image of the US Supreme Court

What the Supreme Court’s ACA Ruling Might Mean for Nonprofit Hospitals

By Jacob Madden

California v. Texas, a pending Supreme Court case that concerns the constitutionality of the Affordable Care Act (ACA)’s individual mandate, could have profound implications for the standards to which nonprofit hospitals are held.

The ACA’s individual mandate requires people to have health insurance or otherwise pay a penalty. While the Court previously upheld the individual mandate as being constitutional under Congress’ taxation power in the 2012 case National Federation of Independent Business v. Sebelius, it may not do so again. For one, the 2017 Trump tax cuts effectively eliminated the individual mandate’s penalty, raising the question of whether the individual mandate is still a valid exercise of Congress’ taxation power. And conservative Judge Amy Coney Barrett’s confirmation, filling the late Justice Ruth Bader Ginsburg’s seat, has significantly changed the composition of the court.

If the Court strikes down the individual mandate, the rest of the ACA could be in jeopardy, depending on the specifics of the ruling. The Court has several options: sever the individual mandate from the ACA and keep the ACA alive, strike down the ACA in part, or strike down the ACA entirely.

The immediate concern, should the Court strike down the ACA entirely, is that tens of millions of Americans likely would lose their health insurance and other protections afforded by the law. Another, albeit lesser known concern, is that we would lose § 501(r).

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Illustration of a family and large clipboard with items in a list checked off. All are underneath a large blue umbrella

Private Law Alternatives to the Individual Mandate: Video Preview with Wendy Netter Epstein

The Health Law Policy, Bioethics, and Biotechnology Workshop provides a forum for discussion of new scholarship in these fields from the world’s leading experts.

The workshop is led by Professor I. Glenn Cohen, and presenters come from a wide range of disciplines and departments.

In this video, Wendy Netter Epstein gives a preview of her paper, “Private Law Alternatives to the Individual Mandate,” which she will present at the Health Law Policy workshop on November 2, 2020. Watch the full video below:

Close-up Of Stethoscope On Us Currency And American Flag.

Short-Term, Limited-Duration Insurance May Be Here to Stay

By Abe Sutton

Short-term, limited-duration insurance (STLDI) may be here to stay despite legal attacks, poor branding, and a potential Democratic victory in the upcoming Presidential election.

Though the Obama administration curtailed STLDI, it is now likely to endure due to black letter administrative law and changes in circumstance since 2016.

In light of this, a potential Biden administration should package legislation codifying the current regulations with legislation increasing individual market subsidies. A package along these lines could appeal to both sides of the aisle.

In this post, I provide an overview of what STLDI is, explain why administrative law precedents complicate the reversal of current regulations, and propose a path forward for a potential Biden administration. Read More

shopping trolley with medicine

Concerns Raised by ‘Georgia Access’ 1332 Waiver Application

By Matthew B. Lawrence and Haley Gintis

Georgia has applied to the U.S. Department of Health and Human Services (HHS) for a waiver under the Affordable Care Act that would allow it to reshape its private health insurance marketplace.

HHS is accepting comments on the application through September 23, 2020. Commenters so far have raised various issues, including concerns about how the waiver would, if granted, impact access to treatment for mental illness and behavioral health conditions such as substance use disorder.

This blog post summarizes the revised waiver in Part I, changes from the original in Part II, and recent comments about its desirability in Part III.

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Illustration of a family and large clipboard with items in a list checked off. All are underneath a large blue umbrella

Third Time’s a Charm: Georgia’s 1332 Waiver Application

By Abe Sutton

The Georgia Access Model

Georgia's waiver presents a pathway for other states
Other states can follow Georgia’s lead in pursuing innovative 1332 waivers to encourage choice and competition. “A Pathway to Heaven” by ^riza^ is licensed under CC BY 2.0.

In December 2019, Georgia applied for a state relief and empowerment waiver available under Section 1332 of the Affordable Care Act (ACA).

Section 1332 lets states alter select ACA requirements to find the approach that is right for their state and encourage insurance coverage innovation. Georgia has released two prior versions of this waiver proposal; the state’s most recent revision to its 1332 waiver application offers a new vision for the individual market and a potential roadmap for other states. The innovation, the Georgia Access Model, accompanies the now-traditional reinsurance component included in prior 1332 waivers.

The Georgia Access Model shifts Georgia off of healthcare.gov. It instead opts for a decentralized enrollment system that makes plans available through the commercial market. Georgia argues this will increase individual market enrollment and reduce premiums. In this piece, I address some criticisms of the model and present an argument for approving Georgia’s waiver.

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WASHINGTON, DC - OCT. 8, 2019: Rally for LGBTQ rights outside Supreme Court as Justices hear oral arguments in three cases dealing with discrimination in the workplace because of sexual orientation.

What the Supreme Court’s LGBT Discrimination Decision Means for Health Care

By Elizabeth Sepper

On Monday, the Supreme Court held in Bostock v. Clayton County that LGBT discrimination is sex discrimination under Title VII, the federal workplace protection of the Civil Rights Act of 1964.

The ruling comes in stark contrast to a recent action taken by the Department of Health and Human Services (HHS). Just last Friday, HHS issued a new rule interpreting Section 1557 of the Affordable Care Act so as to strip LGBT people of rights to nondiscrimination.

Since it was enacted in 2010, Section 1557 of the Affordable Care Act has prohibited federally funded health programs, including insurers and health care providers, from discriminating based on the sex of patients. In 2016, the Obama Administration issued a rule making clear that transgender people and, to a lesser extent, LGB people were protected.

But under the Agency’s new interpretation, discrimination based on gender identity or sexual orientation is not sex discrimination.

In light of Monday’s Supreme Court decision, many are now wondering whether—and how—the new HHS rule interpreting Section 1557 of the ACA might be affected.

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A data set that looks like America

By Oliver Kim

May marks the annual Asian American and Pacific Islander Heritage Month, which recognizes the history and contributions of this diverse population in the United States. Accounting for that diversity though is one of the challenges facing the Asian American-Pacific Islander (AAPI) community: for example, the Library of Congress commemorative website recognizes that AAPI is a “rather broad term” that can include

all of the Asian continent and the Pacific islands of Melanesia (New Guinea, New Caledonia, Vanuatu, Fiji and the Solomon Islands), Micronesia (Marianas, Guam, Wake Island, Palau, Marshall Islands, Kiribati, Nauru and the Federated States of Micronesia) and Polynesia (New Zealand, Hawaiian Islands, Rotuma, Midway Islands, Samoa, American Samoa, Tonga, Tuvalu, Cook Islands, French Polynesia and Easter Island).

Understanding that diversity has huge policy and political implications, particularly in health policy. Read More

“Ex-Gay” Speaker, Attempted Suicide, and HCSMs

On February 16, Jackie Hill-Perry, an outspoken speaker against homosexuality, delivered a controversial, unapologetically homophobic speech at Harvard’s Emerson Hall. Harvard College Faith and Action, the religious student group that invited Hill-Perry, reserved all the center-front seats for attendees “engaged in protest,” who were “welcomed” to their space of worship. This seemingly beneficent seating arrangement, however, allowed many protestors wearing rainbow flags to experience 30 minutes of worship songs with references to sin and redemption, before having a close-encounter with Hill-Perry. The emphatic speaker then recounted her own journey from initially accepting her same-sex attraction to her eventual embrace of heteronormativity due to her rediscovered Christian faith. A few protestors stormed out of the lecture hall during the height of her speech, when she called same-sex attracted Christians to practice “self-denial,” the same way a Christian would deny lying, stealing, and other grave “sins.”

As undergraduate and graduate students at Harvard, we are fortunate to have access to resources that may help us deal with and recover from the detrimental effects from a hate-filled speech like this. Though far from perfect, we do have at least a limited access to mental health services and other support groups on campus. Intellectually, we have academic resources that could dispute the religious reasoning behind homophobia. In his opening question for Hill-Perry, Professor Jonathan Walton of the Memorial Church quickly challenged the flawed theology Hill-Perry relied on, revealing the parallels between biblically justified racism to biblically justified homophobia. Some students from the audience also pointed out several logical missteps in her reasoning, which led Hill-Perry exclaim how “smart” people at Harvard are. Perhaps, she wasn’t used to speaking to a highly academic audience during her tours. Nonetheless, many non-protesting members of the audience, presumably members of the Harvard Christian group, did nod and clap during her speech. If her remarks could resonate with these Harvard students, how much more persuasive would it be in Christian conferences and churches? Who could stand up for LGBT people, especially the youth, in evangelical communities?

It has long been demonstrated that LGBT youths have a much higher suicide and attempted suicide rate comparing to their heterosexual counterparts in the United States and abroad. They are also significantly more likely to suffer from mental health issues ranging from depression to self-harm. Moreover, those living in evangelical families or communities where homophobia is still prevalent are especially vulnerable. Listening to a speech like the one delivered by Hill-Perry may worsen their daily struggles and increase their risk of suicide. Given these health risks of LGBT youths, we might expect that evangelical leaders who “love the sinner but hate the sin” would at least care about the health and safety of these minors, or simply respect their dignity as human beings. However, the reality could be far gloomier, falling short of these minimum expectations. The rest of the essay will turn the discussion toward how LGBT youths might be treated under the practices of Christian health-sharing ministries (HCSMs).

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Slightly Hazy: An Insurer’s Emergency Room Policy Draws Congressional Scrutiny

By Oliver Kim

Last year, I had the good fortune to present at the Petrie-Flom Center’s conference on transparency and I started with an anecdote about a congressman who decided to wait rather than take his son immediately to the emergency room after he injured himself. The congressman assumed his son only had a sprain, but he had actually broken his arm. So why the wait? Because of a difference in his co-pay. In an interview, the congressman argued for policies to push consumers to understand—and be exposed to— healthcare costs in order to make better decisions about their care: “Way too often, people pull out their insurance card and they say ‘I don’t know the difference or cost between an X-ray or an MRI or CT Scan.’ I might make a little different decision if I did know (what) some of those costs were and those costs came back to me.”

The congressman’s policy prescription is becoming reality: last year, the largest Blue Cross Blue Shield plan Anthem announced a new policy where it would deny coverage for care provided in an emergency room that was later deemed non-emergent (except in certain circumstances). It seems a far cry from simply charging an ER co-pay, but Anthem argues it has seen a rise in non-emergency care being provided in emergency rooms. How are patients supposed to know if the ache or pain they are experiencing is not an emergency? Apparently there is a spreadsheet of over 1,900 ailments that Anthem considers non-emergent.

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Block Grants: Sound Theory or Doomed to Fail?

Block grants are all the rage. Take the latest G.O.P. proposal to repeal and replace the Affordable Care Act: the Graham-Cassidy bill. It proposes to replace the current system and instead give grants to the states, essentially taking the funds the federal government now spends under the ACA for premium subsidies and Medicaid expansion and give those funds to the states as a lump sum with little regulation.

There is a complicated formula by which the bill proposes divvying up this money among the states. Many think the formula is unfair, that it benefits red states over blue states, and that it just flat isn’t enough money. These are incredibly important concerns. But let’s put them to the side for just a moment and consider the theory behind block granting. Is there any world, for instance assuming that the amount and allocation of the funding could be resolved (probably crazy talk), in which switching to block granting may actually improve upon the status quo?

Proponents of block granting health care make two main arguments. First, it will reduce costs. By block granting Medicaid and the ACA subsidies, we end the blank check open entitlement that these programs have become and give states more skin in the game. Second, these cost savings will come from empowering states to innovate. States will become more efficient, improve quality, and solve their own state-specific problems.

These arguments have an understandable appeal. But how will states really react to providing health care coverage on a budget? Read More