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

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

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

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

This article explores an important case from the 2005-06 Supreme Court term, Arlington Central School District Board of Education v. Murphy. Murphy is a benchmark for Spending Clause jurisprudence, as the new Roberts Court adopted what was the dissenting view for years, but its significance has gone largely unnoticed. Additionally, Murphy may have critical implications for the federalism revolution and for the country\u27s largest healthcare programs. These broad observations are focused in this article by the example of the Clawback Provision, a new Medicaid requirement that has been challenged by New Jersey, Texas, Maine, Missouri, and Kentucky. The Supreme Court denied original jurisdiction, but the states are likely to proceed in district court (they stand to lose millions of dollars under the Clawback Provision). This article finds that the Murphy analysis alters long-standing Spending Clause doctrine in a way that is likely to narrow Congress\u27 ability to place conditions on federal funds. Also, if the Court was seeking to strengthen the states\u27 position regarding conditions on federal spending, it missed the mark because it ignores the reality of long-standing spending programs and states\u27 inability to reject federal conditions in such programs (as with the Clawback Provision). This piece also observes that Congress could not have anticipated the clarity required by Murphy when drafting the Medicare and Medicaid statutes and that this new standard could have far-reaching effects on these forty-year-old healthcare programs. Ultimately, the article calls for a fresh look at spending power jurisprudence in light of both Murphy and long-entrenched spending programs such as Medicare and Medicaid

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

The Universality of Medicaid at Fifty

Fragmentation has aptly described the United States\u27 historically decentralized, disjointed, and disintegrated approach to health care.\u27 While fragmentation has endured in multiple dimensions-political, economic, organizational, relational, regulatory, and philosophical, to name a few-the exclusionary characteristic of American health care facilitated by fragmentation has been one of the greatest hurdles to access to needed care