1,721,022 research outputs found
Defining Health Affordability
Full text linkAffordable health care, insurance, and prescription drugs are priorities for the public and for policymakers. Yet the lack of a consensus definition of health affordability is increasingly recognized as a roadblock to health reform efforts. This Article explains how and why American health law invokes health affordability and attempts, or fails, to define the concept. It then evaluates potential affordability definitions and proposes strategies for defining affordability more clearly and consistently in health law.
Part I examines the role health affordability plays in American health policy, in part by contrasting the United States’s health system with systems elsewhere. Part II then reviews and categorizes approaches to affordability in American health law. It highlights how conceptions of affordability are woven into the Affordable Care Act’s premium assistance tax credits for marketplace buyers and how the American Rescue Plan and Inflation Reduction Act have implicitly shifted the definition of affordability. It also discusses how rulemaking around the “affordability guardrail” for state waivers of ACA provisions has prompted contestation between presidential administrations over the place of health equity and racial justice. After discussing these federal provisions, it identifies the role of affordability definitions in recent state-level innovations, such as affordability standards for health insurance and pharmaceutical affordability boards.
The latter two Parts situate these legal enactments within a cohesive framework and make recommendations. Part III categorizes existing or proposed definitions of health affordability according to their normative commitments, drawing on sociological and philosophical scholarship. Part IV then evaluates potential approaches to defining affordability. Options include continuing to leave affordability undefined, rejecting affordability as a cornerstone of health law, or replacing affordability with some of its constituent concepts. Rather than these alternatives, I propose a hybrid definition that combines different definitions discussed in Part III. It proposes that health spending is affordable if it delivers value for money without worsening access to basic needs or a reasonable opportunity range
Should Booster Shots Be Mandatory? It’s Hard to Justify.
No full textVaccine mandates have been stunningly successful in getting employees, students and others to protect themselves against COVID-19. Now that booster shots are available and recommended for many Americans, the natural next question is whether they should become a condition of employment or education as well
Risk, Everyday Intuitions, and the Institutional Value of Tort Law
Full text linkThis Note offers a normative critique of cost-benefit analysis, one informed by deontological moral theory, in the context of the debate over whether tort litigation or a non-tort approach is the appropriate response to mass harm. The first Part argues that the difference between lay and expert intuitions about risk and harm often reflects a difference in normative judgments about the existing facts, rather than a difference in belief about what facts exist, which makes the lay intuitions more defensible. The second Part considers how tort has dealt with this divergence between lay and expert perspectives. It also evaluates how tort's approach has differed from that of public law approaches to accident law, such as legislative compensation and risk regulation by administrative agencies. Ultimately, tort's ability to recognize the value of lay intuitions supports retaining the tort perspective as part of our societal arsenal of responses to risk and harm. This ability can also support a pro-tort perspective in two practical debates in the arena of tort law: that over preemption of tort law by administrative agency judgments, and that over access to tort recovery as part of a no-fault system
The Action-Inaction Distinction Before NFIB v. Sebelius
No full textJustice Scalia’s dissenting opinion in NFIB v. Sebelius asserts that the view that “there is really no difference between action and inaction” is “a proposition that has never recommended itself, neither to the law nor to common sense.” Justice Roberts similarly states in his opinion for the Court that the Commerce Clause permits the regulation of individuals’ actions but not of their omissions.
NFIB’s recognition of an action-inaction distinction is not as uncontroversial as the Court might believe
Equal Protection and Scarce Therapies: The Role of Race, Sex, and Other Protected Classifications
Full text linkThe COVID-19 pandemic brought debates over the use of age in scarce resource allocation to the fore once again. Initially, particularly in developed countries, debates surrounded the use of older age as an exclusion or lower-priority criterion for receipt of scarce medical interventions such as ICU beds and ventilator therapy. Many advocacy groups for older adults argued that age should not be used as a criterion for access to such interventions.[1] In developed countries and in particular the United States, they were largely successful, at least with respect to formal policy, ensuring that resource allocation policies excluded or minimized the role of age-based prioritization that might work to the disadvantage of older adults. Some of these groups argued that the use of age would constitute “unlawful age discrimination
A Conceptual Framework for Clearer Ethical Discussions About COVID-19 Response
No full textImproving the clarity and detail of our ethical frameworks can help ensure that triage decisions during the COVID-19 pandemic do justice to the complexity of our values. In this commentary, I propose an ethical framework (Table 1), then apply it to illuminate gaps in Haward and colleagues’ (2020) analysis
What Should We Ask About Age-Based Criteria in Healthcare?
No full textIn the American health care system, age shapes patients’ options. Most people over age 65 are eligible for Medicare, which is inaccessible to almost everyone under 65.
But many providers limit older patients’ access to certain interventions—like in-vitro fertilization or organ transplants. Some clinical research studies also exclude older patients, while others stratify populations by age. And insurers in the Affordable Care Act’s individual marketplaces can legally charge older patients up to three times as much as younger patients, which has motivated calls to let people below 65 buy into the Medicare program (although these proposals use age 55 as an eligibility criterion). Many of these uses of age have generated debate in the past, and are likely to continue to generate debate in the future
Who Should Be Prioritized for Scarce Medical Assistance?
No full textAs we enter 2022, the challenge of fairly allocating scarce medical capacity in response to the COVID-19 pandemic continues. New oral antivirals are available, but in short supply. The omicron variant has heightened the scarcity of monoclonal antibodies as two other frequently used antibody therapies are ineffective against it. And medical personnel are overstretched
Considering Vaccination Status
Full text linkThis Article examines whether policies—sometimes termed “vaccine mandates” or “vaccine requirements”— that consider vaccination status as a condition of employment, receipt of goods and services, or educational or other activity for participation are legally permitted, and whether such policies may even sometimes be legally required. It does so with particular reference to COVID-19 vaccines.
Part I explains the legality of private actors, such as employers or private universities, considering vaccination status, and concludes that such consideration is almost always legally permissible unless foreclosed by specific state legislation. Part II examines the consideration of vaccination status by state or federal policy. It concludes that such consideration is similarly allowed at the state level unless expressly foreclosed, and is allowed at the federal level if appropriately supported by federal regulatory authority. Part III examines what may be a future front in these debates: whether policies considering vaccination status may be required rather than merely permitted, just as some courts have found that mask requirements may be federally required in certain circumstances
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