The Role of the Courts in Health Policy

1. Health Policy:The Role of the Courts Sara Rosenbaum, JD Harold and Jane Hirsh Professor, Health Law and Policy

2. Context and Structure • Context – resolution of disputes • what is a “dispute”? • not an advisory opinion • actions to define the legal relationship between parties – rights and duties • who has the right/power to seek relief? • what types of relief can be granted? • Structure -- parallel state and federal systems • state courts – power over all nearly all disputes • federal courts – disputes arising under federal law • state law claims heard in limited situations

3. Types of laws, and types of legal disputes • Bodies of law • constitutions • statutes • regulations • common law • Types of relationships tested in disputes • between private parties (e.g., hospitals and labor unions) • between government and private parties • government enforcement • private efforts to halt or reverse government action

4. Early relationship between the courts and the medical profession • A century ago -- limited interaction between medical profession and courts; limited legal obligations and extensive immunities and shields • no duty of care at common law • liability measured by professional customand locality rule • learned profession exemption from antitrust law • medicine regarded not as a business subject to industry regulation but as an altruistic calling

5. As the nature of medicine changes, so does the role of the courts • Watersheds • medicine evolves into a regulated industry (professional and institutional licensure) • advent of the modern hospital and modern education methods • evolution of physician/patient relationship as a matter of medical ethics • rise of medicine as a business, with attendant shifts in law (antitrust, fraud, conduct of tax-exempt organizations, enforcement of corporate law principles) • Courts called on to enforce laws related to the above & take “judicial notice” of social evolution

6. Legal landmarks • modification of the “no duty of care” principle – emergency care and patient abandonment • professional and institutional liability for the quality of care • physician/patient relationship (informed consent, privacy, confidentiality) • loss of the “learned profession” exemption under federal antitrust law, expansion of enforcement activities focusing on horizontal relationships among competitors and mergers • Creation of federal health insurance programs and the regulation that goes along with provider participation • closer regulation of tax-exempt organizations • rise of federal and state laws aimed at curbing health care fraud and authorizing qui tam actions (false claims; self-dealing (Stark), bribes and kickbacks)

7. Predicting the future • size and cost of health care industry means intense regulation with courts playing a central enforcement role • unique nature of the physician/patient relationship means that professional and institutional liability are here to stay, even if in more tightly regulated form

8. Key ACA Cases • NFIB v Sebelius: is the ACA’s personal responsibility requirement constitutional? Does Congress have the constitutional power to require states to cover all low income nonelderly adults as a basic condition of program funding? • King v Burwell: can the federal government pay premium tax credits to eligible persons who buy Marketplace plans, regardless of the state in which they reside? • House of Representatives v Burwell: Does the HHS Secretary have the legal authority to pay cost sharing assistance for eligible people enrolled in qualifying Marketplace plans? • “Hobby Lobby” cases: does the Religious Freedom Restoration Act protect corporations, and if so can the government compel corporations to cover all FDA-approved contraceptives as part of their employer sponsored health plans? (And if not, is the government’s accommodation of religious beliefs a reasonable one?)