HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Saturday, June 18, 2011

ACA Waiver Program to End

The New York Times reports that the Obama administration is ending its controversial program for granting waivers from a requirement of the Patient Protection and Affordable Care Act.  The Act requires health care plans to provide at least $750,000 of annual coverage this year and higher minimum levels in 2012 and 2013. Starting in 2014, annual coverage limits will be eliminated.

More than 1,000 health care plans have been exempted from the $750,000 minimum, but no more applications for a waiver will be granted after September 22.



June 18, 2011 | Permalink | Comments (0) | TrackBack (0)

Friday, June 17, 2011

Discussion on Pharma Face-Off

I was recently invited to debate issues in the Vermont data mining case on the program Pharma Face-Off. We've had some pro-PhRMA and anti-PhRMA perspectives at Health Reform Watch over the past year, and the program continues the conversation. I've been a bit tied up giving 6 talks in four cities over the past 8 days, but I'll have some thoughts on it next week. One preview of my counterintuitive take: I think IMS Health (and its ally, PhRMA) are likely to win this case, but it could prove a Pyrrhic victory. The less doctors can constructively structure their encounters with detailers and reps, the more likely they are to shut them out altogether (a "solution" to the excessive influence problem that both Justice Scalia and IMS Health's counsel, Tom Goldstein, repeatedly mentioned in oral arguments). Be careful what you wish for. [FP]

June 17, 2011 | Permalink | Comments (0) | TrackBack (0)

Worth Reading This Week

Rachel Behrman Sherman et al, New FDA Regulation to Improve Safety Reporting in Clinical Trials, NEJM

Jordan Paradise, Reassessing 'Safety' for Nanotechnology Combination Products: What Do 'Biosimilars' Add to Regulatory Challenges for the FDA? SSRN/SLU LJ

Nicole Huberfeld, Federalizing Medicaid, SSRN/U. Pa. J. Const. L.

Akhil Amar, The Lawfulness of Health-Care Reform, SSRN/Yale LJ Online

Barbara Evans, Much Ado About Data Ownership, SSRN/Harv. J. L & Tech.



June 17, 2011 | Permalink | Comments (0) | TrackBack (0)

Not a great Week for Medicaid

If Medicaid were a person this week would probably have seen it resigning to spend more time with its family.

First, according to an audit study by Bisgaier and Rhodes published in the New England journal, here, 66% of the callers to Illinois specialty clinics for their children reporting Medicaid–CHIP coverage were denied an appointment, compared with 11% of the callers reporting Blue Cross Blue Shield insurance. When appointments were offered to both cohorts, the wait for an appointment was roughly twice the number of days for a publicly insured child compared to a privately insured one. Over at The Incidental Economist, here, Harold Pollack makes some excellent points about this study and Medicaid generally. And, Ezra Klein at the Post, here, has his usual succinct commentary both on the audit and the furore surrounding it.

According to Robert Pear, writing in the New York Times, here, the downward spiral of Medicaid seems unstoppable. The $90 billion stimulus package is about over, physician reimbursement will decrease, and hospitals are looking to cross-subsidize some of their Medicaid patient expenditures from the privately insured. The bottom line-Medicaid patients are not an influential voting block, federal funding is not going to increase and states have to reduce costs. Sommers and Epstein, again in the New England Journal, here, provide more data noting that Medicaid absorbs 12% of state revenues and, because the program is countercyclical, during the recession states are facing lower revenues while enrollment increases. They also tie the Medicaid issue into healthcare reform noting, "Although states will receive a large infusion of federal dollars under the ACA, other less-publicized features of the legislation render Medicaid a looming fiscal threat and administrative challenge. In combination with political considerations, these factors have made Medicaid the perfect ideological punching bag for conservatives." And, if you thought that using managed care companies to delver Medicaid services would reduce costs and improve, you should read this sobering report from the Commonwealth Fund, here.

If you can't stomach the current deficit debate and what is likely to happen to Medicaid as discussed here, then look forward courtesy of Nicole Huberfeld's upcoming piece "Federalizing Medicaid," available here. Nicole argues:

Medicaid is often described as a classic example of cooperative federalism, but the program’s design is creating more discord than cooperation. An overlooked fact is that Medicaid is not a purposefully structured cooperative federalism program. Medicaid is an outgrowth of very old assumptions about the role that localities play in providing welfare-type programs. Despite being an area of traditional state regulation, healthcare should no longer be left to the economic and political whims of the states: Medicaid should be federalized. Admittedly, some would oppose centralization on the ideological grounds that more federal government power is bad, and more state or local power is good. But Medicaid was built on a feeble foundation that allowed a patchwork program to continue and has been solicitous of state control over welfare programs ever since -- not exactly a strong argument for the significant medical variations that occur as a result of Medicaid’s divided structure. In other words, Medicaid is not an effective Brandeisian “laboratory of the states.”



June 17, 2011 | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 14, 2011

Policy Bargains

Ezra Klein, here, explores a scenario where, with ACA protections in place, the employer tax deduction could be traded for an Exchange option for Medicare, and why it's unlikely to happen. Meanwhile Politico, here, speculates on whether Democratic support for Medicaid is as strong as it seems. [NPT]


June 14, 2011 | Permalink | Comments (0) | TrackBack (0)

Monday, June 13, 2011

Guest Blogger Lindsay F. Wiley: Douglas v. Independent Living Center

Wiley My colleague, Steve Vladeck, has an interesting post up on PrawfsBlawg about the Obama administration's brief in Douglas v. Independent Living Center, in which the Supreme Court will determine whether the Supremacy Clause provides sufficient basis for a private cause of action to enforce the equal access provision of the Medicaid Act:

I've been so fortunate to have Steve as a colleague this past year.  He was my go-to federal courts expert as I was teaching Medicaid litigation and we had a wonderful time co-teaching a class session on the ACA litigation.  

I wonder how much time, if any, others have chosen to devote to Medicaid litigation in the health law survey course.  The students definitely found it challenging, but overall they seemed to appreciate the cross-over with constitutional law and federal courts. 

- Lindsay F. Wiley


June 13, 2011 | Permalink | Comments (1) | TrackBack (0)

Kaiser Family Foundation Series on Health Insurance and Reform

Kaiser Family Foundation will be posting a new series of short notes that dissect and help explain the implementation of health reform and the private health insurance market. The series is called “Notes on Health Insurance and Reform” and will feature timely posts that clarify complex regulatory and insurance topics, provide context for ongoing policy debates, and foreshadow significant implementation challenges.

The four initial posts address:

  • Recent changes to the high risk pool program and what it may suggest about the relationship between the federal government and states on other aspects of reform.
  • The lack of reliable information about insurance premiums and underlying costs, and how new regulations on state and federal reviews of unreasonable premium increases could help.
  • Why consumers may need help with the financial aspects of buying coverage through the health insurance exchanges.
  • How the approaches and decisions made by states and the federal government to implement health reform could substantially affect its ultimate results.

An RSS feed is available:


June 13, 2011 | Permalink | Comments (0) | TrackBack (0)