Law Commons^™

Privacy Rights And Public Families, Khiara Bridges

Khiara M Bridges

This Article is based on eighteen months of anthropological fieldwork conducted among poor, pregnant women receiving prenatal care provided by the Prenatal Care Assistance Program (“PCAP”) at a large public hospital in New York City. The Prenatal Care Assistance Program (“PCAP”) is a special program within the New York State Medicaid program that provides comprehensive prenatal care services to otherwise uninsured or underinsured women. This Article attempts to accomplish two goals. The first goal is to argue that PCAP’s compelled consultations – with social workers, health educators, nutritionists, and financial officers – function as a gross and substantial intrusion by …

Biting The Hands That Feed “The Alligators”: A Case Study In Morbid Obesity Extremes, End-Of-Life Care, And Prohibitions On Harming And Accelerating The End Of Life, Michael J. Malinowski

Michael J. Malinowski

Obesity, recognized as a disease in the U.S. and at times as a terminal illness due to associated medical complications, is an American epidemic according to the Centers for Disease Control and Prevention (“CDC”), American Heart Association (“AHA”), and other authorities. More than one third of Americans (39.8% of adults and 18.5% of children) are medically obese. This article focuses on cases of “extreme morbid obesity” (“EMO”)—situations in which death is imminent without aggressive medical interventions, and bariatric surgery is the only treatment option with a realistic possibility of success. Bariatric surgeries themselves are very high risk for EMO patients. …

Research To Practice: Medicaid Involvement In Employment-Related Programs- Findings From The National Survey Of State Systems And Employment For People With Disabilities, Jennifer Sullivan Sulewski, Dana Scott Gilmore, Susan Foley

Jennifer Sulewski

This brief analyzes data from ICI's National Survey of State Systems and Employment for People with Disabilities regarding the priority Medicaid agencies place on employment and their involvement in recent policy initiatives.

The Tenuous Nature Of The Medicaid Entitlement, Timothy Stoltzfus Jost

Timothy S. Jost

Though Medicare was from the outset an entitlement under federal law, the status of Medicaid has always been less certain. Arguably, it was the Supreme Court, rather than Congress that first recognized that Medicaid recipients (and providers) could sue the states in federal court to enforce federal Medicaid requirements. A recent widely reported federal court decision, however, called radically into question the continuing existence of a federal Medicaid entitlement. Though this decision has now been reversed, and rejected by other courts, it illustrates the tenuous nature of the Medicaid entitlement, and the need to reconstitute Medicaid as an exclusively federal …

The Troubled State Of America's Nursing Homes, Albert Moran

Albert Moran

Even the most cursory search of news coverage involving nursing homes reveals that horror stories are not difficult to come by. Although the grisly details of each individual horror story vary, most of them share the same general story line—through some combination of gross negligence and profound systemic failure, elderly citizens can experience disturbing conditions in nursing homes that result in suffering and sometimes death. While egregious stories make local news headlines every so often and prompt a brief firestorm of public criticism, the everyday reality of nursing homes is much less sensationalized, and arguably even more sobering. Statistics indicate …

Financial Security Scorecard: A State-By-State Analysis Of Economic Pressures Facing Future Retirees, Christian Weller, Nari Rhee, Carolyn Arcand

Christian Weller

As Americans increasingly worry about their retirement prospects, states play an important and growing role in retirement security policy. States already manage long-term care programs for the elderly through Medicaid. Concerned about the impact of future elder poverty on state and local budgets and their local economies, a number of states are exploring the creation of low-cost and low-risk retirement savings plans for private sector workers who lack access to pensions or 401(k)s on the job. Some states have developed programs to help older workers find work.

This report presents the Financial Security Scorecard, designed to inform state-level stakeholders and …

Equal Protection, Immigrants And Access To Health Care And Welfare Benefits – A 2014 Update, Mel Cousins

Mel Cousins

The introduction of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) led to considerable litigation on the rights of immigrants to welfare benefits and access to health care. There was significant divergence between the approaches adopted by the different courts (both federal and State) based, in part, on the different statutory schemes involved but also on different approaches to equal protection. However, none of the cases reached the Supreme Court so the ‘correct’ approach remained unclarified. In response to the Great Recession and subsequent budget crises, several States have again excluded certain legal immigrants from the scope …

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

Nfib V. Sibelius: Proportionality In The Exercise Of Congressional Power, David Orentlicher

David Orentlicher

With its opinion on the constitutionality of the Affordable Care Act (ACA), the U.S. Supreme Court sparked much discussion regarding the implications of the case for other federal statutes. In particular, scholars have debated the significance of the Court’s recognition of an anti-coercion limit to the Spending Clause power.

When it recognized an anti-coercion limit for ACA’s Medicaid expansion, the Court left considerable uncertainty as to the parameters of that limit. This essay sketches out one valuable and very plausible interpretation of the Court’s new anti-coercion principle. It also indicates how this new principle can address a long-standing problem with …

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, …

Putting Boomers To Pasture: Does The 2010 Mippa Legislation Reinforce The Nursing Home Bias?, Robert S. Bloink

Robert S Bloink

Unfunded health care expenses pose one of the greatest threats to the postretirement income security of seniors in America today. It is estimated that the average couple retiring in 2012 will require savings of approximately a quarter million dollars dedicated solely to their unfunded postretirement health care expenses, but this estimate does not factor in the expensive long-term care that most retirees will require toward the end of their lives. That the quarter-million dollar figure does not include the rapidly increasing cost of long-term care should alarm both retirees and those baby boomers approaching retirement age today. Controversial healthcare reform …

Plunging Into Endless Difficulties: Medicaid And Coercion In The Healthcare Cases, Kevin Outterson

Kevin Outterson

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 …

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 …

"How's My Doctoring?" Patient Feedback's Role In Physician Assessment, Ann Marie Marciarille

Ann Marie Marciarille

A society-wide consumer revolution is underway with the rise of online user-generated review websites such as Yelp, Angie’s List, and Zagat. Service provider reviews are now available with an intensity and scope that attracts increasing numbers of reviewers and readers. Health care providers are not exempt from this new consumer generated scrutiny though they have arrived relatively late to the party and as somewhat unwilling guests.

The thesis of this article is that online patient feedback on physicians is relevant and valuable even though it is also uncomfortable for health care providers. This is because the modern physician-patient relationship is …

Equal Protection, Immigrants And Access To Health Care And Welfare Benefits, Mel Cousins

Mel Cousins

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 …

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.

Negotiating Federalism, Erin Ryan

Erin Ryan

The Supreme Court's Assault On Litigation: Why (And How) It Could Be Good For Health Law, Abigail R. Moncrieff

Abigail R. Moncrieff

In recent years, the Supreme Court has narrowed or eliminated private rights of action in many legal regimes, much to the chagrin of the legal academy. That trend, although certainly not limited to health law, has had a significant impact on the field; the Court’s decisions have eliminated the private enforcement mechanism for at least three important healthcare regimes: Medicaid, employer-sponsored insurance, and medical devices. In a similar trend outside the courts, state legislatures have capped noneconomic and punitive damages for medical malpractice litigation, weakening the tort system’s deterrent capacity in those states. This Article points out that the trend …

Integration, Litigation, And Transformation: Using Medicaid To Address Racial Inequities In Health Care, Ruqaiijah A. Yearby

Ruqaiijah A Yearby

Using nursing home care as an example, this article applies a public health policy perspective to the problem. I use empirical data to prove the persistence of racial inequities in health care, analyze the government policies that allow racial inequities to continue, and provide a solution of regulatory integration. Specifically, I propose that civil rights enforcement be integrated with the nursing home enforcement system, which has been aggressively enforced and monitored. There are many strategies that may lead to the adoption of this system. One such strategy is using the Medicaid Act to induce the government to fulfill its non-race …

Optimal Federalism Across Institutions: Theory And Applications From Environmental Policies And Health Care, Dale B. Thompson

Dale Thompson

This article presents a framework to analyze federalism based on enactment, implementation, and enforcement institutions. The framework provides a mechanism to determine whether a particular public policy should be conducted at a state or federal level, by examining economies and diseconomies of scale inherent in each of these institutions. This article then applies the framework in a comparison of environmental policies for wetlands and endangered species, and in an analysis of a health care policy. These applications can then serve as guides to legislators and judges in analyzing federalism concerns.