New Article: Brendan Williams, The Inexorable Expansion of Medicaid Expansion, 39 N. Ill. L. Rev. 240 (2019). Abstract below:
Medicaid expansion to non-elderly adults under the Affordable Care Act (ACA) has come a long way since the U.S. Supreme Court made it optional in its landmark 2012 NFIB vs. Sebelius ruling, and 2018, in particular, was a banner year. In 2018 four states expanded Medicaid, three of them “red states” doing so by voter ballot. Expansion-favoring Democrats were also elected to replace expansion-opposing Republican governors. Strikingly, this success came just a year after Medicaid expansion, and the ACA as a whole, was only saved by a single U.S. Senate vote. This article examines the early pushback by states against Medicaid expansion, and the eventual evolution into acceptance by many states, dating from the 2012 Court decision through 2017. It then assesses the Medicaid expansion success in 2018 and what that portends for the Medicaid program. Finally, it highlights key challenges that lie ahead.
News Coverage: David Leonhardt and Stuart A. Thompson, How Working-Class Life Is Killing Americans, in Charts, N.Y. Times, Mar. 6, 2020.
New Article: David Wasserstein, Working 9 to 5? Equal Protection and States’ Efforts to Impose Work Requirements for Medicaid Eligibility, 69 Am. U. L. Rev. 703 (2019). Abstract below:
Since the election of Donald Trump, states’ efforts to reform and ultimately curtail the welfare state have flourished. Following the lead of the federal government, many states are actively attempting to reshape the mechanisms by which low-income Americans apply for and receive services. One such program under threat is Medicaid, a jointly funded federal-state effort to provide access to healthcare for needy individuals. Many states are trying to impose a monthly work requirement for beneficiaries to remain eligible within the program. The imposition of work requirements threatens to disenroll thousands of previously eligible individuals across the country. While these efforts are currently tied up in federal court, the implications for those in poverty and for the welfare state writ large are momentous.
Using efforts to institute a work requirement for Medicaid, this Comment argues that those experiencing poverty ought to be afforded greater protections from the courts and deserve some level of heightened scrutiny under the Equal Protection Clause of the Fourteenth Amendment. By tracing the Court’s jurisprudence around wealth as a protected class, this Comment finds an opening by which the Court should extend protections to those experiencing poverty. Specifically, within the context of Medicaid, this Comment argues that requiring Medicaid enrollees to work to remain covered via section 1115 waivers impermissibly discriminates based on economic status and violates the intent and purpose of Medicaid. These requirements impermissibly discriminate based on economic status because policies affecting those experiencing poverty demand heightened scrutiny, or at least a “rational basis plus bite” analysis, and do not further a legitimate government objective, thus making them unconstitutional. Even if such work requirements withstand a Fourteenth Amendment challenge, promoting better health outcomes, saving the state money, and encouraging self-sufficiency at the risk of disenrolling innumerable, otherwise qualified people, contravenes the intent and purpose of Medicaid. Extending any variant of Fourteenth Amendment protections to those in poverty presents profound implications for the American welfare state and would fundamentally alter the social safety net. This Comment argues that now more than ever is the time to do so.
New Book: Andrea Freeman, Skimmed: Breastfeeding, Race, and Injustice (2019). Overview below:
Born into a tenant farming family in North Carolina in 1946, Mary Louise, Mary Ann, Mary Alice, and Mary Catherine were medical miracles. Annie Mae Fultz, a Black-Cherokee woman who lost her ability to hear and speak in childhood, became the mother of America’s first surviving set of identical quadruplets. They were instant celebrities. Their White doctor named them after his own family members. He sold the rights to use the sisters for marketing purposes to the highest-bidding formula company. The girls lived in poverty, while Pet Milk’s profits from a previously untapped market of Black families skyrocketed.
Over half a century later, baby formula is a seventy-billion-dollar industry and Black mothers have the lowest breastfeeding rates in the country. Since slavery, legal, political, and societal factors have routinely denied Black women the ability to choose how to feed their babies. In Skimmed, Andrea Freeman tells the riveting story of the Fultz quadruplets while uncovering how feeding America’s youngest citizens is awash in social, legal, and cultural inequalities. This book highlights the making of a modern public health crisis, the four extraordinary girls whose stories encapsulate a nationwide injustice, and how we can fight for a healthier future.
New Paper: Harris, Angela P. and Pamukcu, Aysha, The Civil Rights of Health: A New Approach to Challenging Structural Inequality (March 11, 2019). UCLA Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3350597
An emerging literature on “the social determinants of health” reveals that a major driver of public health disparities is subordination. This body of research makes possible a powerful new alliance between public health and civil rights advocates: an initiative to promote the “civil rights of health.” Understanding health as a matter of justice and civil rights law as a health intervention has the potential to strengthen public health advocacy. At the same time, understanding social injustice as a health issue as well as a moral issue has the potential to reinvigorate civil rights advocacy. This Article argues that a “civil rights of health” initiative, built on a “health justice” framework, can help educate policymakers and the public about the health effects of subordination, create new legal tools for challenging subordination, and ultimately reduce or eliminate unjust health disparities.
New Book: Helen Hershkoff & Stephen Loffredo, Getting By: Economic Rights and Legal Protections for People with Low Income (Oxford University Press 2020). Overview below:
Getting By offers an integrated, critical account of the federal laws and programs that most directly affect poor and low-income people in the United States-the unemployed, the underemployed, and the low-wage employed, whether working in or outside the home.
The central aim is to provide a resource for individuals and groups trying to access benefits, secure rights and protections, and mobilize for economic justice.
The topics covered include cash assistance, employment and labor rights, food assistance, health care, education, consumer and banking law, housing assistance, rights in public places, access to justice, and voting rights.
This comprehensive volume is appropriate for law school and undergraduate courses, and is a vital resource for policy makers, journalists, and others interested in social welfare policy in the United States.
News Coverage: Rachel Corbett, Midicaid’s Dark Secret, The Atlantic, October 2019 Issue. For many participants, the program that provides health care to millions of low-income Americans isn’t free. It’s a loan. And the government expects to be repaid.
New Article: Nina A. Kohn, For Love and Affection: Elder Care and the Law’s Denial of Intra-Family Contracts, 54 Harv. C.R.-C.L. L. Rev. (2019).
As the U.S. population ages, demand for care providers for older adults is rapidly growing. Although the law’s treatment of care contracts between older adults and their family caregivers has substantial implications for the country’s ability to meet this demand, there has been no prior empirical examination of the law’s current treatment of such agreements. This Article fills that gap by assessing how courts and other legal actors treat intra-family agreements to pay family members for elder care. A look into a long-ignored area of case law—Medicaid eligibility determinations—reveals that courts, administrative law judges, and state regulators typically attach little or no monetary value to elder care provided by family members. Rather, payments for caregiving are routinely treated as fraudulent transfers. The result is that, in the name of combatting Medicaid fraud, states penalize older adults who pay for their own care.
Treating family-provided elder care as lacking monetary value stands in sharp contrast to the high cost of elder care purchased on the open market and is at odds with states’ increased willingness to directly pay family care providers. This Article shows that this incongruence can be partially explained by public distaste for Medicaid planning and distrust of agents acting on behalf of older adults. Entrenched stereotypes about care work and related expectations about familial care also contribute to the law’s refusal to recognize these agreements and the economic value of care provided under them.
This Article offers lessons for social policy, legal theory, and legal practice. On a policy level, it shows that states are engaged in counterproductive behavior that will discourage the very type of family care they purport to encourage. On a theoretical level, it indicates that attitudes toward care work and courts’ willingness to enforce contracts between family members have not changed to the extent commonly described by family law scholars. Finally, at a practical level, it suggests that attorneys should adapt the advice they give clients to better account for distrust of agents.