AEI – Will ObamaCare be More or Less Appealing before the Supreme Court?

August 31, 2011

Will ObamaCare be More or Less Appealing before the Supreme Court?

The Law & Economics of the Individual Mandate

Date: Thursday, September 15, 2011

Time: 8:45 AM — 10:30 AM

Location: AEI, Twelfth Floor 1150 Seventeenth Street, NW, Washington, DC 20036 [Directions]

About This Event

If you cannot attend, we welcome you to watch the event live on this page.

Several appellate court cases challenging the Affordable Care Act of 2010 and its individual mandate to purchase health insurance have been decided this summer with mixed results. More are on the way soon. The Supreme Court remains likely to choose to review at least some of them during its 2011-2012 term. At this forum, distinguished constitutional law scholars and health policy researchers will examine what we have learned thus far from the appellate litigation, with a particular focus on what is a “necessary and proper” extension of the federal commerce power, whether sufficient evidence of “cost shifting” helps to justify it, when new federal mandates to expand Medicaid might become too coercive to state governments, and how the nine Supreme Court justices might view the constitutionality of the new health law.

via AEI – Will ObamaCare be More or Less Appealing before the Supreme Court?.


GOP governors say US fiscal fix should let states decide Medicaid rules and spending – The Washington Post

August 31, 2011

The nation’s Republican governors, seeking a voice in Congress’ upcoming debt debate, pushed Tuesday for looser restrictions on how states spend money on health care for poor and disabled Americans.

States, they argued, should be allowed to design their own Medicaid programs and operate them with a lump payment every year from the federal government, and then be held accountable for the results. Outdated or inappropriate federal guidelines now make it more burdensome and frustrating to provide a health care safety net that’s one of the biggest expenses for cash-strapped states, the governors said.

via GOP governors say US fiscal fix should let states decide Medicaid rules and spending – The Washington Post.


Health and Mortality Delta: Assessing the Welfare Cost of Household Insurance Choice by Ralph Koijen, Stijn Van Nieuwerburgh, Motohiro Yogo :: SSRN

August 31, 2011

We develop a pair of risk measures for the universe of health and longevity products that includes life insurance, annuities, and supplementary health insurance. Health delta measures the differential payoff that a policy delivers in poor health, while mortality delta measures the differential payoff that a policy delivers at death. Optimal portfolio choice simplifies to the problem of choosing a combination of health and longevity products that replicates the optimal exposure to health and mortality delta. For each household in the Health and Retirement Study, we calculate the health and mortality delta implied by its ownership of life insurance, annuities including private pensions, supplementary health insurance, and long-term care insurance. For the median household aged 51 to 58, the lifetime welfare cost of market incompleteness and suboptimal portfolio choice is 28 percent of total wealth.

via Health and Mortality Delta: Assessing the Welfare Cost of Household Insurance Choice by Ralph Koijen, Stijn Van Nieuwerburgh, Motohiro Yogo :: SSRN.


The Missing Link in the Social Determinants Literature: The Impact of Political Factors on Health Status and Health Disparities in the United States by Vickie Ybarra, Gabriel Sanchez, Jillian Medeiros :: SSRN

August 31, 2011

As scholars with the social sciences have focused greater attention to U.S. health policy and public health, the literature focused on the social determinants of health and racial/ethnic health inequities has expanded greatly in recent years. However, political science has been largely absent from these discussions, and consequently few have explored the relationship between political factors and racial/ethnic health status inequities. The limitation in the extant research is problematic, as public policy decisions that directly impact health outcomes are made by elected officials within highly politicized electoral environments. We attempt to address this underexplored research arena by testing the relationship between political factors including political agency, political participation, trust in government, voting, and mobilization on self-defined health status. We hypothesize that even after controlling for socio-demographic factors, political variables will help explain variation in health status across the four major racial/ethnic groups in the U.S.

We perceive that the lack of work in this area has been driven primarily by data limitations. Specifically, surveys have unfortunately not provided scholars with both health indicators and political factors within the same data set. We therefore take advantage of a unique data source, the 2008 Collaborative Multi-Racial Post Election Survey (CMPS), a political survey that provides a measure of self-identified health status to be used as a dependent variable in our analysis. The dataset includes completed surveys on 4,563 respondents who self-identified as Asian, Black, Latino, and White, permitting substantive comparisons among racial/ethnic groups. This diversity in respondents will allow our findings to speak to racial and ethnic health status inequities, an outcomes that we argue is at least partially explained by disparities in political agency. Our findings will have implications for future social science research on health status outcomes, in terms of productively applying the World Health Organization Social Determinants of Health conceptual framework to testable hypotheses of political impacts on health.

via The Missing Link in the Social Determinants Literature: The Impact of Political Factors on Health Status and Health Disparities in the United States by Vickie Ybarra, Gabriel Sanchez, Jillian Medeiros :: SSRN.


Physicians and Safe Harbor Legal Immunity by Thaddeus Pope :: SSRN

August 31, 2011

Professor Sandra Johnson has identified what she calls physician’s “bad law” claims. In some circumstances, physicians perceive that there is significant legal risk in doing what they think is clinically appropriate. In response, physicians sometimes take a medically inappropriate course of action, because it appears safer. For example, physicians might feel intimidated by aggressively enforced drug control laws. In response, they may under-treat patients’ pain to avoid perceived (and real) threats of investigation, discipline, or criminal prosecution. In short, well-meaning laws sometimes have the unintended side-effect of incentivizing physicians to do “bad” things.

Johnson identifies three responses to physicians’ “bad law” claims. Each of these is aimed at “relieving [physicians’] fears and reducing or managing the legal risk, real or perceived, so that doctors can freely engage in the socially desirable behaviors threatened by the operation of the putative bad law.” First, to the extent that physicians’ fears of the law are based on misinformation or misunderstanding, it might seem that they could be educated about the actual (often low or virtually non-existent) legal risk. Second, if physicians perceive a particular desirable course of action as too risky, asymmetrical incentives might be eliminated by making inappropriate alternatives equally risky. But Johnson explains that these two responses are typically unlikely to be effective.

The third response to “bad law” claims is safe harbor legal immunity. Johnson observes that this is one of “the more familiar legislative responses to physician-reported fears of legal risks.” Indeed, it would seem to be the strongest legal weapon in quelling physicians’ fears of legal risk. Immunity, after all, is a classic mechanism for encouraging legally fearful individuals to do their job.9 But Johnson concludes that “the evidence seems to indicate otherwise.”

When does legal safe harbor immunity work to dispel physicians’ legal fears? When does it fail? What are the essential attributes of an effective safe harbor? What are the limitations? These are the question that I will address in this Article. In Section I, I provide a brief taxonomy of medical safe harbors. In Section II, I outline the essential attributes of an effective safe harbor. Finally, in Section III, I discuss three key limitations of medical safe harbors. Notwithstanding these limitations, I conclude that safe harbors can be an efficacious mechanism for addressing physicians’ “bad law” claims.

via Physicians and Safe Harbor Legal Immunity by Thaddeus Pope :: SSRN.


Loopholes in the Affordable Care Act: Regulatory Gaps and Border Crossing Techniques and How to Address Them by Timothy Jost :: SSRN

August 31, 2011

The Affordable Care Act was meant to regulate health care plans comprehensively. Most insurance reform provisions apply to individual and group coverage, including small group, large group, and self-insured plans. A number of types of insurance, however, are not covered by some or all of the ACA reforms, including grandfathered plans, early retiree plans, health care sharing ministries, excepted benefits, and short-term limited duration policies. The ACA also leaves open the possibility of “border crossing” techniques, which could allow small group or even individual plans to claim to be subject to less protective regulatory provisions governing large group plans. This article analyzes the “loopholes” in the ACA and examines what the state and federal governments can do to ensure that consumers receive the protection they are promised by the ACA.

via Loopholes in the Affordable Care Act: Regulatory Gaps and Border Crossing Techniques and How to Address Them by Timothy Jost :: SSRN.


The Right to Health, or the Lack Thereof: Lessons from Appalachia by Laura Jensen, Fatima Sharif :: SSRN

August 31, 2011

In this paper, we investigate relationships between rights consciousness and health-seeking behavior in health outcome-specific locations in Virginia. Using new survey data, we analyze how Appalachian and non-Appalachian women residing in geographic clusters with low and high relative risk of breast cancer incidence vary in terms of their sense of entitlement to health care. We also explore how that sense of entitlement (or its absence) is related to breast cancer screening decisions.

via The Right to Health, or the Lack Thereof: Lessons from Appalachia by Laura Jensen, Fatima Sharif :: SSRN.


Rights of Conscience vs. Peer-Driven Medical Ethics: ACOG and Abortion by Lynn Wardle :: SSRN

August 31, 2011

In 2007, the Ethics Committee of the American College of Obstetricians and Gynecologists (ACOG) published an opinion prescribing the limits of conscientious refusal in reproductive medicine. However, as this article demonstrates, the opinion was heavily slanted in favor of the patient’s right to receive reproductive procedures such as abortion or contraceptives. ACOG is unwilling to acknowledge the full power of healthcare providers’ right of conscience, and it fails to articulate reasonable alternatives when conflict arises. The language of the opinion is prejudicial, flawed, and incomplete. When compared with early American constitutional history, the erroneous reasoning of the opinion becomes even more apparent. There is ample evidence provided by many founding members of the United States about the important and essential place that rights of conscience have been afforded in the Constitution. Healthcare providers’ right of conscience must be respected in society.

via Rights of Conscience vs. Peer-Driven Medical Ethics: ACOG and Abortion by Lynn Wardle :: SSRN.


Do Hospitals Cross Subsidize? by Guy David, Richard Lindrooth, Lorens Helmchen, Lawton Burns :: SSRN

August 31, 2011

Cross-subsidies are often considered the principal mechanism through which hospitals provide unprofitable care. Yet, hospitals’ reliance on and extent of cross-subsidization are difficult to establish. We exploit entry by cardiac specialty hospitals as an exogenous shock to incumbent hospitals’ profitability and in turn to their ability to cross-subsidize unprofitable services. Using patient-level data from general short-term hospitals in Arizona and Colorado before and after entry, we find that the hospitals most exposed to entry reduced their provision of services considered to be unprofitable (psychiatric, substance- abuse, and trauma care) and expanded their admissions for neurosurgery, a highly profitable service.

via Do Hospitals Cross Subsidize? by Guy David, Richard Lindrooth, Lorens Helmchen, Lawton Burns :: SSRN.


Doctors lobby warns against weighing cost in government-supported research – The Hill’s Healthwatch

August 30, 2011

A new medical research body created by the healthcare reform law should not consider the cost of treatments when evaluating them, the nation’s largest physician lobby argues.

The American Medical Association has invited other groups to sign on to a comment letter regarding the type of research that should be conducted under the law’s Patient Centered Outcomes Research Institute (PCORI). The independent nonprofit began seeking public input last month, and the AMA is concerned about its proposal to “investigate … optimizing outcomes while addressing burden to individuals, resources, and other stakeholder perspectives.”

via Doctors lobby warns against weighing cost in government-supported research – The Hill’s Healthwatch.


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