Health Law and Policy Commons^™

Redefining Medical Care, Lauren R. Roth

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President Donald J. Trump has said he will replace the Affordable Care Act (ACA) with health savings accounts (HSAs). Conservatives have long preferred individual accounts to meet social welfare needs instead of more traditional entitlement programs. The types of “medical care” that can be reimbursed through an HSA are listed in § 213(d) of the Internal Revenue Code (Code) and include expenses “for the diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body.”

In spite of the broad language, regulations and court interpretations have narrowed this definition substantially. …

The Collective Fiduciary, Lauren R. Roth

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Can fiduciaries be made to serve public goals? The movement under the Patient Protection and Affordable Care Act (“ACA”) towards universal access to health insurance requires us to focus on the fiduciary relationships between large organizations providing access to healthcare and the populations they serve. These relationships have become a collective undertaking instead of a direct, personal relationship.

In this Article, I introduce the concept of the collective fiduciary in response to the shift towards uniform, national goals in the realm of health insurance and healthcare. Only through a collective approach can we hold fiduciaries accountable for the welfare of …

Irresponsibly Taxing Irresponsibility: The Individual Tax Penalty Under The Affordable Care Act, Francine J. Lipman, James Owens

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In recent decades, Congress has used the federal income tax system increasingly to administer and deliver social benefits. This transition is consistent with the evolution of the American welfare system into workfare over the last several decades. As more and more social welfare benefits are conditioned upon work, family composition, and means-tested by income levels, the income tax system where this data is already systematically aggregated, authenticated, and processed has become the go-to administrative agency.

Nevertheless, as the National Taxpayer Advocate Nina Olson has noted there are “substantial differences between benefits agencies and enforcement agencies in terms of culture, mindset, …

Medicaid At 50: No Longer Limited To The "Deserving" Poor?, David Orentlicher

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Professor David Orentlicher considers the significance of the passage of the Affordable Care Act on the Medicaid program. He discusses the expansion of the program's recipients from merely children, pregnant women, single caretakers of children, and disabled persons to all persons up to 138% of the federal poverty level. Professor Orentlicher argues that the Medicaid expansion reflects concerns about the high costs of health care rather than an evolution in societal thinking about the "deserving" poor. As a result, the expansion may not provide a stable source of health care coverage for the expansion population.

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

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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

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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 Commerical Speech Doctrine In Health Regulation: The Clash Between The Public Interest In A Robust First Amendment And The Public Interest In Effective Protection From Harm, David Orentlicher

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No abstract provided.

Failure To Connect: The Massachusetts Plan For Individual Health Insurance, Elizabeth Weeks Leonard

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This Article briefly describes the key features of the Massachusetts Health Care Reform Act, focusing particularly on the Connector. It then offers preliminary thoughts on the expected effect of that mechanism for creating quality, affordable health insurance products for individuals. Observers anticipate that commercial insurers will offer scant coverage and high-premium, high-deductible plans through the Connector, which coverage ultimately may be neither more affordable than products currently or more helpful to covering the cost of health care than no coverage at all. If the Connector fails to facilitate the individual insurance mandate, Massachusetts's promise of universal coverage may begin to …

Mandatory Non-Anonymous Testing Of Newborns For Hiv: Should It Ever Be Allowed?, Jean R. Sternlight

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In response to cries from both the public and the medical community for increased research and improved treatments with respect to pediatric AIDS, some state legislatures have attempted to enact legislation that would require routine mandatory testing of newborns for HIV on a non-anonymous basis.

Those who favor mandatory testing of newborns contend that such testing is necessary in order to protect the health of newborns and to ensure that the newborns' doctors provide them with adequate care. Moreover, testing advocates argue that because most hospitals already screen anonymously, failing to inform parents of the test results is inappropriate and …

Aspirations And Reality In The Law And Politics Of Health Care Reform: Examining A Symposium On (E)Qual(Ity) Care For The Poor, Ann C. Mcginley

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Although the poor had suffered from insufficient health care for years, it was only when the middle class felt the economic pinch that health care reform moved to the top of the national agenda. In this way, the poor, a group with little political power, could benefit from the enormous political power of the middle class. In the Fall of 1992, it appeared that it was time for the poor to consider building a coalition with the middle class to work for universal coverage and improved quality of care. Yet, many questions remained about whether a coalition would benefit the …

Machiavelli And The Politics Of Welfare, National Health, And Old Age: A Comparative Perspective Of The Policies Of The United States And Canada, Camilla Watson

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This Article maintains that in order to fully comprehend the politics of welfare, retirement security, and national health coverage, it is necessary to examine Machiavellian principles in relation to the variables of economic development and inter-party competition. If the principles of Machiavelli are applied in a slightly different and more constructive manner, they may facilitate reform of the American welfare, retirement, and national health systems. Now that the political balance in the United States has shifted from the conservative to the liberal, the time is ripe to consider reforming the entire Social Security system and instituting a comprehensive national health …