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Category Archives: Legal Issues

11.10.09

What About ERISA’s Tort Liability Pre-Emption?

By Mark Hall

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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11.06.09

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

By Peter Jacobson

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?

By Tim Jost

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?

By Mark Hall

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?

By Tim Jost

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

By Tim Jost

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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10.31.09

“We Have Met the Enemy and He is Us.”

By Peter Jacobson

Mark makes some excellent points, particularly regarding the limited benefits likely to be derived from removing health insurers’ antitrust exemption. Although health insurers are convenient targets for expressing dissatisfaction with the health care delivery system (indeed, I’ve taken my share of pot-shots), reforming health insurance markets is simply one aspect of a much more intractable […]

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10.29.09

Connector Conundrums: An Interview With Jamie Katz

By Lester Feder

Jamie Katz is general counsel to the Massachusetts Connector. The O’Neill Institute’s Lester Feder spoke with him on October 23rd about lessons Massachusetts’ exchange offers for national health reform legislation. Lester Feder: One of the questions for federal lawmakers is how much authority they give to the exchange or exchanges. Has that been challenged in […]

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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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