The New Health Care Federalism on the Ground

21 Pages Posted: 29 May 2018

See all articles by Abbe R. Gluck

Abbe R. Gluck

Yale University - Law School

Nicole Huberfeld

Boston University - School of Public Health; Boston University School of Law

Date Written: February 20, 2018

Abstract

This essay, part of a symposium investigating methods of empirically evaluating health policy, focuses on American health care federalism, the relationship between the federal and state governments in the realm of health care policy and regulation. We describe the results of a five year study of the implementation of the Patient Protection and Affordable Care Act (ACA) from 2012-2017. Our study focused on two key pillars of the ACA, which happen to be its most state-centered — expansion of Medicaid and the implementation of health insurance exchanges — and sheds light on federalism in the modern era of nationally-enacted health laws that preserve key roles for state leadership. The full study is detailed in the Stanford Law Review; here, we offer a more accessible snapshot and highlight a key aspect of the research: interviews of approximately twenty high ranking former state and federal officials at the forefront of ACA implementation.

The interviews corroborate the study data and substantiate our conclusions about the defining characteristics of the ACA’s implementation from a federalism perspective. Specifically, we found that the ACA’s implementation process has been 1) dynamic; 2) pragmatic; 3) negotiated; and 4) and marked by intrastate politics. We observed waves of engagement and estrangement between states and the federal government, and state decisions to participate in the ACA’s programs have not been binary, in/out choices. Vertical and horizontal negotiation and copying have been near constants.

The findings also reveal theoretical and empirical challenges for quantitatively evaluating health care federalism. Does it exist? Is it successful? We found the traditional federalism attributes pop up in inconsistent ways under the ACA and emerge from virtually every structural arrangement of the law. We tried, for instance, to measure how “cooperative” the states were, only to find that concept meaningless. Some states attempted implementation but failed; other states rebelled by refusing to run their own programs at all. The federal government stepped in for both. Were such states equally “cooperative” or “autonomous”? The same challenges occurred for all of the classic federalism metrics. For example, we saw local experimentation emerge from every kind of governance structure under the ACA, including nationalist ones.

Our work leads us to a key question: Why choose federalism-oriented health reform models in the first place? In ACA implementation, it sometimes appeared that federalist arrangements did not aim to improve health outcomes but rather reflected “federalism for federalism’s sake”—federalism to advance political or constitutional values, such as reserving power to the states in the interest of sovereignty and balance of power — regardless of the effect on health care coverage, cost, quality, or other measures of health policy success. At other times, it seems federalism was intended as a means to an end — e.g., that state-led health policy is assumed to produce better health outcomes. In the end, we were able to conclude more assuredly that the ACA’s many structural arrangements served state power than that any particular one of those arrangements was more federalist or that any particular one produced better health policy. Clearly, we cannot evaluate federalism — whether it exists, whether it is working, whether it is worth defending — without knowing what it is for in the first place.

Keywords: federalism, ACA, Affordable Care Act, Obamacare, health care, health law, health reform, statutes, regulation

JEL Classification: I1, I10, I13, I14, I18, K32

Suggested Citation

Gluck, Abbe R. and Huberfeld, Nicole, The New Health Care Federalism on the Ground (February 20, 2018). Yale Law School, Public Law Research Paper Forthcoming; Indiana Health Law Review, Vol. 15, p. 1 (2018); Yale Law School, Public Law Research Paper No. 639; Boston Univ. School of Law, Public Law Research Paper. Available at SSRN: https://ssrn.com/abstract=3184846

Abbe R. Gluck

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203 432 6703 (Phone)

Nicole Huberfeld (Contact Author)

Boston University - School of Public Health ( email )

715 Albany Street
Boston, MA 02118
United States

Boston University School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

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