Author Archives: Tim Jost

11.05.09

Can Health Reform Include Malpractice Reform?

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The House Republican alternative health care reform bill is now available. There is little new in it. It mainly recycles ideas like association health plans and interstate insurance sales that have been pushed for years. The bill is important, however, because it does highlight the issue of malpractice. The bill contains a familiar package of […]

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11.02.09

HR 3962, ERISA, HIPAA, McCarran-Ferguson, and State Law. How Does the Puzzle Fit Together?

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Congress is not writing on a clean slate in enacting health care financing reform legislation. We already have, of course, massive federal health care programs: Medicare, Medicaid, and the Children’s Health Insurance Program (CHIP). Hundreds of pages of the bills Congress is considering are consumed by amendments to the statutes governing these programs. The legislation […]

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11.02.09

Procedural Issues in HR 3962: Rather Disappointing

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In my post of September 27, I observed that the legislation then under consideration in Congress—HR 3200 (the House tri-committee bill), the Senate Health, Education, Labor, and Pensions (HELP) bill, and Baucus chairman’s mark—paid inadequate attention to important procedural issues. In my post of October 27, I noted that the Senate Finance bill had made […]

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10.27.09

Some Progress on Procedural Protections

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In my post of September 27, I raised the issue of the absence of procedural protections in the proposed health reform legislation. The Senate Finance Committee America’s Healthy Future Act shows some progress on these issues. Section 2225(e) of the bill obligates the states to require insurers who offer plans through the exchanges to provide […]

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10.24.09

More Legal Issues Raised by Health Insurance Exchange Legislation

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The following is part of a memorandum on legal and policy issues raised by health insurance exchanges, which will be presented at the O’Neill Center’s Legal Issues in Health Care Reform conference on Monday, October 26. The full paper from which it is taken is available here. In my last post, I discussed the constitutional […]

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10.23.09

Constitutional Limits on Insurance Regulation

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The following is part of a longer paper addressing legal and policy issues raised by health insurance exchanges, which will be presented at the O’Neill Center’s Legal Issues in Health Reform symposium on Monday, October 26. The health reform legislation pending in Congress would dramatically expand federal regulation of health insurance. Indeed, in most states […]

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10.20.09

More on Taxation

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The 1502 page legislative language of the Senate Finance bill became available yesterday on the Senate Finance Committee website. One of the many legal issues raised by this legislation relates to my October 8 post on the constitutionality of taxation. As you may recall, the Constitution requires that “Duties, Imposts and Excises,” generally called indirect […]

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10.14.09

More on Takings

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The individual mandate is not the only provision of the proposed health care reform legislation to raise takings clause issues. All of the bills currently marked up by the jurisdictional House and Senate committees include provision for the establishment of “exchanges” (called “gateways” in the Senate Health, Education, Labor, and Pensions (HELP) Committee bill), which […]

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10.08.09

Is it a Tax? Is it Constitutional?

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By far the most controversial provision of the health care reform legislation pending in Congress from a constitutional perspective has been the individual mandate. The primary controversy has concerned the issue, which we addressed two weeks ago, of whether the commerce clause authorizes Congress to impose an individual mandate. A different constitutional issue, however, was […]

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09.30.09

A Further Thought on State Nullification

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I would put this a bit more strongly than Mark. Talk of state nullification argues powerfully for the federal government directly enforcing insurance reforms and administering the exchanges and premium subsidies, the approach taken by the House bill HR 3200, rather than depending on the states in implement the reforms, the approach taken by the […]

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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.

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