1. Geiger Gibson Capstone in Community Health Policy & Leadership Webinar Series – Fall 2013 (3-4 pm) 1.Executive Branch 10/1-Merle Cunningham 2.Legislative Branch 10/8-Dan Hawkins 3.Judicial Branch-10/15-Sara Rosenbaum 4.Advocacy Role-10/22-Amanda Pears Kelly Merle Cunningham MD MPH - Program Director Geiger Gibson Program in Partnership with NACHC GWU School Public Health & Health Services, Department of Health Policy

2. 2 The Judicial Role in Health Policy Sara Rosenbaum, J.D. Harold and Jane Hirsh Professor of Health Law and Policy September 15, 2013

3. 3 Law and Society Codifies social relationships among individuals, the marketplace, the government, health professionals, and others. Creates enforceable rights and duties. Judiciary defines and enforces legal relationships and can reorder society with major political, economic, cultural, and social consequences Judicial policy can be overturned only by higher courts or, if based on statute or common law, by legislature. Consequently, courts use power sparingly (but not always, e.g., Bush v Gore)

4. 4 The Judicial Process Parallel federal and state systems The federal courts have great constitutional powers but also great constraints, both external and self-imposed: –Limits on judicial powers to hear a dispute (subject matter jurisdiction) –Standing: is there a concrete injury that lends itself to a judicial resolution? –Limits on right of private actors to seek judicial redress (the right of action) –Limits on what courts can do (remedial powers) –Congress controls power of lower courts Legal disputes driven by “theory of the case,” which frames facts in order to move toward legal outcomes. –e.g. ACA minimum coverage requirement is normal exercise of Congressional powers under the Constitution vs ACA is unprecedented effort to control individuals by forcing them into the market for health insurance

5. 5 The ACA Reorders Legal Relationships in Health Care Individuals and government – minimum coverage requirement Individuals and markets – Consumer safeguards (e.g., emergency treatment coverage, appeals, essential health benefit requirements) Markets and government – Insurance reforms, Qualified Health Plans and Exchanges, government powers to regulate market entry, such as pharmaceuticals and biologics Providers versus markets – provider non-discrimination provisions of insurance reforms; special “essential community provider” contracting rules for Qualified Health Plans (QHPs) sold in the Exchange Providers versus government – Provider accountability for quality under Medicare payment reforms Providers and patients – not directly touched, indirectly through insurance reforms

6. 6 Principal ACA Cases NFIB v Sebelius (132 S. Ct. 2566 (2012)) – upholds the constitutionality of the “individual mandate” as a lawful tax, while declaring the Medicaid expansion an unconstitutional coercion on the states while saving the expansion through a narrowly tailored remedy barring the Secretary of HHS from withholding overall Medicaid funding from states that “opt out.” –To date approximately half the states have opted out. Mostly in South, these states comprise > half of all uninsured Americans Oklahoma ex rel Pruitt v Sebelius (E.D. OK) – challenge to the power of the Administration to extend premium tax credits and impose employer penalties in federally facilitated Exchanges (Marketplaces) –Plaintiff – ACA clearly limits premium tax credits to state-based Exchanges –Defendant – ACA is nationwide. If states elect to use a federally facilitated Exchange, the Secretary administers as if the state were operating the Exchange Coverage of contraceptives (review petition now pending before the United States Supreme Court, arising from more than 60 separate lawsuits) Does the Religious Freedom Restoration Act bar a rule that compels for-profit employers claiming a religious exemption from coverage of all FDA-approved contraceptives? –Rules exempt religious institutions and create an alternative system for religiously-affiliated entities such as hospitals and schools –Rules obligate for-profit employers to comply. –Plaintiffs – RFRA allows them to refuse to comply with a generally applicable public health law –Defendants – RFRA does not cover secular employers, even if they hold religious beliefs, because secular employers cannot hold religious beliefs

7. Plan B Decision Tummino v Hamburg (E.D.N.Y., 2013) HHS Secretary lacks the authority to override an FDA decision based in science that Plan B (the morning after pill) is safe and effective for women of all ages and therefore, that the age restriction can be lifted. –Culmination of nearly a decade of litigation 7

8. Questions? 8

9. Next Week’s Topic Advocacy Role in Health Policy Amanda Pears Kelly, NACHC National Advocacy Director