BEAZLEY INSTITUTE FOR HEALTH LAW AND POLICY Annals OF Health Law ADVANCE DIRECTIVE The Online Health Policy and Law Review of Loyola University Chicago School of Law BRINGING YOU THE LATEST DEVELOPMENTS IN HEALTH LAW Volume 20 | Online Issue 2 SPRING 2011 ANNALS OF HEALTH LAW Advance Directive BEAZLEY INSTITUTE FOR HEALTH LAW AND POLICY EDITOR-IN-CHIEF Joseph Van Leer PUBLICATIONS EDITOR TECHNICAL PRODUCTION EDITOR Mallory Golas Christopher Carlson MARKETING & COORDINATING EDITOR SYMPOSIUM EDITOR Drew McCormick Megan Stiarwalt ADVANCE DIRECTIVE EDITOR Leilani Pino ANNALS SENIOR EDITORS Polina Arsentyeva Sonje Hawkins Christopher Freet Daniel Avants Amanda Swanson ADVANCE DIRECTIVE SENIOR EDITOR EDITOR-AT-LARGE Sara Zweig Jon Brouk MEMBERS Laura Ashpole Katie Kokoczka Caitlin Podielski Betsy Ballek Courney Lane Melissa Redondo Doriann Cain Erin Lau Sam Richardson Megan Donohue Melissa Levin Josh Rubin Matt Ennis Lizzy Magarian Stephen Samlan Bill Farley Andrew Maratea April Schweitzer Evette Ferkassian Daniel Marino Alexandra Sternberg Brenda Flores Krystina Mendoza Gretchen Thomas Lyndsay Gunkel Laura Morgan Katie Tobin Lindsey Kessler Alexandria Ottens William VanMeter Seth Knocke Daniel Palermo Katie Vessely Ashley Koenen Elizabeth Piekarz Eddie Young FACULTY ADVISORS Lawrence E. Singer, J.D., M.H.S.A. Director and Professor of Law, Beazley Institute for Health Law and Policy Loyola University Chicago School of Law John D. Blum, J.D., M.H.S. John J. Waldron Research Professor of Health Law Loyola University Chicago School of Law BUSINESS MANAGER Casey Cunningham VOLUME 20, ONLINE ISSUE 2 SPRING 2011 ANNALS OF HEALTH LAW Advance Directive THE ONLINE HEALTH POLICY AND LAW REVIEW OF LOYOLA UNIVERSITY CHICAGO SCHOOL OF LAW BRINGING YOU THE LATEST DEVELOPMENTS IN HEALTH LAW Beazley Institute for Health Law and Policy VOLUME 20, ONLINE ISSUE 2 SPRING 2011 CONTENTS Editor’s Note Leilani Ana-Maria Pino ARTICLES There’s No Place Like Home: Moving Towards Patient-Centered Medical Homes for Healthcare Reform Alex Ottens……………………………………………………………………………..….1 Over Extended: The Role of the Independent Nurse Practitioner Practice in Addressing Problems with Affordability of U.S. Primary Care Daniel Marino.…………………………………………………………………………...12 Health Information Technology: Building the Foundation for the Reconstruction of Health Care Delivery Laura Ashpole……………………………………………………………………………32 The Regulation of Rescission: Is a National Standard Necessary? Sam Richardson………………………………………………………………………….44 PPACA: Leveling the Payment Field Lizzy Magarian ………………………………………………………………………….57 The Overuse of America’s Emergency Rooms Alexandra Sternberg …………………………………………………………………….70 The Patient Protection and Affordable Care Act: A Cure for Medical Bankruptcy? Ashley Koenen………………...………………………………………………………….78 Loss of Financial Incentives for Physician Quality Reporting: Insult to Injury or a Step in the Right Direction? Elizabeth Ballek ………………………………………………………………………....86 Employee Wellness Programs – Improving Access to Healthcare or Legal Landmine? Eddie Young …………………………………………………………………………..…97 Children’s Health Insurance Program: Who Will Be Left Behind? Elizabeth Piekarz ……………………………………………………………………....104 Soda Taxes: A Missed Opportunity or An Untested Tactic? April Schweitzer ………………………………………………………………………..112 The Independent Payment Advisory Board: Will it Effectively Curb the Medicare Growth Rate? Laura B. Morgan …………………………………………………………………..…..124 Value-Based Purchasing As a Bridge Between Value and Access Erin Lau………..………………………………………………………………………..134 Piling It On DSH Providers’ Plate: Why PPACA’s Eyes Are Bigger Than Its Stomach Caitlin Podbielski ………………………………………………………………….…..144 Expanding Medicaid to Low-Income Individuals: Action Must Be Taken to Ensure Eligibility Results in Enrollment William VanMeter ………………………………………………………………….…..159 The Biologics Act: Hopes for Access to Generic Biologics May Instead Be a Catalyst for New Innovation Brenda Flores Gehani …..……………………………………………………………..170 Incentivizing Innovation: Pharmaceutical Pricing in the United States and the United Kingdom Seth D. Knocke ………………………………………………………..………………..177 The PPACA and the Federal Deficit: What is the True Effect of the Legislation? Dan Palermo …………………………………………………………………….……..191 Annals of Health Law Advance Directive Editor’s Note The Annals of Health Law is proud to present the Sixth Issue of our online counterpart, Advance Directive. Consistent with our goal of promoting student scholarship in the area of health law, this Issue features articles focusing on the sweeping changes in health care initiated by the Patient Protection and Affordable Care Act (PPACA), specifically the impact on access of care. This Issue begins with exploring innovations in health care through a patient’s perspective. First, it analyzes patient-centered medical homes and determines whether these community health programs provide comprehensive, high-quality health care. Next, our authors evaluate extending the role of the independent nurse practitioner in an effort to provide quality health care in a cost-efficient manner. Our authors also examine whether expanding access to health care necessarily involves the increase of health information technology and the prohibition on rescission of health insurance. Next, the Issue discusses initiatives in the PPACA that attempt to regulate the high costs of care. Our authors propose establishing additional requirements for charitable hospitals to help balance the financial burdens charged to uninsured patients. They also explore whether the structure, payments, data collection, and involvement of the Federal government through the physician quality reporting i ii Annals of Health Law Advance Directive [Vol. 20, 2011] initiative will result in less expensive care for patients. With these and other initiatives to increase the affordability of health care, our authors propose the overuse of emergency care will decrease and subsequently improve both urgent and non-urgent care, while cutting overall health care costs. Additionally, the authors argue that these improvements will cause a decrease in medical bankruptcies attributed to staggering medical bills and the rising costs of prescription medication. The Issue then transitions into examining the effects of the PPACA on Medicare and Medicaid services in order to provide health care to low-income and uninsured populations. First, our authors evaluate the effectiveness of the Independent Payment Advisory Board, which will develop and propose modifications to the payment system under Medicare to curb spending. Second, the authors analyze Medicare’s proposed rules for a value-based purchasing program. Finally, our authors address the expansion of Medicaid eligibility to low income individuals and propose methods to ensure eligibility results in enrollment in the program. We also address several provisions in the PPACA that promote research and development of pharmaceuticals. Our authors begin by analyzing the impact of the Biologics Act on the development of biologics and biosimilars. Specifically, they discuss whether this Act will encourage investment and development of innovative drugs. Our authors then compare these medical innovations with those in the United Kingdom. Finally, the Issue analyzes the strengths and weaknesses of the PPACA. Our authors explore whether the PPACA will cause a long-term relief on the budget and taxpayers. Particularly, it reviews whether current estimates by the Congressional Budget Office present an accurate projection of the price of the legislation on the financial future of America. iii Annals of Health Law Advance Directive [Vol. 20, 2011] We would like to thank Sara Zweig, our Advance Directive Senior Editor, Jonathon Brouk, our Editor-at-Large, and Christopher Carlson, our Technical Editor, for their invaluable contributions in launching this issue. We would like to specially thank our Annals Editor-in-Chief, Joseph Van Leer, for increasing access to Advance Directive via Westlaw. We are also grateful to our Annals Executive Board Members, Megan Stiarwalt, Drew McCormick, and Mallory Golas, for their editorial assistance. The Annals membership deserves particular recognition for writing timely, thoughtful articles and for editing the work for their peers. Finally, we extend our warmest appreciation to the Beazely Institute for Health Law & Policy and our faculty advisors, Professor Lawrence Singer, Professor John Blum, and Megan Bess for their continued support, encouragement, and mentorship. We hope you enjoy our Sixth Issue of Advance Directive. Sincerely, Leilani Ana-Maria Pino Advance Directive Editor Annals of Health Law Loyola University Chicago School of Law ANNALS OF HEALTH LAW Advance Directive VOLUME 20 SPRING 2011 PAGES 1-11 There’s No Place Like Home: Moving Towards Patient- Centered Medical Homes for Healthcare Reform Alexandria A. Ottens “The health of the people is really the foundation upon which all their happiness and all their powers as a state depend.” -Benjamin Disraeli The Census Bureau revealed that more than 50 million people, approximately one in every six Americans, were uninsured in 2009.1 Alarmingly, between the years 2008 and 2009, the percentage of uninsured individuals increased from 14.6 percent to 15.1 percent, meaning that 2.2 million more people were uninsured in 2009.2 Many factors contributed to this decline of insured Americans, including jobs lost in the recession, companies no longer sustaining health insurance benefits for their employees, and