Category Archives: Legal Issues

11.17.09

Reform’s Hidden Hazards? An Interview with Karen Pollitz

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Karen Pollitz is a research professor at the Georgetown University Health Policy Institute. The O’Neill Institute’s Lester Feder spoke with her on November 16 about potential loopholes in reform legislation. Lester Feder: I want to start by asking what you think of the reform proposals that have emerged. Karen Pollitz: I think we’ve got a […]

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11.16.09

Returning to the Articles of Confederation?

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A week ago the House of Representatives adopted HR 3962, the “Affordable Health Care for America Act.” In the very near future, the Senate will begin consideration of some version of the “America’s Healthy Future Act” or the “Affordable Health Choices Act.” Although we do not know the exact language of the Senate bill, its […]

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11.15.09

ERISA Preemption Redux

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In a recent post, Mark Hall raises an interesting issue regarding ERISA preemption and the proposal in HR 3962, the recently enacted House of Representatives’ health reform bill. Mark suggests that: “1) for insurance sold outside of the exchange, ERISA law and its preemption remains the same; 2) for insurance sold inside the exchange, ERISA […]

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11.10.09

Drug & Device Provisions in HR 3962

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Kevin Outterson, Boston University Law The following is a summary of the drug & device provisions in HR 3962, as passed by the House on Saturday, Nov. 7. Winners: PhRMA; BIO; seniors in the donut hole; transparency PhRMA & BIO escape with minimal net financial costs; on balance the bill might be revenue positive for […]

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11.10.09

What About ERISA’s Tort Liability Pre-Emption?

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In addition to largely ignoring tort reform, the health reform process is ignoring the hash that Congress and courts previously have made of ERISA’s pre-emption of state tort suits against health insurers.  Readers will recall that, according to AETNA v. Davila, 542 U.S. 200 (2004), personal injuries caused by insurance claims denials cannot be adequately […]

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11.09.09

Is Stupak Constitutional?

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As you all know, the House passed HR 3962, the Affordable Health Care for America Act, late Saturday night, November 7, by a vote of 220 to 215. In doing so, it adopted a handful of amendments. The most important amendment was the Stupak amendment, which the House adopted by a vote of 240 to […]

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11.06.09

Can Health Reform Include Malpractice Reform? Sure, But Which Reforms Can Generate Political Agreement?

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With the exception of the ludicrous death panel accusations, it’s hard to find an area of health policy that is subject to more demagoguery than the ongoing debate about medical liability. The level of distortion and the amount of misinformation (i.e., outright falsehoods) has all but obliterated any chance for a reasoned debate. In an […]

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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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11.03.09

The Story of Murphy: Hope or Death Knell for Health Insurance Tax Protesters?

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Thinking about using tax law to enforce either an individual or employer mandate has led me down the dark paths of seldom-discussed constitutional provisions relating to excise, direct, and income taxes.  At one surprising turn, I encountered the Murphy case from the D.C. Circuit, 460 F.3d 79 (D.C. Cir. 2006), rev’d on rehearing, 493 F.3d […]

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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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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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