As health reform legislation continues to move through Congress, complex policy, management, economic, and legal issues are being raised. Due to the diverse interests involved, these issues are leading 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 solutions in advance of the heat of political debate, the O’Neill Institute for National and Global Health Law at Georgetown University, with generous support from the Robert Wood Johnson Foundation, crafted the “Legal Solutions in Health Reform” project.
This project identifies 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 who work in key executive and legislative branch agencies, private industry lawyers, academic institutions, and other key players. This project attempts to pave the road towards improved health care for the nation by providing stakeholders with both a concise analysis of the complex legal issues relating to health reform and a clear articulation of the range of solutions 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 or 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 the nation. Consequently, it does not attempt to create consensus solutions for the identified problems nor 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.
In the first phase of the project - based on surveys of current health policy meetings and agendas, popular and professional press, and then-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. Feedback and analysis from a May 2008 bipartisan consultation 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 truly 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 and when a federal policy is adopted, the system changes. In this project, however, we targeted the issues essential for an immediate discussion of federal health reform. The papers were published in March 2009, and are available on our website.
The Legal Solutions project received additional funding from the Robert Wood Johnson Foundation to continue analysis on emerging legal issues in the leading health reform proposals in Congress. We are tracked proposed legislation and identified three recurring potential legal issues: Constitutional Takings, Discrimination, and Delegation. Additionally, we launched a blog on “Legal Issues in Health Reform,” creating a venue for more extensive analysis of legal issues that may first appear in the media. Discussion topics include, among other things: rebuttals to arguments that Congress lacks the constitutional authority to enact major components of reform proposals now moving through Congress; whether the individual mandate is a tax; federalism and procedural due process; and a response to the proposed legislation amending health insurance anti-trust laws.