By Allison K. Hoffman
On Monday, the Supreme Court decided another case that enhances ERISA’s deregulatory impact, Advocate Health Care Network v. Stapleton (holding that pension plans maintained by church-affiliated organizations, including hospitals, are exempt from ERISA’s pension protections as “church plans.”). Justice Sotomayor joined the majority opinion but wrote a concurring opinion lamenting its outcome and suggesting that Congress rethink ERISA — a suggestion Justices Thomas and Ginsburg have also made in the past. Abbe Gluck, Peter Jacobson, and I wrote the following on ERISA’s increasingly outsized influence and how it poses an impediment to health reform in the Health Affairs Blog on June 2, 2017.
From our post:
The Supreme Court has once again been called on to mediate the boundaries of a far-reaching, infamously complex, federal employee benefits law. And once again this law may have an important and unanticipated effect on health care.
The main goal of this law, the Employee Retirement Income Security Act of 1974 (ERISA), was to provide uniform, federal regulation of pensions and employee benefit plans (including health care). But the law has had a far more dramatic impact on health policy beyond what Congress ever contemplated. Because ERISA pushes aside state regulation of these plans, it has impeded the states’ ability to partner with the federal government to achieve key health policy goals. ERISA has also stymied some of Congress’s goals under the Affordable Care Act, and may prove an even greater obstacle to Republican efforts to return more authority over health policy to the states. Continue reading
By Allison K. Hoffman and Jill Horwitz
In today’s NYTimes, Jill Horwitz and I have an Op-Ed describing why Donald Trump’s selection of Tom Price for secretary of health and human services is a particular threat to women’s health. Read it here!
From the Op-Ed:
With the selection of Representative Tom Price as secretary of health and human services, President-elect Donald J. Trump has taken a giant step toward undermining the health of American women.
It is regrettable, but not surprising, that Mr. Trump has nominated a strident opponent of abortion. It is also no surprise that Mr. Price, an orthopedic surgeon from Georgia, earned a zero rating from Planned Parenthood, an organization he’d like to defund, despite its role in providing preventive health services. […]
Read the full article here!
[Crossposted from RegBlog]
By Allison Hoffman
Zubik v. Burwell was this year’s Affordable Care Act (ACA) appearance on the Supreme Court stage. Consolidated with six other cases, Zubik challenged the ACA requirement that group health plans and health insurance issuers must provide free coverage of preventative services, including all contraceptive methods approved by the U.S. Food and Drug Administration (FDA).
Some religious groups believe that the use of some or all contraceptives is morally wrong. In response, the initial preventive services regulation exempted houses of worship, such as churches, from the requirement altogether. For religious nonprofit organizations, such as universities and hospitals, later regulations created an accommodation that enabled employees to receive coverage for contraceptives without the employer having to provide it.
Even though the U.S. Department of Health and Human Services (HHS) has tried to make it easy for nonprofit organizations to receive the accommodation, it still requires those organizations, unlike churches and other houses of worship, to ask for it affirmatively through a process of self-certification. Continue reading
The Affordable Care Act is sprawling. Some of its myriad provisions may (or may not!) reduce healthcare costs. Think of accountable care organizations, the hospital readmission reduction program, or even the preventive services mandate. And so, the Act’s success is often evaluated by asking whether it has helped reduce healthcare costs. (See, e.g., David Cutler here.)
Other of the ACA’s provisions are intended to promote financial security in the face of illness. The Act’s most litigated provisions, requiring that people buy insurance, expanding Medicaid, and creating exchanges, can be understood primarily in this light. And so, the Act’s success is also often evaluated by asking whether it has truly promoted financial security. (See today’s New York Times piece from Margoret Sangor-Katz on the subject of underinsurance post-ACA, or Aaron E. Carroll’s take from December.)
A third way of understanding the ACA’s reforms–and evaluating its success or failure–too often gets left out (as it was by the NY Times here): The ACA can perhaps most coherently be thought of as an equal protection statute.
We’ve heard a lot about “death spirals” and how they could stand in the way of the Affordable Care Act’s goal of a functioning individual health insurance marketplace. Seth Chandler has an interesting blog devoted to the subject, “ACA Death Spiral.” And those who have been following King v. Burwell, the Supreme Court’s latest ACA case, have been predicting that a ruling against the government there would be disastrous because it would only exacerbate the “death spiral” threat to individual health insurance markets. (See a sum-up of such predictions here.)
But could death spirals save the ACA? According to a fascinating amicus brief filed in the King case by a number of interest groups and co-signed by several prominent law professors and Bill of Health contributors (I understand that Abigail Moncrieff is the driving force behind the brief, joined by Allison Hoffman, Sharona Hoffman, Russell Korobkin, Joan Krause, Stephen Marks, Kevin Outterson, and Theodore Ruger), the answer might be yes. The argument boils down to “death spirals to the rescue.” (Here is a copy: 14-114 bsac JALSA.)
By Allison Hoffman
[Cross-posted from Health Affairs Blog]
The 50th Anniversary of Medicare and Medicaid offers an opportunity to reflect on how U.S. social policy has conceived of the problem of long-term care.
Social insurance programs aim to create greater security—typically financial security—for American families (See Note 1). Programs for long-term care, however, have had mixed results. The most recent attempt at reform, which Ted Kennedy ushered through as a part of the Patient Protection and Affordable Care Act (ACA), called the CLASS Act, was actuarially unsound and later repealed. Medicare and especially Medicaid, the two primary government programs to address long-term care needs, are criticized for failing to meet the needs of people with a disability or illness, who need long-term services or supports. These critiques are valid.
Even more troublesome, however, long-term care policy, especially in its most recent evolution toward home-based care, has intensified a second type of insecurity for Americans. Continue reading
By Allison K. Hoffman
In the U.S., the right to health is often held up as a utopian legal principle that other countries manage to embrace and that we shortsightedly spurn. What I learned working on a new project is that the right to health does not always lend itself to admirable ends. In some countries, a formal right to health is not used to advance equity but rather for the opposite. In other words, having a right to health can lead to a less equitable distribution of health care resources because, for example, people who are better able to navigate the legal system can claim more resources for themselves.
This insight and others are featured in an excellent book that just came out from Cambridge Press, The Right to Health at the Public/Private Divide: A Global Comparative Study, edited by Colleen M. Flood, University of Toronto, Faculty of Law and Aeyal Gross, Tel-Aviv University, Faculty of Law. This book is worth reading, in part, because it features chapters on countries that are not the usual suspects, including Hungary, Venezuela, Nigeria, New Zealand, and Taiwan. Two of the chapters are by U.S. health care scholars: one I wrote on the U.S. system and the Affordable Care Act (A Vision of an Emerging Right to Health Care in the United States: Expanding Health Care Equity through Legislative Reform) and one Christina Ho wrote on China (Health Rights at the Juncture between State and Market: the People’s Republic of China).
In my chapter, I argue that while the U.S. does not have a formal right to health, the ACA could provide the vision and foundation for an evolving American conception of a right to health care.
Bill of Health is pleased to welcome Allison Hoffman as an Occasional Contributor!
Allison Hoffman is Assistant Professor of Law at the UCLA School of Law. Her work focuses on health care law and policy. She currently teaches Health Care Law and Policy, Torts, and a seminar on Health Insurance and Reform. Hoffman is also a Faculty Associate at the UCLA Center for Health Policy Research.
Allison received her A.B. summa cum laude from Dartmouth College and her law degree from Yale Law School, where she was Submissions Editor for the Yale Journal of Health Policy, Law, and Ethics. She worked for a number of years in the health care industry. Allison practiced health care law at Ropes & Gray, LLP, where she counseled academic medical centers, insurers, pharmaceutical companies, and private equity firms on a wide range of health care regulatory matters. She has also provided strategic advice to health care companies and to nonprofit organizations and foundations as a management consultant at The Boston Consulting Group and The Bridgespan Group. Immediately prior to joining the faculty at UCLA, she was an Academic Fellow at Harvard’s Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics.
Allison’s research explores the role of regulation and the welfare state in promoting health and well being. Her current writing examines how health insurance regulation both reflects and shapes different conceptions of risk and responsibility, drawing on political science, sociology, psychology, and economics literature.