Friday, July 6, 2012
Diana Winters, Not Sick Yet: Food-Safety-Impact Litigation and Barriers to Justiciability, SSRN/Brooklyn L.Rev.
Mark Rothstein, Access to Sensitive Information in Segmented Electronic Health Records, SSRN/JLME
David A. Asch et al, Automated Hovering in Health Care — Watching Over the 5000 Hours, NEJM
I said last week that I would use these posts to think out-loud about how I would teach ACA this coming year. I'm pretty sure the students will be very interested. The Kaiser Family Foundation reports that 6 out of 10 Americans[and I'll bet 10 out of 10 law students] are aware of the Supreme Court’s decision upholding the constitutionality of the Affordable Care Act (ACA) and that “Overall, eight in ten Democrats approve of the court’s decision to uphold the primary provisions of the health care law, while eight in ten Republicans disapprove.” That’s a big difference and I’m curious to learn more about what is driving this continued division.
I live in far West Texas where ACA is viewed with apprehension and concern. Like all of us on Health Law Professor Blog, I spent a lot of time last week talking to the media, and one of the most fun experiences was when I found myself on our local Fox news channel both on TV and on drive-time Radio. The Fox station here is excellent and thoughtful, so I thought I’d go to Fox News’ national home page and see what kind of information Republicans were getting. According to the Pew Research Center bi-annual media consumption poll, “Four-in-ten Republicans (40%) now say they regularly watch Fox News”
Here’s the headline from Fox: “Five major ObamaCare taxes that will hit your wallet in 2013” by John Klatch. So which of their reporters is John Kartch? Well, he’s not exactly a reporter. He’s executive director of Americans for Tax Reform, Grover Norquist’s organization. You remember from the primaries—they are the ones that ask all candidates to sign “The Pledge” that they will vote against all new taxes. I had, apparently, stumbled onto the “opinion” section. Ok, what are these five taxes—how is ACA going to increase the amount I pay for health-care? Apparently a lot!
Thursday, July 5, 2012
As scholars work through the details of the Health Care Cases, I hope we don’t miss the monumental importance of the survival of the ACA to ordinary people. For example, during this discussion, a pediatric occupational therapist named Frances called in. She spends her life providing care to kids, but without the ACA, she could not afford to have her retinal melanoma monitored. She says, “the private sector won’t touch me with a ten foot pole,” “every day I fear this thing will start growing,” and then breaks down crying as she says, “I see this ruling as hope, that, every day I can see the kids” (that she treats).
The host then turned to a scholar in health care policy at the American Enterprise Institute, who said, among other things, “we should get away from a specific individual” situation when discussing the law. I imagine the same, repeated response, to any story about crises averted by the 30 million or so people who will gain insurance coverage under the ACA. The next caller, Tom, talked about paying $1400 a month for insurance, pre-Obamacare, getting dropped by his insurer, being a “walking dead man,” and then getting a $297 a month plan under provisions of the ACA. His verdict: “The program saved my life, those five justices saved my life.” The host mercifully spared the AEI scholar from having to respond.
When historians look back at the media circus around this case, perhaps the most shocking thing to them will be how a country could be dragooned into endless discussions of broccoli purchase mandates, crowding out the stories of people like Frances and Tom. No doubt many of the celebrities who orchestrated the discussion have never been without insurance, and can barely imagine what it would be like to lack it. Kudos to WBUR’s On Point for featuring the voices of people who know all too well.
The suffering and the desperation are real, but far too many people don’t speak up. Thank goodness for the mother of Deamonte Diver, who did:
In 2007, Maryland’s Medicaid dental-care program came under fire after a Prince George’s County boy died from an untreated tooth infection that spread lethal bacteria to his brain. Five years later, the same system that failed 12-year-old Deamonte Driver is now touted as one of the best in the nation, officials said Wednesday at a children’s dental care panel on Capitol Hill.
Health-care representatives from across the country addressed the state of children’s dental care at the event hosted by Pew’s Children’s Dental Care campaign. Maryland’s efforts at reform, spurred in large part by Deamonte’s death, received top marks in a 2011 Pew Charitable Trusts report released in May.
Change is possible, when those who are treated worst by the current system speak up. [FP]
Cross-posted at Concurring Opinions:
The Healthcare Cases contain a major factual fallacy that Medicaid is somehow now two programs, old Medicaid and new Medicaid. Dismayingly, Chief Justice Roberts persuaded Justices Breyer and Kagan to sign on to this ridiculous description of Medicaid. And the dissent bought it too. As I’ve said before, healthcare is an imperfect vehicle for constitutional change. Here’s why that description is both wrong and potentially dangerous.
The Roberts plurality on Medicaid and the joint dissent both describe Medicaid as if it had been structured to cover certain categories of the poor as a way to protect states. History tells us this characterization is quite far from the truth. As I have described elsewhere, in 1965, Medicaid was limited to covering the unfortunately named “deserving poor” because the states had only provided benefits to the deserving poor. That “choice” was not really a choice at all, but rather the result of path dependence on the part of both the states and the federal government. Prior to the New Deal, states were responsible for welfare-type programs, and welfare programs only extended help to certain poor who were deemed blameless in their poverty. This notion of blamelessness was a direct descendent of the Elizabethan Poor Laws, which found certain poor liable for their poverty and allowed assistance for only certain “deserving poor” – and those poor happened to be widows, orphans, disabled, and elderly. Sound familiar? It should, as these are essentially the same categories that were covered in 1965, when Kerr-Mills became Medicaid, a more centralized and clearly federal program.
Since 1965, the federal government has slowly added to Medicaid eligibility, thereby also slowly eroding some of the old notions regarding the deserving poor. And, the states have always had the option of extending Medicaid to poor beyond the old categories, an option that every state has exercised to some degree. For example, all states provide some coverage to parents of needy children, not just pregnant women, and some states have covered childless, non-disabled adults under age 65. Thus, extending eligibility and eliminating the categorical characterizations of eligibility is not unprecedented. And again, that distinction lies in biases about who should receive governmental assistance that date to the colonial period, not a deliberate choice to protect states. [more after the jump]
Call For Papers: Journal of Law and Health’s Annual Symposium: The Legal and Ethical Implications of Posthumous Reproduction
You are invited to submit an Article for possible inclusion in Journal of Law and Health’s Annual Symposium: The Legal and Ethical Implications of Posthumous Reproduction. The Journal of Law and Health is a student-run publication dedicated to publishing innovative articles that offer diverse perspectives on the intersection between law, health and medicine.
The selection of the Symposium topic was a result of the recent Supreme Court decision in Astrue v. Capato, 132 S. Ct. 995 (2012). In that case, the Supreme Court held that children conceived through in vitro fertilization after the death of a parent were not automatically entitled to survivor benefits under the Social Security law. The Court stated that the children’s eligibility to receive the benefits depended upon their ability to inheritance under the state’s intestacy system. The facts of the Astrue case indicate just one of the legal consequences of posthumous reproduction. The Symposium aims to give judges, legislators, and academics the opportunity to present research that highlights the legal and ethical issues that may occur because of the availability of posthumous reproduction.
Wednesday, July 4, 2012
Health Law Program Updates: The Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics
Health Law Prof Blog is starting a new feature to keep readers updated on some of the many changes in health law degree and certificate programs across the country over the past year or so. If you have health law degree or certificate program updates, please send them to me, Katharine Van Tassel at firstname.lastname@example.org or, after July 30, at email@example.com and I will post them for you.
Here is the next Program Update in our series:
The Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School, co-directed by Professors I. Glenn Cohen and Benjamin Roin, is entering its 8th year this fall. The Center was founded in 2005 as an interdisciplinary program intended to respond to the need for leading legal scholarship in these fields. Today, we advance this mission through our faculty and fellows’ academic publications and commentary; course offerings intended to train the next generation of practitioners and scholars; and conferences, panel discussions, and lectures on current issues at the intersection of law and medicine.
The Center has four main areas of activity. First, we run a two-year academic fellowship program, which is mostly geared toward preparing aspiring law professors for the market, as well as a student fellowship for Harvard graduate students interested in pursuing their own independent scholarship. Our Academic Fellows have enjoyed great success, placing in tenure-track positions at top schools including Harvard, UC Berkeley, BU, UCLA, Cornell, and the University of Arizona.
Second, we host extensive programming each year, ranging from lunchtime panels to a major annual conference. This past year's events had a heavy focus on health care reform, but also brought together academics, policymakers, practitioners, students, and the public to discuss reproductive ethics, family law, and the first major attempt to revise the regulations governing human subjects research in over two decades.
Third, our faculty affiliates and fellows offer courses in a range of areas broadly falling under the health law heading, including a yearly workshop in health law and policy. This public workshop has become a premier venue for leading scholars in health law, biotechnology, and bioethics to launch, discuss, and improve their newest ideas with comments from students, faculty, and other ttendees.
Fourth, and finally, we support the scholarship of our prolific affiliated faculty.
This summer, we welcomed a new Executive Director, Holly Fernandez Lynch, who will help the Center expand into its next phase of development, which will likely introduce new opportunities for students, a revamped and resource-heavy website for those interested in our fields, experimentation with different fellowship models and Center projects, and more programming. On that front, we're planning a number of events for the upcoming academic year, including a major symposium on Institutional Financial Conflicts of Interest in Research Universities to be held November 2, 2012. The world-class speaker list includes Francis Collins, Ezekiel Emanuel, Derek Bok, and many more.
To keep up with what's happening at the Petrie-Flom Center, you can sign up for updates though our email list serve. You can also find out more about what we've been up to in our newsletter, The Petrie Dish. If you'll be in Cambridge, please let us know - we'd love to see you at one of our workshops or other events. And we're always eager to pursue collaborations with other centers and institutions that have related missions to our own. Be in touch!
The American Society of Law, Medicine & Ethics
The Section of Law, Medicine & Health Care, AALS
The American Health Lawyers Association
Seek nominations of foundational works of scholarship in health law, very broadly defined, published in English before December 31, 2010.
We intend to publish an edited volume in an academic press.
Nominations must be accompanied by a brief description, not to exceed 300 words, of the importance of the scholarly work, addressed to:
Ted Hutchinson, Executive Director
American Society of Law, Medicine & Ethics
765 Commonwealth Avenue
Boston, MA 02445
The first round of nominations will close on December 31, 2012.
On behalf of the sponsors:
Kevin Outterson, Boston University School of Law, firstname.lastname@example.org
I. Glenn Cohen, Harvard Law School, email@example.com
Introducing the Fourth of the Four New Members of the HealthLawProf Regular Blogging Team - Porfessor Leslie P. Francis
The HealthLawProf Blog is very pleased to introduce the third of the four new members of our regular blogging team here at the HealthLawProf Blog, Professor Leslie P. Francis. Here is her bio and read more here:
Leslie P. Francis is Distinguished Professor of Law and Philosophy and Alfred C. Emery Professor of Law at the University of Utah. At Utah, she also holds adjunct appointments in the Division of Medical Ethics in the Department of Internal Medicine, in the Public Health program in the Department of Family Medicine, and in the Political Science Department. Francis received her Ph.D. in Philosophy from the University of Michigan in 1974 and her J.D from the University of Utah in 1981. She was a law clerk to Judge Abner Mikva of the United States Court of Appeals for the District of Columbia Circuit in 1981-82.
Professor Francis specializes in Ethics, Bioethics, Philosophy of Law, Health Law, and Disability Law. At present, she is leading the College of Law’s efforts to develop the Biolaw Project. Francis’s most recent books are The Patient as Victim and Vector: Ethics and Infectious Disease (with Margaret Battin, Jay Jacobson, and Charles Smith; Oxford University Press 2009); and the Blackwell Guide to Medical Ethics (edited with Rosamond Rhodes and Anita Silvers; Blackwell’s 2006). She also has edited (with Anita Silvers), Americans With Disabilities: Implications of the Law for Individuals and Institutions (Routledge, 2000). Articles published within the past year deal with topics such as syndromic surveillance, patient trust and electronic medical records, race and genetic discrimination, disability discrimination and access to health care, the intersection between disability discrimination and discrimination based on aged-ness, and federalism and the recognition of new legal rights. She is currently a member of the American Law Institute (elected 1986), the ethics committee of the American Society for Reproductive Medicine, and the National Committee on Health and Vital Statistics where she serves as cochair of the committee on Security, Privacy, and Confidentiality. In the spring of 2000, she was awarded the University of Utah’s Rosenblatt Prize for overall excellence in research, teaching, and academic service.
According to the American Pyrotechnics Association, the use of fireworks in the US has increased ten-fold over the past 25 years, reaching over 250 million pounds. At the same time, injury rates per pound have fallen approximately ten-fold as well. Nonetheless, because of the immense increase in consumption, overall costs of fireworks injuries have continued to rise, to well over $100 million. And that doesn't count property damage, wildfire risks, or just plain air pollution. The most typical victim is a male, age 10-14.
So, in posting on this 4th of July, I am tempted to reflect whether a ban on the sale of fireworks for private use would be an intolerable infringement on liberty. It wouldn't be a tax, and it wouldn't be like forbidding sin or making you eat your broccoli. But it would restrict a liberty that might well be regarded as one of the most traditional, a liberty even celebrated in our national anthem. One can imagine howls of protest about a ban being unAmerican, another example of government trying to tell ordinary people how to live their lives.
Interestingly, this is not the reported public reaction to the many local bans being imposed in my state of Utah. People are said to understand the need for bans and even cancellations of public fireworks displays, not to protect them or their children from themselves, but because of the serious fire dangers they pose. At the state level, Utah's governor is even entertaining the possibility of a ban on target practice, because of the risks of sparks causing fire dangers. This in a state with remarkably permissive concealed carry laws—the only statutory restrictions are airports and federal buildings—which even allow people to carry loaded weapons into schools and hospitals.
All this suggests to me that the rhetoric supporting universal health care in the United States may be seriously misconceived. Suppose that instead all the focus on the need of individuals for insurance or the importance of encouraging healthy behaviors, we started instead with public dangers: infectious disease, toxic exposures, unhealthy air. In other words, suppose we started health reform as the "old" public health, in a really serious way, with sufficient funding and ready availability. We might just get used to seeing what governments can do for us all--something at least in my judgment we are very much in need of today.
Happy Fourth of July everyone!
Tuesday, July 3, 2012
Are States Really Prepared for the Consequences of Refusing the Medicaid Expansion Money?
The ink is barely dry on the Supreme Court's Affordable Care Act decision, but at least 8 states have already raised questions about whether they will implement the now-optional expansion of Medicaid to childless adults under 133% of the federal poverty level, according to the American Health Lawyers Health Law Health and Life Sciences Law Daily. The governors of Missouri, Mississippi, Nebraska, Alaska, Georgia, Michigan, Florida, Louisiana, and Texas have all either said categorically that they will not implement the expansion, or that they are seriously studying whether or not to do so. All of them cite the costs of the expansion on their hard-pressed state treasuries as the reason for not implementing it, even though the states will pay only a small fraction of the overall costs of the expansion. Apparently, they view the Medicaid expansion as a sort of fiscal Trojan horse; it looks good on the outside, but once it gets in the gates, it will destroy the state treasury. Will these states really have the political will to refuse to take a large amount of federal money to help some of their poorest citizens? The poor are undoubtedly going to get sick and need care regardless of whether the states take the money or not. Who is bearing these costs now, if not the state-run or subsidized safety-net hospitals, or the other citizens of these states, through increased insurance premiums and state taxes? Or perhaps it is the employers of the working poor, who pay the price in lost productivity and absenteeism due to untreated employee illnesses? And how will people in non-expansion states feel about their federal tax money being redistributed to pay for health care for the citizens of the states that do expand their Medicaid programs? I hope that the political leaders of the "no-expansion" states review these costs and the real consequences of refusing the expansion carefully before making this decision, rather than just reacting in a knee-jerk fashion to the politics of the day.
Medical Device Manufacturers and Taxes
With regard to the costs of the ACA, National Public Radio ran an interesting story yesterday about the differing views of the effect that the new 2.3% excise tax on the sale of medical devices will have on the industry. A medical device manufacturer in the Boston area claimed that 70% of medical device manufacturers are not yet profitable, and that this will hurt innovation in the industry. An economist from a left-leaning think tank countered that the costs of the tax will merely be passed on to purchasers, such as hospitals and group purchasing organizations. Either way, consumers will lose, because those costs will be passed on in some fashion to the end-user, either through increased premiums or out-of-pocket costs. This is one of the major flaws in the ACA, it doesn't do enough to hold down the costs of care, and this could ultimately turn out to be its downfall.
Big Pharma and the Largest Health Care Fraud Settlement in U.S. History
The ACA also imposes hefty fees on the pharmaceutical manufacturing sector, of between $2.8 and $4.1 billion per year. However, big pharma has not been nearly as vociferous about the effect of these fees on its business as the medical device industry has been. And a news flash from yesterday may illustrate why--according to BNA's Health Care Fraud Report, GlaxoSmithKline just agreed to pay a $3 billion fine for misbranding, paying kickbacks, and improper marketing for a number of its most popular drugs, including Paxil, Avandia, and Wellbutrin. This is the largest health-care fraud settlement in U.S. history. Makes complaints about $2.8 in fees for the whole industry seem trite, don't you think?
INVITATION TO SIXTH ANNUAL IP SCHOLARS FORUM
June 13, 2012
You are cordially invited to the Sixth Annual IP Scholars Forum, sponsored by the University of Akron School of Law’s Center for Intellectual Property & Technology, which will be held at the law school on Friday, October 26, 2012, from 9:00 AM – 2:00 PM.
The Forum’s purpose is to bring together a small group of prominent scholars for intensive, high-level discussions on cutting-edge issues of common interest. This year’s Forum will discuss “The Impact of IP on Public Health.”
This topic will celebrate the arrival of a new member of our faculty, Katharine Van Tassel, who comes to us from Western New England College of Law and St. Thomas University School of Law in Florida. She has extensive experience in health law issues and serves as the editor of the Health Law Prof Blog. Professor Jay Dratler, Jr., although retired, will moderate the Forum with her help.
Because our topic this year is interdisciplinary, we have invited a number of noted health law scholars individually. So far, the following professors have accepted our invitation:
• Frank Pasquale (Seton Hall University School of Law), Schering-Plough Professor in Health Care Regulation and Enforcement and an executive member of the AALS section on Law, Medicine, and Health Care. Professor Pasquale has written many articles on health law and IP and is a frequent blogger on Concurring Opinions, Madisonian.net, and HealthLawProf Blog. His “short admission paper” (see below) will be entitled “The Emerging Intellectual Property Law of Health Data.” It will focus on the barriers to health-data transparency that IP creates, and how regulation and incentives can break them down.
• Andrew Torrance (University of Kansas School of Law), former chair of the AALS Biolaw Section, founder of the Lexvivo blog, and co-founder of the Biolaw blog. Professor Torrance has spoken and written often on biotechnology and intellectual property. His short paper will be entitled “Nothing under the Sun that is Made of Man.” It will focus on the Supreme Court’s recent Prometheus decision and the patentability of genetic sequences, body fluids, body parts, and research and diagnostic methods that use them.
• Jim Chen (University of Louisville – Louis D. Brandeis School of Law), former dean of the Louis D. Brandeis School of Law, founder of the Jurisdynamics Network, and frequent blogger at the Biolaw blog. Professor Chen is an expert on law, economics, and regulatory policy. His short paper will address the intersection of IP with biodiversity and traditional knowledge.
The Supreme Court’s decision affirming the constitutionality of most of the Patient Protection and Affordable Care Act of 2010 (“ACA”) is likely to have a profound impact on health care quality, cost and access. This decision allows the country to move forward with ACA programs that encourage the movement from a customary-care model of medical practice to an evidence-based model. However, it appears that the three main state systems for health care quality improvement — the tort, licensure and hospital peer review systems — may stand in the way.
A large and rapidly growing group of empirical studies suggests that the current normative practice of custom-based medicine in the United States has a profoundly negative impact on the quality and cost of health care. The customary care, or eminence-based model of medical practice is based on physician preference and not on objective, scientific evidence.
These quality and cost problems with the customary-care model have triggered a new, national push to move the United States to a modern, evidence-based model of medical practice through major changes in government-provided health care, including the numerous, multi-billion dollar new programs created by the ACA, as well as changes in the VA Hospital System and Medicare.
The evidence-based model of medical practice is grounded in empirical data generated by clinical outcomes and effectiveness research which suggests the optimum treatment for a rapidly growing number of clinical conditions. This use of empirical data generated through scientific methodology to make medical decisions shows great promise for enhancing quality of care while decreasing the cost of care.
Monday, July 2, 2012
Guest Blogger Professor Will Huhn: How the Supreme Court Upheld the Individual Mandate: It Is and Is Not a "Tax"
In Part II of his opinion upholding the Affordable Care Act, Chief Justice Roberts concluded that the individual mandate is not a "tax" within the meaning of the federal Anti-Injunction Act. However, in Part III-C of his opinion he found that the mandate is a "tax" for purposes of the General Welfare Clause. How could he reach both of those conclusions?
The Anti-Injunction Act prohibits the courts from entertaining challenges to any tax laws until those taxes are assessed. If the AIA had applied to this case, the courts would not have able to rule on the constitutionality of the Affordable Care Act until 2014, when the law goes into effect. By ruling that the individual mandate is not a tax within the meaning of the Anti-Injunction Law Justice Roberts made it possible for the courts to rule on this issue at this time.
The General Welfare Clause of the Constitution confers upon Congress the power to tax and spend:
The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States .... (Art. I, Sec. 8, Cl. 1).
In today's decision the Supreme Court held that the enforcement mechanism for the individual mandate is a tax within the meaning of this constitutional provision. How could the Court decide that the individual mandate is not a tax for purposes of the AIA but is a tax within the meaning of the Tax and Spending Clause of the Constitution?
It gives me great pleasure to introduce guest blogger Professor Wilson R. Huhn:
Wilson R. Huhn is a C. Blake McDowell, Jr., Professor and Associate Director of the Constitutional Law Center at The University of Akron School of Law. He currently teaches courses in Constitutional Law, Advanced Constitutional Law, Jurisprudence, and Commercial Paper. He received his B.A. at Yale University and J.D., cum laude, at Cornell University, where he was a member of the Cornell Law Review. Prior to joining the Akron Law faculty in 1984, Professor Huhn served as law clerk for the late Judge Leo A. Jackson in the 8th District Court of Appeals and as an associate at Squire, Sanders and Dempsey.
Professor Huhn's book "ObamaCare: Is It Necessary, What Will It Accomplish, Is It Constitutional" (Carolina Academic Press 2012) is available in electronic format for Kindle. His book "The Five Types of Legal Argument" (Carolina Academic Press, 2002, 2008) is required reading at a number of law schools nationally.The graduating class selected Professor Huhn Outstanding Professor of the Year in 1987, 1997, 1999, 2003, 2005 and 2008, the Akron law alumni awarded him the Outstanding Publication prize in 2004 and 2006, and the law faculty named him the "Most Valuable Player" for his contributions to legal scholarship, 2001-03. Professor Huhn volunteers his time on community boards and is active organizing and coaching adaptive recreation programs for youths with special needs.
Introducing the Third of the Four New Members of the HealthLawProf Regular Blogging Team - Professor Vickie J. Williams
The HealthLawProf Blog is very pleased to introduce the third of the four new members of our regular blogging team here at the HealthLawProf Blog, Professor Vickie J. Williams. Here is her bio and read more here:
Associate Dean for Academic Affairs and Associate Professor of Law, Gonzaga University School of Law (Assistant Professor, 2003-2008). Adjunct lecturer, University of Washington School of Law (2000, 2003). Teaching areas: Health Care Law, Civil Procedure, Constitutional Law, Conflict of Laws, Federal Jurisdiction. Shareholder and associate, Bennett Bigelow & Leedom, P.S., Seattle, Washington (1995-2003). Associate, Perkins Coie, Seattle, Washington (1990-1995). Professor Williams was a board member, Secretary/Treasurer and then President of the Washington State Society of Healthcare Attorneys from 1997 through 2004. She is admitted to practice in the State of Washington, the Western District of Washington, the Eastern District of Washington, and the Ninth Circuit Court of Appeals. She is a member of the American Health Lawyers Association, the Health Law Section of Washington State Bar Association, the Washington State Society of Healthcare Attorneys. She publishes and speaks on topics related to Health Law, Civil Procedure, Constitutional Law, and the intersection of these areas.
For those interested in the behind-the-scenes analysis of the Supreme Court's decision last week in NFIB v. Sibelius, some of it surprisingly revealing, see:
Jan Crawford on the switch by the Chief Justice to uphold the individual mandate, reported on Face the Nation.
Kevin Sack and Eric Lichtblau on the genesis of the attorneys general challenge to the Affordable Care Act, reported at the New York Times.