Medical Licensing in the States: Some Room for Agreement—and Reform

Even before Obamacare, many states faced the prospect of a doctor shortage due to an aging population and a limited supply of physicians. Obamacare will exacerbate this shortage by expanding insurance coverage to some degree, which will further increase the demand for care. One study projects that this increased demand will require between 4,300 and 7,000 more physicians by 2019.

Earlier this week, the New York Times reported that state medical boards across the country “have drafted a model law that would make it much easier for doctors licensed in one state to treat patients in other states, whether in person, by videoconference or online,” in what they are saying has the potential to be “the biggest change in medical licensing in decades.” This is a positive development, especially given that it seems to have a measure of bipartisan support, with 10 Republicans and 6 Democrats endorsing the plan in a recent letter.  If ultimately enacted, it could go a long way to increasing access to care, especially in underserved areas, but there are still many obstacles to seeing this plan become a reality, and it is far from the only option at the disposal of policymakers.

Another proposal to address this doctor shortfall is to expand the role of nurse practitioners (NP’s), who are registered nurses who have also received a graduate degree in nursing. States determine what services these NP’s can perform, and their scope of practice varies significantly. States that currently have reduced or restricted scope of practice should explore loosening these restrictions, because doing so could go some way to addressing the looming doctor shortage and increase access to care without a reduction in quality.

Jonathan Turley on Halbig v. Burwell

Jonathan Turley, a professor of law at George Washington University, has an opinion piece in today’s Los Angeles Times on Halbig v. Burwell:

The administration’s loss in the Hobby Lobby case is a bitter pill to swallow, but it is not a lethal threat to Obamacare. For critics of the law, Halbig is everything that Hobby Lobby is not. Where Hobby Lobby exempts only closely held corporations from a portion of the ACA rules, Halbig could allow an mass exodus from the program. And like all insurance programs, it only works if large numbers are insured so that the risks are widely spread. Halbig could leave Obamacare on life support — and lead to another showdown in the Supreme Court.

Read the whole thing.

A ruling is expected from the D.C. Circuit in Halbig any day now. Here are some materials that will let you hit the ground running.

Cato Spending Charts

How much does Congress spend on Veterans Affairs, the IRS, or Customs and Border Protection? How much has spending increased over time?

You can answer those questions quickly and easily with Cato’s updated charting tool for the federal budget.

The tool allows you to plot real outlays for about 500 departments, agencies, and programs, 1970-2014. All data is from the Office of Management and Budget.

The chart page opens blank. Click “+” to open a department and then check boxes for the departments, agencies, and programs you want to plot.

To save your chart as an image or a pdf, right click on it.

This chart shows spending on the three largest federal agencies. The data is in constant 2014 dollars.

The Republic of Gilead Is Not Nigh

If you were judging only from the outraged reaction  online, you could be forgiven for thinking that the Supreme Court’s ruling in Burwell v. Hobby Lobby had just mandated the adoption of Margaret Atwood’s The Handmaid’s Tale as the blueprint for American society.  Yet as my colleague Ilya Shapiro notes, there’s a profound disconnect between all the rhetoric about “denial of access” to contraception and the substance of the ruling.

At the heart of the majority’s opinion is this: The Department of Health and Human Services has already developed a way to exempt religious non-profit corporations—such as churches, charities, and hospitals—from the legal mandate to pay for employees’ contraception coverage.  In what amounts to an accounting trick, they permit those corporations to purchase plans without such coverage, and then require that insurance companies themselves independently provide it to the uncovered employees.  Because pregnancy is quite a bit more expensive than contraception, this apparently ends up not imposing any additional net cost on the insurers.  The result is that employees of religious non-profits end up with no-copay contraception coverage, exactly as if the employer were required to provide it directly, but the employers are satisfied by this ledger shuffling that they aren’t being compelled to violate their most deeply held moral convictions.  Which, one would think, is a win-win.

Against this background, the Court simply held that since HHS has already found a way to achieve the government’s aim of ensuring employees have access to free contraception without compelling non-profit employers to act against their profound religious convictions, they must do the same in the case of for-profit employers, at least where the for-profit corporation is “closely held.”  The majority quite explicitly denied this ruling has any implications for cases where there might not be such a happy win-win means of achieving the government’s ends, at no additional cost, without forcing employers to violate their convictions. As Justice Alito’s opinion emphasizes:

Hobby Lobby, Harris, and Stealing Each Others’ Clothes

Legal issues have a way of changing form over the years in such a way that the liberal and conservative teams, such as they are, each periodically migrate over to occupy the positions the other formerly held. Examples from today’s two big cases: 

  • In 1990, when the Court decided Employment Division v. Smith, the Indian peyote case, it seemed clear that the liberal stand was to sympathize with religious believers seeking exemption from otherwise applicable general laws, while the conservative position – expressed by Justice Scalia in a majority opinion over a dissent by Blackmun, Brennan, and Marshall – was that sorry, but asserting religious scruples doesn’t place you above the law. Congress then proceeded to adopt by way of RFRA, the Religious Freedom Restoration Act, a mechanism using statutory means to achieve much the same ends as the liberals had sought to locate in constitutional law. Two decades later, where are we? The analogy with Hobby Lobby is by no means exact – one might decline to constitutionalize religious conscience rights yet still favor their vigorous statutory application, and the Smith case involved individuals rather than family corporations. But still: by prevailing back then, Scalia and the conservatives shaped a more favorable terrain for what to become the liberal position in Hobby Lobby, while the position embraced by Brennan and Marshall back then, had it prevailed, would have given the religious objectors in Hobby Lobby stronger ground to stand on.
  • Protection for the speech and expression rights of public-sector employees is a specialized area of constitutional law and, under existing Supreme Court precedent, a bit of a balancing act in which the interests of the government-as-employer in maintaining an orderly and efficient workplace often outweigh the expression rights of individual public employees. Not that long ago, it would have been a plausible generalization that liberals on the Court were enthusiastic about guarding and expanding the individual expression rights of public-sector workers, while conservatives tended more to stress management prerogatives. But in today’s Harris v. Quinn, it was the conservative majority that demanded respect for individual employees’ expression rights even where doing so might tend to destabilize an overall public policy, while the dissenting liberals led by Justice Kagan deprecated those same individual expression rights as all very nice in their way but needing to yield to the rights of management. 

Has anyone tried to compile a list of all the various issues in which liberal and conservative blocs have traded positions with each other over living memory? I suspect it would be a long one.

Liberty at the High Court: Not Just (A) Hobby

As someone observed, the pundit world showed deep interest in Harris v. Quinn for about twenty minutes, after which Hobby Lobby was announced and it seemed everyone wanted to talk about that and nothing else. 

My own opinion is that Harris was the more important decision today and Hobby Lobby the less, because constitutional law endures. When Congress sooner or later gets around to amending RFRA, Obamacare, or both, Hobby Lobby, a case of statutory interpretation, will become a footnote of purely historical interest. That doesn’t happen with a First Amendment case, unless of course it is overruled, overturned by Constitutional amendment, etc.

It’s surprising how many commentators are referring to today as a double win for the First Amendment. But Hobby Lobby, while an important case in its way, never reached the First Amendment. Harris did.

The Practical Impact of Harris v. Quinn: A Major Blow to Organized Labor

As noted in this previous post, the Supreme Court’s decision today in Harris v. Quinn does not remake private-sector labor law but does put an end to one of the labor movement’s greatest hopes for expansion: commandeering dues payments by recipients of state subsidies. While the decision may be narrow—the Court, after all, did not rule that no public workers may be forced to support a labor union—its impact will be anything but that.

The Illinois law at issue here in Harris was at the leading edge of a nationwide movement over the past decade to organize home-based care workers, including medical assistants and even family child-care providers, and thereby to “reinvigorate organized labor.”

Though a recent phenomenon, the use of sham employment relationships to support mandatory union representation has spread rapidly across the nation.  In just the decade since SEIU waged a “massive campaign to pressure [] policymakers” in Los Angeles to authorize union bargaining for homecare workers, home-based care workers “have become the darlings of the labor movement” and “helped to reinvigorate organized labor.”  From around zero a decade ago, now several hundred thousand home workers are covered by collective-bargaining agreements.