Loyola University Chicago

Beazley Institute for Health Law and Policy

School of Law

Volume 24 (2015)

Annals of Health Law
The Health Policy and Law Review of Loyola University Chicago School of Law
Volume 24 (2015)

 Anne Compton-Brown

 Publications Editor: 
 Leighanne Root

 Technical Production and

 Special Projects Editor:
 Adrienne Saltz

 Marketing &  

 Coordinating Editor:
 Jean Liu

 Symposium Editor:
 Matthew Brothers

 Advance Directive Editor:
 Jessica Wolf and

 Ashley Huntington

 Senior Editors:
 Daniel Burns

 Erica Cribbs

 Melissa Kong
 Michael Weiss

 Katie Witham

 Annette Wojciechowski


 Senior Publications Editor:
 Chris Conway

 Mary Buckley

 Morgan Carr

 Eric Chung

 Arianne Clayton

 Shaleen Dada

 Jennifer Fenton

 James Flannery

 Markeya Fowler

 Sarah Kitlinski

 Heather Lang

 Anna Leahy

 Christopher MacKenzie

 Ryan Marcus

 Maria Elena Martinez

 Holly McCurdy

 Amy Michelau

 Sumaya Noush

 Mitchell Paglia

 Elise Robie

 Stephanie Saladino

 Joe Willuweit



Issue 1, Winter 2015


Enforcing Mental Health Parity through the Affordable Care Act’s Essential Health Benefit Mandate
Authors: Kathleen G. Noonan and Stephen J. Boraske

The Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act, paired with the Patient Protection and Affordable Care Act, expanded health insurance coverage to millions of previously uninsured Americans and guaranteed that new insurance policies cover mental health and substance abuse treatment. This article examines how these recent pieces of legislation can be used to remedy the problems associated with the current model’s ineffective enforcement of insurance regulations and proposes that more inclusive essential health benefit definitions and an expansion of monitored, certified health plans in health insurance Marketplaces can provide increased future access to this crucial health coverage.

Access and Innovation in a Time of Rapid Change: Physician Assistant Scope of Practice
Authors: Ann Davis, Stephanie M. Radix, James F. Cawley, Roderick S. Hooker, and Carson S. Walker

In the 1960s, the profession of physician assistant rose to prominence and has since transformed the landscape of the medical profession by supplementing and supporting the work of overextended physicians. This article discusses the history of physician assistant practice and its expansion over the years to include many tasks that were once considered the sole domain of the physician. Gradual recognition by medical professionals and lawmakers alike has shaped the unique determinants of physician assistant scope of practice to include a wide range of primary, specialty, and subspecialty care, and has the potential to further shape the development of the health care provider community.

Holding Health Insurance Marketplaces Accountable: The Unheralded Rise and Imminent Demise of Structural Reform Litigation in Health Care
Author: Sarah L. Grusin

As the government’s level of engagement and role in the healthcare profession has become increasingly augmented and complex, questions about accountability for regulation of the new health insurance Marketplaces and established public insurance programs, such as Medicaid, have moved to the forefront of the enforcement arena. This article posits that strict statutory interpretation and direct governmental involvement are not necessarily the most efficient methods of increasing governmental accountability under existing insurance regulations and that instead, the growing practice of private enforcement through structural reform litigation may prove to be the most effective method of straddling the boundary between state and federal laws and the private sector in the ever-changing healthcare landscape.

Issue 2, Summer 2015


Red-State Health Reform: Threading the Political Needle
Author: Robert B. Leflar

Spurred by the Supreme Court’s decision in NFIB v. Sebelius, health reform federalism is flourishing as states experiment with various means of implementing the Affordable Care Act. Implementation has been slow, however, in most states with political environments hostile to “Obamacare,” even though those states have much to gain. Among the red states, Arkansas stands out as an exception. This essay relates the story of two of Arkansas’s innovative health reform initiatives: the “private option” for Medicaid expansion, extending private health insurance to the state’s lower income residents, and the Arkansas Payment Improvement Initiative, re-orienting provider incentives away from wasteful fee-for-service payment structures toward a more cost-effective value-based structure. Early results are promising: the “private option” has resulted in the highest percentage increase in insurance coverage of any state, and preliminary tracking results from the Arkansas Payment Improvement Initiative show cost savings and quality improvements across several categories of health care interventions. The essay explains how the two initiatives work, and describes the delicate political process by which the state’s political and health policy leaders – encompassing Democrats and Republicans, Medicaid officials and private insurers, hospitals and physicians’ groups – collaborated to take advantage of opportunities for state-based innovation.

The Picture Begins to Assert Itself: Rules of Construction for Essential Health Benefits in Health Insurance Plans Subject to the Affordable Care Act

Author: Wendy K. Mariner

The Affordable Care Act (ACA) is pushing private health insurance to function primarily as a method of financing health care. This shift has the potential to alter the law governing the interpretation of health insurance policies. The requirement that qualified health plans offered in health insurance marketplaces cover Essential Health Benefits (EHB) poses a particular challenge to conventional rules of insurance policy interpretation. The ACA and implementing regulations describe EHB in broad categorical terms, leaving considerable discretion to states and insurers to flesh out benefit coverage ex ante and make coverage determinations ex post. This article explores which rules of interpretation should apply to EHB coverage. Since the ACA has altered the concept of insurance in the context of health insurance, it stands to reason that insurance law applied to ACA plans should adapt to the ends that the ACA seeks to achieve. The article concludes that courts, insurers, and policyholders would be well served by adopting a functional combination of statutory interpretation and reasonable expectations doctrines – which might be called reasonable statutory expectations – to carry out the regulatory and financing functions of ACA-governed plans. This approach may also move insurance law toward a more principled conception of highly regulated insurance policies. At the very least, a rule of construction based on the legislative purpose of ACA plans is a step toward achieving fairness both across populations and in individual cases.

Employers and Health Insurance Under the Affordable Care Act
Authors: Arnold J. Rosoff & Anthony W. Orlando

The United States has a healthcare system virtually unique in the world in being based largely on voluntary employment-based health insurance (EBHI).  In its thrust toward Universal Health Care, the ACA has both “mandated” expansion of employment-based coverage and offered a workable alternative, purchase by individuals on the ACA’s Insurance Exchanges.  This article traces the history of EBHI in the U.S. and examines the pros and cons of EBHI and the extent to which corporate America and the American public are committed to it.  Finally, it projects how employers are likely to respond to the ACA with regard to offering coverage to their employees and their dependents, identifying and explaining the main factors affecting employers’ decisions and actions.