Notice & Comment

Author: Nicholas Bagley

Notice & Comment

Respecting the States

One of the strangest things about King v. Burwell is the challengers’ claim that the ACA clearly withholds tax credits from states that refused to set up exchanges. When asked why on earth Congress would do such a thing, the challengers insist that Congress badly wanted the states to establish their own exchanges. The tax […]

Notice & Comment

Another Strike Against the Plaintiffs’ Case in King

I was reading the ACA again yesterday—a pretty typical Sunday for me—when I came across another statutory clue that Congress could not have meant to strip tax credits from states with federally established exchanges. The ACA requires all individual and small-group insurers to cover the “essential health benefits,” but the statute was pretty vague about […]

Notice & Comment

Gauging the Fallout from King

I have a new piece at the New England Journal of Medicine, co-authored with David Jones and Tim Jost, that grapples with the practical consequences of a Supreme Court decision against the government in King v. Burwell. As we explain, the fallout could be much worse than is commonly appreciated. In particular, we are not […]

Notice & Comment

Why is CMS Withholding Substance Use Data from Researchers?

According to recent reports, CMS has begun withholding from researchers Medicare and Medicaid claims data relating to substance use diagnoses and related procedures. The agency’s decision will impair research relating not only to substance use, but also any research that depends on unbiased Medicare and Medicaid data. Much of that research is designed to improve […]

Notice & Comment

A Couple of Overlooked Context Clues in King

In King, the government is looking to demonstrate from the broader context of the Act that Congress didn’t mean to withdraw tax credits from states with federal back-up exchanges. That context includes three stopgap measures designed to afford temporary relief until the exchanges went live. One of those measures has received a lot of attention: […]

Notice & Comment

King v. Burwell: Am I Unreasonable

Before the Supreme Court granted King v. Burwell, the Journal on Health Politics, Policy and Law invited me to write a counterpoint to an essay by Jonathan Adler and Michael Cannon, two of the architects of the litigation. I’m pleased to report that drafts of their point and my counterpoint are now available. Writing the […]

Notice & Comment

Could the Supreme Court Stay King? A qualification.

Last week, I wrote that “there would be no legal basis for entering a stay” if the Supreme Court inKing v. Burwell invalidates the IRS’s rule governing the distribution of tax credits. I received some thoughtful pushback on that point, most notably from Will Baude and Andy Grewal. In light of their comments, I want […]

Notice & Comment

Could the Supreme Court Stay its Decision in King?

What would happen if the Supreme Court rules for the challengers in King? Not down the line, but immediately? I’ve heard some suggestions that the Court, keen to avoid the upheaval of insurance markets, might enter a stay or otherwise give the administration and Congress time to come up with a fix. That’s wishful thinking. […]

Notice & Comment

Want Your Medical Record? It’ll Cost You.

Who owns medical records? Technically, the records themselves are the property of the physicians and hospitals that compile them. But the law has long recognized that patients also have rights to those records. Most significantly, under HIPAA’s Privacy Rule, a provider must, upon request, give a patient a copy of her medical records. But, to […]

Notice & Comment

The Celebrity Hacking Scandal and HIPAA

My health law students and I were discussing HIPAA’s Privacy Rule when we got to talking about the iCloud hack of the nude celebrity photos. Although publication of the photos was a grotesque invasion of the celebrities’ privacy, there’s been no big push for the federal government to pass a law requiring Apple to take […]

Notice & Comment

Fixing the Risk Corridor Program

Last week, the Government Accountability Office released a letter that sets up a potential congressional battle over the future of the risk corridor program. Contrary to how it’s been covered in the press, however, the letter is good news for HHS. It also suggests that the administration has been quite canny in its approach to […]

Notice & Comment

Sloppy Drafting and Statutory Interpretation

There’s no getting around it. The Affordable Care Act contains some sloppy drafting, most conspicuously in the section governing the calculation of tax credits. For the most part, that sloppiness reflects the intrinsic difficulty of writing a bill to reform a massive, complex health-care system. Yet the ACA also bears the scars of a brutal […]

Notice & Comment

Crashing Medicare

Two weeks ago, Medicare announced a proposed settlement in a long-running billing dispute with hospitals. The size of the settlement is staggering: if accepted, it could end up costing the federal government hundreds of millions of dollars. The settlement also signals deep problems in one of Medicare’s flagship programs for eliminating wasteful spending. At its […]