Sara Rosenbaum, JD Harold and Jane Hirsh Professor, Health Law and Policy

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 Context and Structure

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 Types of laws, and types of legal disputes

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 custom and locality rule –learned profession exemption from antitrust law –medicine regarded not as a business subject to industry regulation but as an altruistic calling Early relationship between the courts and the medical profession

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 As the nature of medicine changes, so does the role of the courts

1.modification of the “no duty of care” principle – emergency care and patient abandonment 2.professional and institutional liability for the quality of care 3.physician/patient relationship (informed consent, privacy, confidentiality) 4.loss of the “learned profession” exemption under federal antitrust law, expansion of enforcement activities focusing on horizontal relationships among competitors and mergers 5.Creation of federal health insurance programs and the regulation that goes along with provider participation 6.closer regulation of tax-exempt organizations 7.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) Legal landmarks

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 Predicting the future

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?) Key ACA Cases