Law Commons^™

California’S Vanishing Community Hospital: An Endangered Institution, Craig B. Garner

Craig B. Garner

Across the nation, America’s community hospitals are under siege. Once considered indispensable to our health care system, the twenty-first century finds the local hospital fighting an uphill battle against a convergence of factors that favors the sharing of resources by multiple facilities. Rising health care expenses, challenging regulatory hurdles, and a reimbursement structure in the midst of transition all bear some responsibility for the obstacles faced by today’s community hospital. Nowhere is this phenomenon more pronounced than in California, where regular hospital closings amid an ever-growing population stand as incentive for remaining hospitals to team up (or remain teamed up) …

Federalizing Medicaid, Nicole Huberfeld

Faculty Scholarship

Medicaid fosters constant tension between the federal government and the states, and that friction has been exacerbated by its expansion in the Patient Protection and Affordable Care Act of 2010 (PPACA). Medicaid was an under-theorized and underfunded continuation of existing programs that retained two key aspects of welfare medicine as it developed: bias toward limiting government assistance to the “deserving poor,” and delivery of care through the states that resulted in a strong sense of states’ rights. These ideas regarding the deserving poor and federalism have remained constants in the program over the last forty-six years, but PPACA changes one …

The Other Side Of Health Care Reform: An Analysis Of The Missed Opportunity Regarding Infertility Treatments., Nizan Geslevich Packin

The Scholar: St. Mary's Law Review on Race and Social Justice

Recent studies show that one in eight American couples suffered from infertility. Infertility treatments are riddled with accessibility barriers including high costs, marital status, and sexual orientation. Despite President Obama’s promise of universal health care, his health care reform acts missed the opportunity to squarely address this widespread problem. In fact, the recent health care reform did not include any provisions specific to fertility. Despite this glaring oversight, this article argues that regulators interpreting the acts can still provide the desired relief. The minimum coverage requirements beginning in 2014 can be interpreted to include fertility care if infertility is treated …

The Constitutionality Of The Patient Protection And Affordable Care Act In The Courts Of Appeals, Mel Cousins

Mel Cousins

Having undergone an extensive process of political discussion and debate, the ACA (properly the Patient Protection and Affordable Care Act) is now under intensive legal challenge with over 20 different cases from both states and organizations and individuals having been initiated. The challengers argue that the Act lacks a constitutional basis and/or infringes on their constitutional rights. These cases involve a fascinating intersection of legal, political and policy issues and, regardless of the outcome, will have important implications for the future direction of US health care policy. There have now been four decisions of the courts of appeal on the …

Competing Stories: A Case Study Of The Role Of Narrative Reasoning In Judicial Decisions, Kenneth D. Chestek

Kenneth D. Chestek

Abstract:

Within minutes after President Obama signed into law the Patient Protection and Affordable Care Act (derisively referred to by some as the “Obamacare” law), the lawsuits started flying. Literally dozens of suits were filed all across the country. Some were frivolous, but many others raised serious issues of federalism and the reach of Congress’ power under the Commerce Clause.

Of the initial spate of lawsuits, ultimately five were decided by various trial courts on the merits of the Commerce Clause issue. Three judges found the law constitutional, and two others found it unconstitutional. But since the issue is almost …

Scaling Up Deliberative Democracy As Dispute Resolution In Healthcare Reform: A Work In Progress , Carrie Menkel-Meadow

Law and Contemporary Problems

No abstract provided.

Foreword, Orna Rabinovich-Einy

Law and Contemporary Problems

The U.S. healthcare system has undergone dramatic changes in the past year, which will have a profound impact on American society. While the "Patient Protection and Affordable Care Act of 2010" seeks to ensure healthcare coverage for the vast majority of Americans, controversies relating to scope of coverage, cost and course of treatment chosen, quality of care rendered, healthcare staff demeanor, and bioethical dilemmas are bound to persist. Indeed, in all likelihood, these controversies will even expand with the growth in the number of healthcare recipients under the federal scheme. Moreover, the changes introduced through the U.S. healthcare reform act …

Plaintiff Standing In Florida Ex Rel. Bondi And The Challenges To The Patient Protection And Affordable Care Act, Gayland O. Heathcoat Ii

University of Miami Law Review

No abstract provided.

Dead On Arrival: The Health Insurance Industry's Bleak Prognosis Due To Unconstitutional Ratemaking In The Patient Protection And Affordable Care Act, Rebecca J. Kopps

Northern Illinois University Law Review

The public discussion surrounding health care reform thus far has centered around how the newly enacted law will affect consumers. Yet, the law most profoundly affects the health insurance industry, whose interests have largely been ignored. While the enactment of the Patient Protection and Affordable Care Act was viewed as a triumph for the Obama Administration, it casts a much darker shadow on the future of the health insurance industry that it regulates. Through provisions requiring minimum covered benefits, rate justifications, limits on selecting eligible enrollees, and most notably, an excessively high minimum medical loss ratio, this law involves substantial …

The Pragmatist’S Guide To Comparative Effectiveness Research, Amitabh Chandra, Anupam B. Jena, Jonathan Skinner

Dartmouth Scholarship

No abstract provided.

Cash Only Doctors: Challenges And Prospects Of Autonomy And Access, Jeffrey B. Hammond

Jeffrey B. Hammond

With the passage of the Patient Protection and Affordable Care Act of 2010, the American healthcare system is poised to fundamentally change. However, the Affordable Care Act’s passage has made many physicians queasy at the prospect of more bureaucratic control over their professional lives. Hence, a form of ambulatory medicine not seen since before the advent of health insurance, “cash only” medicine, or healthcare encounters fully paid in (usually) the primary care doctor’s office, is beginning to gain more attention among doctors and in the popular press. This Article argues that cash only medicine is a salutary development in the …

Leave Health Care Law's Validity Up To Voters, Alan E. Garfield

Alan E Garfield

No abstract provided.

The Real Constitutional Problem With The Affordable Care Act, Timothy Stoltzfus Jost

Scholarly Articles

Not available.

Stigmatized Silence: The Exclusion Of Hiv And Aids Sufferers From The Obamacare Legal Landscape, Ashley N. Southerland

Cornell Journal of Law and Public Policy

The continued presence and growing rates of individuals infected with human immunodeficiency virus (HIV) and acquired immunodeficiency syndrome (AIDS) in the United States has come to reflect an epidemic of significant proportion. Unfortunately, federal legislation has been eerily silent regarding the establishment of protections against health status-based discrimination for asymptomatic HIV and AIDS sufferers. Congress has done little to change this reality, despite the institution of major healthcare system and insurance reform by the Obama Administration in 2010. This Note argues that "Obamacare" and the two laws that define it—the Patient Protection and Affordable Care Act and the Health Care …

Who Pays? Who Benefits? Unfairness In American Health Care, Clark C. Havighurst, Barak D. Richman

Faculty Scholarship

American-style health insurance greatly amplifies price-gouging opportunities for health care providers, who inflate prices both to enrich themselves and to subsidize and expand the nation’s health care enterprise. To the extent that lower- and middle-income Americans with private health coverage pay premiums that go to support and expand the system, they are subject to an unfair (regressive) “head tax” levied by unaccountable entities for ostensibly public but also private purposes. Lower-income premium payers also often pay for costly health coverage designed to suit the economic interests and values of professional and other elites rather than their own. They also appear …

A Cautious Path Forward On Accountable Care Organizations, Barak D. Richman, Kevin A. Schulman

Faculty Scholarship

The wave of new Accountable Care Organizations (ACOs), spurred by financial incentives in the Affordable Care Act, could become the latest chapter in the steady accumulation of market power by hospitals, health care systems, and physician groups. The main purpose behind forming many ACOs may not be to achieve cost savings but instead to strengthen negotiating power over purchasers in the private sector. This would be an unfortunate sequel to the waves of mergers in the 1990s when health care entities sought to counter market pressure from managed care organizations. The possibility that ACOs might further concentrate health care markets …

Shifting The Conversation: Disability, Disparities And Health Care Reform, Elizabeth Pendo

All Faculty Scholarship

This piece is an invitation to consider health care reform as a political shift in our thinking about the barriers and inequalities experienced by people with disabilities in our health care system. Traditionally, when these issues have been addressed, the predominant approach has been through a civil rights framework, specifically the Rehabilitation Act of 1973 and the American with Disabilities Act of 1990 (ADA). Now, the Patient Protection and Affordable Care Act of 2010 (PPACA) offers a new approach. This essay will outline the barriers to health and health care experienced by people with disabilities, drawing upon my ongoing research …

Free Rider: A Justification For Mandatory Medical Insurance Under Health Care Reform?, Douglas A. Kahn, Jeffrey H. Kahn

Articles

Section 1501 of the Patient Protection and Affordable Care Act added section 5000A to the Internal Revenue Code to require most individuals in the United States, beginning in the year 2014, to purchase an established minimum level of medical insurance. This requirement, which is enforced by a penalty imposed on those who fail to comply, is sometimes referred to as the “individual mandate.” The individual mandate is one element of a vast change to the provision of medical care that Congress implemented in 2010. The individual mandate has proved to be controversial and has been the subject of a number …

Restoring Health To Health Reform: Integrating Medicine And Public Health To Advance The Population's Wellbeing, Lawrence O. Gostin, Peter D. Jacobson, Katherine L. Record, Lorian E. Hardcastle

Georgetown Law Faculty Publications and Other Works

The Patient Protection and Affordable Care Act is a major achievement in improving access to health care services. However, evidence indicates that the nation could achieve greater improvements in health outcomes, at a lower cost, by shifting its focus to public health. By focusing nearly exclusively on health care, policy makers have chronically starved public health of adequate and stable funding and political support. The lack of support for public health is exacerbated by the fact that health care and public health are generally conceptualized, organized, and funded as two separate systems. In order to maximize gains in health status …

Cooperation, Commandeering, Or Crowding Out? : Federal Intervention And State Choices In Health Care Policy, Jonathan H. Adler

Faculty Publications

The Patient Protection and Affordable Care Act (ACA) substantially alters the respective roles of the federal and state governments in health care policy. Beyond the individual mandate, the ACA presents many questions of federalism, both constitutional and policy-related. This paper, prepared for a symposium sponsored by the Kansas Journal of Law & Public Policy, addresses some of these federalism issues. After outlining some of the policy considerations for determining the proper federal and state balance in health care policy, it identifies constitutional limitations on the federal government’s ability to direct or even influence state policy choices, before discussing how federal …

The Unaffordable Health Care Act - A Reponse To Professors Bagley And Horwitz, Douglas A. Kahn, Jeffrey H. Kahn

Articles

The Patient Protection and Affordable Care Act of 2010 has stirred considerable controversy. In the public debate over the program, many of its proponents have defended it by focusing on what is sometimes called the “free-rider” problem. In a prior article, we contended that the free-rider problem has been greatly exaggerated and was not a significant factor in the congressional decision to adopt the Act. We maintained that the free-rider issue is a red herring advanced to trigger an emotional attraction to the Act and distract attention from the actual issues that favor and disfavor its adoption. In a recently …

Why It's Called The Affordable Care Act, Nicholas Bagley, Jill R. Horwitz

Articles

The Patient Protection and Affordable Care Act of 2010 (“ACA”) raises numerous policy and legal issues, but none have attracted as much attention from lawyers as Section 1501. This provision, titled “Maintenance of Mini-mum Essential Coverage,” but better known as the “individual mandate,” requires most Americans to obtain health insurance for themselves and their dependents by 2014. We are dismayed that the narrow issue of the mandate and the narrower issue of free riding have garnered so much attention when our nation’s health-care system suffers from countless problems. By improving quality, controlling costs, and extending coverage to the uninsured, the …

Defense Of The Constitutionality Of Health Care Reform, Gillian E. Metzger

Faculty Scholarship

Along with the others, I want to thank David for organizing this panel. The great advantage of going last is that the terms of the debate over the Affordable Care Act's constitutionality have been established by the other panelists. As a result, I am going to target my remarks on a few key points, rather than walk through a full dress review of some of the arguments. Like the others, my focus is on existing doctrine. I completely agree with Dean Chemerinsky in thinking that the Supreme Court is not going to change the key parameters of existing analysis, but …

Is Health Care Reform Unconstitutional?, David Cole

Georgetown Law Faculty Publications and Other Works

No abstract provided.