A Failure to Supervise: How the Bureaucracy and the Courts Abandoned Their Intended Roles under ERISA

This Article addresses how courts failed to adequately supervise employers administering pension plans before ERISA. Relying on a number of different legal theories—from an initial theory that pensions were gratuities offered by employers to the recognition that pension promises could create contractual rights—the courts repeatedly found ways to allow employers to promise much and provide little to workers expecting retirement security. In Section III, this Article addresses how Congress failed to create an effective structure for strong bureaucratic enforcement and the bureaucratic agencies with enforcement responsibilities failed to fulfill those functions. Finally, in Section IV, this Article discusses how the courts abdicated their duty to supervise ERISA fiduciaries once bureaucratic failings made ERISA’s private litigation remedy and the supervisory function of the courts increasingly important

Redefining Medical Care

President Donald J. Trump has said he will repeal the Affordable Care Act (ACA) and replace it with health savings accounts (HSAs). Conservatives have long preferred individual accounts to meet social welfare needs instead of more traditional entitlement programs. The types of medical care that can be reimbursed through an HSA are listed in § 213(d) of the Internal Revenue Code (Code) and include expenses for the diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body. In spite of the broad language, regulations and court interpretations have narrowed this definition substantially. It does not include the many social factors that determine health outcomes. Though the United States spends over seventeen percent of gross domestic product (GDP) on healthcare , the country\u27s focus on the traditional medicalized model of health results in overall population health that is far beneath the results of other countries that spend significantly less. Precision medicine is one exceptional way in which American healthcare has focused more on individuals instead of providing broad, one-size-fits-all medical care. The precision medicine movement calls for using the genetic code of individuals to both predict future illness and to target treatments for current illnesses. Yet the definition of medical care under the Code remains the same for all. My proposal for precision healthcare accounts involves two steps -- the first of which requires permitting physicians to write prescriptions for a broader range of goods and services. The social determinants of health are as important to health outcomes as are surgical procedures and drugs-or perhaps more so according to many population health studies. The second step requires agencies and courts to interpret what constitutes medical care under the Code differently depending on the taxpayer\u27s income level. Childhood sports programs and payments for fruits and vegetables may be covered for those in the lower income brackets who could not otherwise afford these items and would not choose to spend scarce resources on them if they could. This all assumes that the government takes funds previously used to subsidize the purchase of health insurance under the ACA (or allocates new funds) and puts the funds in individual accounts so the poor or near poor have money to pay for these expenses. Section I of this Article will explore the current definition of medical care, which excludes the social determinants of health from healthcare spending. I then address how precision medicine has changed the types of services and treatments that it makes sense to reimburse for each individual. If efficacy can vary from person to person based on genetic code, then it also can vary depending on environment. There is an opportunity to not only vary the types of medical care that can be reimbursed or deducted within the traditional range of services and drugs, but also outside of that range. Section II addresses the historical shift towards health financing through individual accounts, and specifically through HSAs. If this is the only avenue for health reform in the next few years, I advocate using it to engage in the type of experiments that are typically only possible under the cover of tax expenditures. My proposal for precision healthcare accounts moves the government to experiment with individual social spending that can lead to improved overall health outcomes. Finally, in Section III, I address two dichotomies that affect any healthcare proposal: (1) entitlement programs v. grants-in-aid, and (2) pooled insurance v. consumer-driven health plans (CDHPs). In the end, I argue that an entitlement method of funding precision HSAs along with pooled insurance subsidized by the government is the most realistic resolution to these dichotomies. Only a broad-based entitlement to funding for all healthcare expenses (medical and social) allows for significant improvements in overall population health

Redefining Medical Care

President Donald J. Trump has said he will repeal the Affordable Care Act (ACA) and replace it with health savings accounts (HSAs). Conservatives have long preferred individual accounts to meet social welfare needs instead of more traditional entitlement programs. The types of medical care that can be reimbursed through an HSA are listed in § 213(d) of the Internal Revenue Code (Code) and include expenses for the diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body. In spite of the broad language, regulations and court interpretations have narrowed this definition substantially. It does not include the many social factors that determine health outcomes. Though the United States spends over seventeen percent of gross domestic product (GDP) on healthcare , the country\u27s focus on the traditional medicalized model of health results in overall population health that is far beneath the results of other countries that spend significantly less. Precision medicine is one exceptional way in which American healthcare has focused more on individuals instead of providing broad, one-size-fits-all medical care. The precision medicine movement calls for using the genetic code of individuals to both predict future illness and to target treatments for current illnesses. Yet the definition of medical care under the Code remains the same for all. My proposal for precision healthcare accounts involves two steps -- the first of which requires permitting physicians to write prescriptions for a broader range of goods and services. The social determinants of health are as important to health outcomes as are surgical procedures and drugs-or perhaps more so according to many population health studies. The second step requires agencies and courts to interpret what constitutes medical care under the Code differently depending on the taxpayer\u27s income level. Childhood sports programs and payments for fruits and vegetables may be covered for those in the lower income brackets who could not otherwise afford these items and would not choose to spend scarce resources on them if they could. This all assumes that the government takes funds previously used to subsidize the purchase of health insurance under the ACA (or allocates new funds) and puts the funds in individual accounts so the poor or near poor have money to pay for these expenses. Section I of this Article will explore the current definition of medical care, which excludes the social determinants of health from healthcare spending. I then address how precision medicine has changed the types of services and treatments that it makes sense to reimburse for each individual. If efficacy can vary from person to person based on genetic code, then it also can vary depending on environment. There is an opportunity to not only vary the types of medical care that can be reimbursed or deducted within the traditional range of services and drugs, but also outside of that range. Section II addresses the historical shift towards health financing through individual accounts, and specifically through HSAs. If this is the only avenue for health reform in the next few years, I advocate using it to engage in the type of experiments that are typically only possible under the cover of tax expenditures. My proposal for precision healthcare accounts moves the government to experiment with individual social spending that can lead to improved overall health outcomes. Finally, in Section III, I address two dichotomies that affect any healthcare proposal: (1) entitlement programs v. grants-in-aid, and (2) pooled insurance v. consumer-driven health plans (CDHPs). In the end, I argue that an entitlement method of funding precision HSAs along with pooled insurance subsidized by the government is the most realistic resolution to these dichotomies. Only a broad-based entitlement to funding for all healthcare expenses (medical and social) allows for significant improvements in overall population health

Sanitation: Reducing the Administrative State’s Control over Public Health

On April 18, 2022, in Health Freedom Defense Fund, Inc. v. Biden, United States District Judge Kathryn Kimball Mizelle vacated the mask mandate issued by the Centers for Disease Control and Prevention. Following a framework laid out in other decisions restricting CDC actions in response to COVID-19, the court found that the agency lacked statutory authority to protect the public from the virus by requiring mask wearing during travel and at transit hubs because Congress did not intend such a broad grant of power. Countering decades of public health jurisprudence, the federal district court failed to defer to experts and prioritized individual liberties over population health. When considered alongside the Supreme Court’s recent focus on the major questions doctrine, this lower court’s redefinition of the term “sanitation” away from the meaning it has long held under federal and state jurisprudence and in the public health field is a big step towards reducing the administrative state’s control over public health. While not binding on the states, this decision creates a path for state courts to follow when restricting actions taken by public health agencies, allowing judicially-mandated individualism to spread and courts to gain power as they narrow the boundaries of administrative discretion

Overvaluing Employer-Sponsored Health Insurance

This is the published version

Governing by Fiduciary: How the Employee Retirement Income Security Act of 1974 Delegated Control over Pension Policy to Private Actors

Approximately one-half of Americans participate in a pension plan offered by their employers and subject to the Employee Retirement Income Security Act of 1974 (ERISA). Yet ERISA is frequently ignored by social scientists researching retirement income because of its complexity. Given the enormous amount of foregone tax revenues that support private pensions, the motivating question of my dissertation is: How did the American state change as Congress delegated power over American pension plans to private employers? I argue that a weak system of bureaucratic oversight and the federal courts' deference to pension administrators allowed fiduciaries to control policy implementation and assume a role traditionally reserved for the state - blurring the line between public and private. My purpose here is to provide an analytical history of ERISA that explores its methods of delegating both policymaking control over and the detailed nuances of administration of private pension plans to private actors. I explore the concept of fiduciary status as a safeguard when government outsources the implementation of policy to private actors. Regardless of whether fiduciary standards have ensured sufficient accountability in the ERISA context - and I find that they have not - I argue that the potential is there and analyze where ERISA went wrong

Anatomy-specific classification of medical images using deep convolutional nets

Automated classification of human anatomy is an important prerequisite for many computer-aided diagnosis systems. The spatial complexity and variability of anatomy throughout the human body makes classification difficult. "Deep learning" methods such as convolutional networks (ConvNets) outperform other state-of-the-art methods in image classification tasks. In this work, we present a method for organ- or body-part-specific anatomical classification of medical images acquired using computed tomography (CT) with ConvNets. We train a ConvNet, using 4,298 separate axial 2D key-images to learn 5 anatomical classes. Key-images were mined from a hospital PACS archive, using a set of 1,675 patients. We show that a data augmentation approach can help to enrich the data set and improve classification performance. Using ConvNets and data augmentation, we achieve anatomy-specific classification error of 5.9 % and area-under-the-curve (AUC) values of an average of 0.998 in testing. We demonstrate that deep learning can be used to train very reliable and accurate classifiers that could initialize further computer-aided diagnosis.Comment: Presented at: 2015 IEEE International Symposium on Biomedical Imaging, April 16-19, 2015, New York Marriott at Brooklyn Bridge, NY, US