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Project Overview and Emerging Themes

Published online by Cambridge University Press:  01 January 2021

Extract

The American public has increasingly identified health care as a key issue of concern. In order to address the multiple problems relating to the access and affordability of health care, President Obama and federal lawmakers across the political spectrum continue to call for major health reform. In any debate on health reform, a predictable set of complex policy, management, economic, and legal issues is likely to be raised. Due to the diverse interests involved, these issues could lead to a series of high-stakes policy debates. Therefore, it is critical that advocates of reform strategies anticipate such issues in order to decrease the likelihood that legally resolvable questions become barriers to substantive health reform. In an effort to frame and study legal challenges and solutions in advance of the heat of political debate, the O’Neill Institute for National and Global Health Law at Georgetown University and the Robert Wood Johnson Foundation have crafted the “Legal Solutions in Health Reform” project.

Type
JLME Supplement
Copyright
Copyright © American Society of Law, Medicine and Ethics 2009

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References

DeNavas-Wait, C. et al., U.S. Department of Commerce, Economics and Statistics Administration, U.S. Census Bureau, Income, Poverty, and Health Insurance Coverage in the United States: 2007, P60–235, August, 2008, available at <http://www.census.gov/prod/2008pubs/p60-235.pdf> (last visited May 27, 2009). Reporting that the number of uninsured U.S. residents decreased in 2007 (percentage changed from 15.8% in 2006 to 15.3% in 2007; number of uninsured fell from 47 million in 2006 to 45.7 million in 2007).+(last+visited+May+27,+2009).+Reporting+that+the+number+of+uninsured+U.S.+residents+decreased+in+2007+(percentage+changed+from+15.8%+in+2006+to+15.3%+in+2007;+number+of+uninsured+fell+from+47+million+in+2006+to+45.7+million+in+2007).>Google Scholar
Schoen, C. et al., “How Many are Underinsured? Trends among U.S. Adults, 2003 and 2007,” Health Affairs Web Exclusive 27, no. 4 (2008): 298309, at 299, available at <http://www.commonwealthfund.org/publications/publications_show.htm?doc_id=688615> (last visited May 27, 2009). Note: To qualify as “underinsured” an individual had to be insured throughout the year and experience one of three “indicators of financial exposure relative to income: (1) out-of-pocket medical expenses for care amounted to 10 percent of income or more; (2) among low-income adults (below 200 percent of the federal poverty level), medical expenses amounted to at least 5 percent of income; or (3) deductibles equaled or exceeded 5 percent of income.”CrossRefGoogle Scholar
Id., at 300.Google Scholar
Hoffman, C. and Schwartz, K., “Eroding Access among Nonelderly U.S. Adults with Chronic Conditions: Ten Years of Change,” Health Affairs Web Exclusive 27, no. 5 (2008): 340348, at 342, available at <http://content.healthaffairs.org/cgi/content/abstract/27/5/w340> (last visited May 27, 2009).CrossRefGoogle Scholar
See Schoen, , supra note 3.Google Scholar
Centers for Medicare and Medicaid Services, Office of the Actuary, “National Health Statistics Group, National Health Expenditure Data, Historical NHE, including Sponsor Analysis, 2007,” available at <http://www.cms.hhs.gov/National-HealthExpendData/25_NHE_Fact_Sheet.asp#TopOfPage> (last visited May 27, 2009) [hereinafter cited as CMS NHE].+(last+visited+May+27,+2009)+[hereinafter+cited+as+CMS+NHE].>Google Scholar
Hartman, M. et al., “National Health Spending in 2007: Slower Drug Spending Contributes to Lowest Rate of Overall Growth Since 1998,” Health Affairs, 28 no. 1 (2009): 246261, available at <http://content.healthaffairs.org/cgi/content/abstract/28/1/246> (last visited May 27, 2009).CrossRefGoogle Scholar
An, J. et al., Kaiser Family Foundation, “U.S. Health Care Costs: Background Brief,” January 2008, available at <http://www.kaiseredu.org/topics_im.asp?imID=1&parentID=61&id=358#3b> (last visited May 27, 2009)(citing Kaiser Family Foundation and Health Research and Educational Trust, Employer Health Benefits 2006 Annual Survey [August 2006], available at <http://www.kff.org/insurance/7527/upload/7527.pdf> [last visited May 27, 2009]).+(last+visited+May+27,+2009)(citing+Kaiser+Family+Foundation+and+Health+Research+and+Educational+Trust,+Employer+Health+Benefits+2006+Annual+Survey+[August+2006],+available+at++[last+visited+May+27,+2009]).>Google Scholar
See CMS NHE, supra note 7.Google Scholar
2002/2003 data shows the United States ranks last among 19 industrialized nations for amenable mortality. See Nolte, E. and McKee, C. M., “Measuring the Health of Nations: Updating an Earlier Analysis,” Health Affairs, 27 no. 1 (2008): 5871; see also The Commonwealth Fund Commission on a High Performance Health System, The Commonwealth Fund, Why Not the Best? Results from the National Scorecard on U.S. Health System Performance, July 2008, available at <http://www.commonwealthfund.org/usr_doc/Why_Not_the_Best_national_scorecard_2008.pdf?section=4039> (last visited May 27, 2009).CrossRefGoogle Scholar
See Schoen, supra note 3.Google Scholar
See Schoen, , supra note 3, at “Exhibit 1,” 301. Note: “middle-class” was defined as adults with incomes above 200 percent of the federal poverty level, about $40,000 per family.Google Scholar
Kaiser Family Foundation, Kaiser Health Tracking Poll: Election 2008, June 25, 2008, available at <http://www.kff.org/kaiserpolls/h08_posr062508pkg.cfm> (last visited May 27, 2009).+(last+visited+May+27,+2009).>Google Scholar
Hoffman, C. et al., The Kaiser Commission on Medicaid and the Uninsured, Kaiser Family Foundation, The Uninsured – A Primer, Key Facts about Americans without Health Insurance, October 2007, available at <http://www.kff.org/uninsured/upload/7451-03.pdf> (last visited May 27, 2009).+(last+visited+May+27,+2009).>Google Scholar
See Schoen, , supra note 3, at 298.Google Scholar
Kaiser Commission on Medicaid and the Uninsured, Kaiser Family Foundation, New Analysis Shows Effect of Rising Unemployment on Health Coverage, Medicaid and SCHIP Spending and Enrollment, April 28, 2008; see chart “Impact of Unemployment Growth on Medicaid and SCHIP and the Number of Uninsured,” available at <http://www.kff.org/med-icaid/kcmu042808pkg.cfm> (last visited May 27, 2009).+(last+visited+May+27,+2009).>Google Scholar
Health08.org website, Kaiser Family Foundation, “2008 Presidential Candidates: Health Care Issues Side-by-Side,” available at <http://www.health08.org/healthissues_sidebyside.cfm> (last visited May 27, 2009).+(last+visited+May+27,+2009).>Google Scholar
The Healthy Americans Act (introduced January 18, 2007), available at <http://www.wyden.senate.gov/issues/Healthy%20Americans%20Act/HAA_Section_by_Section.pdf> (last visited May 27, 2009).+(last+visited+May+27,+2009).>Google Scholar
U.S. Senator Max Baucus (D-Mont.), Call to Action: Health Reform 2009 (November 12, 2008), available at <http://finance.senate.gov/healthreform2009/finalwhitepaper.pdf> (last visited December 28, 2008).+(last+visited+December+28,+2008).>Google Scholar
U.S. Senator Edward M. Kennedy, Senate Health, Education, Labor and Pensions Committee, Affordable Health Choices Act (un-introduced draft released June 9, 2009), available at <http://help.senate.gov/BAI09A84_xml.pdf> (last visited June 23, 2009); House Ways and Means, Energy and Commerce, and Education and Labor Committees, House Tri-Committee Health Reform Discussion Draft (un-introduced draft released June 19, 2009), available at <http://edlabor.house.gov/documents/111/pdf/publications/DraftHealthCareReform-BillText.pdf> (last visited June 23, 2009).+(last+visited+June+23,+2009);+House+Ways+and+Means,+Energy+and+Commerce,+and+Education+and+Labor+Committees,+House+Tri-Committee+Health+Reform+Discussion+Draft+(un-introduced+draft+released+June+19,+2009),+available+at++(last+visited+June+23,+2009).>Google Scholar
U.S. Const. art. VI, cl. 2 (Supremacy Clause).Google Scholar
See generally McCullough v. Maryland, 17 U.S. 316 (1819).Google Scholar
See generally Riegel v. Medtronic, Inc., 128 S. Ct. 999 (2008).Google Scholar
Wyeth v. Levine, 129 S. Ct. 1187 (2009).CrossRefGoogle Scholar
Markel, H. et al., “Extensively Drug-Resistant Tuberculosis: An Isolation Order, Public Health Powers, and a Global Crisis,” JAMA, 298 no. 1 (July 4, 2007): 8386.CrossRefGoogle Scholar
U.S. Const. amend. X.Google Scholar
See Supremacy Clause, supra note 27.Google Scholar
For an example of express preemption, see Boggs v. Boggs, 520 U.S. 833, 841 (1997).Google Scholar
This concept, termed “field preemption,” exists when the federal government has so thoroughly regulated an area of law, there is no room for the states to interpret that law or if the federal interest in the field is so dominant it precludes enforcement of state laws. See Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947); citing Pa. Railroad Co. v. Public Service Comm'n of the Commonwealth of Pa., 250 U.S. 566, 569 (1919).Google Scholar
See generally Riegel v. Medtronic, Inc. and Wyeth v. Levine, supra notes 29 and 30.Google Scholar
See generally Chevron U.S.A., Inc. v. Natural Resources Def. Council, Inc., 467 U.S. 837 (1984).Google Scholar
Employee Benefit Research Institutef, available at <http://www.ebri.org/> (last visited June 29, 2009).+(last+visited+June+29,+2009).>Google Scholar
Claxton, G. and Lundy, J., Health Care Marketplace Project, Kaiser Family Foundation, How Private Health Coverage Works: A Primer 2008 Update, April 2008.Google Scholar
New York State Conference of Blue Cross and Blue Shield Plans v. Travelers Insurance Co., 514 U.S. 645 (1995).Google Scholar
Note: pay or play acts preempted; Maryland Act preempted; New York Suffolk County Fair Share for Health Care Act (aimed primarily at Wal-Mart) preempted; San Francisco City and County — 9th circuit found Ordinance not preempted by ERISA.Google Scholar
15 U.S.C. §§ 1011–1015. (2008)Google Scholar
“This act was in response to a 1944 Supreme Court decision which classified insurers conducting substantial business over state lines as interstate commerce and therefore subject to federal antitrust laws. Congress enacted this act in response to concerns of state authority over private insurance.” See Claxton and Lundy, supra note 40.Google Scholar
See Printz v. United States, 521 U.S. 898 (1997).Google Scholar
Kaiser Daily Health Policy Report, Capital Hill Watch: Law-makers Discuss Role of States in Overhauling U.S. Health Care System, July 16, 2008; quote from Alan Weil, Executive Director of the National Academy for State Health Policy, available at <http://www.kaisernetwork.org/daily_reports/rep_index.cfm?hint=3&DR_ID=53326> (last visited June 29, 2009).+(last+visited+June+29,+2009).>Google Scholar
U.S. Const. amend. 5.Google Scholar
See House Rule X, Government Printing Office: House Rules and Manual, 110th Congress, available at <http://www.gpoaccess.gov/hrm/index.html> (last visited June 29, 2009). See also Senate Rule XXV, Government Printing Office: Senate Manual, 110th Congress, available at <http://www.gpoaccess.gov/smanual/index.html> (last visited June 29, 2009).+(last+visited+June+29,+2009).+See+also+Senate+Rule+XXV,+Government+Printing+Office:+Senate+Manual,+110th+Congress,+available+at++(last+visited+June+29,+2009).>Google Scholar
See House Rule XII, Government Printing Office: House Rules and Manual, 110th Congress, available at <http://www.gpoaccess.gov/hrm/index.html> (last visited June 29, 2009). See also Senate Rule XVII, Government Printing Office: Senate Manual, 110th Congress, available at <http://www.gpoaccess.gov/smanual/index.html> (last visited June 29, 2009).+(last+visited+June+29,+2009).+See+also+Senate+Rule+XVII,+Government+Printing+Office:+Senate+Manual,+110th+Congress,+available+at++(last+visited+June+29,+2009).>Google Scholar
King, D. C., “The Nature of Congressional Committee Jurisdictions,” American Political Science Review 88 (1994): 48, at 50.CrossRefGoogle Scholar
See, e.g., Nather, D. and Foerstel, K., “Proposal Presages Turf Wars,” CQ Weekly Online (June 8, 2002): 1505–1508, at 1505 (reporting that committee jurisdictional battles in Congress were expected in response to President Bush's proposal to establish a Department of Homeland Security).Google Scholar
Hardin, J. W., “An In-depth Look at Congressional Committee Jurisdictions Surrounding Health Issues,” Journal of Health Politics, Policy and Law, 23 no. 3 (1998): 517550, at 517.CrossRefGoogle Scholar
“Time Is Running Out for Passage of Health Care Reform Law in 1994,” American Family Physician, 50 no. 1 (July 1, 1994): 45.Google Scholar
See Waldman, S. and Cohn, B., “How Clinton Blew It,” News-week, June 27, 1994.Google Scholar
See House Rule X, supra note 48; see also Hardin, supra note 52, at 529. A study conducted by John W. Hardin found that the Energy and Commerce Committee received 53% of health bill referrals while Ways and Means received 35% of such bills.Google Scholar
See House Rule X, supra note 48.Google Scholar
See Hardin, , supra note 52, at 529. The Hardin Study found that 55% of health bill referrals went to the Finance Committee while the Labor and Human Resources Committee received 39% of such bills.Google Scholar
See Chevron, supra note 37.Google Scholar
Centers for Medicare and Medicaid Services, Department of Health and Human Services, “Medicare Program: General Information Overview,” available at <http://www.cms.hhs.gov/MedicareGenInfo/> (last visited June 29, 2009).+(last+visited+June+29,+2009).>Google Scholar
United States Department of Health and Human Services, Budget in Brief: Fiscal Year 2009, available at <http://www.hhs.gov/budget/09budget/2009BudgetInBrief.pdf> (last visited June 29, 2009) [hereinafter cited as HHS Budget].+(last+visited+June+29,+2009)+[hereinafter+cited+as+HHS+Budget].>Google Scholar
Indian Health Service, U.S. Department of Health and Human Services, “A Quick Look,” available at <http://info.ihs.gov/QuickLook.asp> (last visited June 29, 2009).+(last+visited+June+29,+2009).>Google Scholar
See HHS Budget, supra note 64.Google Scholar
Testimony of John E. Dicken, Director, Health Care before the Subcommittee on Oversight of Government Management, U.S. Senate, United States Government Accountability Office, Federal Employees Health Benefits Program: Premiums Continue to Rise, but Rate of Growth Has Recently Slowed, GAO-07-873T, May 18, 2007, available at <http://www.gao.gov/new.items/d07873t.pdf> (last visited June 29, 2009).+(last+visited+June+29,+2009).>Google Scholar
U.S. Department of Labor, “Health Plans and Benefits,” available at <http://www.dol.gov/dol/topic/health-plans/index.htm> (last visited June 29, 2009).+(last+visited+June+29,+2009).>Google Scholar
Department of Defense, 2007 TRICARE Stakeholders Report, available at <http://www.tricare.mil/stakeholders/downloads/stakeholders_2007.pdf>..>Google Scholar
Health Administration Center, “The Civilian Health and Medical Program of the Department of Veterans Affairs (CHAMPVA),” Department of Veterans Affairs, available at <http://www.va.gov/hac/forbeneficiaries/champva/champva.asp> (last visited June 29, 2009).+(last+visited+June+29,+2009).>Google Scholar
Furthermore, if more individuals switch to private insurance, the federal budget for public insurance programs would decrease accordingly.Google Scholar
Goodman, R. A. et al., eds., Law in Public Health Practice, 2nd ed. (Oxford: Oxford University Press, 2007): at Chapter 3.CrossRefGoogle Scholar
42 U.S.C. §§ 1320a-7a (2008).Google Scholar
31 U.S.C. §§ 3729–3733 (2008).Google Scholar
31 U.S.C. § 3730 (b) (2009).Google Scholar
Borzi, P. and Rosenbaum, S., Pending Patient Protection Legislation: A Comparative Analysis of Key Provisions of the House and Senate Versions of H.R. 2990, prepared for the Kaiser Family Foundation, March 2000.Google Scholar
42 C.F.R. §§ 1005.1–1005.23 (2009).CrossRefGoogle Scholar
See Goodman, , supra note 75.Google Scholar
See supra note 76.Google Scholar
Id., at 1395dd (d)(2)(A) (2008).Google Scholar
See U.S. v. Sandoval, 532 U.S. 275 (2001).Google Scholar