Picture of north star in starry night sky.

Health Justice as the Lodestar of Incremental Health Reform

By Elizabeth McCuskey

Health justice is the lodestar we need for the next generation of health reform. It centers justice as the destination for health care regulation and supplies the conceptual framework for assessing our progress toward it. It does so by judging health reforms on their equitable distribution of the burdens and benefits of investments in the health care system, and their abilities to improve public health and to empower subordinated individuals and communities. Refocusing health reform on a health justice gestalt has greater urgency than ever, given the scale of injustice in our health care system and its tragic, unignorable consequences during the coronavirus pandemic.

Read More

Hand arranging wood block pyramid with health icons on each block.

ERISA Preemption Reform: Unlocking States’ Capacity for Incremental Reform

By Elizabeth McCuskey

For the past 46 years, the Employee Retirement Income Security Act (ERISA) has preempted state regulation that “relates to” employer-sponsored health benefits. 

Much has changed in health care and society over that time; but ERISA’s preemption abides — widely maligned, yet unaltered. An ERISA preemption waiver thus presents a long-overdue update to health care regulation with a lot to recommend it to the Biden Administration’s health care agenda: it enables states to “strengthen and build on the Affordable Care Act,” it offers a modest incremental step that could pave the way for bigger structural change, it prompts no federal spending, and it has bipartisan political support. 

The preemption provision in 1974 was supposed to entice multistate employers to offer benefits by creating some federal uniformity in benefit regulation. For health benefits, however, that uniformity has been largely deregulatory.

ERISA preemption currently prevents states from fully enforcing a wide variety of health reforms, ranging from claims data collection to state-level employer mandates. And it casts a pall of private litigation challenges over even the ones that should be enforceable, like surprise billing regulation, prescription drug pricing measures, and state and local public option plans.  

Read More

U.S. Capitol Building at Night

A Legislative Override Could Save the ACA (and Fix Other Misapplications of Health Laws)

By John Aloysius Cogan, Jr.

The Congressional Democrats and the Biden administration need not wait for the Supreme Court to determine the fate of the Affordable Care Act (ACA) in California v. Texas; they can take charge of the case today by enacting and signing into law overriding legislation. 

Since the threat to the ACA is based on the interpretation of a federal statute — the ACA’s “inseverability clause” — Congress is within its rights to take charge of the case. Why? Because courts are not the final word on the meaning of a statute, Congress is.

Read More

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 a stethoscope on an American flag

Healthcare Already Taking Center Stage in 2020 Democratic Primary Race

With Massachusetts senator Elizabeth Warren (D-MA) announcing that she was forming a Presidential exploratory committee, I suppose that means the 2020 Democratic Primary is off to the races. Joining her are some lower profile candidates, including John Delaney (former MD congressman), Richard Ojeda (WV state senator and former congressional candidate), Tulsi Gabbard (HI congresswoman), Julian Castro (former secretary of HUD). And within the last week, senators Kirsten Gillibrand (D-NY) and Kamala Harris (D-CA) put their hats in the ring.

While many issues are likely to play prominent roles in this campaign — immigration, taxes, inequality, housing, universal pre-k, college affordability, environment/climate change — healthcare is likely to play an outsized role after Democrats found it to be a winning issue in 2018.  Read More