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Individual And Group Coverage Under The ACA: More Patches To The Federal-State Crazy Quilt


January 17th, 2013

Throughout the 2012 Presidential campaign, Republican contenders criticized the Affordable Care Act (ACA) as a “federal take-over of health care” for its promotion of national uniformity in health coverage and access. Yet long before passage, the architects of the ACA quickly rejected a federal single payor system, or even a federal public plan to complement the private sector plans due to forceful opposition to national reform. Instead, they traveled the only politically viable road to reform: maintaining the fragmented and complex system of health care coverage, where federal and state governments as well as the private sector play pivotal roles. The ACA’s expansion of coverage is accomplished by continuing and even increasing state oversight, reinforcing the private market, and involving both employers and individuals. As enacted, therefore, the ACA’s fragmented approach to health reform is clearly not a federal take-over.

As implementation unfolds, however, the ACA’s impact on the roles of federal, state, and private actors is uncertain. Given the statute’s ambitions and complexity, uncertainty may be inevitable. Nevertheless, recent developments demonstrate that implementation may bring surprising results which, at least in some instances, are both unintended and problematic. We address two that pose particular challenges to achieving the ACA’s goals of expanding and harmonizing coverage among and between states: 1) the establishment of state exchanges, and 2) the determination of essential health benefits. We will leave the related topic of legal challenges to the so-called “employer mandate” for future discussion.

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The Supreme Court Upholds The Individual Mandate: But Who Are We Talking About?


July 5th, 2012

While the Affordable Care Act’s individual mandate survived constitutional scrutiny in NFIB v. Sebelius, a Republican president and/or changes in the House or Senate this fall could lead to its demise.   As campaigns shift into high gear, the law’s opponents will undoubtedly draw on the strident and jointly authored dissent of Justices Scalia, Kennedy, Thomas, […]

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The Supreme Court On The Affordable Care Act: What We Are Waiting For


June 1st, 2012

With the U.S. Supreme Court poised to rule on the Affordable Care Act (ACA) it is worth reminding ourselves of what, exactly, we have been waiting for. We await a judicial opinion that could deliver a decisive blow to all or part of a massive piece of legislation and the hard-fought battles that led to […]

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Alice Noble And Mary Ann Chirba On Severability: Life Is A Highway


March 29th, 2012

On Day Three of arguments about the constitutionality of the Affordable Care Act, the Supreme Court turned its attention to the question of severability. Should the Court find that the ACA’s minimum coverage requirement is indeed a proper exercise of Congress’s right to regulate interstate commerce, today’s arguments were all for naught. However, if the […]

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Alice Noble And Mary Ann Chirba On The Individual Mandate Argument: Beyond Uncompensated Care


March 28th, 2012

“Reading between the lines” of the Supreme Court arguments seems to be everyone’s favorite pastime this week.  For health lawyers, these three days are heady times, a chance to revel in exquisitely crafted briefs and complex legal theories, consummately argued in a way that lifts the entire profession.  Rarely has the public paid such rapt […]

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