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The Affordable Care Act (ACA), the result of two pieces of legislation passed by Congress in 2010, is likely to produce significant impacts on most aspects of the American healthcare industry. This Article focuses on two possible philosophical and operational approaches to healthcare reform: supply-side regulation and demand-side policy interventions. The Author asserts that the general philosophical and operational approach taken in the ACA is that of supply-side regulation. The Author states that this approach is paternalistic (the government knows best and consumers are uneducable) and contends that, for the most part, the ACA fails to allow individual healthcare consumers to take an active role in improving healthcare quality, access, and affordability. This is argued to be a missed opportunity to gain the advantages offered by a robust healthcare marketplace that could be garnered by focusing on demand-side policy interventions rather than supply-side regulation.

The Author begins by giving a background of the supply-side concentration that the ACA has embraced. This background includes specific examples and explanation of this supply-side concentration such as: diminishing Medicare Advantage plans, establishing the Independent Payment Advisory Board, and enacting measures that essentially prohibit private insurers from taking part in traditional underwriting. This provides an outline of the expansion of the federal government’s role in healthcare financing and delivery under the ACA.

The Article then discusses the ACA’s failure to consider the demand side of the healthcare debate and to give consumers more respect and involvement in the improvement of healthcare quality, access, and affordability. The Author argues that even if many Medicare beneficiaries do not currently have the education to take part as active healthcare coverage consumers, the correct response is not the ACA’s paternalism, but rather is to develop resources to enhance consumer knowledge and create a better environment of information exchange. Next, the Author points out that, although the majority of the ACA focuses on the need for government to take care of consumers who are unable to make their own healthcare choices, the ACA section on Comparative Effectiveness Research and its authorization to financially support a Patient Centered Outcomes Research Institute shows faith in consumer decision-making in complex medical decisions.

The Article then uses specific examples of proposals for conversion of the traditional entitlement structure of Medicare to a premium support program to show the possibilities a greater consumer focus could provide. These proposals entail a more positive vision of consumers and their abilities to take part in the healthcare market. These specific proposals are then used to present rationales for demand-side policy interventions. The Article presents the argument that the defined contribution and voucher approaches to healthcare promote respect and self-determination with regard to an individual’s healthcare. Additionally, these programs would allow consumers not traditionally involved in the private health insurance marketplace to enter that marketplace and purchase private insurance coverage, promoting greater equality in medical treatment.

The Author concludes that the paternalist philosophy of the ACA threatens to make the prospect of future market failure in the healthcare arena a reality and that policy changes can improve the healthcare market, but only if opportunities to focus on the demand side of healthcare are pursued.

This Article examines the implications of the Affordable Care Act (ACA) on healthcare fraud-a problem that is responsible for roughly sixty billion dollars per year in Medicaid expenditures. By contextualizing the ACA’s changes within the purpose and policy goals of preexisting fraud law, this Article asserts that the ACA will lead to a “tighter, stricter, and more exacting” climate for healthcare providers. One example of such a change is the inclusion of new provider enrollment barriers-while these barriers make it more difficult for fraudulent providers to enter and exploit the Medicare billing system, they also impose a hardship on existing providers who must devote additional resources to preserve their billing privileges under the new enrollment architecture. The ACA also modifies the False Claims Act by lowering the evidentiary bar for qui tam relators, thereby improving the chances that the government will discover and prosecute parties who have made fraudulent claims. The ACA also modifies the Physician Self-Referral Law (or “Stark Law”) to require, among other things, that physicians provide patients with a list of alternative ancillary-service providers when requiring patients to undergo ancillary services such as diagnostic imaging. Finally, the Article argues that the Affordable Care Act equips the Anti-Kickback Statute with sharper teeth by altering the scienter requirement. The Article concludes that, although the ACA does not revolutionize preexisting fraud law, Congress clearly designed it to facilitate a new era of enforcement that aims to recover tens of billions of dollars from providers who commit fraud and to deter future instances of provider fraud.

Freedom of speech, enshrined in the First Amendment, drastically limits the government’s ability to both regulate speech and to compel speech. Against that backdrop, this Article addresses the constitutionality of the federal government’s recent attempt to require tobacco companies to furnish cigarette packages with graphic images depicting the harmful health effects associated with smoking. In doing so, the Author examines the tension between the governmental interest in conveying information regarding the dangers of tobacco usage and the First Amendment implications in compelling commercial speech. Tobacco companies responded to the new requirements with litigation, and the Article discusses the resulting circuit split as to both the appropriate standard of scrutiny to use in evaluating the graphic warnings and their ultimate constitutionality. The Article suggests that the decision of which level of scrutiny to apply-rational basis review, intermediate scrutiny, or strict scrutiny-is of keystone importance, because it essentially dictates a court’s conclusion as to constitutionality of compelling the placement of graphic warnings on tobacco packaging. Included in this analysis is a historical examination of the evolving governmental regulation of tobacco packaging and the federal government’s rationale in now requiring tobacco manufacturers to place graphic warnings on cigarette packages. Finally, the Author forecasts the possibility of a Supreme Court decision to resolve the circuit split and contends that the Supreme Court should apply heightened scrutiny in gauging the constitutionality of the graphic warnings.

This Article provides an in-depth look at how the right to trial by jury should remain unabridged by any act of legislation. A state legislature should not have the power to override a jury’s determination and impose an artificial cap on the amount of damages to be awarded. In Estate of McCall v. United States, the plaintiff was originally awarded nearly two million dollars in non-economic damages, but then pursuant to Florida’s statutory cap on medical malpractice damages, the amount was reduced. The right to trial by jury is a fundamental right, and the jury’s right to address damages is an underlying tenant. Florida’s damage cap fails the strict scrutiny analysis, because there is no compelling state interest nor is it fulfilled by the least restrictive means available. In conclusion, the Author suggests that the Florida Supreme Court should strike down the statutory cap on non-economic damages in medical malpractice cases on the ground that it violates the fundamental right to trial by jury.

Legal systems continue to become intertwined as economic globalization expands and previously unknown concepts and doctrines are incorporated into particular legal systems. As laws are adapted to accommodate the global economy, many legal systems have become mixed jurisdictions, where remedies for breach of contract include both common and civil law remedies. For delivering nonconforming goods in a contract, the common law provides remedies such as damages and rescission, while the civil law provides for price reduction.

This Article compares the three traditional remedies (damages, rescission, and price reduction) available to an aggrieved party for breach of contractual duty of conformance. When making the comparison between these three remedies, this Article compares the adjusted values and market values at the time of the contract, at the time of the breach, and at the time of the remedy based on the assumption that a rational aggrieved party will select the remedy with superior monetary benefits. The Article includes a table describing in what situations each remedy would be most preferred. Comparing the remedies, the Article suggests that remedies rooted in common law are most often preferable, or as good as, the civil law remedy of price reduction because harmed parties will generally prefer common law remedies.

Women located in rural, lower-income areas of the country, such as the Heartland Region, have limited access to physicians due to their location and economic status. In response to this, Planned Parenthood of the Heartland implemented a telemedicine-abortion procedure to aid in the prescribing and dispensing of mifepristone, the abortion pill, thus improving access to early-term abortions for women in rural areas. Numerous states, in the quest to illegalize abortion, have expressly or effectively outlawed telemedicine abortions. 

The Author argues that abortion-specific restrictions on telemedicine violate the Fourteenth Amendment because they fail the undue burden test set forth in Planned Parenthood of Southeastern Pennsylvania v. Casey. The Author first argues that no reasonably related legitimate state interest lies behind the laws; telemedicine is used as a means of merely prescribing mifepristone, an FDA-approved drug for early-term pregnancies only, and maternal safety is not at issue. The Author then argues that women who rely on telemedicine abortions, such as those in rural, lowereconomic regions, are targeted by the legislation because they live great distances from abortion-services providers and are unable to afford the costs of traveling to the distant providers. As such, the Author argues that telemedicine-abortion restrictions completely ban an effective means of providing a safe, federally approved method of abortion for rural, lower-income women, creating a substantial obstacle to their right to choose abortion.

Identifying and treating mentally ill individuals who may become violent is an issue many states struggle to address. This Article discusses the states’ attempts to implement involuntarily assisted outpatient treatment laws that provide these individuals with both the medication and treatment they need and remove them from a situation where the individuals may act violently toward others. These laws allow a treating doctor, among others, to petition the court to require outpatient treatment as a requirement for these individuals’ release into the general public. Florida instituted such a law in 2004; however, it has only been used seventy-one times since its introduction because of multiple flaws, including a lack of funding.

To assist Florida’s outpatient treatment laws, this Article proposes using Florida’s homeless ordinances to identify at-risk individuals and provide medical services that the individuals need. While jails and prisons are not ideal treatment facilities, they have become the country’s de facto mental health institutions. This Article evaluates the links between mental illness and violence and the part that the Florida law plays within the mental health arena, and then it discusses how to revitalize Florida’s current outpatient treatment law. Finally, this Article concludes that the current outpatient treatment law is simply not working, and by using the ideas suggested, including the homeless ordinances already in place, Florida can provide a cost-effective method of fixing the problem.

Genetic testing is a rapidly expanding field, leading to advancements in medicine and a further understanding of heredity. But genetic testing and the resulting advances in medicine and technology have a dark side-misappropriation and commercial exploitation of individuals’ genetic information without permission or compensation. Current Florida law falls short of providing the protections necessary to deter misuse of genetic information, potentially impeding progress in genetic study.

This Article examines the history and importance of genetic-information protection, describing such abuses as forced sterilization, racial and employment discrimination based on unauthorized genetic testing, and commercial exploitation without the genetic-information donor’s knowledge or permission. This Article then details how Florida’s current statutory protections, even paired with the protections of the federally mandated Genetic Information Nondiscrimination Act of 2008, are not enough to protect the rights of potential genetic-information contributors. Finally, drawing on Florida’s right-of-publicity statute and the common law principle of license coupled with an interest, this Article proposes an amended Florida genetic-information statute that would create a property right in one’s own genetic information and provide the civil penalties and causes of action needed to create effective genetic-information protection.

For states, sales tax plays a crucial role in acquiring revenue. The development of e-commerce has led to states losing a potentially substantial amount of sales-tax revenue because Internet retailers (e-tailers), which often lack physical presence in states, are not required to collect sales tax for online sales. While consumers and e-tailers benefit from current tax laws and are content with them, state governments and brick-and-mortar retailers desire tax law reform, which could potentially provide increased state sales-tax revenue and also level the playing field for retailers who are subject to state sales taxes. This Article begins with a brief description of sales and use taxes, and follows with a discussion of significant Supreme Court cases, including National Bellas Hess, Inc. v. Department of Revenue of Illinois and Quill Corp. v. North Dakota, which required that retailers have a nexus with a state before they were subject to state taxation. Although these cases considered state sales tax as it applied to mail-order retailers, they provide the current framework for Internet sales-tax law by analogy. The Article then discusses the Internet Tax Freedom Act (ITFA), the Streamlined Use Tax Agreement (SSUTA), and other federal and state approaches to Internet sales taxation. State approaches include using e-tailers’ in-state marketing affiliates to establish physical presence in the state and collecting the taxes from consumers based on required sales reporting by e-tailers. The Article also considers the constitutional concerns (Due Process, Commerce Clause, Dormant Commerce Clause, and state constitutions) and the practical problems (including forcing states to all adopt the same rules and regulations) that both individual state approaches and the SSUTA face.

The Author argues that a blend of the state approaches and the SSUTA provides a solution to the problems associated with Internet sales taxation. Starting at the federal level, Congress should require retailers that have an economic presence in a state to collect state sales taxes. Such a standard, though previously rejected by the Supreme Court in Quill, would provide a constitutional regulation of interstate commerce by Congress and would thus avoid the constitutional problems raised by other approaches. Additionally, the two thresholds of the economic-presence test would incorporate portions of both the SSUTA and state methods, and would ensure that smaller retailers are not burdened by collecting state sales tax, while still allowing states to collect revenue from larger retailers’ Internet sales. Thus, the Author’s combined approach to Internet taxation is more likely to garner support from a majority of states and also from Congress, while simultaneously avoiding the constitutional and practical problems associated with other suggested approaches.