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 …

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 …

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.

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.

“Early-Bird Special” Indeed!: Why The Tax Anti-Injunction Act Permits The Present Challenges To The Minimum Coverage Provision, Neil S. Siegel, Michael C. Dorf

Faculty Scholarship

In view of the billions of dollars and enormous effort that might otherwise be wasted, the public interest will be best served if the Supreme Court of the United States decides the present challenges to the Patient Protection and Affordable Care Act (ACA) during its October 2011 Term. Potentially standing in the way, however, is the federal Tax Anti-Injunction Act (TAIA), which bars any “suit for the purpose of restraining the assessment or collection of any tax.” The dispute to date has turned on the fraught and complex question of whether the ACA's exaction for being uninsured qualifies as a …

Overbilling And Informed Financial Consent — A Contractual Solution, Barak D. Richman, Mark A. Hall, Kevin A. Schulman

Faculty Scholarship

U.S. hospitals and physicians regularly charge uninsured patients and patients receiving care outside their health-plan networks far more what most health insurers pay and far more than their actual costs. Such practices have triggered over 100 lawsuits and prompted calls for pricing transparency in Congress and price regulation in several states. This Perspective argues that the theory of implied contracts, a foundation in most first-year courses in contract law, offers a useful legal and ethical mechanism for handling these troubling problems in health care billing.

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 …

The Liberty Of Free Riders: The Minimum Coverage Provision, Mill’S “Harm Principle,” And American Social Morality, Jedediah Purdy, Neil S. Siegel

Faculty Scholarship

In this Article, the authors show that cost-shifting and adverse selection problems link the federalism dimension of the debate over the Affordable Care Act to the doctrinally separate and suppressed individual rights dimension. As the scope of these free-rider problems justifies federal power to require individuals to obtain health insurance coverage, so the very existence of the free-rider problems illuminates the difficulty of arguing directly — as opposed to indirectly through the Commerce Clause — that the minimum coverage provision infringes individual liberty. The interdependence between some people’s decisions to forgo insurance and the well-being of other people means that …

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 …

How The Gun-Free School Zones Act Saved The Individual Mandate, Richard A. Primus

Articles

For all the drama surrounding the Commerce Clause challenge to the in-dividual mandate provision of the Patient Protection and Affordable Care Act (“PPACA”), the doctrinal question presented is simple. Under existing doctrine, the provision is as valid as can be. To be sure, the Supreme Court could alter existing doctrine, and many interesting things could be written about the dynamics that sometimes prompt judges to strike out in new directions under the pressures of cases like this one. But it is not my intention to pursue that possibility here. My own suspicion, for what it is worth, is that the …

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 …