Nicole Huberfeld

  • November 13, 2017
    Guest Post

    by Nicole Huberfeld, Professor of Health Law, Ethics & Human Rights, Boston University

    For a long time, Americans could count on employment to obtain health insurance benefits. The strong link between full-time work and health insurance survived so long that most Americans assume those who work have health insurance, and those who do not have health insurance must not be working. Yet, part-time work has always been very weakly linked to employer-sponsored health insurance benefits, and individuals working in minimum-wage and hourly-paid jobs are much less likely to be offered health insurance as an employment benefit or to be able to afford if offered.

  • March 23, 2017
    Guest Post

    by Nicole Huberfeld, Associate Dean of Academic Affairs and Ashland-Spears Distinguished Research Professor of Law, University of Kentucky College of Law and  Jessica L. Roberts, Associate Professor, George Butler Research Professor of Law Director, Health Law & Policy Institute, The University of Houston Law Center

    If you are born in the United States and live long enough, chances are good you will be a Medicaid beneficiary at some point in your life. 

    Despite Medicaid’s ubiquity, the electorate’s sense of separation from the nation’s largest health insurance program contributes to its political fragility, as evidenced by the proposal to severely limit federal Medicaid spending in the Republican bill called the American Health Care Act.  This bill significantly limits federal funding for Medicaid, as reflected in the CBO Report issued Monday evening, which estimates that 24 million people will lose health insurance coverage under the Republican plan but that the federal government will save hundreds of billions of dollars from modifications to Medicaid and limitations on tax subsidies currently available for purchasing private insurance. Such federal spending cuts would have real and detrimental impact on the lives of all Americans, whether they realize it or not.

    Before federal health insurance programs existed, the poor were assisted by state-based medical welfare programs, but by the 1950’s, states could not pay for everyone who needed medical care.  The elderly and their families, as well as the non-elderly poor, were bankrupted by their encounters with medicine, and state safety nets often failed for unsteady political support and constant budgetary shortfalls. The elderly lobbied effectively for federalized insurance, resulting in Medicare’s passage in 1965. Medicaid, however, was enacted with generous federal funding but left to the states for administering.  As a result, for its first forty-nine years Medicaid only protected poor Americans who were deemed “deserving” under standards rooted in colonial values, meaning children and pregnant, blind, disabled, elderly or medically indigent adults.  Under the ACA (or “Obamacare”), Medicaid became available to anyone who financially qualifies, including all Americans in health insurance coverage so that they were no longer subject to the physical and economic insecurity of inconsistent health care access. Medicaid became a de facto form of social insurance.

  • January 17, 2017
    Guest Post

    by Nicole Huberfeld, Ashland-Spears Distinguished Research Professor of Law, University of Kentucky

    The Patient Protection and Affordable Care Act (also called Obamacare) has extended health insurance coverage to more than 20 million Americans and achieved historically low un-insurance rates, yet most do not know much about the law or why its dramatic measures were necessary. The ACA responded to a constellation of health care and health insurance failures, including that un-insurance had reached an historic high of more than 16 percent at the time of the 2008 election. Fewer and fewer employers offered health insurance as an employment benefit for more than a decade before President Obama was elected and those that did had significantly increased employee cost sharing over time. The long-standing American assumption that people who work have health insurance was no longer true.

    Further, the uninsured were concentrated among the working poor, who were not offered health insurance as an employment benefit or could not afford insurance that was offered. Though slightly more than half of Americans receive health insurance as an employment benefit, that is only meaningful for people earning more than the average income of about $51,000 per year. For people earning below 400 percent of the federal poverty level ($47,250), employers are significantly less likely to offer health insurance; part-time workers are even less frequently offered health insurance.

    Additionally, individual and small group health insurance markets have had such high prices as to be inaccessible. And, in every market, insurers used tools such as preexisting condition exclusions, caps on coverage and other discriminatory practices to eliminate subscribers deemed not healthy. While public financing covered the elderly in Medicare, for the poor, Medicaid has offered an incomplete safety net, only covering the “deserving poor”, which meant about 40 percent of low-income individuals. The nation’s millions of uninsured citizens sought treatment in emergency rooms, which offered a point of rescue but not a permanent source of access to care (and which was unsustainably expensive for hospitals).

  • July 23, 2014
    Guest Post

    by Nicole Huberfeld, H. Wendell Cherry Professor of Law, University of Kentucky College of Law

    The U.S. Court of Appeals for the D.C. Circuit held in Halbig v. Burwell that the IRS cannot provide tax credits to individuals who purchase private health insurance in states with federally-run insurance exchanges, potentially depriving millions of middle and low income Americans access to affordable health insurance. Improbably, while the blogosphere lit up, the U.S. Court of Appeals for the Fourth Circuit held in King v. Burwell that the IRS properly interpreted the Affordable Care Act (ACA) to provide tax credits in all exchanges whether run by a state or the federal government. Members of the Obama Administration immediately declared they will seek rehearing by the D.C. Circuit en banc. The standard of review for petitions for rehearing is rigorous, but given the importance of the case, and the new circuit split, rehearing is conceivable. Further, it is not unreasonable to anticipate that the Supreme Court ultimately will grant a petition for certiorari in either or both of these cases. If it is upheld, Halbig could be the most damaging decision in the ACA litigation wars yet. For those not mired in the details of the ACA and its ongoing legal challenges, here’s why.

    The ACA attempts to create near-universal insurance coverage by making Americans insurable and by commanding insurers to play by uniform rules. The ACA was created because, in 2008, one in five Americans did not have health insurance coverage. To make this number tangible, imagine everyone you know with blue eyes … and now imagine they do not have health insurance. That’s how many were uncovered, and the lack of coverage was just about that random too. In the United States, if you don’t have health insurance, you don’t have access to consistent healthcare. The ACA has clear goals, but it is a muddy scrum of legislative drafting that never underwent a conference committee process, and that imprecision has facilitated the litigation in these cases.

    To avoid adverse selection (the problem of free riding), the ACA requires Americans to carry minimum essential coverage or face a tax penalty (upheld in NFIB v. Sebelius); however, if insurance premiums would cost more than 8% of an individual’s income, then no tax penalty will be assessed. To facilitate health insurance coverage, the ACA created health insurance exchanges, also called marketplaces, where individuals and small groups can purchase health insurance that provides standardized benefits without exclusions for preexisting conditions and other disequalizing prohibitions. People who earn 100-400% of the federal poverty level are eligible for federal tax credits that assist in paying premiums for private insurance on the exchanges (“premium assistance tax credits,” codified at 26 U.S.C. § 36B), increasing substantially the number of people who can afford to purchase private health insurance.