Michigan healthcare freedom community forum
Fed up with overregulation in healthcare?
If you believe we should elect those who govern us, today's America is a frustrating place to be.
Enjoy some constitutional perspective on delegation - our lawmakers' practice of bestowing rule-making powers on unelected bureaucrats.
The full 27-page paper is a free download.
https://scholarlycommons.law.case.edu/healthmatrix/vol34/iss1/2/
Unprincipled Delegation: The Health Resources and Services Administration and Future of the Nondelegation Doctrine
Lucas Katz | May 22, 2024
Available at: https://scholarlycommons.law.case.edu/healthmatrix/vol34/iss1/2
Abstract
This paper explores the intricate interplay between the nondelegation doctrine and the administrative state, with a specific focus on the Health Resources and Services Administration (HRSA) and its delegated authority under 42 U.S. Code §300gg-13(a)(4). It delves into the historical context of the nondelegation doctrine, analyzing Supreme Court precedents and recent trends that have shaped the boundaries of congressional delegation of legislative power. By examining the practical implications of potential nondelegation violations and the impact on women's healthcare, the article advocates for a nuanced approach that balances the need for administrative flexibility with constitutional principles. It proposes solutions to clarify and strengthen the nondelegation doctrine, emphasizing the importance of maintaining a stable regulatory framework while safeguarding against overbroad delegations of authority.
Author background:
https://case.edu/news/lucas-katz-appointed-new-cowen-fellow
In fall 2024, Lucas Katz (LAW ’24) joined the CWRU Law-Medicine Center as the new Cowen Fellow.
Katz grew up in Alaska and earned a Bachelor of Arts in Economics and East Asian Studies from Columbia University in 2020. He earned a law degree from Case Western Reserve University’s School of Law in May of this year. As a student at Case Western Reserve, he interned at University Hospitals as well as the Supreme Court of Ohio and served as Publications Editor of Health Matrix: The Journal of Law-Medicine. Additionally, Katz’s student note was published in Health Matrix Vol. 34.
“I am delighted to serve as the new fellow and excited to work with Professor Hoffman and Professor Mehlman over the coming year,” said Katz. “I enjoyed having them both as professors, they’re each distinguished scholars in their field, and I feel there’s a lot I can learn.”
After the fellowship, Katz will join the Navy JAG Corps and is eager to pursue public interest work.
HRSA is perhaps best known to students of state health policy as the source of statistics and federal funding for HPSA - Health Profession Shortage Areas.
https://data.hrsa.gov/topics/health-workforce/shortage-areas/dashboard
The Katz paper offers a welcome refresher on HRSA's role in health insurance mandates.
Section 300gg-13(a) of Title 42 of the U.S. Code is the statute that grants HRSA authority to mandate group or individual insurance coverage without cost-sharing requirements.56 Paragraph (4) specifically addresses coverage for women.57 It allows HRSA to mandate insurance
coverage for, “with respect to women, such additional preventive care and screenings not described in paragraph (1) as provided for in
comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph.” 58Paragraph (1) mandates insurance coverage for “evidence-based items or services that have in effect a rating of ‘A’ or ‘B’ in the current recommendations of the United States Preventive Services Task Force.”59 Justice Thomas identified the phrase “provided for” in Paragraph (4) as a potential violation of the nondelegation doctrine because it is self-referential.60 It grants HRSA authority to define preventative care that health plans must cover, in addition to the authority to create exemptions from its own guidelines. 61
However, his treatment of the issue is problematic.
He conflates health insurance with healthcare, and argues that removing benefit mandates would harm women. In fact, the economic harm of insurance mandates harms women as much as it does men.
He also assumes coverage = affordability. Perhaps true, once upon a time; but no longer a reality in this day of managed care, denials, and high out of pocket payments of all sorts.
Most unfortunate of all: he recommends that the nondelegation doctrine "should be updated to allow delegations of legislative power as long as they are bound by an intelligible principle. This change would be purely conceptual; it would not impact how federal agencies, including HRSA, operate currently."
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