Law Commons^™

Puerto Rico’S Community Health Centers In A Time Of Crisis, Peter Shin, Jessica Sharac, Marie Nina Luis, Sara J. Rosenbaum

Geiger Gibson/RCHN Community Health Foundation Research Collaborative

In 2014, Puerto Rico’s twenty federally funded community health centers, operating in 71 sites located throughout the Commonwealth, served 330,736 patients, approximately one in ten Commonwealth residents. Compared to other Puerto Rico residents, health center patients are less likely to be insured. Despite considerable growth in Medicaid as a result of the supplemental funding provided under the Affordable Care Act, in 2014, 12.2% of health center patients remained uninsured.

Compared to health centers outside Puerto Rico, Puerto Rico’s health centers show a greater proportion of Medicaid patients served (69% compared to 46% outside Puerto Rico), a greater dependence on physician …

Corporations, Taxes, And Religion: The Hobby Lobby And Conestoga Contraceptive Cases, Steven Willis

Steven J. Willis

Beginning in 2013, the federal government mandated that general business corporations include contraceptive and early abortion coverage in large employee health plans. Internal Revenue Code Section 4980D imposes a substantial excise tax on health plans violating the mandate. Indeed, for one company – Hobby Lobby – the expected annual tax is nearly one-half billion dollars. Dozens of “for profit” businesses have challenged the mandate on free exercise grounds, asserting claims under the First Amendment as well as under the Religious Freedom Restoration Act. So far, courts have been reluctant to hold corporations have religious rights of their own; as a …

Anomalies In The Affordable Care Act That Arise From Reading The Phrase “Exchange Established By The State” Out Of Context, Timothy Stoltzfus Jost, James Engstrand

Timothy S. Jost

The Supreme Court is currently considering in King v. Burwell whether residents of all States can receive premium tax credits under the Patient Protection and Affordable Care Act (ACA). The Plaintiffs-Petitioners brought this litigation as a challenge to the validity of a Treasury Department rule allowing all ACA health insurance Exchanges or marketplaces, including federally facilitated Exchanges (FFEs), to support and grant the credits. They invite the Court to focus solely on four words in two subsections of Section 36B of the Internal Revenue Code that they interpret as limiting tax credits to individuals who can use a State-operated Exchange …

Self-Insurance For Small Employers Under The Affordable Care Act: Federal And State Regulatory Options, Timothy Stoltzfus Jost, Mark A. Hall

Timothy S. Jost

As implementation of the Affordable Care Act reshapes the US health insurance market, state and federal policy makers should be prepared to revisit regulation of stop-loss coverage — a form of reinsurance — for small businesses. Aspects of the reform law could motivate small businesses to self-insure, rather than participate in state-regulated markets either inside or outside the new health insurance exchanges. If younger or healthier groups self-insure, premiums for insured plans will rise, perhaps to an extent that could seriously impair the regulated market. State or federal lawmakers can influence small businesses to participate in the regulated market by …

Beyond Repeal--A Republican Proposal For Healthcare Reform, Timothy Stoltzfus Jost

Timothy S. Jost

Not available.

How Has The Affordable Care Act Benefitted Medically Underserved Communities? : National Findings From The 2014 Community Health Centers Uniform Data System, Jessica Sharac, Peter Shin, Sara J. Rosenbaum

Geiger Gibson/RCHN Community Health Foundation Research Collaborative

Community health centers represent the single largest comprehensive primary health care system serving medically underserved communities, operating in more than 9,000 urban and rural locations. Newly-released data for 2014 from the Uniform Data System (UDS; the federal health center reporting system) shed important light on the impact of the Affordable Care Act in its first full year of implementation in medically underserved urban and rural communities across the U.S. These communities experience elevated poverty, heightened health risks, lack of access to primary health care, and a significantly greater likelihood that residents will be uninsured.

The UDS data show the ACA’s …

King V. Burwell And The Chevron Doctrine: Did The Court Invite Judicial Activism?, Matthew A. Melone

Matthew A. Melone

No abstract provided.

Medicare At Fifty Needs To Grow, William H. Lane

English Faculty Publications

In America everybody has a healthcare story. A bill impossible to read, an inscrutable "additional" charge, trouble getting insurance, trouble keeping it, a friend or family member who's fallen between the coverage "cracks." [excerpt]

Scaling Cost-Sharing To Wages: How Employers Can Reduce Health Spending And Provide Greater Economic Security, Christopher Robertson

Faculty Scholarship

In the employer-sponsored insurance market that covers most Americans many workers are “underinsured.” The evidence shows onerous out-of-pocket payments causing them to forgo needed care, miss work, and fall into bankruptcies and foreclosures. Nonetheless, many higher-paid workers are “overinsured”: the evidence shows that in this domain, surplus insurance stimulates spending and price inflation without improving health. Employers can solve these problems together by scaling cost-sharing to wages. This reform would make insurance better protect against risk and guarantee access to care, while maintaining or even reducing insurance premiums.

Yet, there are legal obstacles to scaled cost-sharing. The group-based nature of …

Anomalies In The Affordable Care Act That Arise From Reading The Phrase “Exchange Established By The State” Out Of Context, Timothy Stoltzfus Jost, James Engstrand

University of Miami Business Law Review

The Supreme Court is currently considering in King v. Burwell whether residents of all States can receive premium tax credits under the Patient Protection and Affordable Care Act (ACA). The Plaintiffs-Petitioners brought this litigation as a challenge to the validity of a Treasury Department rule allowing all ACA health insurance Exchanges or marketplaces, including federally facilitated Exchanges (FFEs), to support and grant the credits. They invite the Court to focus solely on four words in two subsections of Section 36B of the Internal Revenue Code that they interpret as limiting tax credits to individuals who can use a State-operated Exchange …

King V. Burwell And The Rise Of The Administrative State, Ronald D. Rotunda

University of Miami Business Law Review

The Patient Protection and Affordable Care Act—popularly called either the “ACA,” or “Obamacare” by opponents, proponents, and even the White House—is a complex law totaling nearly a thousand pages in length. The litigation now before the Supreme Court in King v. Burwell presents, on the surface, a simple issue of statutory interpretation. However, that surface has a very thin veneer. If the Court allows administrators carte blanche to change the very words of a statute, we will have come a long way towards governance by bureaucrats. Over the years, Congress has delegated many of its powers, but it has never …

Unfair Coercion, Or Greater Deference? Two New Sides Of King V. Burwell, Tom Miller

University of Miami Business Law Review

Litigation challenging the legality of an Internal Revenue Service rule that became final on May 2012 has traveled a long, winding, and contentious path. The IRS rule authorized the distribution of federal premium assistance tax credits in all health benefits exchanges under the Patient Protection and Affordable Care Act of 2010 (the “ACA”). However, potential legal problems with reconciling various sections of the final legislation involving those tax credits were identified as early as December 6, 2010. On September 19, 2012, the first of four different legal challenges to the IRS rule was filed in federal district court in Oklahoma. …

The Subsidy Question In King V. Burwell—A Federalist Response To Crony Capitalism, Antonio F. Perez

University of Miami Business Law Review

On the surface, King v. Burwell appears to be a simple case about statutory interpretation. In the Affordable Care Act (widely known as Obamacare), when Congress referred to the “State,” in the provision triggering federal subsidies to insurance consumers for purchases made from federally-authorized insurance providers selling federally-authorized insurance products, should the “State” be understood to refer to the federal market (i.e., exchanges) as well as “State” markets. Simple tools of statutory construction–namely, that Congress knew full well how to refer to a “federal” exchange and failed to do so–would seem to be sufficient to supply a result. It would …

From The New Deal To The New Healthcare: A New Deal Perspective On King V. Burwell And The Crusade Against The Affordable Care Act, Sarah Helene Duggin

University of Miami Business Law Review

Americans describe the new healthcare system established by the Patient Protection and Affordable Care Act (“ACA”) as both a blessing and a nightmare. For millions of low and middle income Americans, the ACA offers access to health insurance they could not otherwise afford. The ACA’s opponents, however, view the new healthcare system as a threat to economic prosperity, an intrusion on personal liberty and a violation of the principles of federalism at the heart of our system of government. These same kinds of arguments were made more than eighty years ago in response to President Franklin Delano Roosevelt’s New Deal. …

Time To Lift The Veil Of Inequality In Health Care Coverage: Using Corporate Law To Defend The Affordable Care Act, Seema Mohapatra

Faculty Scholarship

No abstract provided.

The Patient Protection And Affordable Care Act: The Latest Obstacle In The Path To Receiving Complementary And Alternative Health Care?, Chelsea Stanley

Indiana Law Journal

Part I of this Note outlines a variety of medical techniques that are considered to be complementary and alternative practices, and it presents evidence of CAM’s growing influence in the United States. Part I also provides a concise summary of some of the most important features of the ACA. Part II analyzes the potential impact of the ACA on CAM. Part II focuses first on those provisions of the ACA that are believed to be supportive of CAM; however, Part II then proposes potential counterarguments ignored or overlooked by those who believe that the ACA will favorably impact CAM. Part …

How Obamacare’S Future Rests On A Single Clause, Alan E. Garfield

Alan E Garfield

No abstract provided.

When Condoms Fail: Making Room Under The Aca Blanket For Prep Hiv Prevention, Jason Potter Burda

San Diego Law Review

Given the alarming upward trend in HIV infection rates and the downward trend in condom usage, the United States needs a new approach to HIV prevention. One such approach, HIV pre-exposure prophylaxis, commonly known as “PrEP,” has the potential to significantly reduce HIV incidence. The FDA recently approved a daily dose of Truvada®—an antiretroviral drug that suppresses the virus in HIV-positive individuals—for daily use by high-risk HIV-negative individuals to prevent infection. Despite an efficacy above ninety percent and significant regulatory momentum, this pharmacological prevention modality has proven difficult to implement. This Article addresses the social, legal, and policy challenges that …

Health Care Cost Containment: No Longer An Option But A Mandate, Susan Adler Channick

Susan A. Channick

No abstract provided.

Newsroom: 'Fireside Chat' With Solicitor General, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Corporate Law After Hobby Lobby, Lyman P. Q. Johnson, David K. Millon

Lyman P. Q. Johnson

We evaluate the U.S. Supreme Court’s controversial decision in the Hobby Lobby case from the perspective of state corporate law. We argue that the Court is correct in holding that corporate law does not mandate that business corporations limit themselves to pursuit of profit. Rather, state law allows incorporation for any lawful purpose. We elaborate on this important point and also explain what it means for a corporation to “exercise religion.” In addition, we address the larger implications of the Court’s analysis for an accurate understanding both of state law’s essentially agnostic stance on the question of corporate purpose and …

Corporate Law After Hobby Lobby, Lyman P. Q. Johnson, David K. Millon

David K. Millon

We evaluate the U.S. Supreme Court’s controversial decision in the Hobby Lobby case from the perspective of state corporate law. We argue that the Court is correct in holding that corporate law does not mandate that business corporations limit themselves to pursuit of profit. Rather, state law allows incorporation for any lawful purpose. We elaborate on this important point and also explain what it means for a corporation to “exercise religion.” In addition, we address the larger implications of the Court’s analysis for an accurate understanding both of state law’s essentially agnostic stance on the question of corporate purpose and …

When Condoms Fail: Making Room Under The Aca Blanket For Prep Hiv Prevention, Jason Potter Burda

Faculty Publications

Given the alarming upward trend in HIV infection rates and the downward trend in condom usage, we need a new approach to HIV prevention in the United States. One such approach, HIV Pre-Exposure Prophylaxis (commonly known as “PrEP”), has the potential to significantly reduce HIV incidence. The FDA recently approved a daily dose of Truvada® — an antiretroviral drug that suppresses the virus in HIV-positive individuals — for daily use by high-risk HIV-negative individuals to prevent infection. Despite an effectiveness above ninety percent and significant regulatory momentum, this pharmacological prevention modality has proven difficult to implement. In this Article, I …

The Affordable Care Act: A “Preventative-Focused” Healthcare Regime To Improve Reproductive Cancer Outcomes Among Women Of Lower Socio-Economic Status, Rachele M. Hendricks

Rachele M Hendricks-Sturrup

No abstract provided.

Corporate Law After Hobby Lobby, Lyman P.Q. Johnson, David K. Millon

Scholarly Articles

We evaluate the U.S. Supreme Court’s controversial decision in the Hobby Lobby case from the perspective of state corporate law. We argue that the Court is correct in holding that corporate law does not mandate that business corporations limit themselves to pursuit of profit. Rather, state law allows incorporation for any lawful purpose. We elaborate on this important point and also explain what it means for a corporation to “exercise religion.” In addition, we address the larger implications of the Court’s analysis for an accurate understanding both of state law’s essentially agnostic stance on the question of corporate purpose and …

The Universality Of Medicaid At Fifty, Nicole Huberfeld

Faculty Scholarship

This essay, written for the Yale Law School symposium on The Law of Medicare and Medicaid at 50, explores how the law of Medicaid after the ACA creates a meaningful principle of universalism by shifting from fragmentation and exclusivity to universality and inclusivity. The universality principle provides a new trajectory for all of American health care, one that is not based on individual qualities that are unrelated to medical care but rather grounded in non-judgmental principles of unification and equalization (if not outright solidarity). This essay examines the ACA's legislative reformation, which led to universality, and its quantifiable effects. The …

Transformations In Health Law Practice: The Intersections Of Changes In Healthcare And Legal Workplaces, Louise G. Trubek, Barbara Zabawa, Paula Galowitz

Faculty Works

The passage and implementation of the Affordable Care Act is propelling transformations in health care. The transformations include integration of clinics and hospitals, value based care, patient centeredness, transparency, computerized business models and universal coverage. These shifts are influencing the practice of health law, a vibrant specialty field considered a "hot" area for new lawyers. The paper examines how the transformations in health care are intersecting with ongoing trends in law practice: increase in in-house positions, collaboration between medical and legal professionals, and the continued search for increased access to legal representation for ordinary people. Three health law workplace sites …

Modernizing The Emergency Medical Treatment & Labor Act To Harmonize With The Affordable Care Act To Improve Equality, Quality And Cost Of Emergency Care, Katharine A. Van Tassel

Faculty Publications

The Emergency Medical Treatment and Active Labor Act (EMTALA) is a federal statute passed almost 30 years ago which was designed to ensure equal access to emergency treatment and to halt the practice of “patient dumping.” Patient dumping is a situation where some patients—typically uninsured, disabled, and minority individuals—receive inferior emergency medical care or are denied emergency medical treatment altogether. The goal of EMTALA is to ensure that everyone coming to the emergency room will receive equal care.

Unfortunately, despite EMTALA, the practice of patient dumping has continued to this day. The most recent case in the news is the …

Overvaluing Employer-Sponsored Health Insurance, Lauren R. Roth

Scholarly Works

Although positive and negative assessments of tying health insurance to employment abound, most scholars and policymakers have acknowledged that our long history in this area predicts our future. What they have largely ignored, however, is the extent to which individual attachment to employment-based insurance is at the root of our inability to make broader health reforms. The attachment (1) harms exchange-based insurance and (2) denies employers the ability to use Health Reimbursement Arrangements (“HRAs”) to subsidize the purchase of insurance by their employees on the exchanges.

This Article advocates reducing or eliminating workers’ overvaluation of their health insurance and increasing …

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 …