Health Law and Policy Commons^™

The Power And Peril Of The Aca's Universality At Fifteen, Nicole Huberfeld

Faculty Scholarship

As part of the symposium "15th Anniversary of the ACA: A Health Equity Review," this essay explores the ACA's mix of private law and public law provisions that rendered measurable improvements in health equity and health outcomes, especially for populations that experienced longstanding health disparities before its enactment.  Congress’s central objective was near-universal health insurance coverage, and the ACA employed a variety of mechanisms to reach that goal. The law’s health equity successes grew from establishing a principle of inclusion across federal statutes. This principle, which I have called “universality,” centered a human right to health approach: No longer would …

Queer And Present Danger: Reconceiving Arkansas’S Artificial Insemination Laws To Protect Lgbtq Families, Chacey Schoeppel Wilcox

University of Arkansas at Little Rock Law Review

No abstract provided.

Corporate Takeover: A New Clash In The Old Struggle Between Corporate Rights And Public Health, John J. Locurto, Rachel Radke, Xyruz Villariz, Jasmine Ann Castillejos

Faculty Articles

Corporations have used the federal courts to secure many of the same constitu­tional rights as individuals. As corporate rights proliferate so does corporate power to influence and resist laws that protect the public. One such law is the Patient Protection and Affordable Care Act—legislation that reformed health insurance coverage with important implications for public health.

The ACA has been a frequent target of litigation. Recent corporate lawsuits have invoked the Religious Freedom Restoration Act to challenge the ACA’s preventive care mandate, which requires health plans to cover preventive services without cost sharing. In Braidwood Management, Inc. v. Becerra, a …

Shared Responsibility Payment May Be A Tax Entitled To Priority Under The Bankruptcy Code, Ashton Bryan

Bankruptcy Research Library

(Excerpt)

The Patient Protection and Affordability Care Act ("ACA") provides that certain individuals must maintain minimum essential health insurance coverage throughout the year. If a person under the mandate fails to maintain the required insurance for one month or more, a shared responsibility payment ("SRP") is imposed on the taxpayer. The SRP is collected by the Internal Revenue Service ("IRS").

The Tax Cuts and Jobs Act ("TCJA") eliminated the individual mandate and reduced the SRP to zero for 2019 and thereafter. The SRPs for 2018 and prior years must be reported to the IRS on the applicable tax return. Otherwise, …

Medicaid Waivers, Administrative Authority, And The Shadow Of Malingering, Nicole Huberfeld

Faculty Scholarship

From 2018 through 2020, HHS approved state Medicaid demonstration waivers to impose new eligibility conditions such as work requirements, connecting current “personal responsibility” rhetoric and historical suspicion of malingering. The Biden administration reversed course but advocated to the Supreme Court for expansive administrative discretion. This approach supports health equity now but could enable reemergence of restrictive health policies down the road.

Adding Principle To Pragmatism: The Transformative Potential Of "Medicare-For-All" In Post-Pandemic Health Reform, William M. Sage

Faculty Scholarship

“Medicare-for-All” should be more than a badge of political identity or opposition. This Article examines the concept’s potential to catalyze policy innovation in the U.S. health care system. After suggesting that the half century of existing Medicare has been as much “Gilded Age” as “Golden Age,” the Article arrays the operational possibilities for a Medicare-for-All initiative. It revisits America’s recent history of pragmatic rather than principled health policy, and identifies professional and political barriers to more sweeping reform. It focuses on four aspects of health policy that have become apparent: simultaneous inefficiency and injustice in medical care, neglect of the …

Little Sisters Of The Poor V. Pennsylvania: The Not So Little Effect Of Interfering With The Aca's Contraceptive Mandate, Sabrina Rubis

Women, Leadership & Equality

No abstract provided.

Sex Discrimination In Healthcare: Section 1557 And Lgbtq Rights After Bostock, Amy Post, Ashley Stephens, Valarie K. Blake

Law Faculty Scholarship

Section 1557 of the Affordable Care Act (“ACA”) banned sex discrimination in health care. In June of 2020, however, the Trump administration finalized a rule that explicitly removed sexual orientation and gender identity from Section 1557’s safeguards. That same month, the Supreme Court held that sexual orientation and gender identity discrimination are forms of sex discrimination for purposes of Title VII employment discrimination in Bostock v. Clayton County. Following the Court’s decision in Bostock, this Article argues that sex discrimination under Section 1557 necessarily encompasses gender identity and sexual orientation discrimination.

1 Step Forward 2 Steps Back: The Transgender Individual Right To Access Optimal Health Care, Alexandre Rotondo-Medina

Journal of Race, Gender, and Ethnicity

No abstract provided.

A Pathway To Health Care Citizenship For Daca Beneficiaries, Medha D. Makhlouf, Patrick J. Glen

Faculty Scholarly Works

Since 2012, beneficiaries of Deferred Action for Childhood Arrivals (DACA) have enjoyed a certain normalization, however tenuous, of their status in the United States: they can legally work, their removal proceedings are deferred, and they cease to accrue unlawful presence. Regarding subsidized health coverage, however, DACA beneficiaries remain on the outside looking in. Although other deferred action beneficiaries are eligible for benefits through Medicaid, the Children’s Health Insurance Program, and the Affordable Care Act, the Obama Administration specifically excluded DACA beneficiaries. This decision undermines DACA’s goal of legitimizing beneficiaries’ presence in the United States. From a health policy perspective, it …

Social Solidarity In Health Care, American-Style, Erin C. Fuse Brown, Matthew B. Lawrence, Elizabeth Mccuskey, Lindsay F. Wiley

Faculty Scholarship

The ACA shifted U.S. health policy from centering on principles of actuarial fairness toward social solidarity. Yet four legal fixtures of the health care system have prevented the achievement of social solidarity: federalism, fiscal pluralism, privatization, and individualism. Future reforms must confront these fixtures to realize social solidarity in health care, American-style.

Struggle For The Soul Of Medicaid, Nicole Huberfeld, Sidney Watson, Alison Barkoff

Faculty Scholarship

Medicaid is uniquely equipped to serve low-income populations. We identify four features that form the “soul” of Medicaid, explain how the administration is testing them, and explore challenges in accountability contributing to this struggle. We highlight the work of watchdogs acting to protect Medicaid and conclude with considerations for future health reform.

The Affordable Care Act: Up For A Final Vote?, Wendy K. Mariner

Faculty Scholarship

For more than a decade, the minimum essential coverage requirement, commonly known as the individual mandate, has been a key point of controversy over the ACA, symbolizing ideological and political disagreements over government assistance to low-income populations, federal regulation of private industry, and the legacy of President Obama. 26 U.S.C. §5000A(a) requires everyone (with exceptions) to be covered by a private or public health benefit program meeting ACA standards. 26 U.S.C. §5000A(b) requires those who are not so covered to pay a fee (“shared responsibility payment”) to the Treasury. 26 U.S.C. §5000A(c) sets forth the amount of that fee.

Have The Aca’S Exchanges Succeeded? It’S Complicated, David K. Jones, Sarah H. Gordon, Nicole Huberfeld

Faculty Scholarship

The fight over health insurance exchanges epitomizes the rapid evolution of health reform politics in the decade since the passage of the Affordable Care Act. The ACA's drafters did not expect the exchanges to be contentious; they would expand private insurance coverage to low- and middle-income individuals who were increasingly unable to obtain employer-sponsored health insurance. Yet, exchanges became one of the primary fronts in the war over Obamacare. Have the exchanges been successful? The answer is not straightforward and requires a historical perspective through a federalism lens. What the ACA has accomplished has depended largely on whether states were …

Choosing Affordable Health Insurance, Govind Persad

Sturm College of Law: Faculty Scholarship

The Affordable Care Act ("ACA") made health insurance accessible to many. Yet unaffordable insurance still abounds. This Article proposes a strategy for improving affordability that enables health insurance purchasers to choose, within reasonable limits, which treatments their insurance covers. After critiquing recently proposed strategies for improving affordability and reviewing past legal scholarship on content choice in health insurance, this Article introduces the "Affordable Choices" framework. This framework regulates choice in four ways. First, health plans should only exclude treatments whose merits are subject to reasonable disagreement among patients and physicians. Second, plans should appeal to purchasers' health-related values- values about …

The Hidden Disability Consensus In The 2020 Campaign, Harold A. Pollack, Samuel R. Bagenstos

Articles

At this writing, the final results of the Iowa caucuses remain unreported. No one yet knows which candidates did well and which did poorly. We do know that health policy is a defining cleavage between left and liberal Democrats this primary season. Much of the press coverage will naturally focus on the implications of this vote for Democrats’ commitment to an incremental public option or a full-throated single-payer plan.

Brief Of Amicus Curiae The Washington And Lee University School Of Law Black Lung Clinic In Support Of Petitioners: California V. Texas, Timothy C. Macdonnell

Scholarly Articles

Section 1556 of the Patient Protection and Affordable Care Act (PPACA) makes two major changes to the Black Lung Benefits Act. These changes remove limiting language to make it simpler for disabled miners and their families to establish that they are entitled to federal benefits. First, § 1556(a) reinstates the fifteen-year rebuttable presumption, which presumptively entitles former coal miners to benefits if they have worked over fifteen years underground and have a totally disabling pulmonary disease. The second, § 1556(b), reinstates a continuation of benefits for surviving spouses whose coal-mining spouse was receiving benefits at the time of their death. …

Is Medicare For All The Answer? Assessing The Health Reform Gestalt As The Aca Turns 10, Nicole Huberfeld

Faculty Scholarship

As presidential candidates debate health reform, the expression “Medicare for All” (“M4A”) is on repeat, yet few appear to understand precisely what Medicare is or what M4A would mean. Even more striking is that Americans are vigorously debating health reform when the ACA – President Obama’s signature legislation and a health reform effort on a scale not seen in decades – turns 10 on March 23.

The ACA pioneered universal coverage, but it also ratcheted up health care complexity by building new scaffolding around an old foundation. This fragmented landscape has been exacerbated by a crazy quilt of implementation crafted …

Against The "Safety Net", Matthew B. Lawrence

Faculty Articles

Then-Representative Jack Kemp and President Ronald Reagan originated the “safety net” conception of U.S. health and welfare laws in the late 1970s and early 1980s, defending proposed cuts to New Deal and Great Society programs by asserting that such cuts would not take away the “social safety net of programs” for those with “true need.” Legal scholars have adopted their metaphor widely and uncritically. This Article deconstructs the safety net metaphor and counsels against its use in understanding health and welfare laws. The metaphor is descriptively confusing because it means different things to different audiences. Some understand the safety net …

Substance Use Disorder, Discrimination, And The Cares Act: Using Disability Law To Strengthen New Protections, Kelly K. Dineen, Elizabeth Pendo

All Faculty Scholarship

The COVID-19 pandemic is having devastating consequences for people with substance use disorders (SUD). SUD is a chronic health condition—like people with other chronic health conditions, people with SUD experience periods of remission and periods of exacerbation and relapse. Unlike people with most other chronic conditions, people with SUD who experience a relapse may face criminal charges and incarceration. They are chronically disadvantaged by pervasive social stigma, discrimination, and structural inequities. People with SUD are also at higher risk for both contracting the SARS-CoV-19 virus and experiencing poorer outcomes. Meanwhile, there are early indications that pandemic conditions have led to …

Sex-Based Discrimination In Healthcare Under Section 1557: The New Final Rule And Supreme Court Developments, Brietta R. Clark, Elizabeth Pendo, Gabriella Garbero

All Faculty Scholarship

One of the primary goals of the Patient Protection and Affordable Care Act (PPACA) has been the reduction and elimination of health disparities, generally defined as population-level health differences that adversely affect disadvantaged groups, including disparities associated with sex and gender. Many of PPACA’s general provisions — expanded access to public and private insurance coverage, guarantee issue and pricing reforms, and coverage mandates — were expected to reduce barriers and eliminate discriminatory practices targeting or disproportionately impacting women and transgender individuals. Provisions like the Women’s Health Amendment, which mandated women’s preventive healthcare to be covered without cost sharing, and the …

Federalism, Erisa, And State Single-Payer Health Care, Erin C. Fuse Brown, Elizabeth Mccuskey

Faculty Scholarship

While federal health reform sputters, states have begun to pursue their own transformative strategies for achieving universal coverage, the most ambitious of which are state-based single-payer plans. Since the passage of the Affordable Care Act in 2010, legislators in twenty-one states have proposed sixty-six unique bills to establish single-payer health care systems. This paper systematically surveys those state legislative efforts and exposes the federalism trap that threatens to derail them: ERISA's preemption of state regulation relating to employer-sponsored health insurance. ERISA's expansive preemption provision creates a narrow, risky path for state regulation to capture the employer health care expenditures crucial …

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.

Bad Company? The Rise (Again) Of Association Health Plans, Brendan Williams

The Journal of Business, Entrepreneurship & the Law

This article first examines the rule adopted by the DOL and the criticism it has drawn. It then assesses the state of the small-group insurance market for small businesses, and the flawed approach that the ACA took to assisting them. Finally it takes a look at the uncertain future for small businesses and health insurance, and it suggests new approaches

Moving Beyond Medical Debt, Brook E. Gotberg, Michael D. Sousa

Faculty Publications

In recent years it has become clear that medical costs are imposing severe financial burdens on American families, sometimes to the point that bankruptcy becomes the only escape from crippling debt. When evaluating the well-established connection between outstanding medical debt and consumer bankruptcy, most existing empirical studies attempt to quantify the percentage of consumer bankruptcies that are "caused" by unmanageable medical indebtedness. This Article addresses what we believe to be a more significant line of empirical inquiry, namely, the connection between health insurance coverage and consumer bankruptcy as a more precise measurement of how national health insurance programs may or …

Epilogue: Health Care, Federalism, And Democratic Values, Nicole Huberfeld

Faculty Scholarship

Is the United States experiencing a “crisis of democracy in health care”? This symposium's central question can only begin to be addressed here. The answer depends, in part, on where we look and how we measure democracy.

Democracy is a complex ideal often said to be promoted by federalism. In health care, each level of government exercises power because federalism is a default choice in health reform efforts. This default enables state governments and the federal government to create, enforce, and adjudicate health law and policy - democratic operations at the national and the subnational levels. But on each democratic …

Stewart V Azar And The Purpose Of Medicaid: Work As A Condition Of Enrollment, Nicole Huberfeld

Faculty Scholarship

On June 29, 2018, a federal district court found that the US Department of Health and Human Services (HHS) did not properly approve Kentucky’s application for a controversial Medicaid waiver, the first to require work as a condition of eligibility.¹ Because HHS’s approval was vacated, Kentucky’s Medicaid program was required to continue as if no waiver existed, but 3 other states had already received HHS approval to proceed with work requirements. This article provides context for understanding the relevance of work requirements to implementation of Medicaid expansion under the Patient Protection and Affordable Care Act (hereinafter, Affordable Care Act), …

A Prescription For Charity Care: How National Medical Debt Ills Can Be Alleviated By Integrating State Financial Assistance Policies Into The Nonprofit Tax Exemption, Margarita Kutsin

Seattle University Law Review

Despite having the most expensive healthcare system in the world, the United States has been consistently ranked as having the worst system in terms of equity, efficiency, and healthcare outcomes among industrialized nations. The effects of these systemic issues are grounded in the patient experience as nearly forty-four percent of individuals have forgone recommended treatments and thirty-two percent have reported that they were unable to afford a prescription due to the high cost, according to a study conducted in 2018. Health is sacred, and financial circumstances should not determine the difference between treatment and illness, or life and death. “Financial …

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 …

Permitted Incentives For Workplace Wellness Plans Under The Ada And Gina: The Regulatory Gap, Elizabeth Pendo, Brandon Hall

All Faculty Scholarship

Although workplace wellness plans have been around for decades, they have flourished under the Patient Protection and Affordable Care Act (“PPACA”) into a $6 billion-dollar industry. Under PPACA, a “wellness plan” is a program of health promotion or disease prevention offered by an employer that is designed to promote health or prevent disease and which meets the other applicable requirements of that subsection. Employers look to these programs to promote healthy lifestyles, improve the overall health of employees and beneficiaries, and reduce rising healthcare costs. PPACA’s amendments to the Health Insurance Portability and Accountability Act (“HIPAA”) permit employers to offer …