A Promise Realized? A Critical Review of Accountable Care Organizations Since the Enactment of the Affordable Care Act

As the six-year anniversary of the passage of the Affordable Care Act (“ACA”) comes to a close, a critical review of one of the key inventions of the ACA—Accountable Care Organizations (“ACOs”)—is timely as part of the greater narrative around affordable, quality health care in America. This Comment begins with a discussion of the statutory creation, philosophy and vision, and organizational structure of ACOs in the context of the passage of the ACA in 2010. Then, it will critically review ACOs from three perspectives based on the ACO model’s mission to provide better care for more people at a lower cost. The first critical perspective will address the concept of “bending the cost curve” to understand whether ACOs have effectively reduced costs, both statutorily and practically. The second critical perspective will consider the “quality of care” framework used to “grade” ACOs, questioning whether this grading system is effective—or even sufficient—to improve the quality of health care. The third critical perspective will evaluate whether ACOs have enabled greater access to care for all Americans—an aspiration for a renewed American health care system—or simply intensified the marginalization of access to health care in this country. It is undeniable that the ACO model of care could greatly impact health outcomes in the United States by restructuring the delivery system of patient care

A Promise Realized? A Critical Review of Accountable Care Organizations Since the Enactment of the Affordable Care Act

As the six-year anniversary of the passage of the Affordable Care Act (“ACA”) comes to a close, a critical review of one of the key inventions of the ACA—Accountable Care Organizations (“ACOs”)—is timely as part of the greater narrative around affordable, quality health care in America. This Comment begins with a discussion of the statutory creation, philosophy and vision, and organizational structure of ACOs in the context of the passage of the ACA in 2010. Then, it will critically review ACOs from three perspectives based on the ACO model’s mission to provide better care for more people at a lower cost. The first critical perspective will address the concept of “bending the cost curve” to understand whether ACOs have effectively reduced costs, both statutorily and practically. The second critical perspective will consider the “quality of care” framework used to “grade” ACOs, questioning whether this grading system is effective—or even sufficient—to improve the quality of health care. The third critical perspective will evaluate whether ACOs have enabled greater access to care for all Americans—an aspiration for a renewed American health care system—or simply intensified the marginalization of access to health care in this country. It is undeniable that the ACO model of care could greatly impact health outcomes in the United States by restructuring the delivery system of patient care

Revisiting Incentive-Based Contracts

Incentive-based pay is rational, intuitive, and popular. Agency theory tells usthat a principal seeking to align its incentives with an agent\u27s should be able to simply pay the agent to achieve the principal\u27s desired results. Indeed, this strategy has long been used across diverse industries-from executive compensation to education, professional sports to public service-but with mixed results. Now a new convert to incentive compensation has appeared on the scene: the United States\u27 behemoth health-care industry. In many ways, the incentive mismatch story is the same. Insurance companies and employers are concerned about constraining the cost of care, and patients are concerned about quality of care. Physicians lack an adequate financial incentive to pay attention to either. Health care\u27s recent move away from the traditional fee-for-service compensation model to incentive pay is perhaps unsurprising

Medicaid: Welfare Program of Last Resort, or Safety Net?

Peril to Medicaid exists on many different fronts. In 2017, Congress nearly succeeded in fundamentally altering Medicaid by capping federal expenditures on it, regardless of need, and ending eligibility for many Americans. Medicaid reimbursement to providers is also very much at risk, jeopardizing not only access to coverage for Medicaid beneficiaries, but access to care, as providers reduce or end their participation in the program. Meanwhile, both the Centers for Medicare and Medicaid Services (CMS) and a number of states are eager to make other, smaller-scale changes to the program. These changes, while narrower in impact, have substantial potential to reframe Medicaid from a broad safety net program for lower-income people who lack access to employer-sponsored health insurance, to a limited, short-term, stigmatized welfare program for the needy—one that is difficult to access and even more difficult to keep. This article will discuss these different and perilous fronts. In the process, it will suggest better and worse ways, as a matter of both law and public policy, to address the existential, financial, and political challenges facing Medicaid, its beneficiaries, and participating providers

On Health, Law, and Religion

The Supreme Court recently decided a number of cases involving health, law, and religion, including Whole Woman\u27s Health v. Hellerstedt, Zubik v. Burwell, and Burwell v. Hobby Lobby Stores, Inc. These cases were important for understanding constitutional undue burden limitations and the boundaries of religious exercise during the Obama Administration. Unfortunately, the Supreme Court\u27s recent opinions addressing health, law, and religion have little value for many health law professors and most practicing health care attorneys. These individuals, tasked with teaching and applying the thousands of federal and state statutes, regulations, and government guidance documents that address a wide variety of health care access, quality, liability, organization, and finance issues, do not deal with constitutional undue burden limitations and the boundaries of religious exercise on a regular basis. Instead, these individuals focus on practical legal questions raised by the day-to-day delivery of health care. This Article seeks to remedy the lack of judicial and academic attention to practical issues that lie at the intersection of health, law, and religion. Drawing guidance from fields as wide ranging as constitutional law, transportation law, utilities law, criminal law, contract law, tax law, and trusts and estates law, this Article proposes new federal regulations and agency guidance in four illustrative contexts that implicate health, law, and religion. These contexts include religious nonmedical health care, home health care, hospice care, and health information confidentiality. If adopted by the federal Department of Health and Human Services, the proposals set forth in this Article will improve the counsel provided by regulatory health care attorneys as well as the public\u27s understanding of issues that lie at the intersection of health, law, and religion

A Mental Health Checkup for Children at the Doctor’s Office: Lessons from the Medical-Legal Partnership Movement to Fulfill Medicaid’s Promise

Traumatic childhood events and the stress they cause can negatively affect health over a lifetime. For children with Medicaid coverage, visits to the doctor’s office present an opportunity to improve this trajectory. Medicaid’s Early Periodic Screening Diagnostic and Treatment (EPSDT) mandate requires that children receive more than a basic physical when they see a doctor for regular “well-child checks.” As part of a comprehensive look at their development, they should receive mental health check-ups that could identify childhood trauma, its impacts, and the interventions that could help improve health and mental health. Data suggests that many children do not receive these mandatory comprehensive screenings. Significant barriers to screening include lack of transportation for patients, low reimbursement rates for physicians that limit their ability to devote enough attention to screenings, and lack of access to mental health screening tools. Medical-legal partnerships (MLPs) provide a framework for addressing these challenges. MLPs bring together civil legal services lawyers with health providers to address social determinants of health. This article argues that the MLP movement provides a three-tiered paradigm for change for physicians and attorneys to improve the trajectory for children who have suffered trauma and address the gaps in Medicaid EPSDT mental health screening: (1) collaborative advocacy to improve patient health, (2) transformation of health and legal institutions, and (3) policy change

Disparities in Private Health Insurance Coverage of Skilled Care

This article compares and contrasts public and private health insurance coverage of skilled medical rehabilitation, including cognitive rehabilitation, physical therapy, occupational therapy, speech-language pathology, and skilled nursing services (collectively, skilled care). As background, prior scholars writing in this area have focused on Medicare coverage of skilled care and have challenged coverage determinations limiting Medicare coverage to beneficiaries who are able to demonstrate improvement in their conditions within a specific period of time (the Improvement Standard). By and large, these scholars have applauded the settlement agreement approved on 24 January 2013, by the U.S. District Court for the District of Vermont in Jimmo v. Sebelius (Jimmo), as well as related motions, rulings, orders, government fact sheets, and Medicare program manual statements clarifying that Medicare covers skilled care that is necessary to prevent or slow a beneficiary’s deterioration or to maintain a beneficiary at his or her maximum practicable level of function even though no further improvement in the beneficiary’s condition is expected. Scholars who have focused on beneficiaries who have suffered severe brain injuries, in particular, have framed public insurance coverage of skilled brain rehabilitation as an important civil, disability, and educational right. Given that approximately two-thirds of Americans with health insurance are covered by private health insurance and that many private health plans continue to require their insureds to demonstrate improvement within a short period of time to obtain coverage of skilled care, scholarship assessing private health insurance coverage of skilled care is important but noticeably absent from the literature. This article responds to this gap by highlighting state benchmark plans’ and other private health plans’ continued use of the Improvement Standard in skilled care coverage decisions and identifying possible legal approaches for removing the Improvement Standard in private health insurance. This article also calls for scholars in health law, disability law, and insurance law, among other doctrinal areas, to evaluate the ethics and values associated with the continued use of the Improvement Standard in private health insurance

A Right to Care

In this Article, Professor Stacey Tovino examines the right to care through a personal and historical lens, then attempts to fill a scholarly gap in legal literature surrounding the right to skilled care and rehabilitation for patients with group or commercial insurance. Professor Tovino first recounts the history of Medicare coverage for skilled care and rehabilitation, then she examines the limitations of group and commercial insurance, finally concluding by asserting a right to care