In a symposium focused on healthcare cost control, most of our authors have unsurprisingly highlighted and assessed Obamacare’s payment and delivery reforms—the supply-side efforts to decrease costs of medical treatment. But there is another party in healthcare decision-making who is equally or even more important: the patient. The question we will tackle here is whether the individual mandate and its accompanying patient-centered insurance reforms might decrease costs for patients in ways that ought to matter in assessing Obamacare’s cost control provisions.

The individual mandate’s cost control potential lies in its reduction or even elimination of patients’ decision costs. The mandate, together with its minimum coverage requirements and a handful of the statute’s substantive insurance reforms, combats demand-side inefficiencies that might arise from patients’ bounded rationality. Decisions about whether to buy commercial insurance, how much insurance to buy, whether to consume preventive care, and how much to pay for that care are all difficult decisions. In order to make optimal choices, patients need a lot of information that is costly to obtain and to evaluate.

In Jimmo v. Sebelius, the plaintiffs alleged that the Centers for Medicare and Medicaid Services (CMS) regularly and improperly denied Medicare reimbursement for outpatient therapy treatment when the beneficiary did not show a likelihood of improvement. These denials, based on policy manuals and other guidance, appear to contradict the government's own regulations, which specifically prohibit coverage denials based solely on the so-called “Improvement Standard.” In Jimmo, the United States District Court for the District of Vermont found that CMS' use of the Improvement Standard may have violated the rulemaking provisions of the Administrative Procedure Act (APA) and denied CMS' motion for summary judgment. Subsequently, the parties settled out of court.

In the settlement, CMS agreed to revise its policy manuals to clarify that the Improvement Standard was not an acceptable basis on which to deny Medicare coverage. CMS declined to defend its policies even though courts often grant deference to agency interpretations. The settlement implies that the agency feared that it would not have received such deference. It also implies that future Supreme Court decisions may give less deference to agency interpretations.

Upon the death of a king or queen, the proclamation “the king is dead, long live the king” announces a new monarch’s accession to the throne, preserving the sovereign order. As the Patient Protection and Affordable Care Act (ACA) is implemented, it is tempting to proclaim the reign of a new system of health insurance. But, will it preserve the old order or initiate a new form of governance? As states and insurers grapple with new rules and regulations being issued from the Department of Health and Human Services, the Treasury Department and the Department of Labor, one might believe an entirely new health insurance system is being built. Yet, the ACA is designed to preserve existing forms of public and private health insurance, such as Medicare and private employer group health plans, which will continue to operate much as they have in the recent past. What has changed is the role that insurance will play and how that will shape the way we think about health policy.

In Populations, Public Health and the Law, legal scholar Wendy Parmet urges courts to embrace population-based legal analysis, a public health inspired approach to legal reasoning. Parmet contends that population-based legal analysis offers a way to analyze legal issues—not unlike law and economics—as well as a set of values from which to critique contemporary legal discourse. Population-based analysis has been warmly embraced by the health law community as a bold new way of analyzing legal issues. Still, population-based analysis is not without its problems. At times, Parmet claims too much territory for the population perspective. Moreover, Parmet urges courts to recognize population health as an important norm in legal reasoning. What should we do when the insights of public health and conventional legal reasoning conflict? Still in its infancy, population-based analysis offers little in the way of answers to these questions. This Article applies population-based legal analysis to the constitutional problems that arise when states condition public assistance benefits on passing a drug test, thereby highlighting the strengths of the population perspective and exposing its weaknesses.

There has been great debate about the potential labor market impact of the Affordable Care Act (“ACA” or “Obamacare”). Some have pointed to Massachusetts as the harbinger of what is to come nationally, while others have predicted massive dumping of employer-based insurance. An extension of this labor market debate was on full display during the summer of 2012. Critics seized on a McKinsey & Co. survey that found that Obamacare could result in thirty percent of companies dropping employer-sponsored insurance (ESI). Meanwhile, proponents of the ACA quickly and continually referred to the experience of companies in Massachusetts as a way to push back on this narrative.

Surprisingly, there is bipartisan agreement that Massachusetts’s own health reform efforts (“Romneycare”) does in fact serve as an accurate model for what to expect under the federal law: this has complicated a lucid discussion of the ACA’s potential labor market impact.

Prescription painkiller abuse is the fastest growing drug problem in the United States. In the past year, approximately one out of twenty Americans reported misuse or abuse of prescription painkillers. Several factors contribute to the prescription painkiller epidemic. Drug abusers use various methods—such as doctor shopping, paying with cash, and filling prescriptions in different states—to avoid detection and obtain prescription painkillers for illegitimate uses. A few rogue physicians and pharmacists, lured by substantial profits, enable drug abusers by illegally prescribing or supplying controlled substances. Even ethical physicians rarely have adequate training to recognize and address prescription drug abuse, and as a result, prescribe painkillers to patients who are not using them for legitimate medical purposes. Similarly, although the majority of pharmacies have taken steps to combat drug abuse and reduce prescription painkiller dispensing, under current reporting systems, pharmacists lack visibility into several important indicators of drug abuse. As a result, even the most vigilant pharmacists find it extremely difficult to identify and detect drug abuse with certainty.

While state governments have established prescription drug monitoring programs (PDMPs) to crack down on prescription drug abuse, these programs have proven to be inadequate. The programs currently suffer from inadequate data collection, ineffective utilization of data, insufficient interstate data sharing, and constraints on sharing data with law enforcement and state agencies. By contrast, third-party prescription payment systems run by pharmacy benefit managers (PBMs) or health insurers have been effective in detecting prescription drug abuse. This paper suggests that a national prescription drug reporting program building on existing PBM networks could be significantly more effective than existing state PDMPs in detecting prescription drug abuse.

Throughout the history of the mental health profession, many psychotherapists have asserted that homosexuality is a mental condition or defect that may be corrected through treatment. Homosexuality was not officially declassified as a mental illness until 1973, and it was not until recently that mainstream mental health organizations renounced the claim that therapy can alter sexual orientation. Sexual orientation change efforts (SOCE) involve various types of psychotherapy, from the familiar and seemingly benign talk therapy to forms of behavioral therapy that include “masturbatory reconditioning, rest, visits to prostitutes[,] excessive bicycle riding,” and even physical abuse. SOCE are now widely regarded by mainstream mental health practitioners as unscientific, ineffective, and mentally and emotionally harmful. Nevertheless, due to persistent societal disapproval of homosexuality, some mental health providers continue to engage in SOCE, often causing their patients to experience shame and anxiety well into adulthood.

In Obamacare’s Impact on Labor Markets: Limits on the Predictive Value of Romneycare, Josh Archambault makes a number of arguments about the ultimate impact of the Affordable Care Act (ACA). A central point is that the overall impact on the US labor market and economy will be worse than the Congressional Budget Office (CBO) projected—to some extent, because the CBO used the experience in Massachusetts as one piece of evidence in guiding its estimates. A recent report by the CBO on potential effects of the ACA on employment has added additional fuel to the debate. In particular, Archambault argues that more people will leave employer-sponsored insurance (ESI), and that the ACA will cost more than the CBO projected.

Archambault makes many good points. The ACA does add new taxes, such as an additional 1% Medicare tax on families earning over $250,000, a 2.3% tax on medical devices, and additional taxes on some health insurers and tanning salons. Altogether, these taxes were expected to raise roughly $400 billion between 2010 and 2019.

As of 2002, the Federal Food and Drug Administration (FDA) had approved Neurontin, a drug developed by the pharmaceutical company Pfizer, for two uses, the treatment of epilepsy and pain related to shingles. A staggering ninety-four percent of Neurontin prescriptions in the prior five years, however, were for other (non-FDA) approved uses. These other uses effectively tripled Medicaid’s costs for the drug between 1998 and 2003. Insurance companies covered the off-label uses because they appeared in the Drugdex compendium, a federally authorized listing of drugs that includes evidence regarding the drug’s effectiveness, clinical indications, and proper dosing. Drugdex included an additional forty-eight uses for Neurontin, ranging from bipolar disorder to the hiccups. Two other federally approved compendia existed at that time; one listed seven uses for Neurontin while the other listed only one.

As enacted, the Affordable Care Act (ACA) directed states to provide Medicaid coverage to most nonelderly adults with incomes up to 138% of the Federal Poverty Level (the “Medicaid expansion group”) beginning in 2014. The Medicaid expansion provision of the ACA is an integral component of fulfilling the ACA’s primary objective to achieve near-universal health insurance coverage rates across the United States.

Title XIX of the Social Security Act (Title XIX) is Medicaid’s enabling statute. Medicaid is a medical assistance program for certain low-income individuals, jointly funded and administered by federal and state governments. Certain features of the Medicaid program provide a framework within which the ACA and subsequent Supreme Court decision National Federation of Independent Business (NFIB) v. Sebelius can be understood.

As of January 2014, 26 states had chosen to expand Medicaid under the Affordable Care Act (ACA) to cover individuals with incomes up to 138% of the federal poverty level. In these states, Medicaid agencies are facing one of the largest implementation challenges in the program’s history. We undertook a survey of high-ranking Medicaid officials in these states to assess their priorities, expectations, and programmatic decisions related to the coming expansion.

The Medicaid expansion poses major challenges in the domains of enrollment, management of health care costs, and providing adequate access to services for beneficiaries. Previous research has documented that millions of individuals eligible for Medicaid are currently not enrolled and remain uninsured, suggesting that state outreach strategies may underpin the success or failure of the ACA’s coverage expansion.

This Note focuses on the medical loss ratio provision (“MLR Provision”) of the Patient Protection and Affordable Care Act (ACA). The MLR Provision states that health insurance companies must spend at least a certain percentage of their premium revenue on “activities that improve healthcare quality” (in other words, meet a minimum threshold medical loss ratio) and comply with reporting requirements determined by the Secretary of the United States Department of Health and Human Services (HHS). Because states have historically had authority over the regulation of health insurance, there is an outstanding question as to whether or not the MLR Provision has legal authority to preempt conflicting state MLR regulations.

Part II of this Note outlines the major requirements in the MLR Provision and discusses the history of MLR regulation in the United States. Part III discusses the likelihood that the courts will soon resolve the question of preemption regarding the MLR Provision.

Regenerative Sciences, LLC, a Colorado company run by physicians, created the Regenexx-C (Cultured) (“Regenexx-C”) procedure to treat bone pain. The procedure involves harvesting a patient’s own mesenchymal stem cells (MSCs), expanding the cells ex vivo, and then injecting the resulting cellular product into the site of injury, usually an injured joint. The MSCs then repair the damaged tissue. On July 23, 2012, the United States Food and Drug Administration (FDA) won a permanent injunction against Regenerative Sciences in district court, preventing the company from offering the procedure because the MSCs were adulterated and misbranded “drugs” under the Federal Food, Drug, and Cosmetic Act (FDCA). The Court of Appeals for the D.C. Circuit recently upheld the ruling.