Where There Is a Right, There Must Be a Remedy (Even in Medicaid)

This Article will explore the power struggle that Medicaid invites and its potential elevation due to the pressures that will follow the Patient Protection and Affordable Care Act’s (ACA) expansion. Part I of this Article will describe the three phases of private enforcement litigation and how they have affected Medicaid reimbursement rates. This Part also will highlight the deceptive stability that has taken root in the lower federal courts by describing the recent state attempts to end private enforcement actions. The first Part will conclude by briefly considering the nature of the federalism arguments that states are making. Part II will explain why lawmakers missed an important opportunity to add an explicit right of action to the Medicaid Act when drafting the ACA, while at the same time they created a law that will increase the need for federal oversight. The second Part will then explore how the ACA contributes to the Medicaid power struggle. The Article concludes that private actions in federal court provide indispensable balance as well as a much needed de facto oversight mechanism for the already overextended, underfunded Department of Health and Human Services

Be Not Afraid of Change: Time to Eliminate the Corporate Practice of Medicine Doctrine

This article argues that the corporate practice of medicine doctrine is a physician-centric, guild type doctrine that is misplaced in the present incarnation of the American healthcare system and that does nothing to improve quality, efficiency, or accountability. The paper focuses on three key reasons that the corporate practice of medicine doctrine should be laid to rest. First, the motives for creating the corporate practice of medicine doctrine are long gone, as physicians have not been able to operate as a guild of autonomous providers of healthcare for quite some time. Second, it is disingenuous to pretend that physicians are notinfluenced by financial gain, which is evidenced by the federal and state prohibitions against physician self-referral and by the exodus from Medicare and Medicaid that is the result of decreasing reimbursement. Third, the corporate practice of medicine doctrine does nothing to advance error-free, high quality healthcare and may stand in the way of improving the quality of healthcare. Recent reports by the Institute of Medicine demonstrate and emphasize this point. In order to overcome the many manifestations of the state-based corporate practice of medicine doctrine, this article proposes federal legislation to effectuate alignment

An Empirical Perspective on Medicaid as Social Insurance

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 essay, we begin to explore howMedicaid, after the ACA, metamorphoses from exclusion and limitations in access and benefits to a form ofsocial insurance that implicates theories of social justice. The social justice aspect of universality provides an important lens for understanding the numbers, both in terms of the states that are expanding and the states that so far 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 states understand the power — and the potential — of this evolving social program and its new found status as a vehicle of social insurance

With Liberty and Access for Some: The ACA\u27s Disconnect for Women\u27s Health

This Article will scrutinize the separation of abortion from other aspects of women\u27s health through the vehicle of the Patient Protection and Affordable Care Act (ACA). Part I will examine briefly why the fragmented nature of American healthcare has facilitated the separation of abortion from women\u27s health, despite the fact that abortion is a medically necessary procedure for many women. To that end, this Part will explore the disjointed history of access to medicine juxtaposed against the strangely non-woman-centric nature of the fundamental rights at play in reproductive health. Part II will provide an overview of the ACA to explain the spending elements of the ACA that magnify greatly the limits on access to abortion in both public and private health insurance programs. Part III will summarize the jurisprudential changes resulting from National Federation of Independent Business v. Sebelius and analyze three ways in which NFIB affects women\u27s health under the ACA

Heed Not the Umpire (Justice Ginsburg Called NFIB)

A bad reading of the facts in NFIB v. Sebelius has led to new limitations on Congress’s Commerce, Necessary and Proper, and Spending Clause powers. The decision appeared to use healthcare as a vehicle for constitutional change, leading to interpretive gymnastics that invite further litigation. This essay highlights the factual errors in Chief Justice Roberts’s and the joint dissent’s opinions and explains why Justice Ginsburg’s more fact-attuned opinion was the correct analysis of the case

Clear Notice for Conditions on Spending, Unclear Implications for States in Federal Healthcare Programs

This Article explores Arlington Central School District Board of Education v. Murphy, a decision rendered by the first Roberts Court that may become a benchmark for Spending Clause jurisprudence. The majority in Arlington, led by Justice Alito, adopted the standard for constitutional conditions on spending that had been the dissenting view for years during the Rehnquist Court. More specifically, under the Pennhurst and Dole regime, the Court required Congress to provide adequate notice of conditions on spending, which seemed to be sufficient for the clear statement rule the Court (through Justice O\u27Connor) was seeking to institute. Arlington refashioned the foundational clear statement rule to a clear notice standard that requires more specific statutory language from Congress and that is particularly attuned to the state\u27s viewpoint. This analytical shift may narrow Congress\u27s ability to place conditions on federal spending, yet it fails to acknowledge the overlap between unambiguous conditions and coercing states, which this Article explores in the context of federal healthcare programs. These broad implications are focused by the example of the Clawback Provision, a section of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 that placed a new condition on states\u27 receipt of Medicaid funds. The Clawback Provision shifts the administrative burden of pharmaceuticals for people enrolled in both Medicare and Medicaid (dual eligibles) to Medicare, while requiring the sates to continue to pay for the cost of the drugs for the foreseeable future. (The Clawback Provision has been challenged by a number of states, but the cases remain unresolved.) Because of the Clawback Provision, states must fund the Medicare drug benefit for dual eligibles or face a total loss of Medicaid funds, which prevents states from choosing whether to provide a drug benefit to these Medicaid beneficiaries. Arlington seems to require language for conditions on spending that could not have been anticipated in the drafting of the Medicare and Medicaid statutes, and the new clear notice standard could lead to far-reaching effects on these forty-year-old programs. Arlington presents a shift in the Court\u27s Spending Clause jurisprudence that, despite some uncertainties regarding the scope of the ruling, is likely to affect federal healthcare schemes by requiring Congress to provide clearer notice to the states of conditions of accepting federal funds. This Article concludes that the stricter standard of Arlington indicates that the Clawback Provision is unconstitutional, and the provision\u27s fate may portend difficulties for a number of federal healthcare programs. The Court has been drifting toward a narrower view of Spending Clause jurisprudence, and the Roberts Court seems likely to continue to push toward that narrowed interpretation

Instrumental and Transformative Medical Technologies

This Article considers how medical technologies impact universality in health care. The universality principle, as embodied in the Patient Protection and Affordable Care Act (A CA), eliminated widespread discriminatory practices and provided financial assistance to those otherwise unable to become insured a democratizing federal act that was intended to stabilize health care policy nationwide. This Article posits that medical technology, as with all of medicine, can be universalizing or exclusionary and that this status roughly correlates to its being instrumental technology or transformative technology. Instrumental technology acts as a tool of medicine and often serves an existing aspect of health care; in contrast, transformative technology is pioneering, meaning it creates a new form of care or otherwise is novel. Instrumental and transformative medical technologies provide end points on a continuum, which provides a lens through which to examine whether medical technology has greater potential to facilitate universality or exclusion. The Article first examines where technologies fit on the instrumental-transformative continuum and then considers measures more specific to universality, namely improving the quality of medical care, access to care, or the cost of care. These considerations help to pinpoint the moment at which a technology may have a universalizing effect, if at all. The Article concludes with preliminary thoughts regarding whether the instrumental-transformative continuum helps to determine whether certain technologies should be adopted or supported publically or allowed to develop (or fail) organically.

Federalizing Medicaid

Medicaid fosters constant tension between the federal government and the states, and that friction has been exacerbated by its expansion in the Patient Protection and Affordable Care Act of 2010 (PPACA). Medicaid was an under-theorized and underfunded continuation of existing programs that retained two key aspects of welfare medicine as it developed: bias toward limiting government assistance to the “deserving poor,” and delivery of care through the states that resulted in a strong sense of states’ rights. These ideas regarding the deserving poor and federalism have remained constants in the program over the last forty-six years, but PPACA changes one of the two historic themes by expanding eligibility for Medicaid beyond the deserving poor — for the first time in Medicaid’s history — combined with almost total federal funding for the new enrollees. This major philosophical shift moves toward federalizing Medicaid, but the governors claiming that states need more control are protesting the economic aspect of the Medicaid expansion, not this philosophical about-face. In a lawsuit filed the same day PPACA was signed, the states have claimed, among other things, that certain aspects of PPACA violate principles of federalism and the Tenth Amendment, and they claim to be coerced into continuing to participate in Medicaid, a question that the Supreme Court has just granted. The PPACA litigation illustrates that Medicaid is fixed in the collective consciousness as an example of cooperative federalism, but a federalism policy analysis shows us that this is the wrong path for a variety of reasons. This article first discusses the history and historical structure of Medicaid and its cooperative federalism approach. This section focuses on the two themes of states’ rights and the deserving poor in the creation of Medicaid and demonstrates how PPACA has begun the federalization process. The article next considers the modern Supreme Court’s interpretation of federalism to understand the current meaning of federalism as it may be implemented by the Roberts Court. The PPACA litigation provides a vehicle for thinking through the real meaning of cooperative federalism versus dual sovereignty as explicated by the Court and potentially provides an opportunity for the Court to rein in the federal spending power. The final section of the paper suggests that medicine generally and Medicaid specifically are already on the path to nationalization and explores the conclusion that Medicaid should be nationalized because federalism ideals are generally not served by the current structure