Health Insurance, Risk, and Responsibility after the Patient Protection and Affordable Care Act
The Individual Mandate, Sovereignty, and the Ends of Good Government: A Reply to Professor Randy Barnett
The conservative and libertarian objections to the individual mandate implicate some of the deepest and most contested questions concerning our Constitution, constitutionalism in general, and the relation of positive law—including constitutional law—to the ends of good government. It is no exaggeration to say that it even implicates questions about who we are. Professor Randy Barnett has recently argued that the mandate raises questions about the sovereignty of “We the People.” Specifically, Barnett contends that the mandate is unconstitutional because it violates the people’s sovereignty by “commandeering” them into buying health insurance. Why, one must therefore ask, is it wrong for a government to commandeer its own people?
From Health Care Law to the Social Determinants of Health: A Public Health Law Research Perspective
Americans, including opinion elites, do not spontaneously consider social influences on health. They tend to think about health and illness in medical terms, as something that starts at the doctor’s office, the hospital, or the pharmacy. They recognize the impact of health care on health, and spontaneously recognize the importance of prevention, but they do not tend to think of social factors that impact health.
They do, however, recognize social factors and see their importance when primed. Raising awareness of social factors is not difficult, although people more readily recognize voluntary behaviors that cause illness (e.g., smoking, overeating) than arbitrary or social factors (e.g., race, ethnicity, income).
In these tendencies, health lawyers may not differ from everyone else. Even health lawyers who are attuned to the social determinants of health—a phrase, by the way, that this RWJF report advises is just too wonky for general public consumption—often do not find themselves in a position to actively address them in their research. Yet even as health lawyers and health care policy experts celebrate the enactment of the Patient Protection and Affordable Care Act—a landmark policy achievement, no matter its ultimate fate—we have at least two good reasons to keep social determinants in mind: first, the relatively dismal state of population health in the United States is not caused primarily by a lack of health care, and second, even universal health care access will not make us substantially healthier as a society. Health care is a huge part of the American economy and undeniably a public good, but the stakes are too high for the public—and health law scholars—to continue neglecting the robust social structures that are shaping America’s well-being. Compared to other countries with our resources, and even some countries without them, we are doing poorly, and it is well past time we all got sick of it.
Government as the Crucible for Free Market Health Care: Regulation, Reimbursement, and Reform
In no industry is this interplay more important than in health care. A series of government programs, most initiated during the latter half of the twentieth century, literally created the health care system as it exists in the United States today. Hospitals grew to their present size and technological complexity because of funding provided by the Hill-Burton Act and Medicare. Medicare also funds physician training, as well as reimbursement for many physician-provided services. Pharmaceutical manufacturers rely on the National Institutes of Health to support basic biomedical research that leads to the development of new drugs. A huge tax subsidy for employer-sponsored coverage finances, in large part, the health insurance industry. Without these programs, none of these health care industry segments could have approached its present size or vitality. To ignore this dynamic is to ignore the true nature of American health care and to fundamentally misunderstand the opportunities for reform.
The Patient Protection and Affordable Care Act (PPACA) continues and extends this paradigm. It will expand coverage in large part by facilitating broader demand for individual policies, which will revitalize private insurance markets. It will also extend Medicaid, a program that in most states is administered by private managed care plans, to millions more beneficiaries. Far from representing a government takeover or novel incursion into the health care system, PPACA extends the underlying arrangement that has built and sustains the structure of American health care as it exists today. In the American health care system, private innovation and government intervention represent not opposing forces, but rather partners in a common enterprise.
Regulating Patient Safety: The Patient Protection and Affordable Care Act
Analysis of patient safety rests on four basic propositions. First, patient injury (ranging from minor injuries to death) is a recurring feature of health care and negatively affects roughly one in every ten patients, according to a systematic review of the literature. Findings by the Inspector General within the Medicare context support this estimated patient-injury rate. As these statistics attest, patient injury eludes easy solutions.
Restoring Health to Health Reform: Integrating Medicine and Public Health to Advance the Population’s Well-Being
Given the expansion of the health care enterprise, it is not surprising that the American political community is deeply focused on it. For a generation, health reform has been a dominant domestic political issue. The nation recently went through the politically grueling passage of the first comprehensive health care reform since the 1960s, with cavernous political divides on the role of government in financing and delivery of care. Critics portrayed modest proposals for cost-effectiveness comparisons—routinely accepted in other advanced democracies—as “death panels,” and the final law inhibits the use of quality cost-effectiveness analysis in coverage, reimbursement, and incentive structures. Within weeks of the law’s passage, twenty states filed lawsuits challenging the constitutionality of the individual mandate—a fundamental component of the reform.
Commerce Clause Challenges to Health Care Reform
Something went wrong on the way to the courthouse, however. District courts in Virginia and Florida have ruled that Congress lacks the constitutional authority to require legal residents to obtain health insurance. Three other federal judges have upheld federal authority in cases that special interest groups and individual litigants brought.
Despite the split outcomes (which fell along the party lines of the judges’ appointing presidents), these courts agreed on several issues. No court thus far has found a violation of individual rights protected by the Bill of Rights, and no court so far has accepted (or indicated much support for) the government’s position that Congress’s tax power supports the mandate. In Florida ex rel. McCollum v. U.S. Department of Health & Human Services, the Northern District of Florida rejected the states’ arguments that forcing them to implement key PPACA provisions violates the Tenth Amendment. Thus the Commerce Clause and the ancillary Necessary and Proper Clause will be the primary focus of ongoing litigation over the constitutionality of health care reform. Conservative legal scholars who have previously criticized the expansive scope of federal commerce power see in this litigation the opportunity to impose new limits on its capaciousness. Accordingly, the Commerce Clause arguments merit close attention in order to understand their strengths, weaknesses, and implications for other areas of constitutional doctrine and public policy.
Three Models of Health Insurance: The Conceptual Pluralism of The Patient Protection And Affordable Care Act
The new health reform law, the Patient Protection and Affordable Care Act of 2010 (PPACA), manifests this “conceptual pluralism.” It evokes all three of these notions of the types of risks Americans should share—now more collectively post-reform—through insurance. While the goals of these three theories dovetail at times (e.g., promoting health will in some cases also reduce medical care costs), at other times they are at odds. Conceptual pluralism thus complicates implementation of PPACA as regulators must manage tensions and make tradeoffs among these goals.
Health Insurance Reform And Intimations Of Citizenship
At face value, PPACA primarily seeks to make the individual and small-group health insurance markets rational and workable, to fill the enormous gap that has existed in coverage, and to create insurance exchanges to regulate quality and police access. Upon full implementation, it will achieve nearly universal, but also probably quite uneven, coverage and will perpetuate a deeply fragmented model of social insurance. If one imagines the health care system as a political domain, with the various institutions and subsystems as components, PPACA is less like our Constitution and more like a reinvention of the Articles of Confederation. Under PPACA, health insurance in the United States will remain a federated collection of risk pools, located in workplaces, public systems, and the new exchanges.
Nonetheless, the debate that has accompanied PPACA’s adoption is about something bigger than spending curves, comparative effectiveness, or even medical-loss ratios (not that any of those should be considered trivial). The deep structure of this hyper-technical statute gestures to the existence of a health care universe that, in Habermasian terms, could be its own lifeworld. For persons with chronic diseases, the health care system truly becomes a world unto itself. For others, it may be more like a foreign country visited for an intense but brief period of time, or perhaps one to which we pay little attention. Although the internal operations of the health care universe are seldom thought of as political, its power is such that, upon entry, it may bring us life or death, profit or poverty, autonomy or dependency.
Convicts and Convictions: Some Lessons From Transportation for Health Reform
filibuster-proof majority in the Senate and a sizeable majority in the House, the decades-long road to Democratic delivery of comprehensive health reform had finally come to an end (along with conservatism and the Republican party). President Obama had promised to deliver health reform—although he allowed that if you liked your existing arrangements, you could keep them. Polls indicated that Democrats had maintained their traditional edge over Republicans in public trust to handle health care. Pharmaceutical companies and insurers had been bought off or intimidated into silence, ensuring there would not be a repeat of the “Harry and Louise” commercials that helped sink the Clinton health reform effort. The path to success was clear, as long as the Administration let Congress write the bill. Once Congress enacted the Patient Protection and Affordable Care Act (PPACA), Democrats would receive the thanks of a grateful nation, and their electoral dominance would be assured. The only real question was whether to include a public option to placate the left; everything else appeared to be a done deal.
Reality intruded, as it always does. The enactment of PPACA was an excruciating and extended process, with twists and turns that a novelist would have been embarrassed to include in a work of fiction. Former Senate Majority Leader Tom Daschle, the President’s first choice to lead the Department of Health and Human Services and run the health reform effort, was forced to withdraw his nomination after it emerged that he had underpaid his taxes by more than $100,000. Opposition to PPACA led to loud and rancorous public meetings between legislators and their constituents during the summer of 2009. Opponents accused proponents of lying about whether people could keep their health care coverage and whether PPACA would cut Medicare; proponents accused opponents of lying about “death panels” and the “government takeover” of health care. The “public option” was in, then out, then (maybe) back in again. Medicare for the near-elderly was in, then out.
Reflections on the National Association of Insurance Commissioners and the Implementation of the Patient Protection And Affordable Care Act
Yet PPACA also expands the responsibility and authority of the states. The states, for example, are primarily responsible for enforcing PPACA’s insurance regulatory reforms. They are also responsible for establishing the exchanges—the entities through which Americans will purchase insurance and apply for subsidies—and for managing reinsurance and risk adjustment programs. According to the Act, states will be responsible for reviewing health insurance premiums and for assisting consumers with complaints against their insurers.
However, PPACA not only increases the authority of the federal and state governments, it also empowers and assigns significant responsibility to a private agency: the National Association of Insurance Commissioners (NAIC). The NAIC is a private, nonprofit organization that has coordinated the activities of the nation’s state and territorial insurance commissioners since 1871. Its members are the insurance commissioners of the states and territories. Traditionally, the NAIC has drafted model statutes and regulations for the states, served as a clearinghouse for insurance data, and provided a forum for insurance commissioners to discuss and address regulatory issues.
The Freedom of Health
since 2006, when a three-judge panel of the D.C. Circuit recognized
a fundamental liberty interest in obtaining experimental drugs (later
overturned en banc), health law scholars have debated the
usefulness and propriety of protecting individuals’ liberty in medical
decisionmaking. Unlike the international
“human right to health,” this American “freedom of health” would
operate primarily as a restriction on—rather than as an obligation
for—governmental regulation of medical decisionmaking.
That is, in the somewhat disputed parlance of constitutional law, the
right would be a negative one rather than a positive one,
protected alongside other negative
liberties under the Fourteenth Amendment’s guarantee of substantive due process.
Health Reform and Public Health: Will Good Policies but Bad Politics Combine to Produce Bad Policy?
Despite these compromises, public health researchers and practitioners have reason to celebrate. Simply put, PPACA fundamentally altered and improved the public health infrastructure of the United States. Fully implemented, PPACA promises to markedly improve clinical preventive services and transform our nation’s response to traditional centerpiece public health concerns, including HIV/AIDS, substance abuse, mental health disorders, and other conditions.
Of Stars and Proper Alignment: Scanning the Heavens for the Future of Health care Reform
But as this is written, in March 2011, the Affordable Care Act’s future, and the future of health care reform more broadly, is far from certain. Two federal district courts have ruled that what many regard as the Act’s keystone provision, the individual mandate to purchase health insurance, The first court concluded that the offending provision can be excised from the law and the remainder left intact; the second held that the provision is so integral to the overall legislative scheme that the entire law must fail. Since three other district courts have already rejected challenges to the Act’s constitutionality, it is virtually certain that the Supreme Court will ultimately review the Act. If the case takes the traditional route through the courts of appeals, then it should reach the Supreme Court around the time of the national elections in November 2012. On a parallel track, the newly installed 112th Congress has begun to consider a repeal of the law. Despite the formidable obstacles that a repeal attempt would have to overcome—unlikely passage in the Senate and a likely presidential veto—the winds of opposition are blowing so strongly that a repeal is at least within the realm of possibility. Setting aside these challenges and assuming the Affordable Care Act survives, it is an open question whether the Act can deliver on its very ambitious promise to secure basic health care coverage for almost our entire population without bankrupting the nation’s health care financing system or reducing the quality of care those who are now covered enjoy. Clearly the road to universal health care is a difficult one for the United States. Like previous trips, this one may again prove to be a road to nowhere.
Brand New Law! The Need to Market Health Care Reform
Health Care Reform’s Wild Card: The Uncertain Effectiveness of Comparative Effectiveness Research
Arbitration’s Suspect Status
Running the Gamut from A to B: Federal Trademark and False Advertising Law
The Criminal Class Action
The past decade has witnessed the rise of new, massive settlements forged not out of civil litigation but on the periphery of the criminal justice system. Since 2003, prosecutors have demanded that defendants in a variety of high-profile corporate scandals set up multimillion-dollar restitution funds for victims to settle criminal charges. Yet few rules exist for the prosecutors who create and distribute these complex settlements. Consider three examples:
(1) In September 2004, software giant Computer Associates conceded that it had unlawfully inflated its quarterly earnings reports by using shadow accounting practices that effectively backdated lucrative licensing contracts. As part of its agreement with the U.S. Attorney’s Office, Computer Associates agreed to establish a $225 million restitution fund to compensate shareholders injured by the scandal. Months after the fund was announced, however, not a single shareholder had come forward with a proposal for how to dispense the money in a fair and appropriate manner.
(2) Shortly after Bernard Madoff committed the largest criminal fraud in United States history, federal prosecutors sought to compensate victims with his seized assets. In what some have called “reality-show kind of fighting,” Madoff’s victims sharply contested the distribution of his property. Because of the nature of the fraud, some long-term investors lost their life savings. Others, who withdrew funds over time, made less than they thought, but actually profited from the scheme. Still others lost millions through “feeder funds” without ever investing with Madoff directly. Prosecutors, however, lacked any rules to hear and resolve victims’ competing claims to Madoff’s estate.
(3) After the pharmaceutical company Eli Lilly reached a $1.2 billion settlement with 30,000 plaintiffs for side effects associated with its antipsychotic drug Zyprexa, federal prosecutors launched a separate criminal case to recover $1.4 billion in restitution. Although both actions sought overlapping monetary damages against the same defendant and for the same conduct, no formal procedures existed to ensure that victims were not doubly compensated or to prevent defendants from being punished twice for the same misconduct.
Had all three cases proceeded only in civil litigation, the result would have been decidedly different. From the start, counsel for the shareholders in Computer Associates, guided in part by the strength of their legal claims, would have negotiated and participated in the discussions over the amount and distribution of the settlement. The Madoff victims would have been entitled to an array of procedural protections, separate attorney representation, and payouts based on their different statuses and needs. The Zyprexa cases would have been centralized before a single federal judge for pretrial coordination and review.
Making Indians “White”: The Judicial Abolition of Native Slavery in Revolutionary Virginia and its Racial Legacy
The Niqab in the Courtroom: Protecting Free Exercise of Religion in a Post-Smith World
Legal scholars have debated the impacts of government policy for millenia. In 81 B.C., Chinese scholars argued about the desirability of monopolies in the salt and iron industries in a succession of essays and public debates. These debates were theoretical—with scholars predicting the positive and negative effects of monopolies as compared to a competitive market. Over two thousand years later, theoretical debates over policies remain the norm. But theory alone cannot resolve many policy issues because different theories point in different directions. Scholars attempt to inform these debates by parsing historical data, but regression analysis of policy is fraught with complications. There is little policy variation on many topics of national importance, and the variation that does exist is correlated with many other factors. Empirical policy evaluation often resembles a drug study in which the experimental population does not receive an assigned treatment and instead gets to choose whether to take the medicine or the placebo.
Policymakers and commentators frequently refer loosely to new laws and legal institutions as “experiments,” but in contrast to medical experimentation, these innovations rarely randomly designate treatment and control groups. There have been a handful of exceptions since 1968, including randomized “social experiments” that were performed to assess the impact of government policies. But the legal literature has virtually ignored them. Legal scholars have discussed the results of particular social experiments, and they have commented occasionally that additional social experiments could provide useful information in one field or another. But these legal scholars have not addressed the normative question of whether the legal system should generally seek to incorporate experimental methods, and if so, what approaches the legal system should take to maximize the chance that experiments will improve policy.
International Courts and the U.S. Constitution: Reexamining the History
Mixing up the Medicine: A Remedy for Constitutional Inter-Clause Conflicts and the case of the Anti-Bootlegging Statutes
Section 363(b) Restructuring Meets the Sound Business Purpose Test with Bite: An Opportunity to Rebalance the Competing Interests of Bankruptcy Law
The Failure of Mandated Disclosure
After Deference: Formalizing the Judicial Power for Foreign Relations Law
The "Monstrous Heresy" of Punitive Damages: A Comparison to the Death Penalty and Suggestions for Reform
Establishing Rights Without Remedies? Achieving an Effective Civil Gideon by Avoiding a Civil Strickland
Counting the Days Gone By: A Eulogy for Former Rule 6(A)(2)
Pervasive Image Capture and the First Amendment: Memory, Discourse, and the Right to Record
Wall Street as Community of Fate: Toward Financial Industry Self-Regulation
Collateral Review of Remand Orders: Reasserting the Supervisory Role of the Supreme Court
BAPCPA and Bankruptcy Direct Appeals: The Impact of Procedural Uncertainty on Predictable Precedent
Illiberal Construction of Pro Se Pleadings
Judge Henry Friendly and the Craft of Judging
Redeeming the Missed Opportunities of Shady Grove
The Shadow of State Secrets
State secrets doctrine catapulted to prominence post-2001, as the executive responded to lawsuits alleging a range of constitutional and human rights violations by refusing to disclose information during discovery and, in some cases, requesting dismissal of suits altogether on national security grounds. More than 120 law review articles followed, and media outlets became outspoken in their criticism of the privilege. In both the Senate and the House, new bills sought to codify what had previously been a common law doctrine. And in September 2009, the Attorney General introduced new procedures for review and created a State Secrets Review Committee.
Despite the sudden explosion in scholarship and other attention paid to state secrets, very little is known about how the privilege actually works. The research serving as a basis for much of the discussion focuses narrowly on published judicial opinions in which the U.S. government has invoked the privilege and the courts have ruled on it. Myriad concerns follow.
First and foremost, such analyses reveal very little about how the executive branch actually uses the privilege—who invokes it, under what circumstances it is invoked, how frequently it has been threatened, and to what end. Put simply, there is a logical disconnect between looking at how courts rule in their final, published opinions on state secrets and drawing conclusions about the executive branch’s practices.
Second, the narrow focus on the outcome of published cases sheds little light on how the doctrine operates—how it influences the course of litigation, the range of cases in which it is used, or how parties respond, such as by dropping suits early in the process in the face of the threatened or actual invocation of the privilege.
Third, current scholarship provides a truncated view of how the courts deal with assertion of the privilege. Omitted are the many cases in which the court sidesteps the question altogether or dispenses of the state secrets questions at an early stage in the litigation. Absent, too, are unreported and unpublished opinions (which constitute around eighty percent of the appellate courts’ caseload), as well as sealed memoranda and opinions. The resultant lack of baseline analysis makes it difficult to conclude how the judiciary treats the privilege, as well as what variation occurs between the circuits.