Minnesota Journal of Law, Science & Technology

Persistent link for this communityhttps://hdl.handle.net/11299/144114

The Minnesota Journal of Law, Science & Technology is a cutting-edge multidisciplinary journal focusing on law, health, the sciences, and bioethics. The journal is edited by faculty and students with a Faculty Editorial Advisory Board drawn from across the University of Minnesota. MJLST tackles issues in intellectual property, technology policy and innovation, bioethics, and law and science, while maintaining a rigorous grounding in law, values, and policy. Formerly the Minnesota Intellectual Property Review, the journal is overseen and managed by the University's Consortium on Law and Values in Health, Environment & the Life Sciences.

Journal Home:http://mjlst.umn.edu/

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Browsing Minnesota Journal of Law, Science & Technology by Subject "Affordable Care Act"

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    Can This Marriage Be Saved? Federalism and the Future of U.S. Health Policy Under the Affordable Care Act
    (Minnesota Journal of Law, Science and Technology, 2014-02-20) Rosenbaum, Sara
    As with all transformational laws, the Patient Protection and Affordable Care Act, hereinafter referred to by its popular name, the Affordable Care Act (ACA or the Act), derives its power from the extent to which it realigns prior relationships and from adding new rights and duties: Between individuals and government through the creation of a right to accessible, affordable health insurance and a concomitant “personal responsibility” to secure it; between the insurance industry and the government through reforms aimed at assuring access to affordable coverage; between larger employers and workers through the Act’s “shared responsibility” requirements; and between health care providers and public and private insurers through provisions aimed at long-term restructuring in how health care is organized and paid for. But it is fair to say that no relationship within the health care system is more affected by the Act than that between the federal government and state governments. Indeed, the ACA establishes a legal approach to national health reform that, at its core, rests on the shoulders of this relationship. First, the Act expands the pre-existing federal-state partnership in the regulation of health insurance while establishing a new Marketplace for affordable coverage. Second, the Act expands the joint federal-state investment in health care for the poor (this time, with the lion’s share coming from the federal partner) through an expanded Medicaid program. As of May 2013, the Congressional Budget Office (CBO) has estimated that by 2022, twenty-five million Americans will gain coverage as a result of this recalibrated set of relationships. This Article takes a closer look at the two federalism relationships—one regulatory, the other investment—that lie at the heart of the Act. I surmise that even if sputtering and fragile, the regulatory partnership actually is built to weather current conditions and that ultimately, it will enable full implementation of the market reforms that the Act sets in motion. I also conclude, however, that at least where coverage of poor adults and their families is concerned, the Medicaid relationship is sufficiently under water to necessitate a federal fallback system, comparable in spirit to the federal fallback that has been designed for the regulatory side of the ledger. Creating such a fallback is essential if the nation is to avert the terrible spectacle of allowing any individual state to exclude its poorest residents from coverage.
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    Developing a Durable Right to Health Care
    (2013-02-12) Fuse Brown, Erin C.
    The Patient Protection and Affordable Care Act’s (ACA) signature accomplishment was the creation of a statutory right to health care for the uninsured. This is a momentous change in policy, addressing one of the most vexing social issues of our time and affecting millions of people and billions of dollars of the U.S. economy. This ambition and the degree of societal and political debate leading up to the Act’s passage suggests that it is a “superstatute,” a rare breed of statute that can, among other things, create rights and institutions more typically thought to be the province of constitutional undertaking. Nevertheless, the structure of the ACA’s right to health care makes it fragile and reduces its chances of becoming a durable right. The ACA may end up as a “quasi-superstatute:” a statute that aspires but fails to become a superstatute through a failure of political and public entrenchment. The problem is that the right to health care is to be delivered largely through changes to the private health insurance market, requiring the collective action of many reluctant actors, including unwilling states and recalcitrant individuals. Even though it survived legal challenge before the Supreme Court, the ACA’s right to health care faces significant political and market challenges that threaten to retrench rather than entrench its benefits in the public’s mind. The vulnerability of this right to health care is concentrated early in its lifespan, and if it survives these early years, forces such as the endowment effect may strengthen the right’s durability as its benefits take hold. The fragility of the ACA’s right to health care and its uncertain path to durability provide lessons to future framers of a right to health care regarding the long timeframe for implementation, uncertainty, complexity, and structure. The risk of becoming a “quasi-superstatute” highlights the importance of how such social reforms ought to be structured to achieve entrenchment and durability after the ink is dry on the new legislation.