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Skirting the Law: Medicaid Block Grants and Per-Capita Caps in a Pandemic
Get PDFTo what extent can an administration abridge Medicaid’s entitlement status by administrative fiat? In the final year of the Trump administration, just before the COVID-19 pandemic, the Centers for Medicare and Medicaid Services (CMS) sought to push the outer bounds of this question by announcing the Healthy Adult Opportunity (HAO) initiative. It invited states to submit § 1115 demonstration applications to cover individuals not eligible for Medicaid benefits under the state’s Medicaid plan—meaning, in many cases, the Affordable Care Act’s (ACA’s) Medicaid expansion population. Spending on those populations would be capped, not by purporting to waive federal law regarding matching payments under Medicaid—which would clearly exceed the government’s authority under § 1115(a)(1)—but rather through application of the demonstration’s budget neutrality limit. “Savings”—or the difference between the cap and actual state expenditures under the demonstration—could be used on a variety of otherwise non-matchable state projects.
This Article traces some of the history of this maneuver. It argues that the HAO is misguided as a matter of policy, and that the Trump administration’s attempt to cap federal expenditures for certain Medicaid populations in exchange for certain state flexibilities is beyond the administration’s legal authority to grant. As this Article shows, the issue turns on how “individuals not eligible for benefits under the state plan” are defined: Are they expansion populations considered to be “receiving medical assistance under a state plan approved under Title XIX,” at least for the duration of the demonstration, and hence entitled to all the protections given to categorical and optional Medicaid populations covered under a state plan, or are they simply “regarded” as such for the purpose of expenditures only, and not protections and privileges under the Medicaid statute? A careful reading of the statute, relevant regulations, and recent caselaw show that, at least in the case of the ACA’s Medicaid expansion population, the HAO initiative’s structure and suggested flexibilities do not comply with the law
Property and Intellectual Property in Vaccine Markets
Get PDFAs biopharmaceutical forms of technology, vaccines constitute one of the most important tools for the promotion and maintenance of public health. Tolstoy famously wrote that [h]appy families are all alike; every unhappy family is unhappy in its own way.1 Vaccine markets offer perhaps one of the most extreme embodiments of Tolstoy\u27s principle2 in the field of biopharmaceutical innovation
State Peer Review Laws as a Tool To Incentivize Reporting to Medical Boards
Get PDFState medical boards have been stymied in their ability to take disciplinary action against physicians who engage in serious misconduct, in part because hospitals and other health care organizations rarely report such misconduct. This Article offers a proposal for incentivizing hospital reporting of physician misconduct, inspired by an existing but flawed model in the federal Health Care Quality Improvement Act. This Article proposes that state legislatures link state medical practice act reporting requirements with state laws establishing an evidentiary privilege for peer review activities
Taking Aim at “Fake News”: Brazil’s Legislative Agenda for Online Democracy
Get PDFLike the United States, Brazil has recently been plagued by a crisis in online disinformation. After the country’s 2018 presidential elections, many Brazilians experienced a shock similar to that experienced by U.S. voters after the 2016 election of Donald Trump. The shock was the result of the election of Brazil’s far-right wing Jair Bolsonaro and his striking political ascent, which was fueled by supporters who mobilized online disinformation campaigns for Bolsonaro’s competitive advantage. During Brazil’s 2018 elections, Bolsonaro’s supporters employed these disinformation campaigns, which often preyed on Brazil’s poor, to gain a voting base in disadvantaged communities. Moreover, these disinformation networks created a polarized digital climate, helped incite the rapid spread of “fake news” in Brazil, and led to the rise of the extremist Bolsonaro.
To mitigate this problem of digital malfeasance, along with issues of digital inequality and data privacy concerns, the Brazilian government has recently advanced a series of internet laws. These laws seek to further democracy by advancing digital access and inclusion, promoting data privacy, and curbing the spread of online disinformation. This Essay examines the social, political, and historical context that led to the pursuit of these internet laws, how each law builds upon the foundations of its predecessor and discusses the relative strengths and weaknesses of each. In addition to this analysis, this Essay places a special emphasis on Brazil’s recent swell in online disinformation, and how these internet laws have attempted the seemingly contradictory effort of promoting digital access while simultaneously curbing the spread of fake news. In attempting to advance democracy through internet governance, this Essay argues that discourse should focus not only on legislation and policymaking, but also on grassroots efforts that advance effective inclusion on digital platforms to help further cyber civil rights
Dispatch – United States: “Proposition 22: A Vote on Gig Worker Status in California”
Get PDFUnder California court decisions and then the California Legislature\u27s 2019 AB5 bill, gig workers were poised to become employees under the law. But all that changed when in November 2020 the voters approved Proposition 22, which provides for a complicated set of new rules that gives gig workers some rights of employees, but not others, (like the right to bargain collectively). This Dispatch examines the events around the passage of Proposition 22 in more detail
Decoupling State Income Tax from Federal: Current Taxation of Unrealized Gain, the New York Proposal
Get PDFA proposal decouples NY from federal tax computations to tax billionaires on unrealized appreciation. If enacted, the proposal generates basis discontinuities across borders but enhances state revenue and may prove attractive to many states. The article reviews how states seek to enhance revenues and considers issues of cross-border taxation and the fundamental right to travel
Democracy Under Attack: Iowa’s ‘Bloody Second’
Get PDFThe 2020 election is in the past for most Americans, but not for Iowans who live in the Second Congressional District where a contested election challenge is just beginning. Dylan McCloskey discusses how a contested election works and what impact this may have on our democracy.
*Photo by Darren Halstead on Unsplashhttps://scholarship.law.slu.edu/lawjournalonline/1057/thumbnail.jp
The Law of Employee Data: Privacy, Property, Governance
Get PDFThe availability of data related to the employment relationship has ballooned into an unruly mass of personal characteristics, performance metrics, biometric recordings, and creative output. The law governing this collection of information has been awkwardly split between privacy regulations and intellectual property rights, with employees generally losing on both ends. This Article rejects a binary approach that either carves out private spaces ineffectually or renders data into isolated pieces of ownership. Instead, the law should implement a hybrid system that provides workers with continuing input and control without blocking efforts at joint production. In addition, employers should have fiduciary responsibilities in managing employee data, and workers should have collective governance rights over the data’s collection and use
Abolish Municipal Courts: A Response to Professor Natapoff
Get PDFIf we are serious about disrupting the generational reproduction of the racial social order, we are going to have to learn to let go. Taking up the legacy of criminal municipal courts and racial control, this Response argues against the practice of prescribing from the traditional “medication list” of liberal reforms (substantive, procedural, and “democratizing”) without grappling with whether a system or apparatus is so inextricably bound up with the maintenance of race and class hierarchy that it should be demolished. I assert that we should always ask whether something is redeemable before we ask whether it is reformable. In the case of criminal municipal courts, their past and their present dictate that abolition is the only practical approach.
This Response proceeds in three Parts. In Part I, I provide some brief thoughts on abolitionism as praxis within law. In Part II, I lay out a history of local courts as imbricated with racial capitalism. In Part III, I argue that municipal courts today are best understood not as a democratic juridicalapparatus but as a part of modern police bureaucracy
What Works in Online Teaching
Get PDFThis Article offers lessons from an empirical study of an online Trusts & Estates course. Over three semesters, approximately 280 law students responded to a survey on what works well for them in this online course and what does not. Their top three answers in each category may help serve as guidance for faculty creating online courses