Law Commons^™

Post-Reform Medicaid Before The Court: Discordant Advocacy Reflects Conflicting Attitudes, Nicole Huberfeld

Faculty Scholarship

The Supreme Court will decide two major Medicaid cases this term that raise major questions about the program and the tensions it creates between the federal government and the states. The Court heard oral arguments on October 3d in Douglas v. Independent Living Center, a dispute between California and its Medicaid providers regarding reimbursement cuts due to California’s budget crisis. The Medicaid providers argue that these proposed cuts are so extreme as to violate federal law and thus the Supremacy Clause. Their contention hinges on the Equal Access Provision of the Medicaid Act, which commands states to pay healthcare providers …

Drawing Lines In Shifting Sands: The U.S. Supreme Court's Mixed Messages On Erisa Preemption Imperil Health Care Reform, Mary Ann Chirba

Mary Ann Chirba

This article explains how and why the U.S. Supreme Court’s increasingly erratic preemption jurisprudence has fueled a health care system that routinely harms patients, frustrates health care providers, and derails state reform efforts. It begins by describing the mechanics of ERISA preemption, and then analyzes the Court’s 30 year odyssey from no preemption of state law claims against managed care payers, to broad preemption, retreating to limited preemption and, for now at least, trending again toward broad preemption. This is an extremely unstable area of the law which, at this point, demands not just an update but a thorough overview. …

Brief Of Amici Curiae: The Leadership Conference On Civil And Human Rights, Asian American Legal Defense And Education Fund, National Aids Housing Coalition, National Economic And Social Rights Initiative, National Health Care For The Homeless Council, National Law Center On Homelessness & Poverty, Poverty & Race Research Action Council, Urban Justice Center And Wild For Human Rights In Support Of Respondents Regarding Medicaid Expansion, In The Supreme Court Of The United States, State Of Florida, Et Al., V. United States Department Of Health And Human Services, Et Al., On Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit, No. 11-400, Martha F. Davis, Margaret Woo, Risa E. Kaufman

Margaret Y. K. Woo

This amicus brief was filed before the Supreme Court in the Medicaid Expansion portion of the Affordable Care Act (ACA) litigation on behalf of the Leadership Conference on Civil and Human Rights and other national organizations concerned with the international human rights implications of the ACA litigation, particularly with regard to race discrimination. The brief first argues that the international context of the ACA is relevant to the Court’s consideration of the law’s constitutionality, noting the many times when Court has taken international law into account in rendering decisions. The brief then chronicles the occasions on which international bodies and …

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 …

Breaking The Cycle Of ‘Unequal Treatment’ With Health Care Reform: Acknowledging And Addressing The Continuation Of Racial Bias, Ruqaiijah Yearby

Faculty Publications

Since the Civil War access to health care in the United States has been racially unequal. This racially unequal access to health care remains even after the passage of Title VI of the Civil Rights Act of 1964 ("Title VI") and the election of an African-American President. Both of these events held the promise of equality, yet the promise has never been fulfilled. Now, many hail the passage of the Patient Protection and Affordable Health Care Act ("ACA") as the biggest governmental step in equalizing access to health care because it has the potential to increase minority access to health …

An Essay On Originalism And The 'Individual Mandate': Rounding Out The Government’S Case For Constitutionality, Dan T. Coenen

Scholarly Works

The Supreme Court now has under advisement the landmark federal health care law case. Much attention has focused on the law’s minimum coverage provision—or so-called “individual mandate” — and, in particular, its constitutionality under the Commerce Clause and the Necessary and Proper Clause. In a separate and much lengthier article, I offer two main observations about the arguments made to the Court on that issue. First, I show that the challengers of the minimum coverage provision emphasized originalist reasoning in their briefs and oral arguments, while the federal government did not. Second, I explain why — contrary to the impression …

Valuing Health Care: Improving Productivity And Quality, Barak D. Richman, Arti K. Rai

Faculty Scholarship

No abstract provided.

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, …

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 …