Category Archives: Health Care

Invisible Women: Why an Exemption for Hobby Lobby Would Violate the Establishment Clause

Source: Frederick Mark Gedicks, Andrew Koppelman, Northwestern Public Law Research Paper No. 14-34, March 15, 2014

From the abstract:
Can an employer make his employees foot the bill for his religious beliefs? Merely to ask this question is to answer it. “Religious liberty” does not and cannot include the right to impose the costs of observing one’s religion on someone else. Indeed, the Supreme Court has consistently interpreted the Free Exercise Clause, the Establishment Clause, and Title VII of the Civil Rights Act of 1964 to forbid permissive accommodations of religion in the for-profit workplace when they impose significant burdens on identifiable and discrete third parties.

In Sebelius v. Hobby Lobby Stores, Inc., however, an employer is claiming that the Religious Freedom Restoration Act (RFRA) excuses it from providing health insurance coverage for certain contraceptives under the Affordable Care Act (the “contraception mandate”), coverage that would significantly benefit female employees and covered female dependents who do not share the employer’s religious beliefs. Yet, the women who would be harmed by denial of contraception coverage have been absent from the litigation. Courts have imagined that they are balancing the employer’s religious liberty against some generalized government interest in public health or workplace equality, rather than in the religious and other liberties of actual people whom the Constitution and federal statutes protect from paying the costs of observing their employer’s religious beliefs and practices.

If the Court grants a RFRA exemption to Hobby Lobby, it will initiate a religious accommodation regime in which the religious practices of for-profit employers would be accommodated despite imposing significant costs on their female employees and covered female dependents, while under Title VII those same employers would be almost entirely free from a duty to accommodate the religious practices of those same employees. When a private actor seeks to burden control over reproduction to facilitate that actor’s religious exercise, and the courts don’t even notice the dramatic asymmetry that this deprivation would create in religious accommodation law, then they replicate the very religious discrimination they should be eliminating.

There is no conceivable justification for a permissive accommodation regime that is more sensitive to burdens on a for-profit employer’s religious beliefs than it is to comparable burdens on the religious and other liberties of that same employer’s female employees. Once one realizes that actual women will pay financial and other costs to facilitate Hobby Lobby’s religious exercise, it becomes clear that what Hobby Lobby wants is not religious liberty for all, but only for itself, and even at the cost of religious oppression of others.

Breastfeeding and a New Type of Employment Law

Source: Marcy Karin, Robin Runge, Catholic University Law Review, Vol. 63, No. 2, 2014 Forthcoming

From the abstract:
Buried deep within the Patient Protection and Affordable Care Act is section 4207, a little-noticed provision that amended the Fair Labor Standards Act to provide protections for some women to express milk at work. Section 4207 borrows concepts from existing labor standards and employment discrimination laws to offer job-protected break time and space-related accommodations for breastfeeding purposes. Unlike these prior employment laws, however, these protections are designed to achieve public health goals for a relatively small subgroup of individuals: non-exempt working women who choose to express milk for children under the age of one. The use of employment law to promote public health is not novel, but the decision to place breastfeeding protections in this framework must be considered within the larger context of employment law.

In its examination of this new law, this Article places section 4207 in the broader civil rights context and examines how legislation aimed to achieve goals outside the civil rights context may still nonetheless effectively address historical discrimination and societal oppression. The employment provisions of this new law represent a shift away from traditional labor standards designed to improve employment conditions for all workers and traditional employment discrimination provisions used to address historic discrimination. Its unique combination of protections and its focus on one particular class of workers facilitates the consideration of whether the government should enact workplace legislation to promote healthcare-based conduct. This Article considers, and ultimately rejects, the incorporation of limited employment rights that place symbolic requirements — without more — on employers for a public health purpose.

Survey of Non-Group Health Insurance Enrollees

Source: Liz Hamel and Mira Rao and Larry Levitt and Gary Claxton and Cynthia Cox and Karen Pollitz and Mollyann Brodie, Kaiser Family Foundation, June 19, 2014

From the summary:
January 1, 2014 marked the beginning of several provisions of the Affordable Care Act (ACA) making significant changes to the non-group insurance market, including new rules for insurers regarding who they must cover and what they can charge, along with the opening of new Health Insurance Marketplaces (also known as “Exchanges”) and the availability of premium and cost-sharing subsidies for individuals with low to moderate incomes. Data from the Department of Health and Human Services and others provide some insight into how many people purchased insurance using the new Marketplaces and the types of plans they picked, but much remains unknown about changes to the non-group market as a whole.

The Kaiser Family Foundation Survey of Non-Group Health Insurance Enrollees is the first in a series of surveys taking a closer look at the entire non-group market. This first survey was conducted from early April to early May 2014, after the close of the first ACA open enrollment period. It reports the views and experience of all non-group enrollees, including those with coverage obtained both inside and outside the Exchanges, and those who were uninsured prior to the ACA as well as those who had a previous source of coverage (non-group or otherwise)….
• The ACA motivated many non-group enrollees to get coverage, and nearly six in ten Exchange enrollees were previously uninsured ….
• Enrollees in ACA-compliant plans report somewhat worse health than those in pre-ACA plans ….
• Majority gives positive ratings to their new insurance plans and says they are a good value, though four in ten find it difficult to afford their monthly premium ….
• Among plan switchers, as many report paying less as paying more for their new plans, but survey shows some signs of a trend toward narrower provider networks ….
• Plan switchers are less likely to be satisfied with plan costs, maybe because half of them report having their previous plan cancelled ….
• Half got help with enrollment; most say the shopping process was easy, but a third say it was difficult to set up a Marketplace account ….
• In the non-group market, those most likely to feel they have benefited from the ACA are people getting subsidies, those most likely to feel negatively impacted are those who had their plans cancelled ….

Time’s Up: 2014, The Affordable Care Act and the Health of Minority Communities

Source: Okianer Dark, Perry W. Payne, Jr., Howard Law Research Paper No. 14-1, December 1, 2013

From the abstract:
The Patient Protection and Affordable Care Act of 2010 (ACA) is an ambitious, complicated but necessary undertaking to transform a fragmented American health care system with over 50 million uninsured people to a well coordinated, high quality, affordable health care system that reaches benefits most Americans. The ACA will increase access to health care especially for poor, low, and moderate income individuals and provide families with opportunities to improve their health outcomes and well-being. In addition, the impact of this legislation on people of color will be largely positive but there are some challenges ahead.

Trends in the Health Insurance Coverage Dip for Children Near the Poverty Line

Source: Martin Hugo Saavedra, Oberlin College – Department of Economics, July 8, 2014

From the abstract:
Historically, children near the Federal Poverty Line are less likely to be insured than children from both wealthier families (who obtain health insurance from the private market) and poorer families (who obtain government-funded health insurance). This paper proposes a way to systematically measure the size of the health insurance coverage dip near the poverty line. I then use data from the 1988-2012 Current Population Surveys to track how the size of the health insurance coverage dip has changed over time. This dip briefly increased following the expansion of Medicaid in the early 1990s. Thereafter, the coverage dip decreases and nearly disappears during the CHIP era before the passage of the Affordable Care Act.

Medicaid Spending Growth in the Great Recession and Its Aftermath, FY 2007-2012

Source: Katherine Young and Lisa Clemans-Cope and Emily Lawton and John Holahan, Kaiser Family Foundation, Issue Brief, July 3, 2014

from the summary:
The 2007 to 2012 period encompasses one of the worst economic downturns since the Great Depression, as well as the start of a slow recovery that is still in progress. Although the Great Recession technically ended in 2009, its effects have been felt much longer, with unemployment levels and household incomes slow to return to pre-recession levels. In large part due to this environment, Medicaid enrollment has increased rapidly over the FY 2007 to 2012 period. Throughout its history, the Medicaid program’s spending patterns have nearly always tracked enrollment growth, and the FY 2007 – 2012 period is no exception. During this period, Medicaid enrollment rose from 42.3 million to 54.1 million and spending on medical services (that is, excluding administrative and other non-service spending) rose from $292.7 billion in FY 2007 to $383.6 billion in FY 2012– an average annual increase of 5.6 percent. As states expand their Medicaid programs as part of health reform, we can anticipate that both spending and enrollment will jump in the next few years, although the spending jump will mostly be at the federal level. In this paper, we use CMS administrative data to track Medicaid spending by service or category from FY 2007 through FY 2012. We then use enrollment data to calculate the spending per enrollee growth by service during this period. Finally, we calculate spending by eligibility group over this period, and in the process deconstruct spending growth into enrollment growth and spending per enrollee growth. Details on the methodology are available in the “Data Sources and Methods” text box in this brief and Appendix B at the end of the brief.

State Policies on Provider Market Power

Source: Suzanne Delbanco and Shaudi Bazzaz, National Academy of Social Insurance (NASI) and Catalyst for Payment Reform (CPR), July 2914

From the press release:
Today, the National Academy of Social Insurance (NASI) and Catalyst for Payment Reform (CPR) released a comprehensive evaluation of state laws addressing the power of health care providers to negotiate higher prices. This report, State Policies on Provider Market Power, catalogues the laws and regulations state governments are using to maintain or increase competition in health care markets, which the recent wave of mergers among hospitals and other consolidation among providers has significantly reduced.

The report reveals a number of common strategies states are using, including laws and regulations pertaining to: antitrust; price and quality transparency; competition in health plan contracting; price regulation; the development of Accountable Care Organizations (ACOs); expanding the authority of state Departments of Insurance; and facilitating the entry of new providers into the marketplace. Key findings include:
• Forty-two states have laws related to price transparency, mandating that hospitals and/or providers share some type of price information publicly. However, the information is frequently not available in a format that is highly useful or accessible to consumers.
• Eighteen states have attempted to limit providers’ influence through banning most favored nation contracting clauses (which can prevent other health plans from entering local markets, stifling competition).
• A growing number of states are forming regulatory bodies to monitor health care prices. Delaware, Maryland, and Massachusetts, among others, have legislation establishing health care commissions to monitor and review health care prices.
• Texas is the only state that has passed legislation that supports market competition during the development and implementation of ACOs; other states that have passed legislation supporting the development of ACOs (e.g., Alabama) have included provisions intended to grant provider groups exemptions from state antitrust laws and immunity from federal antitrust laws through the state action doctrine.

Five states currently have Certificate of Public Advantage statutes that permit exemption from antitrust provisions for providers merging or consolidating for the purposes of cooperation and health care delivery improvements…

Changes in Health and Medical Spending Among Young Adults Under Health Reform

Source: Kao-Ping Chua, Benjamin D. Sommers, JAMA, Research Letter, Vol 311, No. 23, June 18, 2014
(subscription required)

From the abstract:
Beginning September 23, 2010, the Affordable Care Act allowed young adults to be covered under their parents’ plans until 26 years of age. This dependent coverage provision increased insurance coverage and access among young adults. However, the association between implementation of the provision and medical spending, health care use, and overall health is unknown.

The Great Recession and Health Spending among Uninsured U.S. Immigrants: Implications for the Affordable Care Act Implementation

Source: Arturo Vargas Bustamante and Jie Chen, Health Services Research, Early View, June 24, 2014
(subscription required)

From the abstract:
Objective: We study the association between the timing of the Great Recession (GR) and health spending among uninsured adults distinguishing by citizenship/nativity status and time of U.S. residence….

Principal Findings: The probability of reporting any spending diminished for recent immigrants compared to citizens during the GR. For those with any spending, recent immigrants reported higher spending during the GR (27 percent). Average reductions in total spending were driven by the decline in the share of the population reporting any spending among citizens and noncitizens.

Conclusions: Our study findings suggest that recent immigrants could be forgoing essential care, which later translates into higher spending. It portrays the vulnerability of a population that would remain exposed to income shocks, even after the Affordable Care Act (ACA) implementation.

“Crisis” Management: Uncertainty and the Workplace

Source: EBRI-ERF Policy Forum, Policy Forum #74, May 2014

PANEL 1: Never Let a (Retirement) Crisis Go to Waste: What’s Broken, What’s Not, and What to Do About It (or Not)
PANEL 2: Be Careful What You Wish For: The Impact of the ACA on Employment‐Based Health Benefits
PANEL 3: Healthy, Wealthy, and Why – In the Midst of Uncertainty, Can Financial Wellness Work?

Watch the presentation here.

Panel 1: Jack VanDerhei Powerpoint
Panel 1: Peggy Collins Powerpoint
Panel 1: Doug Fisher Powerpoint
Panel 1: Sarah Holden Powerpoint
Panel 1: Diane Oakley Powerpoint
Panel 2: Paul Fronstin Powerpoint
Panel 3: Suzanna de Baca Powerpoint