November 5, 2008

The American public has increasingly identified health care as a key issue of concern. In order to address the multiple problems relating to the access and affordability of healthcare, President Obama and federal lawmakers across the political spectrum continue to call for major healthcare reform. In any debate on health reform, a predictable set of complex policy, management, economic, and legal issues is likely to be raised. due to the diverse interests involved, these issues could lead to a series of high-stakes policy debates. Therefore, it is critical that advocates of reform strategies anticipate such issues in order to decrease the likelihood that legally resolvable questions become barriers to substantive health reform. In an effort to frame and study legal challenges and solution in advance of the heat of political debate, the O’Neill Institute for National and Global Health Law at Georgetown University and the Robert Wood Johnson Foundation have crafted the “Legal Solution on Health Reform” project.

This project aims to identify practical, workable solutions to the kinds of legal issues that may arise in any upcoming federal health reform debate. While other academic and research organizations are exploring important policy, management, and economic questions relating to health reform, the O’Neill Institute has focused solely on the critical legal issues relating to federal health reform. The target audience includes elected officials and their staff, attorneys, institutions, and other key players. This project attempts to pave the road towards improved health care for the nation by providing stakeholders a concise analysis of the complex legal issues relating to health reform, and a clear articulation of the range of solution available.


Among the major issues in federal health reform, there are recurring questions that are policy-based and those that are legally-based. Many times questions of policy and of law overlap and cannot be considered in isolation. However, for the purpose of this project, we draw the distinction between law and policy based on the presence of clear legal permission of prohibition.

Under this distinction, policy issues include larger-scale questions such as what basic model of health reform to use, as well as more technical questions such as what threshold to use for poverty level subsidies and cost-sharing for preventive services. In contrast, legal issues are those involving constitutional, statutory. or regulatory questions such as whether the Constitution allows a certain congressional action or whether particular laws run parallel or conflict.

Based on this dividing line of clear permission or prohibition, policy questions can be framed as those beginning with, “Should we…?. and legal questions can be framed as those beginning with, “Can we…?” The focus of this paper will be the latter, broken into three particular categories: 1) “Under the Constitution, can we ever…?”; 2) “Under current statutes and regulations, can we now…?”; 3) “Under the current regulatory scheme, how do we…?”. This final set of questions tends to be mixed questions of policy, law, and good legislative drafting


This project is an effort to frame and study legal challenges and solutions in advance of the heat of political debate. This effort is undertaken with the optimistic view that all legal problems addressed are either soluble or avoidable. Rather than setting up roadblocks , this project is a constructive activity, attempting to pave the road towards improved health care for th nation. Consequently, it does not attempt to create consensus solutions for the identified problems no is it an attempt to provide a unified field theory of how to provide health insurance in America. Furthermore, this project does not attempt to choose among the currently competing proposals or make recommendations among them. instead, it is a comprehensive project written to provide policy makers, attorneys, and other key stakeholders with a concise analysis of the complex legal issues relating to health reform and a clear articulation of the range of solutions available for resolving those questions.


Based on surveys of current health policy meetings and agendas, popular and professional press, and current health reform proposals, our team formulated a list of legal issues relating to federal health reform. After much research, discussion, and expert advice and review, our initial list of over 50 legal issues was narrowed to ten. An initial framing paper was drafted which identified these ten legal issues and briefly outlined the main components of each. In May of 2008, a bipartisan consultation session was convened to provide concrete feedback on the choice and framing of legal issues. The attendees of the consultation session included congressional staff, executive branch officials, advocates, attorneys, employers, and representatives of a wide range of interests affected by health reform. Feedback and analysis from this session further narrowed the ten issues to eight key legal issues which warranted in depth analysis of the current law.

These eight pertinent issues are trly legal in nature and must be addressed in any significant reform proposal to avoid needless debate or pitfalls as policy decisions are made. there are multiple other legal issues that will arise as the discussion evolves and, if a federal policy is adopted, the system changes. In this project, however, we have targeted the issues essential for an immediate discussion of federal health reform.

Project Overview and Emerging Themes

Executive Authority to Reform Health: Options and Limitations

The Constitutionality of Mandates to Purchase Health Insurance

Health Insurance Exchanges: Legal Issues

Tax Credits for Health Insurance

The Role of ERISA Preemption in Health Reform: Opportunities and Limits

Insurance Discrimination on the Basis of Health Status: An Overview of Discrimination Practices, Federal law, and Federal Reform Options

Privacy and Health Information Technology

The Purchase of Insurance Across State Lines in the Individual Market