Safe Step Act: does it undermine step therapy?

Drug expenditure in the United States has continued to increase unsustainably; the specialty of dermatology has been particularly affected. Resources are limited - someone has to make decisions about what treatments will be covered and how they will be reimbursed. Step therapy is a cost-control method used by insurers to encourage the use of the most cost-effective treatments before more expensive options are attempted. However, a rigid step therapy policy can be problematic when protocols are out of date, or delay necessary treatment leading to unnecessary suffering, increased morbidity, and overall cost. To address some of these concerns, the proposed Safe Step Act (S. 2546 and H.R. 2279) attempts to create a requirement that insurers provide a transparent, expeditious exceptions process for step therapy protocols. Increased flexibility in this process will allow for the unique circumstances of individual patients and improve access to expensive drugs for special cases. However, this bill may be exploited, further weakening insurers' ability to negotiate on cost. We should be cautious about measures that reduce the effectiveness of this tool, particularly if we, as a society, aim to expand access to basic care to all Americans.

States as Policy Laboratories: The Politics of State-Based Single-Payer Proposals.

Although the focus for most single-payer advocates is in Washington, DC, and on proposals for Medicare for all, there are also efforts in a handful of states to enact a state-based single-payer program. Moreover, the odds of legislative passage are better in a state like New York than at the federal level.Even if enacted, however, state-based single-payer proposals face a distinct set of obstacles, including (1) the need to obtain federal permission (via waivers) to repurpose federal dollars, (2) the federal Employee Retirement Income and Security Act, and (3) the burden of state-only action in an interconnected 50-state economy.The most likely result of the energized single-payer movement will be incremental public insurance expansions at the federal and state levels, including state programs to permit the uninsured to buy into the Medicaid program. Such an outcome is consistent with the most plausible path (incrementalism) to a US version of universal coverage.

Recent Developments in Health Insurance, Life Insurance, and Disability Insurance Law.

This year's article covers key recent developments in life, health, and disability insurance law, including Supreme Court decisions on the constitutionality of the Affordable Care Act's contraception coverage provisions and on the enforceability of legal actions limitations period provisions in Employee Retirement Income Security Act (ERISA) plan documents; an alarming (but potentially short-lived) expansion of restitution as a form of "equitable relief" under ERISA; the latest battles in the stranger originated life insurance (STOLI) wars; and perennial issues arising out of disability and accident insurance cases.

The Affordable Care Act, remedy, and litigation reform.

The Patient Protection and Affordable Care Act of 2010 (ACA) rewrote the law of private health insurance. How the ACA rewrote the law of civil remedies, however, is a question largely unexamined by scholars. Courts everywhere, including the U.S. Supreme Court, will soon confront this important issue. This Article offers a foundational treatment of the ACA on remedy. It predicts a series of flashpoints over which litigation reform battles will be fought. It identifies several themes that will animate those conflicts and trigger others. It explains how judicial construction of the statute's functional predecessor, the Employee Retirement Income Security Act of 1974 (ERISA), converted a protective statute into a uniquely effective piece of federal litigation reform. Ultimately, it considers whether the ACA--which incorporates, modifies, and rejects ERISA in several notable ways--will experience a similar fate.

ERISA failures and the erosion of workers' rights: the urgent need to protect private & public workers' pension and benefits.

On March 11, 2011, Governor Scott Walker of Wisconsin signed into law a bill that eliminated most collective bargaining rights for the state's public-sector workers. Many other cash-strapped states followed Wisconsin's lead and introduced or enacted similar restraints on the rights of their workers. Thousands of public workers, whose only means of protecting their rights rested in their ability to collectively bargain, suddenly found their retirement benefits in jeopardy. This truth highlighted the lack of protections for public worker benefits similar to those of the private sector. However, the Employee Retirement Income Security Act, enacted for that purpose, has failed to secure these benefits. This article seeks to provide a broad overview of the crisis facing the pension and benefits system in the United States and offers some possible solutions. More importantly, the goal is to spur discourse on the urgent need to protect the benefits of all workers, public and private.

Wielding the wand without facing the music: allowing utilization review physicians to trump doctors' orders, but protecting them from legal risk ordinarily attached to the medical degree.

This Note identifies a discrepancy in the law governing the decisionmaking that directs patient care. Seeking treatment that a third party will pay for, a patient needs not only a physician-prescribed course of treatment but also an insurer's verification that the cost is medically necessary or otherwise covered by the patient's plan. Both of these decisions directly impact the ultimate care delivered to the patient, but are governed by two very different liability regimes. A patient who suffers an adverse outcome may sue his physician in tort, while a patient who suffers from a lack of coverage may generally sue his insurer only under contract. In other words, when a patient suffers from inadequate care, his potential remedies vary considerably depending on whether the physician or the insurer is the defendant. This discrepancy in liability is the consequence of the federal law governing the administration of employer-sponsored health plans, and its extensive preemption of related state law. Many commentators have called for legal reform to address the distortion of managed care liability that results, arguing that managed care liability must be consistent or that wronged beneficiaries must have access to meaningful remedies. This Note argues that the federal law governing managed care organizations is problematic for a different reason and that the first step toward reform may be more elementary than previously suggested. Specifically, it suggests that the law governing insurers' coverage decisions is inconsistent with the law governing treatment recommendations. Patients suffer the same harm from error in both contexts-but because they can recover substantially more from treating physicians, doctors are named as defendants even when the insurers make errors. Further, this Note argues that simply aligning these two standards might offer a gateway to reform.