP”), has the potential to significantly reduce HIV incidence. The FDA recently approved a daily dose of Truvada® — an antiretroviral drug that suppresses the virus in HIV-positive individuals — for daily use by high-risk HIV-negative individuals to prevent infection. Despite an effectiveness above ninety percent and significant regulatory momentum, this pharmacological prevention modality has proven difficult to implement. In this Article, I …
Introduction: Issues Of Reproductive Rights: Life, Liberty & The Pursuit Of Policy, Lauren Orrico, Gordon Gantt Jr.
Introduction: Issues Of Reproductive Rights: Life, Liberty & The Pursuit Of Policy, Lauren Orrico, Gordon Gantt Jr.
Journal of Law and Health
On March 7, 2014, the Journal of Law and Health of Cleveland-Marshall College of Law hosted a symposium entitled “Issues of Reproductive Rights: Life, Liberty, and the Pursuit of Policy” in response to recent developments in the regulation of women’s reproductive rights. The discussion about women’s reproductive rights has expanded far beyond the morality of abortion and right to privacy, established by the United States Supreme Court in Roe v. Wade, and has been complicated by new technology, statutory developments, and case law discussing the nature of a corporation. The symposium presenters addressed key legal developments in each stage of …
The Universality Of Medicaid At Fifty, Nicole Huberfeld
The Universality Of Medicaid At Fifty, Nicole Huberfeld
Law Faculty Scholarly Articles
This essay explores how the law of Medicaid after fifty years creates a meaningful principle of universalism by shifting from fragmentation and exclusivity to universality and inclusivity. The universality principle provides a new trajectory for all of American health care, one that is not based on individual qualities that are unrelated to medical care but rather grounded in non-judgmental principles of unification and equalization (if not outright solidarity). To that end, this Essay first will study the legislative reformation that led to universality and its quantifiable effects. The Essay then will assess and evaluate Medicaid’s new universality across four dimensions, …
Health Care For Low-Income Classes In An Individual Mandate System: Lessons The United States Can Learn From Switzerland, Mason F. Reid
Health Care For Low-Income Classes In An Individual Mandate System: Lessons The United States Can Learn From Switzerland, Mason F. Reid
Georgia Journal of International & Comparative Law
No abstract provided.
Breastfeeding And A New Type Of Employment Law, Marcy Karin, Robin Runge
Breastfeeding And A New Type Of Employment Law, Marcy Karin, Robin Runge
Catholic University Law Review
No abstract provided.
Who Can Afford It?: The Patient Protection And Affordable Care Act's Failure To Regulate Excessive Cost-Sharing Of Prescription Biologic Drugs , Michael Callam
Who Can Afford It?: The Patient Protection And Affordable Care Act's Failure To Regulate Excessive Cost-Sharing Of Prescription Biologic Drugs , Michael Callam
Journal of Law and Health
This Note will discuss how the PPACA’s abbreviated approval pathway for biological products creates an expedited procedure to bring less expensive biologic drugs to the market, but ultimately fails to make those biologic drugs affordable because of its lack of provisions limiting insurers’ use of excessive cost-sharing requirements. Part II provides an overview of prescription drugs, compares biologics with traditional prescription drugs, and provides a brief legislative history of prescription drug laws. Part III analyzes the impact of the abbreviated approval pathway on biologic drugs’ costs to prescribed patients. It also examines the PPACA’s effects on biologics inclusion into health …
Health Care Spending And Financial Security After The Affordable Care Act, Allison K. Hoffman
Health Care Spending And Financial Security After The Affordable Care Act, Allison K. Hoffman
All Faculty Scholarship
Health insurance has fallen notoriously short of protecting Americans from financial insecurity caused by health care spending. The Patient Protection and Affordable Care Act (“ACA”) attempted to ameliorate this shortcoming by regulating health insurance. The ACA offers a new policy vision of how health insurance will (and perhaps should) serve to promote financial security in the face of health care spending. Yet, the ACA’s policy vision applies differently among insured, based on the type of insurance they have, resulting in inconsistent types and levels of financial protection among Americans.
To examine this picture of inconsistent financial protection, this Article offers …
Medicaid Expansion As Completion Of The Great Society, Nicole Huberfeld, Jessica L. Roberts
Medicaid Expansion As Completion Of The Great Society, Nicole Huberfeld, Jessica L. Roberts
Law Faculty Scholarly Articles
On the doorstep of its fiftieth anniversary, Medicaid at last could achieve the ambitious goals President Lyndon B. Johnson enunciated for the Great Society upon signing Medicare and Medicaid into law in 1965. Although the spotlight shone on Medicare at the time, Medicaid was the “sleeper program” that caught America’s neediest in its safety net—but only some of them. Medicaid’s exclusion of childless adults and other “undeserving poor” loaned an air of “otherness” to enrollees, contributing to its stigma and seeming political fragility. Now, Medicaid touches every American life. One in five Americans benefits from Medicaid’s healthcare coverage, and that …
With Liberty And Access For Some: The Aca's Disconnect For Women's Health, Nicole Huberfeld
With Liberty And Access For Some: The Aca's Disconnect For Women's Health, Nicole Huberfeld
Law Faculty Scholarly Articles
This Article will scrutinize the separation of abortion from other aspects of women's health through the vehicle of the Patient Protection and Affordable Care Act (ACA). Part I will examine briefly why the fragmented nature of American healthcare has facilitated the separation of abortion from women's health, despite the fact that abortion is a medically necessary procedure for many women. To that end, this Part will explore the disjointed history of access to medicine juxtaposed against the strangely non-woman-centric nature of the fundamental rights at play in reproductive health. Part II will provide an overview of the ACA to explain …
Does The Individual Mandate Coerce?, Raphael Boleslavsky, Sergio J. Campos
Does The Individual Mandate Coerce?, Raphael Boleslavsky, Sergio J. Campos
Articles
The Patient Protection and Affordable Care Act includes an individual mandate that penalizes individuals who do not purchase health insurance. Critics of the individual mandate, including a majority of justices on the Supreme Court, contend that Congress cannot use its Commerce Clause power to coerce individuals to buy a product. Supporters concede that the mandate coerces but argue that it is otherwise permissible under the Commerce Clause. This article questions whether the individual mandate coerces. It uses a simple economic model to show that, under certain conditions, the individual mandate induces insurers to sell health insurance at a price each …
The Individual Mandate's Due Process Legality: A Kantian Explanation, And Why It Matters, Peter Brandon Bayer
The Individual Mandate's Due Process Legality: A Kantian Explanation, And Why It Matters, Peter Brandon Bayer
Scholarly Works
In National Federation of Independent Business v. Sebelius, one of the most controversial decisions of this young century, an intensely divided Supreme Court upheld the Patient Protection and Affordable Care Act's most provocative feature-the Individual Mandate-under Congress's taxing power. In so doing, the Court rejected what appeared to be the Individual Mandate's more applicable constitutional premise-Congress's authority to regulate interstate commerce. Yet, neither the Constitution's Taxing Clause nor its Commerce Clause provide the ultimate answer as to whether Congress may regulate the multi-billion dollar healthcare market by compelling unwilling persons to buy private health insurance. The final determination of the …
The Contraception Mandate, Caroline Mala Corbin
The Contraception Mandate, Caroline Mala Corbin
Articles
Under the new health care regime, health insurance plans must cover contraception. While religious employers are exempt from this requirement, religiously affiliated employers are not. Several have sued, claiming that the "contraception mandate" violates the Free Exercise Clause, the Free Speech Clause, and the Religious Freedom Restoration Act. This Essay explains why the contraception mandate violates none of them.
An Optimist's Take On The Decline Of Small-Employer Health Insurance, Allison K. Hoffman
An Optimist's Take On The Decline Of Small-Employer Health Insurance, Allison K. Hoffman
All Faculty Scholarship
In their Article, Saving Small-Employer Health Insurance, Amy Monahan and Dan Schwarcz contend that the Patient Protection and Affordable Care Act (“ACA”) could be the death of small-group health insurance by incentivizing many small employers not to offer coverage. While their prediction that the ACA, after implemented, will destabilize the small-group insurance market may prove true, I argue why their prescription that it should be saved is flawed and why we may be better off without small group insurance.
Where There Is A Right, There Must Be A Remedy (Even In Medicaid), Nicole Huberfeld
Where There Is A Right, There Must Be A Remedy (Even In Medicaid), Nicole Huberfeld
Law Faculty Scholarly Articles
This Article will explore the power struggle that Medicaid invites and its potential elevation due to the pressures that will follow the Patient Protection and Affordable Care Act’s (ACA) expansion. Part I of this Article will describe the three phases of private enforcement litigation and how they have affected Medicaid reimbursement rates. This Part also will highlight the deceptive stability that has taken root in the lower federal courts by describing the recent state attempts to end private enforcement actions. The first Part will conclude by briefly considering the nature of the federalism arguments that states are making. Part II …
Plunging Into Endless Difficulties: Medicaid And Coercion In National Federation Of Independent Business V. Sebelius, Nicole Huberfeld, Elizabeth Weeks Leonard, Kevin Outterson
Plunging Into Endless Difficulties: Medicaid And Coercion In National Federation Of Independent Business V. Sebelius, Nicole Huberfeld, Elizabeth Weeks Leonard, Kevin Outterson
Law Faculty Scholarly Articles
Until the 2011 Term, no Supreme Court decision since the New Deal had struck down an act of Congress as exceeding the federal spending power. The question of unconstitutionally coercive conditions was also novel. Indeed, no federal court had ever found any legislation to be an unconstitutionally coercive exercise of the spending power until the Court decided National Federation of Independent Business v. Sebelius (NFIB) on June 28, 2012. This Article proceeds as follows: Part I discusses the Affordable Care Act's Medicaid expansion in the context of the history and purpose of the Medicaid Act, paying particular attention to facts …
Reform Of The United States Health Care System: An Overview, Robert B. Leflar
Reform Of The United States Health Care System: An Overview, Robert B. Leflar
Robert B Leflar
This essay, written for readers unfamiliar with the details of American health law and policy, portrays the essential features of the battle for health reform in the United States and of the law that survived the battle: the Patient Protection and Affordable Care Act (PPACA). The essay summarizes key aspects of the U.S. health care system and how it compares in terms of costs and results with other advanced nations’ systems. The political and legal conflicts leading up to and following PPACA’s enactment are described. The major features of the law, attempting to address problems of access to health care, …
Reform Of The United States Health Care System: An Overview, Robert B. Leflar
Reform Of The United States Health Care System: An Overview, Robert B. Leflar
Robert B Leflar
This essay, written for readers unfamiliar with the details of American health law and policy, portrays the essential features of the battle for health reform in the United States and of the law that survived the battle: the Patient Protection and Affordable Care Act (PPACA). The essay summarizes key aspects of the U.S. health care system and how it compares in terms of costs and results with other advanced nations’systems. The political and legal conflicts leading up to and following PPACA’s enactment are described. The major features of the law, attempting to address problems of access to health care, quality, …
The Disappearing Provision: Medical Liability Reform Vanishes From The Patient Protection And Affordable Care Act Despite State Court Split, Rafael Andre Roberti
The Disappearing Provision: Medical Liability Reform Vanishes From The Patient Protection And Affordable Care Act Despite State Court Split, Rafael Andre Roberti
Legislation and Policy Brief
The legal and medical communities have debated the impact and necessity of medical liability reform for over twenty years. At the heart of the debate is the question of how to strike a balance between compensating patients and their families for the thousands of deaths and injuries resulting from medical errors that occur annually, and encouraging physicians to continue to care for patients across America. While several states have passed medical liability reform laws previously, on March 23, 2010, President Obama signed the Patient Protection and Affordable Care Act (ACA)—colloquially known as the “health care bill”—that contains provisions on medical …
Safeguarding The Safeguards: The Aca Litigation And The Extension Of Structural Protection To Non-Fundamental Liberties, Abigail Moncrieff
Safeguarding The Safeguards: The Aca Litigation And The Extension Of Structural Protection To Non-Fundamental Liberties, Abigail Moncrieff
Faculty Scholarship
As the lawsuits challenging the Patient Protection and Affordable Care Act (ACA) have evolved, one feature of the litigation has proven especially rankling to the legal academy: the incorporation of substantive libertarian concerns into structural federalism analysis. The breadth and depth of scholarly criticism on this point is surprising, however, given that judges today frequently choose indirect methods for protecting substantive constitutional values, including structural and process-based methods of the kinds at issue in the ACA litigation. Indeed, indirection in the protection of constitutional liberties is a well-known and well-theorized strategy, which one scholar recently termed “semisubstantive review” and another …