The Golden Standard? California as a Model for National Medical Malpractice Tort Reform by Richard Custin, Sherry Tehrani :: SSRN

March 31, 2013

With the national focus on medical malpractice tort reform, California is regarded as the “model for medical liability reform.” But for injured patients, California is a less than hospitable legal forum. In 1975, the California legislature passed the Medical Injury Compensation Reform Act (MICRA), which limits non-economic damages and attorney fees, abrogates the collateral source rule, requires 90 day notice to physicians of a claim, and promotes annuity like periodic payments to injured plaintiffs. MICRA legislation has remained unchanged since 1975 and — most importantly — the limitation on non-economic damages has never been indexed for inflation or otherwise adjusted. This assault on injured parties has been further compounded by a wave of physicians refusing to treat patients absent “consent” to arbitration of all claims made by a patient. The result is a California model that would serve as the ultimate patient injustice were it adopted nationwide. Attempts are now underway to preempt state medical malpractice laws and adopt a national standard that is strikingly similar to California’s legislation. In this paper, we review California’s limit on medical malpractice damages and enforcement of mandatory arbitration, focusing on its policy effects on patient recourse and its influence on the recent Help Efficient, Accessible, Low-Cost, Timely Healthcare (HEALTH) Act of 2011.

via The Golden Standard? California as a Model for National Medical Malpractice Tort Reform by Richard Custin, Sherry Tehrani :: SSRN.


For-Profit Corporations, Free Exercise, and the HHS Mandate by Scott Gaylord :: SSRN

March 31, 2013

Under the Patient Protection and Affordable Care Act, most employers must provide their employees with health insurance that covers all FDA approved contraceptive methods and sterilization procedures (the “HHS mandate”). Across the country, individuals, religious schools, and corporations have sued to enjoin the mandate, arguing, among other things, that it violates the free exercise clause of the First Amendment and the Religious Freedom Restoration Act (“RFRA”). Federal district courts have reached conflicting decisions in the 15 cases decided to date, leaving the Third, Fourth, Sixth, Seventh, Eighth, Tenth, and D.C. Circuits to sort out the complex relationship between the free exercise clause and laws, such as the HHS mandate, that are alleged to be neutral and generally applicable. But these cases are made even more difficult because of a specific claim that is raised in each case — that corporations can exercise religion under the First Amendment and RFRA. As several district courts have noted, “whether secular corporations can exercise religion is an open question.” This paper analyzes this novel and unresolved issue, arguing that, just as corporations can engage in free speech under Citizens United, for-profit corporations can exercise religion under the free exercise clause and RFRA.

Although the Supreme Court has not addressed this specific issue, I argue that it has established rules for determining whether corporations can invoke particular constitutional rights and that, under these rules, corporations can invoke the protection of the free exercise clause. Several district courts have reached the opposite conclusion, while several others have avoided the issue altogether. Relying primarily on a single footnote in First Nat’l Bank of Boston v. Bellotti, the courts denying free exercise protection to for-profit corporations maintain that the free exercise of religion is a “purely personal” right that is limited to individuals and religious non-profit organizations. This paper contends, however, that a more detailed review of Bellotti, Citizens United, and the Court’s other decisions regarding the constitutional rights of corporations reveals that free exercise, like the freedom of speech, is not a “purely personal” right. Consequently, corporations — whether for-profit or non-profit — can claim its protection. Moreover, in the wake of Bellotti and Citizens United, neither the “profit motive” of a for-profit corporation nor the “religious nature” of religious organizations (e.g., churches) justifies limiting the free exercise clause only to individuals and non-profit religious organizations. Although many (perhaps most) corporations may choose not to engage in religious activities, there is no constitutional basis for precluding a priori all for-profit businesses from raising free exercise claims.

via For-Profit Corporations, Free Exercise, and the HHS Mandate by Scott Gaylord :: SSRN.


Optimal Health Insurance and the Distortionary Effects of the Tax Subsidy by David Powell :: SSRN

March 31, 2013

This paper introduces a model of optimal health insurance. This model provides theoretical guidance of the relationship between household preferences, cost-sharing, and premiums. It applies this model to understand how the income tax subsidy distorts optimal cost-sharing in health insurance. Typically, insurance protects individuals from financial risk. Health insurance plans, however, are frequently designed to provide coverage at non-catastrophic levels of financial loss. The presence of a health insurance subsidy in the United States tax code, which enables individuals to pay premiums in pre-tax dollars, encourages the purchase of more generous health insurance plans. Little is known about how the tax subsidy affects preferences for the structure of cost-sharing in private plans. This model illustrates how the tax subsidy can distort the optimal cost-sharing schedule. The model is tested empirically using claims data in the Medical Expenditure Panel Survey and a regression discontinuity strategy that uses discrete changes in the marginal tax rate at the Social Security taxable maximum for identification.

via Optimal Health Insurance and the Distortionary Effects of the Tax Subsidy by David Powell :: SSRN.


Review & Outlook: The Liberal Medicare Advantage Revolt – WSJ.com

March 30, 2013

A big political story this year is likely to be Democrats turning on their White House minders as the harmful and unpopular parts of the Affordable Care Act ramp up. On the heels of the recent 79-20 Senate uprising against the 2.3% medical device tax, now comes the surge of Democrats pleading on behalf of Medicare Advantage.Liberals have claimed for years to hate this program, but by now Advantage provides private insurance coverage to more than one of four seniors. And those seniors like it.However, the ObamaCare true believers who run the Health and Human Services Department dont answer to voters, and they have written draft regulations that cut Medicare Advantage even more deeply than Congress mandated in the Affordable Care Act. Those cuts will bite hardest in states like Oregon where 42% of Medicare beneficiaries use Advantage, or Florida 37%, New York 33%, California 37% and Arizona 38%.

via Review & Outlook: The Liberal Medicare Advantage Revolt – WSJ.com.


GOP Iraq war damage: Can GOP reverse the damage done by Iraq? – OrlandoSentinel.com

March 29, 2013

But as a matter of politics, Obama’s overreach is real. For instance, every promise the White House made about the Affordable Care Act has turned out to be untrue, overblown or misleading. It borrows vast sums to make the health-care system more onerous, complicated and expensive while still leaving 30 million uninsured.

The press coverage of this unfolding train wreck remains timid in a way that coverage of the war wasn’t. The moment the mainstream media could get away with calling Iraq a “quagmire” it did. With Obamacare, much of the press is like Kevin Bacon trying to be a traffic cop in Animal House. It shouts “All is well!” even as it’s being trampled by the crowd.

via GOP Iraq war damage: Can GOP reverse the damage done by Iraq? – OrlandoSentinel.com.


Want to buy private coverage with Medicaid dollars? Good luck!

March 29, 2013

Tennessee wanted to pursue a plan like that of Arkansas, one where it would use the Medicaid expansion dollars to buy private insurance coverage. And while Arkansas received a preliminary go-ahead from HHS, Gov. Bill Haslam had a quite different experience: He says that Health and Human Services would not support his plan to expand Medicaid and, as a result, he will not move forward.

“As a result of the lack of clarity from HHS,” his office said in a late Wednesday statement, “the governor will not ask the General Assembly for approval to accept the Medicaid expansion federal funds as he continues to work for the flexibility needed to implement his plan.”

via Want to buy private coverage with Medicaid dollars? Good luck!.


Health Care Law Will Increase Some Premiums, Study Says – NYTimes.com

March 29, 2013

A study commissioned by the State of California says that the new federal health care law will drive up individual insurance premiums, but that subsidies will offset most of the increase for low-income people.

The study, issued Thursday in the midst of a growing national debate over the impact of the law, is significant because California is far ahead of most states in setting up a competitive marketplace, or exchange, where people can buy insurance this fall.

Premiums could increase by an average of 30 percent for higher-income people in California who are now insured and do not qualify for federal insurance subsidies, the study said.

However, it said, people in this group will benefit from new limits on their out-of-pocket medical expenses, so their total cost of care will increase by 20 percent, on average.

via Health Care Law Will Increase Some Premiums, Study Says – NYTimes.com.