Law Commons^™

Dynamic Expansion, Nicole Huberfeld

Faculty Scholarship

Nearly one in four Americans will have medical care and costs covered by the Medicaid program when it has been expanded pursuant to the Patient Protection and Affordable Care Act (the ACA). National media outlets have been reporting that only about half of the states are participating in the Medicaid expansion; if the reports were true, millions of Americans would be left without insurance coverage, and many of the nation’s medically fragile citizens would not have access to consistent healthcare. Contrary to these reports, most states will participate in the Medicaid expansion in the near future. This claim is not …

The Obamacare Opportunity: Implementing The Affordable Care Act To Improve Health, Reduce Hardship, And Grow The Economy For All Californians, Jeffrey Selbin, Ann O'Leary, Theresa Cheng, Stephanie Campos, Katherine Adamides, Rey Fuentes

Jeffrey Selbin

If A Right To Health Care Is Argued In The Supreme Court, Does Anybody Hear It?, W. David Koeninger

Indiana Journal of Law and Social Equality

No abstract provided.

The Birth Of A Real Right: An Overview And Analysis Of The Recent Revision Of Book Iii, Title X Of The Civil Code, Bradley Schwab

Louisiana Law Review

The article examines the revised articles in Title X, Book III, of the Louisiana Civil Code which is regarding rents of lands and annuities. It explains the revisions to Chapter 1 and Chapter 2 of Title X, Book III that pertains to the annuity contract and the annuity charge respectively. It discusses some economic benefits created by these new articles including bankruptcy protection and Medicaid benefits.

A Broke(N) System: Comment On The Supreme Court's Decision To Rule On The Equal Access Provision In Douglas V. Independent Living Center, And Its Potential Impact On The Affordable Care Act, Megan Waugh

Journal of the National Association of Administrative Law Judiciary

This comment first provides a historical and legal backdrop of the Medicaid system, the Equal Access Provision and private individuals' enforcement of the Equal Access Provision through litigation in order to analyze the outcome of Douglas in light of the Supreme Court's decision in the Affordable Care Act Case. Then taking that analysis, this article recommends an approach to handle either a cause of action or no cause of action under the Supremacy Clause upon the implementation of PPACA.

Maine's Battle In America's Other Drug War: Pharmaceutical Research And Manufacturers Of America V. Walsh, Lynsey Mitchel

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Advocacy In Health Proceedings In New York State, Kia C. Franklin

Touro Law Review

Individuals and communities navigating the healthcare system without an advocate often experience devastating outcomes and become burdened with unnecessary costs. These negative outcomes undermine the very utility of our healthcare system. The creation of a legal right to counsel for individuals with critical health related claims would meet an important and unmet need in our health and legal systems by empowering patients, improving the quality of health for many, and preventing unnecessary costs to the health care system.

A dedicated group of healthcare advocates, lawyers, public policy analysts, and other concerned individuals gathered together at Touro Law Center to strategize …

Implications Of Rhode Island’S Global Consumer Choice Compact Medicaid Waiver For Block Granting Medicaid And Other Retrenchment, Edward Alan Miller, Divya Samuel, Susan Allen, Amal Trivedi, Vincent Mor

Gerontology Institute Publications

On January 16, 2009, the Federal government approved Rhode Island’s application for a Global Consumer Choice Compact Medicaid Waiver whereby the state became the first granted permission to operate its entire Medicaid program under the state plan and a single 1115 “research and demonstration” waiver. The Global Waiver has been implemented in the context of Republican proposals to turn Medicaid into a block grant which would give states substantially more flexibility administering the program in exchange for receiving an upfront allotment from the Federal government. Proponents have held up the Global Waiver as a successful example of what might be …

Implications Of Rhode Island’S Global Consumer Choice Compact Medicaid Waiver For Designing And Implementing State Health Reform, Edward Alan Miller, Divya Samuel, Susan Allen, Amal Trivedi, Vincent Mor

Gerontology Institute Publications

Provisions in the Medicaid statute permit states to apply for waivers from traditional program requirements. On January 16, 2009, the federal government approved Rhode Island's Global Consumer Choice Compact Waiver. In exchange for a cap on combined federal and state spending of $12.075 billion through 2013, Rhode Island received greater flexibility to adopt certain Medicaid program changes. This study analyzes the design and implementation of the Global Waiver to draw general lessons for health reform at the state-level, a key concern given ongoing state discretion to improve their health care systems under the Patient Protection and Affordable Care Act. Data …

Implications Of Rhode Island’S Global Consumer Choice Compact Medicaid Waiver For Rebalancing Long-Term Care Under The Affordable Care Act, Edward Alan Miller, Divya Samuel, Susan Allen, Amal Trivedi, Vincent Mor

Gerontology Institute Publications

Federal approval of Rhode Island’s Global Consumer Choice Compact Global Waiver in 2009 provided Rhode Island with greater flexibility to modify its Medicaid program. Because 96% of long-term care expenditures in Rhode Island were directed toward institutional settings, a primary goal was to facilitate the state’s efforts to shift the locus of long-term care to non-institutional settings. This study draws lessons from Rhode Island’s experience with the Global Waiver for the long-term care rebalancing provisions of the Patient Protection and Affordable Care Act of 2010. Data derive from 325 archival sources and 26 semi-structured interviews. Results suggest that prospectively documenting …

Harris V. Mcrae: Whatever Happened To The Roe V. Wade Abortion Right?, Laura Crocker

Pepperdine Law Review

The controversial Roe v. Wade decision purportedly removed the abortion controversy from the political arena and set constitutional standards by which questions on the issue could be resolved. The enactment of the Hyde Amendment, a bill which generally forbids the use of Medicaid funds for abortions, was a recent political response to the abortion controversy. However, in the recent case of Harris v. McRae, the Supreme Court upheld the constitutionality of the Hyde Amendment and thus injected the abortion controversy back into the political arena. The author exhaustively examines the abortion controversy from the time of the Roe decision up …

Nfib V. Sibelius: Proportionality In The Exercise Of Congressional Power, David Orentlicher

David Orentlicher

With its opinion on the constitutionality of the Affordable Care Act (ACA), the U.S. Supreme Court sparked much discussion regarding the implications of the case for other federal statutes. In particular, scholars have debated the significance of the Court’s recognition of an anti-coercion limit to the Spending Clause power.

When it recognized an anti-coercion limit for ACA’s Medicaid expansion, the Court left considerable uncertainty as to the parameters of that limit. This essay sketches out one valuable and very plausible interpretation of the Court’s new anti-coercion principle. It also indicates how this new principle can address a long-standing problem with …

Emergency Response: A Systemic Approach To Diaper Rash, Chest Pain, And Medicaid In The Ed, Sallie Thieme Sanford Sanfords@Uw.Edu

Articles

In an effort to rein in health care costs, states have focused on non-emergent use of the Emergency Department (ED) by people with Medicaid coverage, although this is an issue that cuts across payor groups. Particularly in light of the Affordable Care Act insurance expansions, I argue for a system-based approach that views ER overutilization as less a reflection of poor judgment on the part of patients and more a consequence of poor access to primary care and poor systems for managing the complex circumstances of high utilizers. I describe a state program of seven “best practices,” and argue that …

Medicaid Expansion, The Patient Protection And Affordable Care Act, And The Supreme Court's Flawed Spending Clause Coercion Reasoning In National Federation Of Independent Business V. Sebelius, L. Darnell Weeden

Cleveland State Law Review

The issue to be addressed is whether the Patient Protection and Affordable Care Act’s (ACA or “Obamacare”) manifest goal of promoting the general welfare of the nation by encouraging states to expand their existing Medicaid plans is a coercive use of Congress’ power under the Spending Clause if the federal government permanently picks up at least 90 percent of the cost of the expansion. The Spending Clause grants Congress the power “to pay the Debts and provide for the . . . general Welfare of the United States.” To make certain that federal money given to the States is used …

Filial Support Laws In The Modern Era: Domestic And International Comparison Of Enforcement Practices For Laws Requiring Adult Children To Support Indigent Parents, Katherine C. Pearson

Journal Articles

Family responsibility and support laws have a long but mixed history. When first enacted, policy makers used such laws to declare an official policy that family members should support each other, rather than draw upon public resources. This article tracks modern developments with filial support laws that purport to obligate adult children to financially assist their parents, if indigent or needy. The author diagrams filial support laws that have survived in the 21st Century and compares core components in the United States (including Puerto Rico) and post-Soviet Union Ukraine. While the laws are often similar in wording and declared intent, …

Preserving Wealth And Inheritance Through Medicaid Planning For Long-Term Care, John A. Miller

Articles

No abstract provided.

A Response To Beyond Separation: Professor Copeland’S Ambitious Proposal For “Integrative” Federalism, Elizabeth Weeks

Scholarly Works

No abstract provided.

Kicking Ohio Medicaid Recipients When They Are Down: How Ohio's Third Party Liability Medicaid Statute Violates Federal Law As Interpreted By Ahlborn, Kelly Voyles

Cleveland State Law Review

This Note argues that Ohio’s Medicaid third party liability statute must either be invalidated by the Ohio Supreme Court or repealed by the Ohio General Assembly. This Note then goes on to argue that the Ohio General Assembly must amend its Medicaid third party liability statute to require settlement allocation before ODJFS can recover the medical payments it made on behalf of Ohio Medicaid recipients. Finally, this Note argues that Ohio should also amend its Medicaid third party liability statute to require that the parties come to an allocation agreement themselves or, if that proves impossible, to require a judicial …

How An Obscure Tennessee Opinion Uncovers The Veil Of Legal Malpractice Between Asset-Protection Trusts And The Uniform Trust Code., Charles Epps Ipock

St. Mary's Journal on Legal Malpractice & Ethics

In the year 2000, the Uniform Law Commissioners approved the Uniform Trust Code (UTC). This was the first effort to provide states with an all-inclusive model for codifying their trust laws. Since then, at least twenty-three states adopted some, or most of the UTC. But this enactment did not come without controversy. Most of the controversies stem from provisions regarding asset-protection trusts. The net result of asset-protection trusts within the UTC essentially disposes of discretionary trusts by requiring them to contain spendthrift language. The undesirable effect of these provisions is that without a spendthrift clause any creditor can attach a …

Where There Is A Right, There Must Be A Remedy (Even In Medicaid), Nicole Huberfeld

Law Faculty Scholarly Articles

This Article will explore the power struggle that Medicaid invites and its potential elevation due to the pressures that will follow the Patient Protection and Affordable Care Act’s (ACA) expansion. Part I of this Article will describe the three phases of private enforcement litigation and how they have affected Medicaid reimbursement rates. This Part also will highlight the deceptive stability that has taken root in the lower federal courts by describing the recent state attempts to end private enforcement actions. The first Part will conclude by briefly considering the nature of the federalism arguments that states are making. Part II …

Plunging Into Endless Difficulties: Medicaid And Coercion In National Federation Of Independent Business V. Sebelius, Nicole Huberfeld, Elizabeth Weeks Leonard, Kevin Outterson

Law Faculty Scholarly Articles

Until the 2011 Term, no Supreme Court decision since the New Deal had struck down an act of Congress as exceeding the federal spending power. The question of unconstitutionally coercive conditions was also novel. Indeed, no federal court had ever found any legislation to be an unconstitutionally coercive exercise of the spending power until the Court decided National Federation of Independent Business v. Sebelius (NFIB) on June 28, 2012. This Article proceeds as follows: Part I discusses the Affordable Care Act's Medicaid expansion in the context of the history and purpose of the Medicaid Act, paying particular attention to facts …

Plunging Into Endless Difficulties: Medicaid And Coercion In National Federation Of Independent Business V. Sebelius, Elizabeth Weeks Leonard, Nicole Huberfield, Kevin Outterson

Scholarly Works

Of the four discrete questions before the Court in National Federation of Independent Business v. Sebelius, the Medicaid expansion held the greatest potential for destabilization from both a statutory and a constitutional perspective. As authors of an amicus brief supporting the Medicaid expansion, and scholars with expertise in health law who have been cited by the Court, we show in this article why NFIB is likely to fulfill that promise.

For the first time in its history, the Court held federal legislation based upon the spending power to be unconstitutionally coercive. Chief Justice Roberts’ plurality (joined for future voting purposes …

Medicaid Managed Long-Term Care: Is Florida Ready, Rebecca C. Bell

St. Thomas Law Review

Medicaid is a nationwide health insurance program, created in 1965 as Title XIX of the Social Security Act for the poorest and sickest individuals. The Medicaid program operates through a federal and state partnership with the Centers for Medicare and Medicaid Services ("CMS") providing federal oversight. States must provide coverage of certain groups and services in order to receive federal funds for their Medicaid programs. However, states may include additional "optional" groups and services in each state plan. States use different methods of service delivery to Medicaid beneficiaries. In July 2011, a national average of 74.22% of Medicaid beneficiaries were …

Embracing Justice Roberts’ “New Medicaid”, Sidney D. Watson

Saint Louis University Journal of Health Law & Policy

No abstract provided.

Medicaid’S Next Fifty Years: Aligning An Old Program With The New Normal, Sara Rosenbaum

Saint Louis University Journal of Health Law & Policy

No abstract provided.

Chief Justice Robert's Individual Mandate: The Lawless Medicine Of Nfib V. Sebelius, Gregory P. Magarian

Scholarship@WashULaw

After the U.S. Supreme Court in National Federation of Independent Business v. Sebelius held nearly all of the Patient Protection and Affordable Care Act constitutional, praise rained down on Chief Justice John Roberts. The Chief Justice’s lead opinion broke with his usual conservative allies on the Court by upholding the Act’s individual mandate under the Taxing Clause. Numerous academic and popular commentators have lauded the Chief Justice for his political courage and institutional pragmatism. In this essay, Professor Magarian challenges the heroic narrative surrounding the Chief Justice’s opinion. The essay contends that the opinion is, in two distinct senses, fundamentally …

Coercion, Compulsion, And The Medicaid Expansion: A Study In The Doctrine Of Unconstitutional Conditions, Mitchell N. Berman

All Faculty Scholarship

The Supreme Court’s decision in National Federation of Independent Business v. Sebelius regarding the constitutionality of the Patient Protection and Affordable Care Act produced three main holdings concerning two critical provisions of the Act. The first two holdings concerned the “individual mandate” that requires most Americans to maintain “minimum essential” health insurance. The third holding concerned “the Medicaid expansion,” which expanded the class of persons to whom the states must provide Medicaid coverage as a condition for receiving federal funds under the Medicaid program. By a vote of 7-2, the Court struck down this provision as an impermissible condition on …

Heed Not The Umpire (Justice Ginsburg Called Nfib), Nicole Huberfeld

Faculty Scholarship

A bad reading of the facts in NFIB v. Sebelius has led to new limitations on Congress’s Commerce, Necessary and Proper, and Spending Clause powers. The decision appeared to use healthcare as a vehicle for constitutional change, leading to interpretive gymnastics that invite further litigation. This essay highlights the factual errors in Chief Justice Roberts’s and the joint dissent’s opinions and explains why Justice Ginsburg’s more fact-attuned opinion was the correct analysis of the case.

Where There Is A Right, There Must Be A Remedy (Even In Medicaid), Nicole Huberfeld

Faculty Scholarship

The anticipated growth of Medicaid under the ACA will likely aggravate an ongoing dispute surrounding private enforcement of the Medicaid Act. The Medicaid Act does not provide a private right of action except when a person who is eligible for Medicaid is denied entry into the program. Nevertheless, historically, both Medicaid providers and beneficiaries have been able to protect their rights through 42 U.S.C. § 1983, which allows individuals to seek redress against states in federal court for violations of statutory or constitutional rights, or through the Supremacy Clause, which prevents states from enacting laws that violate superseding federal laws. …

Plunging Into Endless Difficulties: Medicaid And Coercion In National Federation Of Independent Business V. Sebelius, Nicole Huberfeld, Elizabeth Weeks Leonard, Kevin Outterson

Faculty Scholarship

Of the four discrete questions before the Court in National Federation of Independent Business v. Sebelius, the Medicaid expansion held the greatest potential for destabilization from both a statutory and a constitutional perspective. As authors of an amicus brief supporting the Medicaid expansion, and scholars with expertise in health law who have been cited by the Court, we show in this article why NFIB is likely to fulfill that promise.

For the first time in its history, the Court held federal legislation based upon the spending power to be unconstitutionally coercive. Chief Justice Roberts’ plurality (joined for future voting purposes …