Law Commons^™

Justice And The Struggle For The Soul Of Medicaid, Dayna Bowen Matthew

Saint Louis University Journal of Health Law & Policy

The soul of Medicaid is and always has been to achieve justice in health care. Medicaid at its inception was designed to ensure that the most vulnerable members of society are not excluded from access to good health that all others enjoy. Yet, as the title of this symposium aptly reflects, “The Struggle for the Soul of Medicaid” remains vulnerable to repeated and relentless political attacks. Why is this so, given that the program finances care for nearly sixty-four million Americans?

This article posits that Medicaid is vulnerable because our nation’s commitment to justice in health care remains uncertain. Historically, …

Medicaid’S Role For Seniors And People With Disabilities: Current State Trends, Marybeth Musumeci

Saint Louis University Journal of Health Law & Policy

Medicaid fills a gap in the U.S. health care system as the primary payor for long-term services and supports (LTSS). These services enable seniors, people with disabilities, and those with chronic illnesses to live independently in the community, outside of nursing homes and other institutions. Most Medicaid home and community-based services (HCBS) are covered at state option, unlike nursing home care, which all state Medicaid programs must cover. States have substantial flexibility in designing their Medicaid HCBS programs under federal law, and Medicaid provides an important source of federal funding to states to help meet the LTSS needs of seniors …

The Administration’S Medicaid Waivers: Exploding In The Guise Of Experimenting, Jane Perkins

Saint Louis University Journal of Health Law & Policy

Congress enacted the Medicaid Act with the stated purpose of furnishing medical assistance to low-income people. Medicaid participation is not required of a state, but if a state does choose to participate—which they all do—the federal government will contribute the lion’s share of the cost of providing care. In return, the state agrees to pay the remaining costs of care. The state must also adhere to the detailed regulatory scheme Congress placed in the Medicaid Act, including requirements for determining eligibility for the program and the scope and affordability of coverage. Section 1115 of the Social Security Act authorizes the …

Sb 106 - Patients First Act, Jasmine Nicole Becerra, Leanne E. Livingston

Georgia State University Law Review

The Patients First Act amends both Title 49 and Title 33 of the Official Code of Georgia Annotated, which allows the state to apply for two federal waivers. One being the Section 1115 waiver to the Social Security Act. The second being the Section 1332 waiver to the Affordable Care Act. Section 1115 waivers apply to Medicaid and may be sought to include a maximum income threshold up to 100% of the Federal Poverty Level. The Section 1332 innovation waiver applies to insurance coverage generally.

Contracting For Healthcare: Price Terms In Hospital Admission Agreements, George A. Nation Iii

Dickinson Law Review (2017-Present)

This article discusses the application of contract law principles to the relationship between hospitals and patients to determine how much patients owe for the health care they receive. For patients who are covered by in-network health insurance the exact nature of the contract created with the hospital usually is not relevant to the patient’s financial obligation because the patient’s contract with the hospital is superseded by the contract between the patient’s health insurer and the hospital. Nevertheless, even in-network patients are financially impacted, via increased insurance premiums, by the contract analysis discussed here, and for the increasing number of patients …

Tax, Class, Women, And Elder Care, Nancy E. Shurtz

Seattle University Law Review

As the fastest-growing urban area in the United States—and due to its emerging national influence in commercial real estate development and leasing through transformational transactions such as Amazon’s recently completed national HQ2 search—the City of Seattle and related Washington State laws addressing the use of dual agency in commercial transactions present a unique backdrop for examining the findings and recommendations from a 2014 commercial real estate conflicts of interest research study and attendant report, described below, more than four years after its publication. In November 2014, a published research study report made a number of key observations about the existence …

Humanizing Work Requirements For Safety Net Programs, Mary Leto Pareja

Pace Law Review

This Article explores the political and policy appeal of work requirements for public benefit programs and concludes that inclusion of such requirements can be a reasonable design choice, but not in their current form. This Article’s proposals attempt to humanize these highly controversial work requirements while acknowledging the equity concerns they are designed to address. Drawing on expansive definitions of “work” found in guidance published by the Centers for Medicare and Medicaid (“CMS”) and in various state waiver applications, this Article proposes that work requirements be approved for Medicaid (as well as other benefit programs) only if they encompass various …

Humanizing Work Requirements For Safety Net Programs, Mary Leto Pareja

Faculty Scholarship

This Article explores the political and policy appeal of work requirements for public benefit programs and concludes that inclusion of such requirements can be a reasonable design choice, but not in their current form. This Article’s proposals attempt to humanize these highly controversial work requirements while acknowledging the equity concerns they are designed to address. Drawing on expansive definitions of “work” found in guidance published by the Centers for Medicare and Medicaid (“CMS”) and in various state waiver applications, this Article proposes that work requirements be approved for Medicaid (as well as other benefit programs) only if they encompass various …

The American Pathology Of Inequitable Access To Medical Care, Allison K. Hoffman, Mark A. Hall

All Faculty Scholarship

What most defines access to health care in the United States may be its stark inequity. Daily headlines in top newspapers paint the highs and lows. Articles entitled: “We Mapped the Uninsured. You’ll notice a Pattern: They tend to live in the South, and they tend to be poor” and op-eds with titles like “Do Poor People Have a Right to Health Care?” and “What it’s Like to Be Black and Pregnant when you Know How Dangerous That Can Be” run side-by-side with headlines touting “The Operating Room of the Future,^” and advances in gene therapy that promise cures …

Privacy Rights And Public Families, Khiara Bridges

Khiara M Bridges

This Article is based on eighteen months of anthropological fieldwork conducted among poor, pregnant women receiving prenatal care provided by the Prenatal Care Assistance Program (“PCAP”) at a large public hospital in New York City. The Prenatal Care Assistance Program (“PCAP”) is a special program within the New York State Medicaid program that provides comprehensive prenatal care services to otherwise uninsured or underinsured women. This Article attempts to accomplish two goals. The first goal is to argue that PCAP’s compelled consultations – with social workers, health educators, nutritionists, and financial officers – function as a gross and substantial intrusion by …

The Health Care Costs Of Financial Exploitation In Maine, Kimberly I. Snow Mhsa, Yvonne Jonk Phd, Deborah Thayer Mba, Catherine Mcguire Bs, Stuart Bratesman Mpp, Charles A. Smith Phd, Erika C. Ziller Phd

Disability & Aging

This study sought to determine the Medicare and Medicaid costs experienced by dual eligible older adults in Maine for whom Maine Adult Protective Services (APS) substantiated allegations of elder financial exploitation and to compare them to those of Maine’s general older population. The analysis is an important step forward in estimating the medical costs associated with elder abuse.

Elder financial exploitation may result in significant public burden on Medicare and Medicaid, shouldered by taxpayers. Efforts to detect, investigate, prosecute, and mitigate this abuse will benefit not only the victims, but also the financial stewardship of these public programs.

The Inexorable Expansion Of Medicaid Expansion, Brendan A. Williams

Northern Illinois University Law Review

Medicaid expansion to non-elderly adults under the Affordable Care Act (ACA) has come a long way since the U.S. Supreme Court made it optional in its landmark 2012 NFIB vs. Sebelius ruling, and 2018, in particular, was a banner year. In 2018 four states expanded Medicaid, three of them "red states" doing so by voter ballot. Expansion-favoring Democrats were also elected to replace expansion-opposing Republican governors. Strikingly, this success came just a year after Medicaid expansion, and the ACA as a whole, was only saved by a single U.S. Senate vote. This article examines the early pushback by states against …

Biting The Hands That Feed “The Alligators”: A Case Study In Morbid Obesity Extremes, End-Of-Life Care, And Prohibitions On Harming And Accelerating The End Of Life, Michael J. Malinowski

Michael J. Malinowski

Obesity, recognized as a disease in the U.S. and at times as a terminal illness due to associated medical complications, is an American epidemic according to the Centers for Disease Control and Prevention (“CDC”), American Heart Association (“AHA”), and other authorities. More than one third of Americans (39.8% of adults and 18.5% of children) are medically obese. This article focuses on cases of “extreme morbid obesity” (“EMO”)—situations in which death is imminent without aggressive medical interventions, and bariatric surgery is the only treatment option with a realistic possibility of success. Bariatric surgeries themselves are very high risk for EMO patients. …

Threats To Medicaid And Health Equity Intersection, Mary Crossley

Saint Louis University Journal of Health Law & Policy

The year 2017 proved politically tumultuous in the U.S. on many fronts, but perhaps none more so than health care. For enrollees in the Medicaid program, it was a “year of living precariously.” Long-promised Republican efforts to repeal the Affordable Care Act also took aim at Medicaid, with proposals to fundamentally restructure the program and drastically cut its federal funding. These proposals provoked pushback from multiple fronts, including formal opposition from groups representing people with disabilities and people of color and individual protesters. Opposition by these groups should not have surprised the proponents of “reforming” Medicaid. Both people of color …

Predetermined? The Prospect Of Social Determinant-Based Section 1115 Waivers After Stewart V. Azar, Griffin Schoenbaum

Dickinson Law Review (2017-Present)

Section 1115 of the Social Security Act allows the Secretary of Health and Human Services (the “Secretary”) to waive some of Medicaid’s requirements so states can enact “demonstration projects.” A demonstration project is an experiment a state can conduct by modifying aspects of its Medicaid program. To waive Medicaid’s requirements for this purpose, the Secretary must determine that the proposed demonstration project will likely assist in promoting Medicaid’s objectives.

Using this standard, President Trump’s Secretary has approved waiver requests to enact demonstration projects that contain “community engagement” requirements. The U.S. District Court for the District of Columbia has heard each …

Using The Ada's 'Integration Mandate' To Disrupt Mass Incarceration, Robert Dinerstein

Articles in Law Reviews & Other Academic Journals

As a result of the disability rights movement's fight for the development of community-based services, the percentage of people with intellectual and developmental disabilities (I/DD) and mental illness living in institutions has significantly decreased over the last few decades. However, in part because of government failure to invest properly in community-based services required for a successful transition from institutions, individuals with disabilities are now dramatically overrepresented in jails and prisons. The Americans with Disabilities Act's (ADA) "integration mandate" -- a principle strengthened by the Supreme Court's 1999 Olmstead v. L.C. decision, entitling individuals with disabilities to receive services in the …

Price And Prejudice: An Empirical Test Of Financial Incentives, Altruism, And Racial Bias, Kristen Underhill

Faculty Scholarship

Many argue that paying people for good behavior can crowd out beneficial motivations like altruism. But little is known about how financial incentives interact with harmful motivations like racial bias. Two randomized vignette studies test how financial incentives affect bias. The first experiment varies the race of a hypothetical patient in need of a kidney transplant (black or white), an incentive ($18,500 or none), and addition of a message appealing to altruism. Incentives encouraged donation but introduced a significant bias favoring white patients. The second experiment assesses willingness to donate to a patient (black or white) without an incentive and …

Federalism In Health Care Reform, Nicole Huberfeld

Faculty Scholarship

Throughout American history, protecting states’ rights within federal health reform laws has served purposes other than the needs of the poor, such as excluding those deemed undeserving of assistance, the “able-bodied.” This chapter explores the role of federalism in health reform, paying particular attention to the importance of universality in programs meant to aid the poor, such as Medicaid. American federalism is dynamic, involving separate state negotiations with the federal government rather than the fixed dual sovereignty imagined by the Supreme Court. Such negotiations lead to variability, which in health care may lower the baseline for reform-resistant states and thus …

Opioids And Converging Interests, Mary Crossley

Articles

Written as part of Seton Hall Law Review’s Symposium on “Race and the Opioid Crisis: History and Lessons,” this Essay considers whether applying the lens of Professor Derrick Bell’s interest convergence theory to the opioid crisis offers some hope of advancing racial justice. After describing Bell’s interest convergence thesis and identifying racial justice interests that African Americans have related to the opioid crisis, I consider whether these interests might converge with white interests to produce real racial progress. Taken at face value, white politicians’ statements of compassion toward opioid users might signal a public health-oriented approach to addiction, representing …

Threats To Medicaid And Health Equity Intersections, Mary Crossley

Articles

2017 was a tumultuous year politically in the United States on many fronts, but perhaps none more so than health care. For enrollees in the Medicaid program, it was a “year of living precariously.” Long-promised Republican efforts to repeal the Affordable Care Act also took aim at Medicaid, with proposals to fundamentally restructure the program and drastically cut its federal funding. These proposals provoked pushback from multiple fronts, including formal opposition from groups representing people with disabilities and people of color and individual protesters. Opposition by these groups should not have surprised the proponents of “reforming” Medicaid. Both people of …

The Shadows Of Life: Medicaid's Failure Of Health Care's Moral Test, Barak D. Richman, Kushal T. Kadakia, Shivani A. Shah

Faculty Scholarship

North Carolina Medicaid covers one-fifth of the state’s population and makes up approximately one-third of the budget. Yet the state has experienced increasing costs and worsening health outcomes over the past decade, while socioeconomic disparities persist among communities. In this article, the authors explore the factors that influence these trends and provide a series of policy lessons to inform the state’s current reform efforts following the recent approval of North Carolina’s Section 1115 waiver by the Centers for Medicare and Medicaid Services. The authors used health, social, and financial data from the state Department of Health and Human Services, the …