Health Law and Policy Commons^™

The Patient Protection And Affordable Care Act And Choice In Childbirth: How The Aca's Nondiscrimination Provisions May Change The Legal Landscape Of Childbirth, Caitlin Mccartney

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Health Care And The Myth Of Self-Reliance, Nicole Huberfeld, Jessica L. Roberts

Law Faculty Scholarly Articles

King v. Burwell asked the Supreme Court to decide if, in providing assistance to purchase insurance “through an Exchange established by the State,” Congress meant to subsidize policies bought on the federally run exchange. With its ruling, the Court saved the Patient Protection and Affordable Care Act’s low-income subsidy. But King is only part of a longer, more complex story about health care access for the poor. In a move toward universal coverage, two pillars of the ACA facilitate health insurance coverage for low-income Americans, one private and one public: (1) the subsidy and (2) Medicaid expansion. Although both have …

The Collective Fiduciary, Lauren R. Roth

Scholarly Works

Can fiduciaries be made to serve public goals? The movement under the Patient Protection and Affordable Care Act (“ACA”) towards universal access to health insurance requires us to focus on the fiduciary relationships between large organizations providing access to healthcare and the populations they serve. These relationships have become a collective undertaking instead of a direct, personal relationship.

In this Article, I introduce the concept of the collective fiduciary in response to the shift towards uniform, national goals in the realm of health insurance and healthcare. Only through a collective approach can we hold fiduciaries accountable for the welfare of …

The Double-Edged Sword Of Health Care Integration: Consolidation And Cost Control, Erin C. Fuse Brown, Jaime S. King

Indiana Law Journal

The average family of four in the United States spends $25,826 per year on health care. American health care costs so much because we both overuse and overpay for health care goods and services. The Affordable Care Act’s cost control policies focus on curbing overutilization by encouraging health care providers to integrate to pro-mote efficiency and eliminate waste, but the cost control policies largely ignore prices. This article examines this overlooked half of health care cost control policy: rising prices and the policy levers held by the states to address them. We challenge the conventional wisdom that reducing overutilization through …

Diy Solutions To The Hobby Lobby Problem, Kristin Haule

Loyola of Los Angeles Law Review

No abstract provided.

Irresponsibly Taxing Irresponsibility: The Individual Tax Penalty Under The Affordable Care Act, Francine J. Lipman, James Owens

Scholarly Works

In recent decades, Congress has used the federal income tax system increasingly to administer and deliver social benefits. This transition is consistent with the evolution of the American welfare system into workfare over the last several decades. As more and more social welfare benefits are conditioned upon work, family composition, and means-tested by income levels, the income tax system where this data is already systematically aggregated, authenticated, and processed has become the go-to administrative agency.

Nevertheless, as the National Taxpayer Advocate Nina Olson has noted there are “substantial differences between benefits agencies and enforcement agencies in terms of culture, mindset, …

Introduction To Thinking About A Post-Aca World: Litigation, Cost Shifting And Enforcement Of Statutory Rights, Maria O'Brien

Faculty Scholarship

At its annual gathering in 2016, members of the Employee Benefits and Executive Compensation and Law, Medicine and Healthcare Sections of the Association of American Law Schools (AALS) jointly sponsored a discussion of the future of the Affordable Care Act (ACA) following the Supreme Court's decision in King v. Burwell.' What follows are the papers generated for the panel discussion. The panelists² were asked to evaluate the future of the ACA from a distinct perspective.

King V Burwell: Subsidizing Us Health Insurance For Low- And Middle-Income Individuals, Lawrence O. Gostin, Mary C. Debartolo, Daniel Hougendobler

Georgetown Law Faculty Publications and Other Works

In King v. Burwell, the U.S. Supreme Court once again saved the Affordable Care Act (ACA) by upholding subsidies (tax credits) offered to low- and middle-income individuals for insurance bought on federal exchanges. A contrary opinion would have put at risk health insurance for 6.4 million Americans and threatened to destabilize insurance markets for millions more.

The ACA is supported by four interlocking reforms, each of which are necessary to realize its promise of expanding health care coverage: (1) guaranteed issue (prohibiting discrimination based on pre-existing conditions), (2) community rating (barring insurers from imposing higher premiums based on health …

Scaling Cost-Sharing To Wages: How Employers Can Reduce Health Spending And Provide Greater Economic Security, Christopher Robertson

Faculty Scholarship

In the employer-sponsored insurance market that covers most Americans many workers are “underinsured.” The evidence shows onerous out-of-pocket payments causing them to forgo needed care, miss work, and fall into bankruptcies and foreclosures. Nonetheless, many higher-paid workers are “overinsured”: the evidence shows that in this domain, surplus insurance stimulates spending and price inflation without improving health. Employers can solve these problems together by scaling cost-sharing to wages. This reform would make insurance better protect against risk and guarantee access to care, while maintaining or even reducing insurance premiums.

Yet, there are legal obstacles to scaled cost-sharing. The group-based nature of …

King V. Burwell And The Rise Of The Administrative State, Ronald D. Rotunda

University of Miami Business Law Review

The Patient Protection and Affordable Care Act—popularly called either the “ACA,” or “Obamacare” by opponents, proponents, and even the White House—is a complex law totaling nearly a thousand pages in length. The litigation now before the Supreme Court in King v. Burwell presents, on the surface, a simple issue of statutory interpretation. However, that surface has a very thin veneer. If the Court allows administrators carte blanche to change the very words of a statute, we will have come a long way towards governance by bureaucrats. Over the years, Congress has delegated many of its powers, but it has never …

From The New Deal To The New Healthcare: A New Deal Perspective On King V. Burwell And The Crusade Against The Affordable Care Act, Sarah Helene Duggin

University of Miami Business Law Review

Americans describe the new healthcare system established by the Patient Protection and Affordable Care Act (“ACA”) as both a blessing and a nightmare. For millions of low and middle income Americans, the ACA offers access to health insurance they could not otherwise afford. The ACA’s opponents, however, view the new healthcare system as a threat to economic prosperity, an intrusion on personal liberty and a violation of the principles of federalism at the heart of our system of government. These same kinds of arguments were made more than eighty years ago in response to President Franklin Delano Roosevelt’s New Deal. …

Unfair Coercion, Or Greater Deference? Two New Sides Of King V. Burwell, Tom Miller

University of Miami Business Law Review

Litigation challenging the legality of an Internal Revenue Service rule that became final on May 2012 has traveled a long, winding, and contentious path. The IRS rule authorized the distribution of federal premium assistance tax credits in all health benefits exchanges under the Patient Protection and Affordable Care Act of 2010 (the “ACA”). However, potential legal problems with reconciling various sections of the final legislation involving those tax credits were identified as early as December 6, 2010. On September 19, 2012, the first of four different legal challenges to the IRS rule was filed in federal district court in Oklahoma. …

The Subsidy Question In King V. Burwell—A Federalist Response To Crony Capitalism, Antonio F. Perez

University of Miami Business Law Review

On the surface, King v. Burwell appears to be a simple case about statutory interpretation. In the Affordable Care Act (widely known as Obamacare), when Congress referred to the “State,” in the provision triggering federal subsidies to insurance consumers for purchases made from federally-authorized insurance providers selling federally-authorized insurance products, should the “State” be understood to refer to the federal market (i.e., exchanges) as well as “State” markets. Simple tools of statutory construction–namely, that Congress knew full well how to refer to a “federal” exchange and failed to do so–would seem to be sufficient to supply a result. It would …

Anomalies In The Affordable Care Act That Arise From Reading The Phrase “Exchange Established By The State” Out Of Context, Timothy Stoltzfus Jost, James Engstrand

University of Miami Business Law Review

The Supreme Court is currently considering in King v. Burwell whether residents of all States can receive premium tax credits under the Patient Protection and Affordable Care Act (ACA). The Plaintiffs-Petitioners brought this litigation as a challenge to the validity of a Treasury Department rule allowing all ACA health insurance Exchanges or marketplaces, including federally facilitated Exchanges (FFEs), to support and grant the credits. They invite the Court to focus solely on four words in two subsections of Section 36B of the Internal Revenue Code that they interpret as limiting tax credits to individuals who can use a State-operated Exchange …

Time To Lift The Veil Of Inequality In Health Care Coverage: Using Corporate Law To Defend The Affordable Care Act, Seema Mohapatra

Faculty Scholarship

No abstract provided.

An Empirical Perspective On Medicaid As Social Insurance, Nicole Huberfeld, Jessica L. Roberts

Faculty Scholarship

This paper is a contribution to the symposium entitled Scalpel to Gavel: Exploring the Modern State of Health Law. This essay quantifies and explores the central role Medicaid now plays in our health insurance system. For its first forty-nine years, Medicaid covered less than half of the nation’s poor. Today, one in five Americans have Medicaid coverage during the course of a year, and that number soon will increase to one in four given the insurance expansions enacted through the Patient Protection and Affordable Care Act. Medicaid now effectively functions as social insurance for many of its enrollees. In this …

The Patient Protection And Affordable Care Act: The Latest Obstacle In The Path To Receiving Complementary And Alternative Health Care?, Chelsea Stanley

Indiana Law Journal

Part I of this Note outlines a variety of medical techniques that are considered to be complementary and alternative practices, and it presents evidence of CAM’s growing influence in the United States. Part I also provides a concise summary of some of the most important features of the ACA. Part II analyzes the potential impact of the ACA on CAM. Part II focuses first on those provisions of the ACA that are believed to be supportive of CAM; however, Part II then proposes potential counterarguments ignored or overlooked by those who believe that the ACA will favorably impact CAM. Part …

An Empirical Perspective On Medicaid As Social Insurance, Nicole Huberfeld, Jessica L. Roberts

Law Faculty Scholarly Articles

This Essay begins to explore how Medicaid, after the Patient Protection and Affordable Care Act, metamorphoses from exclusion and limitations in access and benefits to a form of social insurance that implicates theories of social justice. The social justice aspect of universality provides an important lens for understanding these numbers, both in terms of the states that are expanding and the states that are opting out. States that refuse to expand their Medicaid programs are denying millions of Americans the benefit of a precious legal entitlement. It is essential that the states understand the power—and the potential—of this evolving social …

When Condoms Fail: Making Room Under The Aca Blanket For Prep Hiv Prevention, Jason Potter Burda

San Diego Law Review

Given the alarming upward trend in HIV infection rates and the downward trend in condom usage, the United States needs a new approach to HIV prevention. One such approach, HIV pre-exposure prophylaxis, commonly known as “PrEP,” has the potential to significantly reduce HIV incidence. The FDA recently approved a daily dose of Truvada®—an antiretroviral drug that suppresses the virus in HIV-positive individuals—for daily use by high-risk HIV-negative individuals to prevent infection. Despite an efficacy above ninety percent and significant regulatory momentum, this pharmacological prevention modality has proven difficult to implement. This Article addresses the social, legal, and policy challenges that …

The Universality Of Medicaid At Fifty, Nicole Huberfeld

Law Faculty Scholarly Articles

This essay explores how the law of Medicaid after fifty years creates a meaningful principle of universalism by shifting from fragmentation and exclusivity to universality and inclusivity. The universality principle provides a new trajectory for all of American health care, one that is not based on individual qualities that are unrelated to medical care but rather grounded in non-judgmental principles of unification and equalization (if not outright solidarity). To that end, this Essay first will study the legislative reformation that led to universality and its quantifiable effects. The Essay then will assess and evaluate Medicaid’s new universality across four dimensions, …

Snap To Healthier Eating: A Comprehensive Look Into How The Supplemental Nutrition Assistance Program (Snap) Can Reduce Health Care Costs, Rictrell L. Pirtle

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Overvaluing Employer-Sponsored Health Insurance, Lauren R. Roth

Scholarly Works

Although positive and negative assessments of tying health insurance to employment abound, most scholars and policymakers have acknowledged that our long history in this area predicts our future. What they have largely ignored, however, is the extent to which individual attachment to employment-based insurance is at the root of our inability to make broader health reforms. The attachment (1) harms exchange-based insurance and (2) denies employers the ability to use Health Reimbursement Arrangements (“HRAs”) to subsidize the purchase of insurance by their employees on the exchanges.

This Article advocates reducing or eliminating workers’ overvaluation of their health insurance and increasing …

Medicaid At 50: No Longer Limited To The "Deserving" Poor?, David Orentlicher

Scholarly Works

Professor David Orentlicher considers the significance of the passage of the Affordable Care Act on the Medicaid program. He discusses the expansion of the program's recipients from merely children, pregnant women, single caretakers of children, and disabled persons to all persons up to 138% of the federal poverty level. Professor Orentlicher argues that the Medicaid expansion reflects concerns about the high costs of health care rather than an evolution in societal thinking about the "deserving" poor. As a result, the expansion may not provide a stable source of health care coverage for the expansion population.

The Struggle To Bury Pre-Existing Condition Consideration, Sallie Thieme Sanford [email protected]

Articles

As of January 1, 2014, applicants for comprehensive health insurance do not face questions about their health history. The ACA prohibits health insurers from considering an individual’s health history in determining whether to sell that person a comprehensive health insurance policy, the policy’s price, or its coverage terms. Pre-existing condition (PEC) consideration is, in this crucial context, dead. Few will mourn its passing. This legislative milestone marks a significant step towards the goal of a healthier population. While celebrating this achievement, however, in this article I argue that we ought to recall the context of PEC consideration, its practical application, …

The Universality Of Medicaid At Fifty, Nicole Huberfeld

Faculty Scholarship

This essay, written for the Yale Law School symposium on The Law of Medicare and Medicaid at 50, explores how the law of Medicaid after the ACA creates a meaningful principle of universalism by shifting from fragmentation and exclusivity to universality and inclusivity. The universality principle provides a new trajectory for all of American health care, one that is not based on individual qualities that are unrelated to medical care but rather grounded in non-judgmental principles of unification and equalization (if not outright solidarity). This essay examines the ACA's legislative reformation, which led to universality, and its quantifiable effects. The …

Health Care Law, Sean P. Byrne, Garrett Hooe

University of Richmond Law Review

No abstract provided.

The Unintended Federalism Consequences Of The Affordable Care Act’S Insurance Market Reforms, Joshua Phares Ackerman

Pace Law Review

This Article, which is the first to examine the relationship between the ACA’s insurance market reforms and state regulation of insurance, argues that states’ decisions to forego creating their own exchanges may mark the beginning of an important shift of regulatory authority from the states to the federal government. It begins by sketching the historical antecedents of the current allocation of state and federal authority over insurance regulation. The aim of this discussion is to highlight the unique role states play in the regulation of insurance as opposed to other financial products. Part III explains the pre-ACA structure of health …

The Medicaid Gamble, Ann Marie Marciarille

Faculty Works

The Patient Protection and Affordable Care Act (ACA) was an unprecedented gamble. The ACA transformed Medicaid from an unevenly and underfunded program for the poor and disabled to a program to offer those priced out of commercial insurance markets government-funded health insurance similar to Medicare, the single-payer system for seniors and the disabled. In a sense, the ACA gambled that Medicaid could be more like Medicare.

The ACA, as it was transformed by the Supreme Court of the United States, became a gamble on the part of the Court that good things would follow from empowering each of the states …

Building A Better Laboratory: The Federal Role In Promoting Health System Experimentation, Kristin Madison

Pepperdine Law Review

While expanding federal involvement in the health care system, the Patient Protection and Affordable Care Act (ACA) preserves states' roles as policy laboratories and private providers' roles as health care delivery laboratories. State-based and provider-based laboratories suffer from many shortcomings, however, as mechanisms to develop, evaluate, and facilitate diffusion of reforms within the health system. This Article argues that the federal government can take steps to address these shortcomings. It first briefly reviews ACA provisions that promote policy and delivery experimentation. It then suggests that by tying funding to policy outcomes, making use of regulatory variation and regulatory menus, and …

Farewell, School House Rock (Understanding Legislative History Through The Lens Of The Aca), Nicole Huberfeld

Law Faculty Popular Media

In this blog post, Professor Nicole Huberfeld reviews John Cannan's article A Legislative History of the Affordable Care Act: How Legislative Procedure Shapes Legislative History, 105 L. Library J. 131 (2013).