Law Commons^™

The Patient Protection And Affordable Care Act And Constitutional Challenges, Mel Cousins

Mel Cousins

Having undergone an extensive process of political discussion and debate, the Health Care Reform Act (properly the Patient Protection and Affordable Care Act) is now under intensive legal challenge with at least 20 different cases from both states and organizations and individuals currently under way. Although this litigation is at an early stage, there has already been considerable academic (and other) interest with a number of websites tracking the development of the litigation and providing links to the considerable commentary which has already been developed (albeit much of it inevitably speculative in nature). There have now been five substantive rulings …

A Description Of An Individual's Shared Responsibility Requirement In The Patient Protection And Affordable Care Act Of 2010, James S. Cole

James S Cole

The individual responsibility requirement of the Patient Protection and Affordable Care Act of 2010 has become the focus of litigation and public policy debates. Surprising aspects of the statute emerge when its rather dense verbiage is analyzed. The “individual conscience exception” applies primarily, if not exclusively, to self-employed Amish individuals who renounce Social Security coverage in its entirety. Conscientious objections to other aspects of the statute are not acknowledged. A taxpayer is assessed a penalty for his own failure to obtain minimum necessary health coverage beginning in 2014 and also for dependents’ penalties. The dependents are also liable for their …

Mending The Fabric Of Small Town America: Health Reform & Rural Economies, Sidney D. Watson

West Virginia Law Review

No abstract provided.

Deadication To Senator John D. Rockefeller Iv, Lee Adair Sparks

West Virginia Law Review

No abstract provided.

Defeating Health Disparities-A Property Interest Under The Patient Protection And Affordable Care Act Of 2010, Dayna Bowen Matthew

West Virginia Law Review

No abstract provided.

The Next Stage Of Health Care Reform: Controlling Costs By Paying Health Plans Based On Health Outcomes, Dale B. Thompson

Dale Thompson

The predominant form of paying for health care in the United States (Fee-for-Service) creates inefficient incentives and leads to rising costs. A number of changes were incorporated into the health care reform legislative package of 2010, but these changes will not stop rising costs. Instead, this article proposes that the reimbursement structure for the Medicare Advantage program be revised so that medical plans receive their payments based on delivery of health outcomes, not delivery of health services. This approach utilizes centralized enforcement at the level of the plan, to provide incentives for the plan to encourage its providers to improve …

The Next Stage Of Health Care Reform: Controlling Costs By Paying Health Plans Based On Health Outcomes, Dale B. Thompson

Dale Thompson

The predominant form of paying for health care in the United States (Fee-for-Service) creates inefficient incentives and leads to rising costs. A number of changes were incorporated into the health care reform legislative package of 2010, but these changes will not stop rising costs. Instead, this article proposes that the reimbursement structure for the Medicare Advantage program be revised so that medical plans receive their payments based on delivery of health outcomes, not delivery of health services. This approach utilizes centralized enforcement at the level of the plan, to provide incentives for the plan to encourage its providers to improve …

Class Competition And American Health Care: Debating The State Children's Health Insurance Program, Janet L. Dolgin

Louisiana Law Review

No abstract provided.

When Others Get Too Close: Immigrants, Class, And The Health Care Debate, Janet L. Dolgin, Katherine R. Dieterich

Cornell Journal of Law and Public Policy

No abstract provided.

Reconstructing The Individual Mandate As An Escrow Account, Gregg D. Polsky

Michigan Law Review First Impressions

The recent health care reform law's most controversial provision is the individual mandate, which imposes a fine on individuals who fail to obtain a minimum level of health insurance coverage. Many object to this policy, arguing that the government shouldn't force individuals to purchase health insurance. Others believe that the mandate is a necessary component to health care reform. What has been missed in the discussion is that Congress could restructure the individual mandate to avoid the requirement that individuals purchase health insurance while still fulfilling its principal function. The principal purpose of the mandate is not to require individuals …

Making Sense Of The Health Care Reform Debate, Robert C. Hockett

Cornell Law Faculty Publications

It has been bemusing to behold how ill-informed, mis-informed, and even dis-informed much of the current debate over health care reform has been these past several months. Some of the trouble surely has stemmed from bad faith on the part of some protagonists. Another part of the trouble has stemmed from ineffective communication on the part of other protagonists. Much of our trouble, however, might stem from less than full clarity on all of our parts about two facts. The first is that in talking about “health care reform” as a public policy issue, we are actually talking about social …

Wielding The Wand Without Facing The Music: Allowing Utilization Review Physicians To Trump Doctors’ Orders, But Protecting Them From The Legal Risk Ordinarily Attached To The Medical Degree, Katherine L. Record

Duke Law Journal

This Note identifies a discrepancy in the law governing the decisionmaking that directs patient care. Seeking treatment that a third party will pay for, a patient needs not only a physician-prescribed course of treatment but also an insurer's verification that the cost is medically necessary or otherwise covered by the patient's plan. Both of these decisions directly impact the ultimate care delivered to the patient, but are governed by two very different liability regimes. A patient who suffers an adverse outcome may sue his physician in tort, while a patient who suffers from a lack of coverage may generally sue …

An Open Letter To The Citizens Of Northwest Louisiana, Frederick J. White Iii

Frederick J White III

We, the undersigned physicians, want to publicly address our community regarding the health system debate in Congress. This is a historic time, and decisions made in these next days will impact you as citizens and as patients for generations. We recognize that the health system needs change. But the path that the Congress has taken is unwise and unnecessary. And although the American Medical Association has endorsed both the House and Senate bills, (1) we want to be clear—the AMA does not speak for us on these issues.

Conflating Health Care Reform With Tort Reform, Steven M. Pavsner

The Modern American

No abstract provided.

On The Constitutionality Of Health Care Reform, Barak D. Richman

Faculty Scholarship

This commentary describes the legal challenges to the Patient Protection and Affordable Care Act.

Much Ado About Possibly Pretty Little: Mccarran-Ferguson Repeal In The Health Care Reform Effort, Christopher L. Sagers

Law Faculty Articles and Essays

Since 1945, the McCarran-Ferguson Act (MFA) has shielded the “business of insurance” from antitrust liability, so long as the challenged conduct is “regulated by State Law” and does not constitute “boycott, coercion, or intimidation.” This law, like the dozens of other statutory antitrust exemptions that still exist for other industries, has more or less always been controversial, and efforts to repeal it date back more than thirty years. This Essay asks two questions: (1) what consequences the pending repeal measures might have if one of them becomes law; and (2) what a close examination of this effort might teach us …

Contraception, Abortion, And Health Care Reform: Finding Appropriate Moral Ground, Dena S. Davis

Law Faculty Articles and Essays

In this essay, I make the argument that abortion and contraception are fundamentally different actions that occupy fundamentally different moral space, and that justify fundamentally different political action. I conclude that, while it is morally licit, even morally obligatory, for people who believe that embryos are people like us, to attempt to impede access to abortion, it is morally illicit to attempt to block access to contraception (including sterilization).

Commandeering The People: Why The Individual Health Insurance Mandate Is Unconstitutional, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

The “Patient Protection and Affordable Care Act” includes what is called an “individual responsibility requirement” or mandate that all persons buy health insurance from a private company and a separate “penalty” enforcing this requirement. In this paper, I do not critique the individual mandate on originalist grounds. Instead, I explain why the individual mandate is unconstitutional under the existing doctrine by which the Supreme Court construes the Commerce and Necessary and Proper Clauses and the tax power. There are three principal claims.

First (Part II), since the New Deal, the Supreme Court has developed a doctrine allowing the regulation of …

The Evolving Role Of Physicians In A Reformed American Health Care System, Gov. Howard Dean

Hofstra Law Review

No abstract provided.

Will Americans Embrace Single-Payer Health Insurance: The Intractable Barriers Of Inertia, Free Market And Culture, Susan A. Channick

Faculty Scholarship

In a country that prides itself on equality of opportunity, why is there so little equality when it comes to healthcare? Why does the value of equality of opportunity not translate into social solidarity? This Article seeks answers to these questions. Risking the label of socialist, I posit that the most cost-effective, efficacious, and efficient solution to the health care mess that the United States is in is universal single-payer reform with the federal government as that payer.

Part I examines the United States' current climate as it affects health care reform. In Part II, this Article scrutinizes recent state …

Health Care Reform — A Historic Moment In Us Social Policy, Lawrence O. Gostin, Elenora E. Connors

Georgetown Law Faculty Publications and Other Works

On March 23, 2010, President Obama signed into law the first U.S. comprehensive health care reform bill, the Patient Protection and Affordable Care Act (PPACA). After almost a century of failed attempts, the U.S. now has a national health care system which promises to increase access to care, increase consumer choice, and ban insurance discrimination for individuals with preexisting medical conditions. The PPACA is expected to expand insurance coverage to 32 million individuals by 2019 through a variety of measures. At a cost of $938 billion over 10 years, the PPACA is projected to reduce the deficit by $143 billion …

Restoring Health To Health Reform, Lawrence O. Gostin, Peter D. Jacobson

Georgetown Law Faculty Publications and Other Works

In this article, we discuss the public health provisions of the Patient Protection and Affordable Care Act (PPACA--P.L. 111-148). We first set forth a framework to identify the key reforms that are needed for a robust public health system. These include workforce and infrastructure investments. We then assess the PPACA against these criteria. We conclude that although the act would make significant investment in public health (especially in wellness and prevention programs), it does little to improve the existing structural deficiencies that the public health system must overcome if it is to be effective in improving the population’s health.

Health Care Reform In Transition: Incremental Insurance Reform Without An Individual Mandate, Lawrence O. Gostin, Elenora E. Connors

Georgetown Law Faculty Publications and Other Works

A major access problem exists in the private insurance market for individuals with preexisting conditions, who are either denied coverage or charged exorbitant premiums. In effect, individuals are denied coverage for exactly what they need, which jeopardizes their health and the financial security of their family. Before health reform passed, discussions surrounding incremental reform took place, including perhaps the most politically compelling – prohibiting insurers from denying coverage to those with preexisting health conditions. Insurance is based upon the principles of spreading risk of individuals across a population to ensure that everyone can afford medical care when he or she …

The National Individual Health Insurance Mandate: Ethics And The Constitution, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Within weeks, after signing the nation’s first comprehensive health insurance reform, twenty states filed lawsuits challenging the constitutionality of the Bill’s most politically charged feature—an individual purchase mandate. If anything, the tax penalty is too low compared with the cost of insurance, so it may not sufficiently incentivize healthy individuals. But it remains deeply controversial because it compels individuals to purchase coverage they choose not to have, raising the question whether Congress can lawfully and ethically require individuals to contract with, and transfer money to, a private party. To be sure, the individual mandate lacks a clear American precedent. (It …

Reducing Disparities Through Health Care Reform: Disability And Accessible Medical Equipment, Elizabeth Pendo

All Faculty Scholarship

People with disabilities face multiple barriers to adequate health care and report poorer health status than people without disabilities. Although health care institutions, offices, and programs are required to be accessible, people with disabilities are still receiving unequal and in many cases inadequate care. The 2009 report by the National Council on Disability, The Current State of Health Care for People with Disabilities, reaffirmed some of these findings, concluding that people with disabilities experience significant health disparities and barriers to health care; encounter a lack of coverage for necessary services, medications, equipment, and technologies; and are not included in the …

Rhetorical Federalism: The Value State-Based Dissent To Federal Health Reform, Elizabeth Weeks Leonard

Hofstra Law Review

This Article makes the affirmative case for the widespread trend of state resistance to the recently enacted, comprehensive federal health reform law, the Patient Protection and Affordable Care Act of 2010, or ACA. A significant number of states have engaged in various forms of objection to the new federal laws, including filing lawsuits against the federal government, enacting laws providing that ACA will not apply to residents of the state, and refusing to cooperate with implementing the new laws. This Article identifies reasons why those actions should not be disregarded simply as Tea Party antics or election-year gamesmanship but instead …

Health Reform And Health Equity: Sharing Responsibility For Health In The United States, Erika Blacksher

Hofstra Law Review

No abstract provided.