Law Commons^™

The Reincorporation Of Prisoners Into The Body Politic: Eliminating The Medicaid Inmate Exclusion Policy, Mira K. Edmonds

Articles

Incarcerated people are excluded from Medicaid coverage due to a provision in the Social Security Act Amendments of 1965 known as the Medicaid Inmate Exclusion Policy (“MIEP”). This Article argues for the elimination of the MIEP as an anachronistic remnant of an earlier era prior to the massive growth of the U.S. incarcerated population and the expansion of Medicaid eligibility under the Patient Protection and Affordable Care Act of 2010. It explores three reasons for eliminating the MIEP. First, the inclusion of incarcerated populations in Medicaid coverage would signify the final erasure from the Medicaid regime of the istinction between …

Prisons, Nursing Homes, And Medicaid: A Covid-19 Case Study In Health Injustice, Mary Crossley

Articles

The unevenly distributed pain and suffering from the COVID-19 pandemic present a remarkable case study. Considering why the coronavirus has devastated some groups more than others offers a concrete example of abstract concepts like “structural discrimination” and “institutional racism,” an example measured in lives lost, families shattered, and unremitting anxiety. This essay highlights the experiences of Black people and disabled people, and how societal choices have caused them to experience the brunt of the pandemic. It focuses on prisons and nursing homes—institutions that emerged as COVID-19 hotspots –and on the Medicaid program.

Black and disabled people are disproportionately represented in …

Opioids And Converging Interests, Mary Crossley

Articles

Written as part of Seton Hall Law Review’s Symposium on “Race and the Opioid Crisis: History and Lessons,” this Essay considers whether applying the lens of Professor Derrick Bell’s interest convergence theory to the opioid crisis offers some hope of advancing racial justice. After describing Bell’s interest convergence thesis and identifying racial justice interests that African Americans have related to the opioid crisis, I consider whether these interests might converge with white interests to produce real racial progress. Taken at face value, white politicians’ statements of compassion toward opioid users might signal a public health-oriented approach to addiction, representing …

Threats To Medicaid And Health Equity Intersections, Mary Crossley

Articles

2017 was a tumultuous year politically in the United States on many fronts, but perhaps none more so than health care. For enrollees in the Medicaid program, it was a “year of living precariously.” Long-promised Republican efforts to repeal the Affordable Care Act also took aim at Medicaid, with proposals to fundamentally restructure the program and drastically cut its federal funding. These proposals provoked pushback from multiple fronts, including formal opposition from groups representing people with disabilities and people of color and individual protesters. Opposition by these groups should not have surprised the proponents of “reforming” Medicaid. Both people of …

The Ethics Of Medicaid’S Work Requirements And Other Personal Responsibility Policies, Harald Schmidt, Allison K. Hoffman

All Faculty Scholarship

Breaking controversial new ground, the Centers for Medicare & Medicaid Services (CMS) recently invited states to consider establishing work requirements as a condition of receiving Medicaid benefits. Noncompliant beneficiaries may lose some or all benefits, and if they do, will incur higher spending if they have to pay for medical care out of pocket. Current evidence suggests work requirements and related policies, which proponents claim promote personal responsibility, can create considerable risks of health and financial harm in vulnerable populations. Concerns about implementing these policies in Medicaid have been widely expressed, including by major physician organizations, and others have examined …

What To Expect When You’Re Expecting…Tanf-Style Medicaid Waivers, Laura D. Hermer

Faculty Scholarship

Many health policy scholars believe that Medicaid, the federal-state coverage program for lower-income Americans, should remain free from welfare reform trappings such as work requirements that are extraneous to the program. It would seem such requirements would be both inappropriate and counterproductive to the goals of Medicaid. Given the high probability that such requirements will, at least at some level, go into effect during the Trump administration, it bears considering what to expect. What evidence, if any, suggests that imposing welfare reform-style requirements on certain Medicaid beneficiaries will yield harmful results to those beneficiaries, or harmful to Medicaid’s programmatic goal …

Independence Is The New Health, Laura D. Hermer

Faculty Scholarship

Medicaid plays key roles in supporting our nation’s health. Under the Affordable Care Act, Medicaid took an even more central position in public health endeavors by extending coverage in all interested states to millions of adults who typically fell through the health care cracks. Nevertheless, the Trump administration is now undoing these gains by actively encouraging states to curtail access to Medicaid in key respects while using the rhetoric of health.

This article examines Trump administration efforts in two contexts: (1) state § 1115 waiver applications seeking to better align their Medicaid programs with cash welfare and food stamp programs, …

Medicaid For All?: State-Level Single-Payer Health Care, Lindsay Wiley

Articles in Law Reviews & Other Academic Journals

If single-payer health care is ever to become a reality in the United States, it will very likely be pioneered by a state government, much like Canada’s single-payer system was first adopted in the provinces. Canada’s system operates more like U.S. Medicaid — financed nationally but administered largely by the provinces — than U.S. Medicare. This article describes three basic strategies progressive U.S. state governments are exploring for achieving universal access to high-quality health care and better health outcomes for their residents. First, maximizing eligibility for the existing Medicaid program using matching federal funds. Second, taking up the mantle of …

Bundling Justice: Medicaid's Support For Housing, Mary Crossley

Articles

Achieving safe and stable housing presents a profound and ongoing challenge for many people living in poverty. The challenges include housing that is substandard or unaffordable and continuing risks of eviction. For a growing number, these challenges prove too much, and they become homeless. In addition, housing-related challenges that are part of daily life for many poor people can influence their physical and mental health. Increased attention to the health impacts of inadequate, insecure, and unaffordable housing has prompted some – including public health experts, physicians, and sociologists studying housing – to urge that housing issues, and homelessness in particular, …

Disability, Universalism, Social Rights, And Citizenship, Samuel R. Bagenstos

Articles

The 2016 election has had significant consequences for American social welfare policy. Some of these consequences are direct. By giving unified control of the federal government to the Republican Party for the first time in a decade, the election has potentially empowered conservatives to ram through a bill to repeal the Affordable Care Act—the landmark “Obamacare” law that marked the most significant expansion of the social welfare state since the 1960s. Other consequences are more indirect. Both the election result itself, and Republicans’ actions since, have spurred a renewed debate within the left-liberal coalition regarding the politics of social welfare …

Community Integration Of People With Disabilities: Can Olmstead Protect Against Retrenchment?, Mary Crossley

Articles

Since the passage of the Americans with Disabilities Act (ADA) in 1990, states have made significant progress in enabling Americans with disabilities to live in their communities, rather than institutions. That progress reflects the combined effect of the Supreme Court’s holding in Olmstead v. L.C. ex rel. Zimring, that states’ failure to provide services to disabled persons in the community may violate the ADA, and amendments to Medicaid that permit states to devote funding to home and community-based services (HCBS). This article considers whether Olmstead and its progeny could act as a check on a potential retrenchment of states’ …

On The Expansion Of “Health” And “Welfare” Under Medicaid, Laura Hermer

Faculty Scholarship

Medicaid was intended from its inception to provide financial access to health care for certain categories of impoverished Americans. While rooted in historical welfare programs, it was meant to afford the "deserving" poor access to the same sort of health care that other, wealthier Americans received. Yet despite this seemingly innocuous and laudable purpose, it has become a front in the political and social battles waged over the last several decades on the issues of welfare and the safety net. The latest battleground pits competing visions of Medicaid. One vision seeks to transform Medicaid from a health care program into …

Reimagining The Risk Of Long-Term Care, Allison K. Hoffman

All Faculty Scholarship

U.S. law and policy on long-term care fail to address the insecurity American families face due to prolonged illness and disability — a problem that grows more serious as the population ages and rates of disability rise. This Article argues that, even worse, we have focused on only part of the problem. It illuminates two ways that prolonged disability or illness can create insecurity. The first arises from the risk of becoming disabled or sick and needing long-term care, which could be called “care-recipient” risk. The second arises out of the risk of becoming responsible for someone else’s care, which …

The Reverberating Risk Of Long-Term Care, Allison K. Hoffman

All Faculty Scholarship

The Fiftieth Anniversary of Medicare and Medicaid offers an opportunity to reflect on how American social policy has conceived of the problem of long-term care. In this essay, based on a longer forthcoming article, I argue that current policies adopt too narrow a conception of long-term care risk, by focusing on the effect of serious illness and disability on people who need care and not on the friends and family who often provide it. I propose a more complete view of long-term care risk that acknowledges how illness and disability reverberates through communities, posing insecurity for people beyond those in …

On The Uneasy Relationship Between Medicaid And Charity Care, Laura D. Hermer, Merle Lenihan

Faculty Scholarship

Medicaid and charity care have a lengthy relationship fraught with complications. These complications will remain and in some respects become even more acute following the implementation of the Patient Protection and Affordable Care Act.

This article focuses on the uneasy relationship between Medicaid and charity care, one that becomes particularly acute in the context of Medicaid reimbursement. It traces the lineage of Medicaid in charity, and uses Medicaid reimbursement and supplemental payments as lenses through which to examine the relationship between Medicaid and charity care. The tension that we uncover will need to be resolved if Medicaid is to come …

Rationalizing Home And Community-Based Services Under Medicaid, Laura Hermer

Faculty Scholarship

This article examines efforts states are making to expand access to community-based services for elderly and disabled Medicaid beneficiaries and suggests several options that might improve such access nationally. Like much of Medicaid, Medicaid long term services and supports (LTSS) have developed through a complex process of accretion. Policymakers appear only rarely to have considered an overarching view of such services and the needs of those who require them. Rationalizing Medicaid LTSS will accordingly require not only additions but also substantial pruning, and may even warrant a reconsideration of who should have ultimate authority to develop and direct such services. …

Crafting A Narrative For The Red State Option, Elizabeth Weeks Leonard

Scholarly Works

This Article examines the current state of play following the Supreme Court's decision in NFIB v. Sebelius to allow states the option of expanding their Medicaid programs in accordance with the Patient Protection and Affordable Care Act (ACA). Holding that mandatory expansion was unconstitutionally coercive, the Court created the Red State Option. Despite the enormously generous federal financial support for Medicaid expansion, close to half of the states have declined. At the same time, at least eight Republican-led states have crossed Tea Party lines to accept federal funding for expansion. Drawing lessons from these states, including Arkansas, Arizona, Michigan, and …

Plunging Into Endless Difficulties: Medicaid And Coercion In National Federation Of Independent Business V. Sebelius, Elizabeth Weeks Leonard, Nicole Huberfield, Kevin Outterson

Scholarly Works

Of the four discrete questions before the Court in National Federation of Independent Business v. Sebelius, the Medicaid expansion held the greatest potential for destabilization from both a statutory and a constitutional perspective. As authors of an amicus brief supporting the Medicaid expansion, and scholars with expertise in health law who have been cited by the Court, we show in this article why NFIB is likely to fulfill that promise.

For the first time in its history, the Court held federal legislation based upon the spending power to be unconstitutionally coercive. Chief Justice Roberts’ plurality (joined for future voting purposes …

The Place Of Law In Ivan Illich's Vision Of Social Transformation, Bruce K. Miller

Faculty Scholarship

This Article discusses Ivan Illich’s direction for social reform that led to his book, "Tools for Conviviality", where Illich targeted development, technology, and the exploitation of nature. Illich identified three key cultural institutions that needed to be reclaimed in order to bring about an inversion of industrial society: science, language, and law. This Article focuses on the rule of law and its central institutional invention—formal adjudication.

The Author suggests that Illich’s idealism can still be found in the law reform litigation effort and identifies the diminished stature of the ideal of disinterested adjudication as a significant threat to Illich’s hopes …

Federal/State Tensions In Fulfilling Medicaid’S Purpose, Laura Hermer

Faculty Scholarship

Medicaid has been subject to reconsiderations of the proper role of government in providing for the health and welfare of populations over recent decades. Over the last decade in particular, a number of states have transferred many functions that they once performed to private entities, including, in a number of cases, express policymaking functions. The Patient Protection and Affordable Care Act (ACA) takes some crucial steps towards readjusting the equilibrium of Medicaid. Rather than further prioritizing the market in its reforms, it gives the federal government stronger charge of Medicaid policy, refocusing the program more directly on expanding eligibility and …

Poverty Revenue: The Subversion Of Fiscal Federalism, Daniel L. Hatcher

All Faculty Scholarship

Fiscal federalism is a staple of economic theory that underlies the federal-state partnership in the nation‘s largest federal grant-in-aid programs, such as Medicaid and Title IV-E Foster Care. The theory is founded on a simple principle, the collaboration of the federal government‘s financial power and stability and state governments‘ ability to deliver services tailored to regional needs. However, the theory ignores a vast industry that has grown around the flow of federal funds. In addition to providing operational and consulting services for all aspects of government aid, this poverty industry - which usurps inherently governmental functions and is rife with …

Medicaid, Low Income Pools, And The Goals Of Privatization, Laura Hermer

Faculty Scholarship

This article examines the Bush Administration's attempts to transform certain supplemental payments, most notably Medicaid’s Disproportionate Share Hospital (DSH) program, into a means of subsidizing private health coverage for Medicaid expansion populations. Greater private market involvement in the state disbursement of supplemental payments such as DSH makes it more difficult to fulfill Medicaid’s original goals. It reduces the overall funds available specifically for care, provides beneficiaries with leaner benefit plans than those offered by the public system, and hinders beneficiaries from obtaining and retaining care. As such, it increases waste and inefficiency, rather than reducing them. At the same time, …

Bizarre Love Triangle: The Spending Clause, Section 1983, And Medicaid Entitlements, Nicole Huberfeld

Law Faculty Scholarly Articles

The first two terms of the Roberts Court signal a willingness to revisit precedent, even decisions that have been considered long-settled, and the United States Supreme Court may be ready to reinterpret another area of jurisprudence: the private enforcement of conditions on federal spending against states through actions under 42 U.S.C. § 1983. The most recent pre-Roberts Court precedent is Gonzaga University v. Doe, a 2002 decision that made it more difficult for individuals harmed by violations of federal laws to enforce rights through § 1983 actions. Federal courts have inconsistently and confusingly applied the Gonzaga framework, but the …

Core Values In Conflict: The United States Approach To Economic Assistance To The Elderly, Lawrence A. Frolik

Articles

In devising programs to assist the elderly, the United States has, for the most part, rejected the social welfare model, which is premised on a belief that the government has an obligation to care for the elderly. Many Americans believe that beyond a minimum safety net, the government should not, and likely cannot, save everyone from every bad outcome. Individuals must accept personal responsibility and care for themselves. As a result of this conflict in values, the United States does not usually operate programs modeled on social insurance, but rather provides care to those identified as 'needy'. The degree of …

An Essay On The Need For Subsidized, Mandatory Long-Term Care Insurance, Lawrence A. Frolik

Articles

Imagine yourself in a room with 100 persons, all age sixty. Of the group, fifty-three are women and forty-seven are men. Racially and ethnically they mirror the population of Americans age sixty. Now answer the question: "Before the 100 die, how many will require long-term care and, on the average, for how many days and at what cost?" Give up? So do I. While it is common knowledge that many of us will need long-term care, no one seems to know how many will need such care or for how long. And some of you will ask, 'What do you …

Why We Need The Independent Sector: The Behavior, Law, And Ethics Of Not-For-Profit Hospitals, Jill R. Horwitz

Articles

Among the major forms of corporate ownership, the not-for-profit ownership form is distinct in its behavior, legal constraints, and moral obligations. A new empirical analysis of the American hospital industry, using eleven years of data for all urban general hospitals in the country, shows that corporate form accounts for large differences in the provision of specific medical services. Not-for-profit hospitals systematically provide both private and public goods that are in the public interest, and that other forms fail to provide. Two hypotheses are proposed to account for the findings, one legal and one moral. While no causal claims are made, …

Medicaid Managed Care And Disability Discrimination Issues, Mary Crossley

Articles

This article examines issues potentially raised under the Americans with Disabilities Act (ADA) by states' decisions whether and how to include disabled Medicaid recipients in the massive shift towards Medicaid managed care. Part II briefly examines the special issues that disabled Medicaid recipients pose with respect to managed care enrollment. These include issues of cost, quality, access, and program design and implementation. Part III describes various approaches that state programs have taken or are proposing to take with respect to the enrollment of disabled Medicaid recipients in managed care. These approaches range from simply excluding the SSI population from managed …