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

2. Context Context – resolution of disputes, not political fights
what is a “dispute”?
not an advisory opinion
actions to define and enforce the legal relationship between parties – rights, duties, and remedies
is there a concrete injury? (standing)
is there a privately enforceable right or power in government to enforce a right in court? (grant of enforcement powers)
does a court have the power to hear the claim? (jurisdiction)
what types of relief can be granted?

3. Context Judicial structure = parallel state and federal systems
State courts have power over all nearly all disputes and are final arbiters of meaning of state law
Federal courts hear disputes arising under federal law; state law claims heard in limited situations
United States Supreme Court exists under the Constitution and has final authority over what law means (Marbury v Madison)
The lower federal courts are creatures of statute

4. Sources of law; types of legal disputes
Bodies of law
constitutions
statutes
regulations
common law
Lawsuits test legal relationships: rights, duties, remedies
between private parties (e.g., hospitals and labor unions)
between government and private parties (e.g., government enforcement of federal fraud statutes; government enforcement of environmental or licensure laws)
Between private parties and the government (suits to restrain government action)
Between governments (federalism claims)

5. Early relationship between the courts, public health, and the medical profession
Medicine treated as existing outside the bounds of many legal principles and traditions
no duty of care at common law – rejection of public accommodation theory
liability for quality 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
Public health investigatory but not an enforcement power

6. As the role of government changes, and as the medical system is transformed, so do laws and the courts
Rise of modern welfare state with administrative powers and the right to seek judicial enforcement of civil and criminal laws
Expansion of laws to protect the public health (e.g., immunization)
A transforming medical care system
regulation of medical practice and hospitals through licensure (regulated industry)
growth of third party insurance and power of payers
emergence of medical care as a massive industry whose transactional and clinical conduct require regulation
emergence of individual and civil rights, which propels limited recognition of public accommodation duties, privately enforceable rights and modernization of liability theory, and evolution of the physician/patient relationship as a matter of medical ethics and law

7. Legal landmarks under federal law, state law, common law
modification of the “no duty of care” principle – emergency care and patient abandonment; ultimately EMTALA and enforcement
professional and institutional liability for the quality of care – end of locality rule and modernization of the professional standard of care under state law
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 (ACOs, statements of antitrust enforcement principles in the health care industry)
creation and regulation of public and private health insurance
closer regulation of tax-exempt organizations and health care charities
regulation of health care as massive transactional businesses: rise of federal and state laws aimed at curbing health care fraud and abuse (false claims and qui tam actions; self-dealing (Stark); bribes and kickbacks)
relationship between religious liberty of both individuals and corporations and health care regulation (RFRA)

8. Key ACA Cases
NFIB v Sebelius: is the ACA’s personal responsibility requirement constitutional? Can Congress force states to give Medicaid to all newly-eligible low income adults?
King v Burwell: does the federal government have the authority to provide premium tax credits to eligible persons who buy Marketplace plans, regardless of whether their state relies on the federal Exchange?
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 v Burwell: does RFRA extend to corporations, and if so, are they substantially burdened by the ACA contraceptive coverage guarantee?
Zubik v Burwell : Does RFRA require that the federal government exempt nonprofit religious corporations from the ACA’s contraceptive coverage guarantee if they believe that such requirements substantially burden their religious beliefs, or does the government accommodation meet the RFRA test because its interest is compelling and its accommodation is the least restrictive possible?