Law Commons^™

The Power To Block The Affordable Care Act: What Are The Limits?, John D. Kraemer, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Though Supreme Court upheld most parts of the Affordable Care Act (ACA), Congress’ goals in enacting it could still be frustrated by non-implementation. During his campaign for president, Governor Romney promised “to issue Obamacare waivers to all fifty states.” While such blanket waivers would likely violate the Constitution’s Take Care Clause, the ACA does permit other waivers. To be lawful, however, they must meet certain requirements designed to enhance access and lower cost. A president who opposes the ACA might be able to limit its implementation by refusing to issue premium subsidies in federally operated insurance exchanges, and this might …

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 …

The Patient Protection And Affordable Care Act: Why It Is Important For Women’S Health, Mary Fanning

Journal of Interdisciplinary Feminist Thought

President Barack Obama signed into law the Patient Protection and Affordable Care Act (ACA) on March 23, 2010 ending the long history of disparity in access to health care services between insured and uninsured persons. Disparity between women and men in obtaining health insurance coverage is also corrected in the act. Women’s organizations that have focused attention on women’s distinctive health needs over the past century and a half laid the foundation for provisions in the legislation that address women’s health. This article addresses health insurance coverage, its impact on health, the particular challenges women have confronted in seeking coverage, …

Health Insurance And Federalism-In-Fact, Radha A. Pathak, Brendan S. Maher

Faculty Scholarship

The constitutional legitimacy of the Patient Protection and Affordable Care Act (“ACA”) received substantial attention. Less examined has been the legislation’s sub-constitutional effect on the regulatory power that states can and might exercise. Regarding a state's ability to promulgate "sickness rules," (those legal rules pertaining to the conditions or treatment an insurance policy covers) and "non-sickness" rules (those legal rules pertaining to insurance other than sickness rules), we scrutinize the ACA itself and contrast it with the other most significant statute governing private health insurance, the Employee Retirement Income Security Act of 1974 (“ERISA”). The authors would like to thank …

Can Consumers Control Health-Care Costs?, Mark A. Hall, Carl E. Schneider

Articles

The ultimate aim of health care policy is good care at good prices. Managed care failed to achieve this goal through influencing providers, so health policy has turned to the only market-based option left: treating patients like consumers. Health insurance and tax policy now pressure patients to spend their own money when they select health plans, providers, and treatments. Expecting patients to choose what they need at the price they want, consumerists believe that market competition will constrain costs while optimizing quality. This classic form of consumerism is today’s health policy watchword. This article evaluates consumerism and the regulatory mechanism …

Restoring Legal Immigrants' State Health Insurance- The Finch Case, Wendy E. Parmet, Lorianne Sainsbury-Wong

Wendy E. Parmet

In Finch v. Commonwealth Insurance Connector Authority, 461 Mass. 232 (2012), the Massachusetts Supreme Judicial Court held that a 2009 law barring a class of legal immigrants from a state funded health insurance program for low income adults violated the state Constitution. This article presents our perspective as plaintiff’s counsel. We focus on the pragmatic issues that we confronted as we considered whether or not to pursue litigation, and the forum and claims to pursue.

Justice Roberts’ America, Robin West

Georgetown Law Faculty Publications and Other Works

Less than a week after the Roberts Court issued its decision in National Federation of Independent Business v Sebelius, Jeffrey Toobin, writing in The New Yorker, compared the first part of Chief Justice John Roberts's opinion, in which he found that the Commerce Clause did not authorize Congress to enact the "individual mandate" section of the Affordable Care Act (ACA) that requires all individuals to buy health insurance, with an Ayn Rand screed, noting that the pivotal sections of the argument were long on libertarian rhetoric but short on citations of authority. Roberts held (although "held" might be …

National Federation Of Independent Business V. Sebelius, Supreme Court Of The United States

Patient Protection and Affordable Care Act Litigation

No abstract provided.

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 …

The Affordable Care Act And Health Promotion: The Role Of Insurance In Defining Responsibility For Health Risks And Costs, Wendy K. Mariner

Faculty Scholarship

This article examines whether insurance is an appropriate mechanism for improving individual health or reducing the cost of health care for payers. The Affordable Care Act contains implicit standards for allocating responsibility for health, especially in provisions encouraging health promotion and wellness programs. A summary of the accumulating evidence of the effects of such programs suggests that wellness programs have been somewhat more effective in making people feel better than in reducing costs. Health promotion should be encouraged, because health is valuable for its own sake. Insurance is not well suited to improve health or manage behavioral risks to health; …

On Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit, Brief For Private Petitioners On Severability, National Federation Of Independent Business, Et Al., V. Kathleen Sebelius, Et Al., State Of Florida, Et Al., V. Department Of Health And Human Services, Et Al., Nos. 11-393, 11-400 (U.S. Jan. 6, 2012), Randy E. Barnett

U.S. Supreme Court Briefs

No abstract provided.

The Tangled Thicket Of Health Care Reform: The Judicial System In Action, Gene Magidenko

University of Michigan Journal of Law Reform Caveat

On March 23, 2010, after a lengthy political debate on health care reform, President Barack Obama signed the Patient Protection and Affordable Care Act (PPACA) into law. A week later, he signed the Health Care and Education Reconciliation Act of 2010, which amended certain provisions of PPACA. But far from ending the intense national debate on the issue, these enactments opened a new front of battle in the federal courts that will almost certainly make its way to the United States Supreme Court. Much of this litigation focuses on § 1501 of PPACA, which contains the controversial individual mandate requiring …

Access To Medicaid: Recognizing Rights To Ensure Access To Care And Services, Colleen Nicholson

University of Michigan Journal of Law Reform Caveat

The Supreme Court has defined Medicaid as “a cooperative federal-state program through which the Federal Government provides financial assistance to States so that they may furnish medical care to needy individuals.” In June 2012, the Court found the Patient Protection and Affordable Care Act’s (PPACA) Medicaid expansion unconstitutional. The Court took issue with the threat to withhold all of a state’s Medicaid funding if they did not comply with the expansion, finding it coercive and a fundamental shift in the Medicaid paradigm. However, Medicaid in its current form may not always be effective at providing beneficiaries with timely access to …

American Health Benefit Exchanges: State Regulators Must Encourage Private Market Participation, Elizabeth Bayly

Journal of Health Care Law and Policy

No abstract provided.

Re-Thinking Health Insurance, Hans Biebl

University of Michigan Journal of Law Reform Caveat

In May 2009, while promoting the legislation that would become the Patient Protection and Affordable Care Act (PPACA), President Obama said that rising health care costs threatened the balance sheets of both the federal government and private enterprise. He noted that any increase in health care spending consumes funds that “companies could be using to innovate and to grow, making it harder for them to compete around the world.” Despite the rancorous debate that surrounded this health care legislation and which culminated with the Supreme Court’s decision in National Federation of Independent Businesses, the PPACA was not a radical piece …

Mental Health Care Consumption And Outcomes: Considering Preventative Strategies Across Race And Class, Barak D. Richman, Dan Grossman, Frank A. Sloan, Craig Chepke

Faculty Scholarship

In previous work (Richman 2007), we found that even under conditions of equal insurance coverage and access to mental healthcare providers, whites and high-income individuals consume more outpatient mental health services than nonwhites and low-income individuals. We follow-up that study to determine (1) whether nonwhite and low-income individuals obtain medical substitutes to mental healthcare, and (2) whether disparate consumption leads to disparate health outcomes. We find that nonwhites and low-income individuals are more likely than their white and high-income counterparts to obtain mental health care from general practitioners over mental healthcare providers, and nearly twice as likely not to follow …

Concentration In Health Care Markets: Chronic Problems And Better Solutions, Barak D. Richman

Faculty Scholarship

Health care providers with market power enjoy substantially more pricing freedom than monopolists in other markets, for a reason not generally recognized: US-style health insurance. Consequently, monopolies in health care cause undesirable redistribution of wealth and inefficient allocation of resources, both of which burden consumers at levels beyond those of other monopolists. The unusual costliness of monopoly power in health care markets demands far more policy attention than it has received. For starters, the health sector needs a more aggressive antitrust policy that effectively prevents the creation of new provider market power through mergers, alliances, or government immunity. An immediate …

All Illnesses Are (Not) Created Equal: Reforming Federal Mental Health Insurance Law, Stacey A. Tovino

Scholarly Works

This Article is the second, and most important, installment in a three-part series that presents a comprehensive challenge to lingering legal distinctions between physical and mental illness. The basic impetus for this historical, medical, and legal project is a belief that there exists no rational or consistent method of distinguishing physical and mental illness in the context of health insurance law. The first installment in this series narrowly inquired as to whether a particular set of disorders, the postpartum mood disorders, are or should be classified as physical or mental illnesses in a range of health law contexts.* This second …

Affordable Care Act Litigation: The Supreme Court And The Future Of Health Care Reform, Lawrence O. Gostin, Kelli K. Garcia

Georgetown Law Faculty Publications and Other Works

In Florida v. HHS, a lawsuit brought on behalf of 26 states challenging the constitutionality of the Patient Protection and Affordable Care Act (ACA), the Supreme Court will determine the future direction of health care reform in the United States. During the unprecedented 5-1/2 hours of oral arguments, the Court will hear 4 issues: the individual purchase mandate, severability, the Medicaid expansion and the Anti-Injunction Act.

The states challenging the ACA maintain that the purchase mandate uniquely penalizes individuals for failing to purchase insurance. Uninsured individuals, however, rarely do nothing. Instead, they self-insure, rely on family, and cost-shift to …