Law Commons^™

Autism And Access To Healthcare, Amanda Forbes

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Insuring Contraceptive Equity, Jennifer Hickey

Northwestern Journal of Law & Social Policy

The United States is in the midst of a family planning crisis. Approximately half of all pregnancies nationwide are unintended. In recognition of the social importance of family planning, the Affordable Care Act (ACA) includes a “contraceptive mandate” that requires insurers to cover contraception at no cost. Yet, a decade after its enactment, the ACA’s promise of universal contraceptive access for insured women remains unfulfilled, with as many as one-third of U.S. women unable to access their preferred contraceptive without cost.

While much attention has been focused on religious exemptions granted to employers, the primary barrier to no-cost contraception is …

The Role Of Law And Policy In Achieving Healthy People's Disability And Health Goals Around Access To Health Care, Activities Promoting Health And Wellness, Independent Living And Participation, And Collecting Data In The United States, Elizabeth Pendo, Lisa Iezzoni

All Faculty Scholarship

Ensuring that the almost 60 million Americans with disabilities live as healthy and independent lives as possible is an important goal for our nation. This evidence-based report highlights efforts to better use law and policy to support and protect people with disabilities. Specifically, it examines how existing federal laws and policies could be leveraged by states, communities, and other sectors to reduce barriers to primary and preventive care; reduce barriers to local health and wellness programs; increase access to leisure, social, or community activities (and indirectly, to religious activities) for individuals with disabilities; and generate better disability data needed to …

Sex-Based Discrimination In Healthcare Under Section 1557: The New Final Rule And Supreme Court Developments, Brietta R. Clark, Elizabeth Pendo, Gabriella Garbero

All Faculty Scholarship

One of the primary goals of the Patient Protection and Affordable Care Act (PPACA) has been the reduction and elimination of health disparities, generally defined as population-level health differences that adversely affect disadvantaged groups, including disparities associated with sex and gender. Many of PPACA’s general provisions — expanded access to public and private insurance coverage, guarantee issue and pricing reforms, and coverage mandates — were expected to reduce barriers and eliminate discriminatory practices targeting or disproportionately impacting women and transgender individuals. Provisions like the Women’s Health Amendment, which mandated women’s preventive healthcare to be covered without cost sharing, and the …

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 …

The Seeds Of Early Childhood, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

The trajectory of childhood is often shaped before childhood even begins. Pre-birth inequalities are not natural or inevitable. Rather, we create and cement policy choices that reduce access to adult healthcare, restrict accessible contraception, impede access to abortion, and deny prenatal care. Together, these choices mean that, in the United States, we maintain very high rates of unwanted pregnancy and increasingly high rates of maternal mortality and morbidity, burdens that fall disproportionately on women of color and women of lower socioeconomic status. Equality demands that we address these disproportionate burdens.

Permitted Incentives For Workplace Wellness Plans Under The Ada And Gina: The Regulatory Gap, Elizabeth Pendo, Brandon Hall

All Faculty Scholarship

Although workplace wellness plans have been around for decades, they have flourished under the Patient Protection and Affordable Care Act (“PPACA”) into a $6 billion-dollar industry. Under PPACA, a “wellness plan” is a program of health promotion or disease prevention offered by an employer that is designed to promote health or prevent disease and which meets the other applicable requirements of that subsection. Employers look to these programs to promote healthy lifestyles, improve the overall health of employees and beneficiaries, and reduce rising healthcare costs. PPACA’s amendments to the Health Insurance Portability and Accountability Act (“HIPAA”) permit employers to offer …

Faith-Based Emergency Powers, Noa Ben-Asher

Faculty Publications

This Article explores an expanding phenomenon that it calls Faith-Based Emergency Powers. In the twenty-first century, conservatives have come to rely heavily on Faith-Based Emergency Powers as a leading legal strategy in the Culture Wars. This strategy involves carving faith-based exceptions to rights of women and LGBT people. The concept of Faith-Based Emergency Powers is developed in this Article through an analogy to the “War on Terror.” In the War on Terror, conservatives typically have taken the position that judges, legislators, and the public must defer to the President and the executive branch in matters involving national security. This argument …

Sex, Religion, And Politics, Or The Future Of Healthcare Antidiscrimination Law, Elizabeth Sepper, Jessica L. Roberts

Marquette Benefits and Social Welfare Law Review

No abstract provided.

Reproductive Selection Bias, Lauren R. Roth

Scholarly Works

Decades after the advent of assisted reproductive technology (ART) that allows prospective parents to deselect embryos with grave genetic illnesses – a procedure called preimplantation genetic diagnosis (PGD) – it remains a tool largely of upper class whites. In the wake of the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt, I argue that the time has come to focus on access in this area of reproductive rights. The next logical step is to rebut the presumption that reproductive liberty is only a negative right that prevents government interference with decisions about whether and how to procreate or not …

Private Right Of Action Jurisprudence In Healthcare Discrimination Cases, Allison M. Tinsey

Law Student Publications

Section 1557 of the Affordable Care Act provides that entities covered by the Act which receive federal funds are prohibited from discriminating on the basis of race, color, national origin, sex, age or disability. But since the provision’s enactment and the U.S. Department of Health and Human Services’ promulgation of a regulation creating a private right of action for alleged discrimination under the Act, courts have disagreed on whether a private right of action exists to enforce Section 1557. This Comment summarizes the courts’ confusion in applying the holding of Alexander v. Sandoval and Chevron deference to the nondiscrimination provision …

The Patient Protection And Affordable Care Act And Choice In Childbirth: How The Aca's Nondiscrimination Provisions May Change The Legal Landscape Of Childbirth, Caitlin Mccartney

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Black Health Matters: Disparities, Community Health, And Interest Convergence, Mary Crossley

Articles

Health disparities represent a significant strand in the fabric of racial injustice in the United States, one that has proven exceptionally durable. Many millions of dollars have been invested in addressing racial disparities over the past three decades. Researchers have identified disparities, unpacked their causes, and tracked their trajectories, with only limited progress in narrowing the health gap between whites and racial and ethnic minorities. The implementation of the Affordable Care Act (ACA) and the movement toward value-based payment methods for health care may supply a new avenue for addressing disparities. This Article argues that the ACA’s requirement that tax-exempt …

Health And Taxes: Hospitals, Community Health And The Irs, Mary Crossley

Articles

The Affordable Care Act created new conditions of federal tax exemption for nonprofit hospitals, including a requirement that hospitals conduct a community health needs assessment (CHNA) every three years to identify significant health needs in their communities and then to develop and implement a strategy responding to those needs. As a result, hospitals must now do more than provide charity care to their patients in exchange for the benefits of tax exemption, and the CHNA requirement has the potential both to prompt a radical change in hospitals’ relationship to their communities and to enlist hospitals as meaningful contributors to community …

After Nfib V. Sebelius, When Does The Cost Of Voting Become An Illegal Poll Tax?, Andre L. Smith

Journal of Race, Gender, and Ethnicity

No abstract provided.

What Patients With Disabilities Teach Us About The Everyday Ethics Of Health Care, Elizabeth Pendo

All Faculty Scholarship

In Healers: Extraordinary Clinicians at Work, by David Schenck and Dr. Larry Churchill, and in What PatientsTeach: The Everyday Ethics of Health Care, their follow-up with Joseph Fanning, the authors look at theeveryday experience of health care and the relationships that shape it. This article expands upon that inquiry by exploring the experiences and challenges of patients with disabilities and by exploring what patients withdisabilities can teach us about the everyday ethics of health care.

The authors of What Patients Teach provide a framework in which to focus on the everyday experience ofhealth care from the perspective of patients. This …

Ftc V. Actavis: Analysis Of The Court’S Decision And How It Affects Drug Prices For Those Who Need Them The Most, Kyle Virtue

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

“Justice Is What Love Looks Like In Public”: How The Affordable Care Act Falls Short On Transgender Health Care Access, Rachel C. Kurzweil

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Understanding Insurance Anti-Discrimination Laws, Ronen Avraham, Kyle D. Logue, Daniel Schwarcz

Articles

Insurance companies are in the business of discrimination. Insurers attempt to segregate insureds into separate risk pools based on the differences in their risk profiles, first, so that different premiums can be charged to the different groups based on their differing risks and, second, to incentivize risk reduction by insureds. This is why we let insurers discriminate. There are limits, however, to the types of discrimination that are permissible for insurers. But what exactly are those limits and how are they justified? To answer these questions, this Article (a) articulates the leading fairness and efficiency arguments for and against limiting …

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

Faculty Scholarship

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 …

Religious Victory Over The Affordable Care Act? Possible Recourse For The Employee Of The Religious Employer, Jacqueline Prats

Jacqueline M Prats

In 2012, the Supreme Court upheld the Patient Protection and Affordable Care Act (ACA). Even as the Court deliberated, a number of for-profit employers prepared to challenge the law—not the Act as a whole, but a specific part: the requirement that insurance plans cover contraceptives for women, free of co-pay or other cost-sharing. Although their companies were secular, these business owners claimed that the “contraception mandate” violated not only their religious beliefs, but also those of their companies. They challenged the ACA under both the Free Exercise Clause of the First Amendment and a federal statute called the Religious Freedom …

"Rfra Exemptions From The Contraception Mandate: An Unconstitutional Accommodation Of Religion", Frederick Mark Gedicks, Rebecca G. Van Tassell

Frederick Mark Gedicks

Litigation surrounding use of the Religious Freedom Restoration Act to exempt employers from the Affordable Care Act’s “contraception mandate” is moving steadily towards eventual resolution in the U.S. Supreme Court. Both opponents and supporters of the mandate, however, have overlooked Establishment Clause limits on such exemptions. The fiery religious-liberty rhetoric surrounding the mandate has obscured that RFRA is a “permissive” rather than “mandatory” accommodation of religion—that is, a voluntary government concession to religious belief and practice that is not required by the Free Exercise Clause. Permissive accommodations must satisfy Establishment Clause constraints, notably the requirement that the accommodation not impose …

"Health Care For All:" The Gap Between Rhetoric And Reality In The Affordable Care Act, Vinita Andrapalliyal

Vinita Andrapalliyal

The rhetoric of “universal health care” and “health care for all” that pervaded the health care debate which culminated in the Patient Protection and Affordable Care Act (ACA)’s passage. However, the ACA offers reduced to no protections for certain noncitizen groups, specifically: 1) recently-arrived legal permanent residents, 2) nonimmigrants, and 3) the undocumented. This Article explores how the Act fails to ensure “health care for all,” demonstrates the gap between rhetoric and reality by parsing the ACA’s legislative history, and posits reasons for the gap. The ACA’s legislative history suggests that legislators’ biases towards these noncitizen groups, particularly with respect …

Equality Standards For Health Insurance Coverage: Will The Mental Health Parity And Addiction Equity Act End The Discrimination?, Ellen M. Weber

Faculty Scholarship

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 …

With Religious Liberty For All: A Defense Of The Affordable Care Act's Contraception Coverage Mandate, Frederick Mark Gedicks

Faculty Scholarship

The “contraception mandate” of the Patient Protection and Affordable Care Act of 2010 poses a straightforward question for religious liberty jurisprudence: Must government excuse a believer from complying with a religiously burdensome law, when doing so would violate the liberty of others by imposing on them the costs and consequences of religious beliefs that they do not share? To ask this question is to answer it: One's religious liberty does not include the right to interfere with the liberty of others, and thus religious liberty may not be used by a religious employer to force employees to pay the costs …

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 …

Rights To Health Care In The United States: Inherently Unstable, David Orentlicher

Scholarly Works

No abstract provided.