Law Commons^™

Comment On The Definition Of "Eligible Organization" For Purposes Of Coverage Of Certain Preventive Services Under The Affordable Care Act, Robert P. Bartlett, Richard M. Buxbaum, Stavros Gadinis, Justin Mccrary, Stephen Davidoff Solomon, Eric L. Talley

Richard M. Buxbaum

This comment letter was submitted by U.C. Berkeley corporate law professors in response to a request for comment by the Health and Human Services Department on the definition of "eligible organization" under the Affordable Care Act in light of the Supreme Court's decision in Burwell v. Hobby Lobby. "Eligible organizations" will be permitted under the Hobby Lobby decision to assert the religious principles of their shareholders to exempt themselves from the Affordable Care Act's contraceptive mandate for employees.

In Hobby Lobby, the Supreme Court held that the nexus of identity between several closely-held, for-profit corporations and their shareholders holding “a …

Comment On The Definition Of "Eligible Organization" For Purposes Of Coverage Of Certain Preventive Services Under The Affordable Care Act, Robert P. Bartlett, Richard M. Buxbaum, Stavros Gadinis, Justin Mccrary, Stephen Davidoff Solomon, Eric L. Talley

Robert Bartlett

This comment letter was submitted by U.C. Berkeley corporate law professors in response to a request for comment by the Health and Human Services Department on the definition of "eligible organization" under the Affordable Care Act in light of the Supreme Court's decision in Burwell v. Hobby Lobby. "Eligible organizations" will be permitted under the Hobby Lobby decision to assert the religious principles of their shareholders to exempt themselves from the Affordable Care Act's contraceptive mandate for employees.

In Hobby Lobby, the Supreme Court held that the nexus of identity between several closely-held, for-profit corporations and their shareholders holding “a …

Improving Outcomes In Child Poverty And Wellness In Appalachia In The "New Normal" Era: Infusing Empathy Into Law, Jill C. Engle

Jill Engle

No abstract provided.

Consumer Financial Protection In Health Care, Erin C. Fuse Brown

Erin C. Fuse Brown

There are inadequate consumer protections from harmful medical billing practices that result in unavoidable, unexpected, and often financially devastating medical bills. The problem stems from the increasing costs shifting to patients in American health care and the inordinate complexity that makes health care transactions nearly impossible for consumers to navigate. A particularly outrageous example is the phenomenon of surprise medical bills, which refers to unanticipated and involuntary out-of-network bills in emergencies or from out-of- network providers at in-network facilities. Other damaging medical billing practices include the opaque and à la carte nature of medical bills, epitomized by added “facility fees,” …

Health Insurance Rate Review, John Aloysius Cogan Jr.

John Aloysius Cogan Jr.

Anomalies In The Affordable Care Act That Arise From Reading The Phrase “Exchange Established By The State” Out Of Context, Timothy Stoltzfus Jost, James Engstrand

Timothy S. Jost

The Supreme Court is currently considering in King v. Burwell whether residents of all States can receive premium tax credits under the Patient Protection and Affordable Care Act (ACA). The Plaintiffs-Petitioners brought this litigation as a challenge to the validity of a Treasury Department rule allowing all ACA health insurance Exchanges or marketplaces, including federally facilitated Exchanges (FFEs), to support and grant the credits. They invite the Court to focus solely on four words in two subsections of Section 36B of the Internal Revenue Code that they interpret as limiting tax credits to individuals who can use a State-operated Exchange …

Self-Insurance For Small Employers Under The Affordable Care Act: Federal And State Regulatory Options, Timothy Stoltzfus Jost, Mark A. Hall

Timothy S. Jost

As implementation of the Affordable Care Act reshapes the US health insurance market, state and federal policy makers should be prepared to revisit regulation of stop-loss coverage — a form of reinsurance — for small businesses. Aspects of the reform law could motivate small businesses to self-insure, rather than participate in state-regulated markets either inside or outside the new health insurance exchanges. If younger or healthier groups self-insure, premiums for insured plans will rise, perhaps to an extent that could seriously impair the regulated market. State or federal lawmakers can influence small businesses to participate in the regulated market by …

Beyond Repeal--A Republican Proposal For Healthcare Reform, Timothy Stoltzfus Jost

Timothy S. Jost

Not available.

How Obamacare’S Future Rests On A Single Clause, Alan E. Garfield

Alan E Garfield

No abstract provided.

Health Care Cost Containment: No Longer An Option But A Mandate, Susan Adler Channick

Susan A. Channick

No abstract provided.

Corporate Law After Hobby Lobby, Lyman P. Q. Johnson, David K. Millon

Lyman P. Q. Johnson

We evaluate the U.S. Supreme Court’s controversial decision in the Hobby Lobby case from the perspective of state corporate law. We argue that the Court is correct in holding that corporate law does not mandate that business corporations limit themselves to pursuit of profit. Rather, state law allows incorporation for any lawful purpose. We elaborate on this important point and also explain what it means for a corporation to “exercise religion.” In addition, we address the larger implications of the Court’s analysis for an accurate understanding both of state law’s essentially agnostic stance on the question of corporate purpose and …

Corporate Law After Hobby Lobby, Lyman P. Q. Johnson, David K. Millon

David K. Millon

We evaluate the U.S. Supreme Court’s controversial decision in the Hobby Lobby case from the perspective of state corporate law. We argue that the Court is correct in holding that corporate law does not mandate that business corporations limit themselves to pursuit of profit. Rather, state law allows incorporation for any lawful purpose. We elaborate on this important point and also explain what it means for a corporation to “exercise religion.” In addition, we address the larger implications of the Court’s analysis for an accurate understanding both of state law’s essentially agnostic stance on the question of corporate purpose and …

The Affordable Care Act: A “Preventative-Focused” Healthcare Regime To Improve Reproductive Cancer Outcomes Among Women Of Lower Socio-Economic Status, Rachele M. Hendricks

Rachele M Hendricks-Sturrup

No abstract provided.

Loopholes In The Affordable Care Act: Regulatory Gaps And Border Crossing Techniques And How To Address Them, Timothy Stoltzfus Jost

Timothy S. Jost

Not available.

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

Timothy S. Jost

Not available.

The Obamacare Opportunity: Implementing The Affordable Care Act To Improve Health, Reduce Hardship, And Grow The Economy For All Californians, Jeffrey Selbin, Ann O'Leary, Theresa Cheng, Stephanie Campos, Katherine Adamides, Rey Fuentes

Jeffrey Selbin

Community Health Centers As A Model For Health Care Reform, Timothy Li

Timothy Li

This Note evaluates Community Health Centers (“CHCs”) as a model for health care reform by considering access, cost, and effectiveness of health care delivered through CHCs, as well as their system of corporate governance. This Note proposes that every medically underserved community adopt a CHC-based model to function as a health care safety net. Not only should the federal government increase support for CHCs, but CHCs should also continue to raise funds from government sources, private foundations, and community supporters. Even though alternative proposals for health care reform may exist, those proposals do not provide an adequate remedy to increase …

Chief Justice Roberts' Individual Mandate: The Lawless Medicine Of Nfib V. Sebelius, Gregory Magarian

Gregory P. Magarian

After the U.S. Supreme Court in National Federation of Independent Business v. Sebelius held nearly all of the Patient Protection and Affordable Care Act constitutional, praise rained down on Chief Justice John Roberts. The Chief Justice’s lead opinion broke with his usual conservative allies on the Court by upholding the Act’s individual mandate under the Taxing Clause. Numerous academic and popular commentators have lauded the Chief Justice for his political courage and institutional pragmatism. In this essay, Professor Magarian challenges the heroic narrative surrounding the Chief Justice’s opinion. The essay contends that the opinion is, in two distinct senses, fundamentally …

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 …

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 …

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 …

Tracing The Evolution Of American Health Care Through Medicare, Craig B. Garner

Craig B. Garner

With President Obama’s health care reform currently under intense partisan scrutiny in the United States, this article is an objective resource for understanding the ways in which Medicare has historically served as a weather vane for charting the changes to the American health care system. During its nearly fifty-year tenure as the standard for the provision of medical care in the U.S., Medicare has evolved in fits and spurts, with its core structure shifting over time in response to changes brought about by the economic and political climate of each decade. It is only by understanding these past revisions, both …

“Health Laws Of Every Description”: John Marshall’S Ruling On A Federal Health Care Law, David B. Kopel, Robert G. Natelson

David B Kopel

If John Marshall, the greatest of Chief Justices, were to hear a challenge to the constitutionality of the Patient Protection and Affordable Care Act of 2010, how would he rule? Would the nationalist justice who, according to the New Deal Supreme Court, “described the Federal commerce power with a breadth never yet exceeded,” agree that federal control of health care was within that power?

In the fictional opinion below, Marshall rules on the constitutionality of a bill similar to the Patient Protection and Affordable Care Act.

We constructed this opinion chiefly from direct quotation and paraphrases of Marshall’s own words, …

Bad News For Professor Koppelman: The Incidental Unconstitutionality Of The Individual Mandate, David B. Kopel, Gary Lawson

David B Kopel

In "Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform," Professor Andrew Koppelman concludes that the individual mandate in the Patient Protection and Affordable Care Act (PPACA) is constitutionally authorized as a law "necessary and proper for carrying into Execution" other aspects of the PPACA. However, the Necessary and Proper Clause rather plainly does not authorize the individual mandate. The Necessary and Proper Clause incorporates basic norms drawn from eighteenth-century agency law, administrative law, and corporate law. From agency law, the clause embodies the venerable doctrine of principals and incidents: a law enacted under the clause must …

The Affordable Care Act’S Preventive Services Mandate: Breaking Down The Barriers To Nationwide Access To Preventive Services, John Aloysius Cogan Jr.

John Aloysius Cogan Jr.

Relating Diagnosis-Related Groups: What Germany And The United States Can Learn From Each Other About Aute-Care Payment Systems, Timothy D. Martin

Timothy D Martin

In recent years, several countries have adopted diagnosis-related group (DRG) payment systems modeled after the system Medicare uses to reimburse providers for acute-care inpatient treatment. This paper compares the Medicare DRG system with the German DRG system and suggests improvements that might help both systems. First, Germany should proceed carefully in its attempt to reduce the length of hospital visits because its universal payment mechanism cannot shift costs to the private sector so inadequate payment could degrade the quality of care. Second, because both countries struggle with incorporating new treatments and technologies into their payment systems, they should both consider …

Commerce In The Commerce Clause: A Response To Jack Balkin, David B. Kopel, Robert G. Natelson

David B Kopel

The Constitution’s original meaning is its meaning to those ratifying the document during a discrete time period: from its adoption by the Constitutional Convention in late 1787 until Rhode Island’s ratification on May 29, 1790. Reconstructing it requires historical skills, including a comprehensive approach to sources. Jack Balkin’s article Commerce fails to consider the full range of evidence and thereby attributes to the Constitution’s Commerce Clause a scope that virtually no one in the Founding Era believed it had.