CHICAGO, ILLINOIS, USA - JUNE 8, 2019: First ever Medicare for All rally led by Bernie Sanders held in The Loop of Chicago. Crowd holds up a sign that says "Medicare for All Saves Lives".

Sustaining the Promise of Universal Access

By David Orentlicher

Should the United States achieve universal access to health care by adopting a single-payer, Medicare-for-All kind of system? Or should we build on the Affordable Care Act (ACA) and not disrupt the health care coverage of the 160 million Americans who have private health insurance?

Both reforms rely on important arguments about affordability, feasibility, and consumer choice. But there is one key reason to favor a single-payer system over an expansion of our current system. Experience with public benefit programs in the United States tells us that such programs thrive only when they serve all Americans.

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New TWIHL; Too Much Information About State Health Insurance Law

By Nicolas Terry

This episode was recorded at the 2019 meeting of the Southeastern Association of Law Schools during a panel reviewing the year in healthcare financing. In this episode I take a look at state regulation of health insurance, first, from the perspective of states playing defense and shoring up their own laws in case the ACA is “disappeared” and, second, how some are playing post-ACA offense, actually seeking to improve upon the ACA baseline. The slides accompanying this talk are here.

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A photograph of miniature figures of people standing on top of piles of coins at different heights

Promoting Health, Not Just Health Care

By David Orentlicher

Once again this past Thursday, the Democratic presidential candidate debate began on the topic of health care reform, and moderator George Stephanopoulos quickly steered the discussion to what he termed “the heart” of the debate. Should the United States increase access to care by building on the Affordable Care Act (ACA) or by replacing ACA with a single-payer, Medicare-for-All system?

While this is an important question, there is an even more important question for the candidates to discuss. We need to hear them talk more about health than about health care.

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Elizabeth Weeks on ‘The Week in Health Law’ Podcast

Recorded at the 2019 annual meeting of the Southeastern Association of Law Schools, Professor Elizabeth Weeks, Associate Dean for Faculty Development & the J. Alton Hosch Professor of Law at the University of Georgia School of Law discusses the latest high profile ACA case, Texas v. U.S. Professor Weeks is a highly regarded health law scholar whose teaching and research interests include torts, health law, health care financing and regulation, and public health law.

The Week in Health Law Podcast from Nicolas Terry is a commuting-length discussion about some of the more thorny issues in health law and policy. Subscribe at Apple Podcasts or Google Play, listen at Stitcher Radio, Spotify, Tunein or Podbean.

Show notes and more are at TWIHL.com. If you have comments, an idea for a show or a topic to discuss you can find me on Twitter @nicolasterry and @WeekInHealthLaw.

Subscribe to TWIHL here!

Image of a pile of contraceptive pills.

The Contraceptive Mandate Takes Another Hit  

By Elizabeth Sepper and John Aloysius Cogan, Jr.

Known for his national injunctions of federal legislation, district court judge Reed O’Connor is at it again. In DeOtte v. Azar [PDF], he issued a permanent injunction granting religious exemptions to two nationwide classes that object to the Affordable Care Act’s contraception mandate. Judge O’Connor’s decision is notable for both its expansion of religious exemptions—in contradiction of eight out of nine appellate courts to consider the issue—and its casual disregard for the realities of health insurance markets.

DeOtte is the latest in a series of lawsuits pitting the Religious Freedom Restoration Act, which bars the federal government from substantially burdening a person’s exercise of religion, against the ACA’s mandate that insurance plans cover FDA-approved contraceptives.

Initially, under the mandate, churches were exempt and religious non-profit employers—like hospitals and universities—received an accommodation. So long as non-profits gave notice of their objection, their plans could exclude contraception. Their employees then would receive contraception coverage through the insurance company or health plan administrator. In 2014, the Supreme Court extended the accommodation to closely held for-profit corporations in Burwell v. Hobby Lobby, Inc. Read More

Two senior women jogging in a park

What Should We Ask About Age-Based Criteria in Healthcare?

In the American health care system, age shapes patients’ options. Most people over age 65 are eligible for Medicare, which is inaccessible to almost everyone under 65.

But many providers limit older patients’ access to certain interventions—like in-vitro fertilization or organ transplants. Some clinical research studies also exclude older patients, while others stratify populations by age. And insurers in the Affordable Care Act’s individual marketplaces can legally charge older patients up to three times as much as younger patients, which has motivated calls to let people below 65 buy into the Medicare program (although these proposals use age 55 as an eligibility criterion). Many of these uses of age have generated debate in the past, and are likely to continue to generate debate in the future. Read More

Medicaid Buy-In and Section 1332 State Innovation Waivers

As a new Medicare-for-all bill was introduced in the House recently, a number of state-level legislative projects are generating parallel excitement about Medicaid buy-in plans.

In his recent Bill of Health post, Rahul Nayak explained how Medicaid Buy-In would allow states to introduce a public option to their insurance marketplaces. Rahul points to some major questions about how buy-in plans might be implemented. Some of these questions relate to how these plans will operate within the federal statutory system that governs health care marketplaces and Medicaid. In a December Ohio State Law Journal article, for example, Professor Lindsay Wiley explored how Medicaid buy-in plans could be enacted within the waiver systems that shape state implementation of marketplaces and the availability of premium tax credits. Most recently, Emma Sandoe, in an interview for this blog, discussed the ways states are innovating in this space.

Specifically, states seeking to implement buy-in plans will navigate questions about how to leverage the Section 1332 waiver provision of the ACA. Section 1332 of the ACA allows states to apply for waivers of certain marketplace requirements. Through these waivers, states are empowered to provide insurance options that don’t meet all QHP standards and may receive premium tax credits to directly fund insurance products. How states choose to approach this waiver system will dictate what type of funds are available to subsidize coverage, the design of buy-in offerings, and the level of coverage buy-in plans will offer.

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Protesters hold up signs that read "everyone deserves healthcare"

The Future of Health Care? How States are Trailblazing Medicaid Buy-In Programs

States can be laboratories of health reform.

Massachusetts and Oregon expanded insurance coverage during previous periods of federal inaction, and with solutions unlikely to come from a politically divided Washington D.C., how will states tackle the problem of health insurance becoming increasingly unaffordable and unattainable for many families?

Is there a role for the government to play a greater role in making health insurance affordable and accessible? As public support for action on health care grows, what options are available to states now?

I spoke to former Petrie-Flom Student Fellow and Medicaid policy scholar Emma Sandoe about states that have begun to explore Medicaid Buy-In policies, which allow people to purchase government backed health insurance or Medicaid-like plans. Read More

ONC’s Proposed Rule is a Breakthrough in Patient Empowerment

By Adrian Gropper

Imagine solving wicked problems of patient matching, consent, and a patient-centered longitudinal health record while also enabling a world of new healthcare services for patients and physicians to use. The long-awaited Notice of Proposed Rulemaking (NPRM) on information blocking from the Office of the National Coordinator for Health Information Technology (ONC) promises nothing less. 

Having data automatically follow the patient is a laudable goal but difficult for reasons of privacy, security, and institutional workflow. The privacy issues are clear if you use surveillance as the mechanism to follow the patient. Do patients know they’re under surveillance? By whom? Is there one surveillance agency or are there dozens in real-world practice? Can a patient choose who does the surveillance and which health encounters, including behavioral health, social relationships, location, and finance are excluded from the surveillance? Read More