Health Law and Policy Commons^™

Putting Insurance Reform In The Aca's Rear-View Mirror, William M. Sage

Faculty Scholarship

This Commentary acknowledges and applauds efforts to understand the mechanisms of insurance reform contained in the ACA and to evaluate their success or failure. But the Commentary’s principal purpose is to examine the pros and cons of connecting insurance reform to health care and health—the pen and the french fry—and to convey the importance to the country of moving beyond insurance reform as quickly as possible. The Commentary begins by describing the potential synergies among the three health policy domains and offering reasons why the ACA sought to make simultaneous changes. It then identifies the vulnerabilities that are revealed in …

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).

Beyond Repeal—A Republican Proposal For Healthcare Reform, Timothy Stoltzfus Jost

Scholarly Articles

Not available.

Expanding Women’S Healthcare Access In The United States: The Patchwork “Universalism” Of The Affordable Care Act, Randy Albelda, Diana Salas Coronado

Center for Social Policy Publications

This paper explores the promise of the Patient Protection and Affordable Care Act, commonly called “Obamacare” (referred to here as the ACA), with attention to the ways gender matter by tracing the development and implementation of key US social protection systems, an examination of the current health system with particular attention to women’s coverage, and the potential impacts of the ACA, including how it conforms to international human rights norms for health care. The ACA promises to vastly improve the key dimensions of health coverage in the US, but it conforms with other US social policy by relying on market-based …

The Affordable Care Act, Remedy, And Litigation Reform, Brendan S. Maher

Faculty Scholarship

The Patient Protection and Affordable Care Act of 2010 (“ACA”) rewrote the law of private health insurance. How the ACA rewrote the law of civil remedies, however, is — to date — a question largely unexamined by scholars. Courts everywhere, including the United States Supreme Court, will soon confront this important issue.

This Article offers a foundational treatment of the ACA on remedy. It predicts a series of flashpoints over which litigation reform battles will be fought. It identifies several themes that will animate those conflicts and trigger others. It explains how judicial construction of the statute’s functional predecessor, the …

The Individual Mandate Tax Penalty, Jeffrey H. Kahn

Scholarly Publications

In 2010, President Obama signed legislation that significantly altered the healthcare and health insurance markets in the United States. An integral part of that reform is the individual mandate, a provision that requires individuals to purchase and maintain healthcare insurance. Failure to maintain such coverage subjects an individual to a tax penalty. The Supreme Court upheld the constitutionality of that provision under Congress’s taxing power.

Despite the Supreme Court upholding the individual mandate, fundamental questions remain. This Article addresses the question of whether the use of a tax penalty to encourage taxpayers to do something that the government desires is …

Gel, Acrylic, Or Shellac: The Impact Of Southeast And East Asian Immigrant Nail Salon Workers On The Health Care System, Kelsey-Anne Fung

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Why The Affordable Care Act Authorizes Tax Credits On The Federal Exchanges, David Gamage, Darien Shanske

Articles by Maurer Faculty

This Essay refutes Adler’s and Cannon’s argument that the Affordable Care Act (“Obamacare”) does not authorize premium tax credits for insurance policies purchased from the federal healthcare Exchanges. Adler’s and Cannon’s argument is the basis of challenges in a number of ongoing lawsuits, including Oklahoma ex rel. Pruitt v. Sebelius and Halbig v. Sebelius. This Essay conducts a textual analysis of the Affordable Care Act and concludes that the text clearly authorizes premium tax credits for insurance policies purchased from the federal healthcare Exchanges.

On November 7th, 2014, the U.S. Supreme Court agreed to hear the appeal of the King …

The Pay Or Play Penalty Under The Affordable Care Act: Emerging Issues, Kathryn L. Moore

Law Faculty Scholarly Articles

The Affordable Care Act does not require that employers provide employees with health care coverage. It does, however, impose an excise tax on large employers that fail to offer their employees affordable employer-sponsored health care coverage. The excise tax, commonly referred to as a “pay-or-play penalty,” was scheduled to go into effect beginning in 2014. The United States Treasury Department (“Treasury”), however, has delayed enforcement of the penalty until 2015 for employers with 100 or more full-time employees, and until 2016 for employers with 50 to 99 employees.

Implementation of the pay-or-play penalty has given rise to a host of …

Health Care Reform And Efforts To Encourage Healthy Behavior By Individuals, David Orentlicher

Scholarly Works

No abstract provided.

The Future Of The Affordable Care Act: Protecting Economic Health More Than Physical Health?, David Orentlicher

Scholarly Works

No abstract provided.

Mind The Gap: Basic Health Along The Aca’S Coverage Continuum, Sallie Thieme Sanford [email protected]

Articles

As ACA implementation proceeds, expansion states should mind the gap — the gap between Medicaid and Marketplace. In this transition between insurance platforms, people can stumble. As a bridge between expanded Medicaid and the insurance Marketplaces, the ACA allows states to enact a Basic Health Program (BHP) supported by federal funds. The BHP option, which has been delayed until 2015, aims to reduce insurance costs and increase care continuity for low-income individuals and families. Interested states face a complicated calculus, one with significant unknowns and moving parts. In this article, I first place this new insurance affordability program in the …

The Uneasy Relationship Of Hobby Lobby, Conestoga Wood, The Affordable Care Act, And The Corporate Person: How A Historical Myth Continues To Bedevil The Legal System, Malcolm J. Harkins Iii

Saint Louis University Journal of Health Law & Policy

No abstract provided.

Community Benefit 501(R)Edux: An Analysis Of The Patient Protection And Affordable Care Act’S Limitations Under Community Benefit Reform, Zachary J. Buxton

Saint Louis University Journal of Health Law & Policy

No abstract provided.

Comment On The Definition Of "Eligible Organization" For Purposes Of Coverage Of Certain Preventive Services Under The Affordable Care Act, Robert P. Bartlett, Richard M. Buxbaum, Stavros Gadinis, Justin Mccrary, Stephen Davidoff Solomon, Eric L. Talley

Faculty Scholarship

This comment letter was submitted by U.C. Berkeley corporate law professors in response to a request for comment by the Health and Human Services Department on the definition of "eligible organization" under the Affordable Care Act in light of the Supreme Court's decision in Burwell v. Hobby Lobby. "Eligible organizations" will be permitted under the Hobby Lobby decision to assert the religious principles of their shareholders to exempt themselves from the Affordable Care Act's contraceptive mandate for employees.

In Hobby Lobby, the Supreme Court held that the nexus of identity between several closely-held, for-profit corporations and their shareholders holding “a …

It's A Mistake: Insurer Cost Cutting, Insurer Liability, And The Lack Of Erisa Preemption Within The Individual Exchanges, Christopher Smith

Cleveland State Law Review

In today’s society, most people receive their health insurance through their employers. If their employment-based insurer engages in cost cutting that leads to patient injury, Employee Retirement Income Security Act of 1974 (“ERISA”) preemption means that these people have no state tort-based recourse against their insurers. ERISA is a federal statute that regulates employee benefit plans, and the Supreme Court has interpreted the ERISA statute to preempt most beneficiary state tort claims against an employment-based insurer. In other words, even if the insurer, and not the doctor, caused the patient’s harm, the patient with employment-based insurance can only sue their …

Prison Health Care After The Affordable Care Act: Envisioning An End To The Policy Of Neglect, Evelyn Malavé

Faculty Publications

Inadequate prison health care has created a health crisis for reentering prisoners and their communities—a crisis that is exacerbated by barriers to employment and other collateral consequences of release. This Note will first examine how current Eighth Amendment doctrine has failed to sufficiently regulate prison health care so as to have any significant effect on the crisis. Next, it will argue that the Affordable Care Act (ACA) alters the Eighth Amendment analysis by triggering a change in the “evolving standards of decency” that guide the doctrine. Specifically, this Note will argue that, after the passage of the ACA, releasing sick, …

Allocating Responsibility For Health Care Decisions Under The United States Affordable Care Act, Wendy K. Mariner

Faculty Scholarship

This article summarizes the major elements of the ACA's insurance reforms and how they affect responsibility for making decisions about the health care that people receive. A key example of the difficulty of allocating decision making responsibility is the effort to define a minimum benefit package for insurance plans, called essential health benefits. While the ACA should achieve its goal of near-universal access to care, it leaves in place a multiplicity of processes and decision-makers for determining individual treatment. As a result, decisions about what care is provided are likely to remain, much as they are today, divided among government …

Medicaid Expansion As Completion Of The Great Society, Nicole Huberfeld, Jessica L. Roberts

Faculty Scholarship

A state’s decision whether to expand Medicaid has become a highly politicized issue, spawning countless news stories and on-going debate. However, this Essay takes a step back from that highly charged discourse and situates Medicaid expansion in its historical context. We reveal that this latest change universalizes the program, holding the power to finally realize President Johnson’s vision for the Great Society, almost fifty years later. Medicaid can be understood as a universal program for three reasons: (1) the percentage of thepopulation of children, pregnant women, and non-elderly adults it covers; (2) the degree to which Medicaid funds long-term care …

Crafting A Narrative For The Red State Option, Elizabeth Weeks Leonard

Scholarly Works

This Article examines the current state of play following the Supreme Court's decision in NFIB v. Sebelius to allow states the option of expanding their Medicaid programs in accordance with the Patient Protection and Affordable Care Act (ACA). Holding that mandatory expansion was unconstitutionally coercive, the Court created the Red State Option. Despite the enormously generous federal financial support for Medicaid expansion, close to half of the states have declined. At the same time, at least eight Republican-led states have crossed Tea Party lines to accept federal funding for expansion. Drawing lessons from these states, including Arkansas, Arizona, Michigan, and …

Employer-Based Health Care Insurance: Not So Exceptional After All, David Orentlicher

Scholarly Works

No abstract provided.

Corporations, Taxes, And Religion: The Hobby Lobby And Conestoga Contraceptive Cases, Steven J. Willis

UF Law Faculty Publications

Beginning in 2013, the federal government mandated that general business corporations include contraceptive and early abortion coverage in large employee health plans. Internal Revenue Code Section 4980D imposes a substantial excise tax on health plans violating the mandate. Indeed, for one company – Hobby Lobby – the expected annual tax is nearly one-half billion dollars. Dozens of “for profit” businesses have challenged the mandate on free exercise grounds, asserting claims under the First Amendment as well as under the Religious Freedom Restoration Act.

So far, courts have been reluctant to hold corporations have religious rights of their own; as a …

Finding A Positive Right To Healthcare, Nicole Huberfeld

Law Faculty Popular Media

In this blog post, Professor Nicole Huberfeld provides a review of Edward Rubin's article The Affordable Care Act, The Constitutional Meaning of Statutes, and the Emerging Doctrine of Positive Constitutional Rights, 53 Wm. & Mary L. Rev. 1639 (2012).

The Affordable Care Act And International Recruitment And Migration Of Nursing Professionals, Helen D. Arnold

Indiana Journal of Global Legal Studies

Through its various provisions, the Affordable Care Act will insure more than thirty million Americans by January 1, 2014. This dramatic increase in coverage will have significant effects on both the U.S. economy and its healthcare system. Nursing professionals make up a large portion of the U.S. healthcare system and with a dramatic nursing shortage already in place, employers increasingly look abroad to fill nursing vacancies. Due to the increasing effects of globalization, foreign nurses have become an integral part of the U.S. healthcare system. This note argues that the increased coverage created by the Affordable Care Act will increase …

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 Likely Impact Of National Federation On Commerce Clause Jurisprudence, Robert J. Pushaw Jr., Grant S. Nelson

Pepperdine Law Review

In National Federation of Independent Businesses v. Sebelius, the Supreme Court exhaustively analyzed Congress’s constitutional power to enact the watershed Patient Protection and Affordable Care Act (ACA or “Obamacare”). The ACA imposes a “shared responsibility requirement,” popularly known as the “Individual Mandate” (IM), which forces Americans to buy medical insurance or pay a “penalty.” The ACA’s text and legislative history, as well as the public defenses of it by President Obama and his supporters, consistently described the IM as a valid exercise of Congress’s power “[t]o regulate Commerce . . . among the several States.” This reliance on the Commerce …

A Gap In The Affordable Care Act: Will Tax Credits Be Available For Insurance Purchased Through Federal Exchanges?, Amy E. Sanders

Vanderbilt Law Review

Millions of Americans rest assured that the Patient Protection and Affordable Care Act' ("ACA") provides tax credits for health insurance to individuals earning 100-400% of the federal poverty line. The tax credits will be accessible through state insurance exchanges, also known as Marketplaces, which are government- regulated organizations designed to create more competition in the health insurance industry. But a gap in the unwieldy, two-thousand- plus-page statute-either a scrivener's error or an overlooked loophole-is raising questions about whether citizens in certain states are eligible for the tax credits. This "quirk" could be a serious blow to an already contentious healthcare-reform …

Unheard Voices Of Domestic Violence Victims: A Call To Remedy Physician Neglect, Nat Stern, Karen Oehme, Ember Urbach

Scholarly Publications

No abstract provided.

Migrant Farmworkers And Access To Health Care In Minnesota: Needs, Barriers, And Remedies, Rachel L. Gunsalus

Sociology Honors Projects

Every year, migrant farmworkers (MFWs) travel from southern Texas to Minnesota to provide the temporary labor needed to harvest seasonal Minnesotan crops. Migratory agricultural labor exposes workers to increased risk of occupational hazards, communicable disease, and chronic illness. However, the agricultural industry does not offer employer-based health insurance to these seasonal workers, and provides wages insufficient to otherwise cover the cost of health care services. This research investigates the financial and non-financial barriers to health care for Minnesota’s MFWs through interviews with staff from Migrant Health Service, Inc., the only federally-designated Migrant Health Center (MHC) in Minnesota. The findings show …

Introduction: Under The Knife: Health Law, Health Care Reform, And Beyond, Stacey A. Tovino

Nevada Law Journal

No abstract provided.