Conscripted Physician Services and the Public's Health

Pub. L. 111–148, as amended by the Health Care and Education Reconciliation Act of 2010, Pub. L. 111–152.

Regarding assessment of the long-term success of PPACA, see generally M. B. Kapp, “The 2010 U.S. Health Reform Legislation: Evaluating the Experiment,” International Journal of Risk & Safety in Medicine 22, no. 4 (2010): 1–5.

American Medical Association, Code of Medical Ethics: Current Opinions with Annotations, “Opinion 10.015-The Patient-Physician Relationship,” 2010–2011.

Id., at “Opinion 9.06-Free Choice.”.

The health reform legislation was so massive that Vice-President Joe Biden labeled it “a big f—ing deal.” Huffington Post, available at <http://www.huffingtonpost.com/2010/03/23/a-big-fucking-deal-bidens_n_509927.html> (last visited May 25, 2011). For a summary of litigation challenging the constitutionality of the PPACA, see <www.healthlawandlitigation.com> (last visited June 17, 2011).

See, e.g., Chernichovsky D. Leibowitz A. A. , “Integrating Public Health and Personal Care in a Reformed U.S. Health Care System,” American Journal of Public Health 100, no. 2 (2010): 205–211 (“This inefficiency [in the American health care system] - spending more with poorer results - stems partly from failure to provide effective access to medical care to a substantial share of the population.”)

Fowler R. A. Noyahr L.-A. Thornton J. D. , “An Official American Thoracic Society Systemic Review: The Association Between Health Insurance Status and Access, Care Delivery, and Outcomes for Patients Who Are Critically Ill,” American Journal of Respiratory and Critical Care Medicine 181, no. 9 (2010): 1003–1011 (finding that lack of health insurance was associated with both impaired access to intensive care and higher risk of adverse outcomes)

Majette G. R. , “From Concierge Medicine to Patient-Centered Medical Homes: International Lessons and the Search for a Better Way to Deliver Primary Health Care in the U.S.,” American Journal of Law & Medicine 35, no. 4 (2009): 585–619, at 587–88 (urging the importance of primary care physician services for good public health)

Wilper A. P. Woolhandler S. Lasser K. E. , “Health Insurance and Mortality in U.S. Adults,” American Journal of Public Health 99, no. 12 (2009): 2289–2295, at 2292 (claiming that lack of health insurance is associated with as many as 44,789 deaths per year in the United States).

But see Dartmouth Institute for Health Policy & Clinical Practice, Regional and Racial Variation in Primary Care and the Quality of Care among Medicare Beneficiaries, September 9, 2010, available at <www.dartmouthatlas.org/downloads/reports/primary_care_report_090910.pdf> (last visited May 25, 2011) (contending that making primary care more widely accessible will not necessarily improve the nation's health)

Alter D. A. Stukel T. Chong A. , “Lesson from Canada's Universal Care: Socially Disadvantaged Patients Use More Health Services, Still Have Poorer Health,” Health Affairs 30, no. 2 (2011): 274–283 (dismissing poor access to health care as the only explanation for worse health among populations with lower socioeconomic status).

Id. ( Fowler ), at 1009 (“Implementation of a national insurance system might influence access and receipt of care for patients in unpredictable ways in different jurisdictions that have different baseline mechanisms of funding; this is an area in need of further research.”).

Regarding the emerging trend towards concierge medical practices, see generally U.S. General Accountability Office, Concierge Care: Characteristics and Concerns for Medicare, GAO-05-920, Washington, D.C. (2008). For critical perspectives on this development,

See Smith C. A. , “A Legislative Solution to the Problem of Concierge Care,” Seton Hall Legislative Journal 30, no. 1 (2005): 145–162

Carnahan S. J. , “Law, Medicine, and Wealth: Does Concierge Medicine Promote Health Care Choice, or Is It a Barrier to Access?” Stanford Law & Policy Review 17, no. 1 (2006): 121–164

Stillman M. , “Concierge Medicine: A ‘Regular’ Physician's Perspective,” Annals of Internal Medicine 152, no. 6 (2010): 391–392.

Johnson C. K. , “Health Overhaul May Mean Longer ER Waits, Crowding,” Associated Press, July 2, 2010, available at <http://www.usatoday.com/news/health/2010-07-02-emergency-room_N.htm> (last visited May 25, 2011).

See also Siegel M. , “ObamaCare Will Clog America's Medical System,” USA Today, October 19, 2010, available at <http://www.usatoday.com/news/opinion/forum/2010-10-19-column19_ST_N.htm> (last visited May 25, 2011) (“Patients with new Medicaid cards who can't find a doctor will go where? To emergency rooms.”).

See Graham J. , “The Myth of the ‘Doc Fix,’” National Center for Policy Analysis, June 22, 2010, available at <http://www.ncpa.org/pub/ba710> (last visited May 25, 2011).

See also U.S. Congressional Budget Office, The Budget and Economic Outlook: An Update, Washington, D.C., August 2010, at 63, 65 (predicting that the PPACA will reduce the federal deficit)

Ginsburg P. B. , “Rapidly Evolving Physician-Payment Policy - More Than the SGR,” New England Journal of Medicine 364, no. 2 (2011): 172–176.

2010 Annual Report of the Boards of Trustees of the Federal Hospital Insurance and Federal Supplementary Medical Insurance Trust Funds, Appendix: Statement of Actuarial Opinion, August 5, 2010, at 281–282, available at <http://www.cms/gov/ReportsTrustFunds/downloads/tr2010.pdf> (last visited May 25, 2011).

Kocher R. Emanuel E. J. DeParle N.-A. M. , “The Affordable Care Act and the Future of Clinical Medicine: The Opportunities and Challenges,” Annals of Internal Medicine 153, no. 8 (2010): 536–539.

Turner G.-M. , “Nine Danger Signs in Obamacare,” Health Care News, July 2010, available at <http://www.heartland.org/healthpolicy-news.org/article/27718> (last visited May 25, 2011).

But see Boccuti C. Hayes K. Winter A. , “Assessing Payment Adequacy: Physician, Other Health Professional, and Ambulatory Surgical Center Services,” MedPAC, December 2, 2010, available at <http://www.medpac.gov/transcripts/hospital%20Dec%202010%20public%20final.pdf> (finding that physicians have not yet actually followed through on their threats to withdraw from Medicare participation).

See Pecore J. Doherty J. Jr. , “Practice of ‘Concierge’ Medicine: Models and Legal Issues,” Maryland Bar Journal 42, no. 6 (November/December 2009): 12–19, at 17–18 (explicating the Medicare private contracting rules).

Newhouse J. , “Assessing Health Reform's Impact on Four Key Groups of Americans,” Health Affairs 29, no. 9 (2010): 1714–1724.

Jost T. S. , “The Independent Payment Advisory Board,” New England Journal of Medicine 363, no. 2 (2010): 103–105, at 105. Jost's solution to this situation is to impose strict limits on private rates, a legally dubious “taking” of property without just compensation that, according to basic economic theory and experience, can only produce shortages that will make the access problem worse

see Montgomery W. D. Baron R. A. Weisskopf M. K. , “Potential Effects of Proposed Price Gouging Legislation on the Cost and Severity of Gasoline Supply Interruptions,” Journal of Competition Law & Economics 3, no. 3 (2007): 357–397, at 365. De facto price controls, through the attempted resurrection of the previously abandoned mechanism of state rate-setting for health care providers, also appears to be the preferred strategy of Massachusetts Governor Patrick.

See Calfee J. E. , “The Massachusetts HealthReform Mess,” Wall Street Journal, March 1, 2011, at A13.

Saving T. R. , “How Will the Affordable Care Act Affect the Elderly and Disabled on Medicare?” Private Enterprise Research Center at Texas A&M University & National Center for Policy Analysis, 2010, available at <www.ncpa.org/pdfs/NCPA-Social-Security-Trustees-Briefing-2010.pdf> (last visited May 25, 2011).

Federman A. D. Woodward M. Keyhani S. , “Physicians' Opinions about Reforming Reimbursement,” Archives of Internal Medicine 170, no. 19 (2010): 1735–1742, at 1737.

See Cowen T. , “Following the Money, Doctors Ration Care,” New York Times, December 11, 2010, available at <http://www.nytimes.com/2010/12/12/business/12view.html> (last visited June 17, 2011) (“As demand increases relative to supply, many doctors are likely to turn away patients whose coverage would pay the lower rates.”).

Regarding the basis for this apprehension, see Kane C. K. , “Medical Liability Claim Frequency: A 2007–2008 Snapshot of Physicians,” American Medical Association, 2010.

Lee M. , “Adverse Reactions: Structure, Philosophy, and Outcomes of the Patient Protection and Affordable Care Act,” June 9, 2010, at 42, available at <http://papers.ssrn.com/sol3papers.cfm?abstract_id=1639953> (last visited June 16, 2011).

Hoffer A. N. Abraham J. M. Moscovice I. , “Expansion of Coverage Under the Patient Protection and Affordable Care Act and Primary Care Utilization,” Milbank Quarterly 89, no. 1 (2011): 69–89

Herrick D. M. , “Critical Condition: Primary Care Physician Shortages,” National Center for Policy Analysis, May 25, 2010, available at <http://www.ncpa.org/pub/ba706> (last visited May 25, 2011)

Bodenheimer T. Pham H. H. , “Primary Care: Current Problems and Proposed Solutions,” Health Affairs 29, no. 5 (2009): 799–805

Pear R. , “Doctor Shortage Proves Obstacle to Obama Goals,” New York Times, April 27, 2009, available at <http://www.nytimes.com/2009/04/27/health/policy/27care.html?scp=2&sq=&st=nyt> (last visited June 17, 2011).

Doherty R. B. , “The Certitudes and Uncertainties of Health Care Reform,” Annals of Internal Medicine 152, no. 10 (2010): 679–682, at 680.

See also Cunningham P. J. , State Variation in Primary Care Physician Supply: Implications for Health Reform Medicaid Expansions, Center for Studying Health System Change, Research Brief, No. 19, available at <www.hschange.com/content/1192/1192.pdf> (last visited June 16, 2011) (finding that Medicaid enrollment expansion under the PPACA is likely to greatly outpace growth in the number of primary care physicians willing to treat these new patients).

Goodson J. D. , “Patient Protection and Affordable Care Act: Promise and Peril for Primary Care,” Annals of Internal Medicine 152, no. 11 (2010): 742–744, at 743.

See also Laiteerapong N. Huang E. S. , “Health Care Reform and Chronic Diseases: Anticipating the Health Consequences,” JAMA 304, no. 8 (2010): 899–900, at 900 (“[I]t is unclear whether the primary care workforce will be equipped to manage the surge in health care demand from newly ensured persons. In Massachusetts, expanded coverage created primary care physician shortages.”). Even a very cursory exploration of the nation's crucial need to educate and train many more primary care physicians for the future aging population is well beyond the scope of the present article.

See generally, Sataline S. Wang S. S. , “Medical Schools Can't Keep Up,” Wall Street Journal, April 12, 2010, available at <http://www.lexisnexis.com/lawschool/research/default.aspx?origination_code=00092&signoff=off> (last visited June 17, 2011)

subscription required). The other main part of any strategy to produce and retain more primary care physicians is the assurance of more equitable compensation vis-à-vis other medical specialties. Leigh J. P. Tancredi D. Jerant A. , “Physician Wages Across Specialties: Informing the Physician Reimbursement Debate,” Archives of Internal Medicine 170, no. 19 (2010): 1728–1734. The PPACA contains a few modest provisions intended to enhance the recruitment, retention, and training of various components of the healthcare workforce. These provisions are summarized at <www.ncsl.org/default.aspx?tabid=20548> (last visited June 17, 2011).

See “Physician Shortages to Worsen without Increases in Residency Training,” Association of American Medical Colleges, Washington, D.C., September 30, 2010, available at <https://www.aamc.org/download/150584/data/physician_shortages_factsheet> (last visited June 17, 2011). Cf. R. Pear, “Cuts Leave Patients with Medicaid Cards, but No Specialist to See,” New York Times, April 1, 2011, available at <www.nytimes.com/2011/04/02/health/policy/02medicaid.html?scp=1&sq=&st.nyt> (last visited June 16, 2011) (discussing the implications of state reductions in Medicaid expenditures).

Katz M. H. , “Future of the Safety Net Under Health Reform,” JAMA 304, no. 6 (2010): 679–680, at 680.

See Newhouse, supra note 15, at 1715.

See Ku L. Jones K. Shin P. , “The States' Next Challenge — Securing Primary Care for Expanded Medicaid Populations,” New England Journal of Medicine 364, no. 6 (2011): 493–495.

See Reeves J. , “Ala. Dental Spat May Foreshadow Obama Plan Effects,” BET Networks, April 7, 2010, available at <www.bet.com/news/new/2010/04/07spatforeshadowsplaneffects.htm> (last visited June 16, 2011).

See Hyman D. A. , “The Massachusetts Health Plan: The Good, the Bad, and the Ugly,” University of Kansas Law Review 55, no. 5 (2007): 1103–1118.

See Hager C. L. , “Massachusetts Health Reform,” Journal of Legal Medicine 29 (2008): 11–22

Hager C. L. , “Massachusetts Health Reform: A Social Compact and a Bold Experiment,” University of Kansas Law Review 55, no. 5 (2007): 1313–1330.

Trapp D. , “Emergency Department Visits Increase in Massachusetts,” American Medical News, July 21, 2010, available at <http://www.ama-assn.org/amednews/2010/07/19/gvsc0721.htm> (last visited June 16, 2011)

Massachusetts Health Council, Common Health for the Commonwealth: Massachusetts Trends in the Preventable Determinants of Health 2010, Waltham, MA, at 6–9, available at <www.mahealthcouncil.org/HSIR-10.pdf> (last visited June 16, 2011).

Clark C. R. Soukup J. Govindarajulu U. , “Lack of Access Due to Costs Remains a Problem for Some in Massachusetts Despite the State's Health Reforms,” Health Affairs 30, no. 2 (2011): 247–255.

Massachusetts Medical Society, “2011 Patient Access to Health Care Study: A Survey of Massachusetts Physicians' Offices,” 2011, Waltham, MA, available at <www.massmed.org/patientaccess> (last visited June 16, 2011).

Mass. S. 2437, Amendment 45 (2010).

See generally, Berg J. W. Appelbaum P. S. Parker L. S. , Informed Consent: Legal Theory and Clinical Practice, 2nd ed. (New York: Oxford University Press, 2001).

42 U.S.C. 1395dd. The official, unfunded conscription of hospital emergency department services embedded in EMTALA as a condition of participation in the federal Medicare program raises a slew of legal and policy questions that are not discussed in this article, which concentrates specifically on issues pertaining to compelled physician services. See, e.g., Regher V. L. , “Please Resuscitate! How Financial Solutions May Breathe Life into EMTALA,” University of La Verne Law Review 30, no. 1 (2008): 180–199 (favoring the provision of financial incentives for hospitals over a policy of legally coercing services). The conscription of physicians might be either analogized to or distinguished from the conscription of hospitals for legal and policy purposes.

See, e.g., Jennings v. Badgett, 230 P.3d 861 (Okla. 2010) (holding that a physician has no general duty to provide professional services to others). Regarding anti-discrimination considerations,

see, e.g., Reibman R. , “The Patient Wanted the Doctor to Treat Her in the Closet, But the Janitor Wouldn't Open the Door: Healthcare Provider Rights of Refusal Versus LGB Rights to Reproductive and Elder Healthcare,” Temple Journal of Science, Technology & Environmental Law 28, no. 1 (2009): 65–92

Rochelli K. M. , “Religiously Based Discrimination: Striking a Balance between a Health Care Provider's Right to Religious Freedom and a Woman's Ability to Access Fertility Treatment without Facing Discrimination,” St. John's Law Review 83, no. 3 (2009): 977–1016.

See, generally, Epstein R. A. , Mortal Peril: Our Inalienable Right to Health Care? (Reading, MA: Addison-Wesley Pub. Co., 1997).

See, e.g., Hall M. A. , “Law, Medicine, and Trust,” Stanford Law Review 55, no. 2 (2002): 463–528.

Black's Law Dictionary, 9th ed., s.v. “Utility,” 2009, available at <https://web2.westlaw.com> (last visited June 17, 2011; registration required).

Unidentified Author, “The Future of the Medical Profession,” JAMA 55, no. 3 (1910): 223, reprinted in

JAMA 304, no. 2 (2010): 221.

See Krauthammer C. , “One Year Out: The Fall,” National Review Online (January 15, 2010), available at <http://nationalreview.com/articles/228962/one-year-out-the-fall/Charles-krauthammer> (last visited February 9, 2011) (“By essentially abolishing medical underwriting (actuarially based risk assessment) and replacing it with government fiat, Obamacare turns the health-insurance companies into utilities, their every significant move dictated by government regulators.”).

See Crossley M. , “Discrimination Against the Unhealthy in Health Insurance,” University of Kansas Law Review 54, no. 1 (2005): 73–154.

Mariner W. K. , “Health Reform: What's Insurance Got to Do with It? Recognizing Health Insurance as a Separate Species of Insurance,” American Journal of Law & Medicine 36, nos. 2/3 (2010): 436–451, at 438.

Id., at 451.

Cf. Scully J. C. , “Mandatory Pro Bono: An Attack on the Constitution,” Hofstra Law Review 19, no. 4 (1991): 1229–1270.

See Lee , supra note 21, at 44–45

(citing Grumbach K. , “Fighting Hand to Hand Over Physician Workforce Policy,” Health Affairs 21, no. 1 (2002): 13–27, at 24.

U.S. Const., art 1, sec. 8, cl. 1.

U.S. Const., art 1, sec. 8, cl. 3.

U.S. Const., amend. V.

Even a semblance of just compensation may not be necessary to pass constitutional muster. See Huskey v. State, 743 S.W.2d 609 (Tenn. 1988).

See contra State ex rel. Stephan v. Smith, 747 P.2d 816 (1987) (holding that an attorney's property rights were violated by a court order to represent without compensation an indigent criminal defendant).

U.S. Const., amend. XIII. See Williamson v. Vardeman, 674 F.2d 1211 (8th Cir. 1982) (rejecting an involuntary servitude argument in the context of the state forcing attorneys to represent indigent criminal defendants without compensation).

U.S. Const., amend. X (reserving unenumerated powers to the states and people, respectively).

See supra note 49.

Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905).

Dent v. West Virginia, 124 U.S. 114 (1889).

See generally, Sawicki N. N. , “Character, Competence, and the Principles of Medical Discipline,” Journal of Health Care Law & Policy 13, no. 2 (2010): 285–324, at 289 (explaining the history and practice of medical licensure and discipline).

See, e.g., Lucas A. , “Mandated Human Papillomavirus Vaccination: An Overextension of Jacobson v. Massachusetts,” Cooley Thomas M. Journal of Practical & Clinical Law 10, no. 2 (2008): 253–284, at 257 (asserting that “a state's police power is the least-limitable government exercise”).

See Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 487–88 (1955) (applying a rational basis standard to an Oklahoma business law).

U.S. Const., amend. V (eminent domain power). See, e.g., State v. Rush, 217 A.2d 441 (N.J. 1966) (upholding constitutionality of a state court rule requiring attorneys to accept court-appointed cases involving indigent criminal defendants).

U.S. Const., amend. XIII (involuntary servitude).

Cf. Lininger T. , “From Park Place to Community Chest: Rethinking Lawyers' Monopoly,” Northwestern Law Review 101, no. 3 (2007): 1343–1370, at 1354 (dismissing these arguments in the context of mandatory pro bono requirements for attorneys).

Transcript, Obama's Fifth News Conference, available at <http://www.cbsnews.com/stories/2009/07/23/politics/main5182101.shtml> (last visited May 27, 2011) (quoting Barack Obama's remarks insinuating that physicians' individual clinical judgments are driven by fee payment schedules rather than patient benefit).

See AMA Code of Ethics: Current Opinions with Annotations, “Opinion 2.09 - The Provision of Adequate Health Care” (2010). Cf. ABA Model Rules of Professional Conduct, Rule 6.1, “Voluntary Pro Bono Publico Service” (2002) (“Every lawyer has a professional responsibility to provide legal services to those unable to pay.”).

Khan L. , “A Study on Legal and Ethical Issues Surrounding Health Practitioner Pro Bono Services,” SSRN (posted October 10, 2010), available at <http://ssrn.com/abstract=1689515> (last visited May 27, 2011).

Cf. Romerdahl E. , “The Shame of the Legal Profession: Why Eighty Percent of Those in Need of Civil Legal Assistance Do Not Receive It and What We Should Do About It,” Georgetown Journal of Legal Ethics 22, no. 3 (2009): 1115–1134, at 1124 (discussing the problem of “time famine” as the root of low pro bono participation by attorneys).

See, e.g., Weinstein L. Wolfe H. , “A Unique Solution to Solve the Pending Medical School Tuition Crisis,” American Journal of Obstetrics & Gynecology 203, no. 1 (2010): 19.e1–19.e3 (last visited June 16, 2011) (discussing the cost of medical education and the debt load carried by students into their medical practice years);

Wright D. B. , “Time Is Money: Opportunity Cost and Physicians' Provision of Charity Care 1996–2005,” Health Services Research 45, no. 6, Part 1 (2010): 1670–1692.

Alpert J. S. , “Balancing Work, Family and Friends, and Lifesyle,” American Journal of Medicine 123, no. 9 (2010): 775–776.

Cf. Loder R. E. , “Tending the Generous Heart: Mandatory Pro Bono and Moral Development,” Georgetown Journal of Legal Ethics 14, no. 2 (2001): 459–508, at 460 (making this argument in the context of attorney pro bono requirements).

See Lininger, supra note 62, at 1354.

See, e.g., id.

Romerdahl , supra note 66.

See Boyle L. , “Meeting the Demands of the Indigent Population: The Choice between Mandatory and Voluntary Pro Bono Requirements,” Georgetown Journal of Legal Ethics 20, no. 3 (2007): 415–426.

See, e.g., Ahronheim J. C. , “Service by Health Care Providers in a Public Health Emergency: The Physician's Duty and the Law,” Journal of Health Care Law & Policy 12, no. 2 (2009): 195–234, at 231 (“[M]andating health care providers to respond [in a disaster situation] would seem justified if it is needed to protect the public's health.”).

See, e.g., Malm H. May T. Francis L. P. , “Ethics, Pandemics, and the Duty to Treat,” American Journal of Bioethics 8, no. 8 (2008): 4–19 (examining ethical claims for a duty based on the grounds of expressed consent, implied consent, special training, reciprocity or social contract, and professional oaths and codes, and concluding that none of these grounds are currently sufficient to support the kind of duty that would arise in the context of an infectious disease pandemic)

Bensimon C. M. Tracy C. S. Bernstein M. , “A Qualitative Study of the Duty to Care in Communicable Disease Outbreaks,” Social Science & Medicine 65, no. 12 (2007): 2566–2575.

Coleman C. H. , “Beyond the Call of Duty: Compelling Health Care Professionals to Work During an Influenza Pandemic,” Iowa Law Review 94, no. 1 (2008): 1–48

Schwartz A. R. , “Doubtful Duty: Physicians' Legal Obligation to Treat During an Epidemic,” Stanford Law Review 60, no. 2 (2007): 657–694 (focusing on physicians' property rights in their medical licenses).

Coleman C. H. Reis A. , “Potential Penalties for Health Care Professionals Who Refuse to Work During a Pandemic,” JAMA 299, no. 12 (2008): 1471–1473, at 1473.

Model State Emergency Health Powers Act, § 608 (a), available at <www.publichealthlaw.net/MSEHPA/MSEHPA.php> (last visited June 16, 2011) (providing, inter alia, that in a declared public health emergency, the state designated public health agency would have the authority “[t]o require in-state health care providers to assist in the performance of vaccination, treatment, examination, or testing of any individual as a condition of licensure, authorization, or the ability to continue to function as a health care provider in t[he] State.”.

See Shelton v. Tucker, 464 U.S. 479, 488 (1960) (“The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.”).

See supra notes 22–29.

See Peltier B. Guisti L. , “Commerce and Care: The Irreconcilable Tension between Selling and Caring,” McGeorge Law Review 39, no. 3 (2008): 785–800, at 785 (“American doctors have one foot in each of two conflicting worlds. They practice health care, which implies that they are guided by an ethic of care. They also compete in a capitalist market economy in order to survive and thrive.”).

See generally, Kapp M. B. , “Ninny Clients of the Nanny State? Selective Paternalism in Public Benefit Programs for Older Americans,” Georgetown Journal of Law & Public Policy 6, no. 1 (2008): 191–218.

Centers for Medicare and Medicaid Services, Medicare and You, CMS Product No. 10050 (2011), at 60–69, available at <http://www.medicare.gov/publications/pubs/pdf/10050.pdf> (last visited May 27, 2011).

See, e.g., Robert Wood Johnson Foundation, Health Policy Brief, Comparative Effectiveness Research 1–5 (October 8, 2010) (“There is evidence that the general public is concerned about how comparative effectiveness studies could be used to limit their health care choices.”).

See Masri M. D. Oetjen R. M. Campbell C. , “Consumer-Directed Health Plans: Are Medical and Health Savings Accounts Viable Options for Financing American Health Care?” Health Care Manager 29, no. 3 (2010): 241–250 (noting the rejection of the consumer directed idea in Obama's legislative proposal).

See generally, Kapp M. B. , “The Ethical Foundations of Consumer-Driven Health Care,” Journal of Health Care Law & Policy 12, no. 1 (2009): 1–16.

Medicare Part C, the Medicare Advantage program, represents an opportunity for consumer direction by allowing Medicare beneficiaries to opt out of traditional Medicare Parts A and B in favor of various private managed care or fee-for-service alternatives. However, the PPACA purposefully attacks the Medicare Advantage opportunity by reducing payment to participating insurers, thereby diminishing the incentive for such private firms to offer their health care coverage products for choice by Medicare beneficiaries. See, e.g., Weisman R. , “Harvard Pilgrim Cancels Medicare Advantage Plan,” Boston Globe, September 28, 2010, at B5:.

Harvard Pilgrim Health Care has notified customers that it will drop its Medicare Advantage health insurance program at the end of the year, forcing 22,000 senior citizens…to seek alternative supplemental coverage. The decision by…the state's second-largest health insurer was prompted by a freeze in federal reimbursements and a new requirement that insurers offering the kind of product sold by Harvard Pilgrim - a Medicare Advantage private fee for service plan - form a contracted network of doctors who agree to participate for a negotiated amount of money. Under current rules, patients can seek care from any doctor. “We became concerned by the long-term viability of Medicare Advantage programs in general,” said [one Harvard Pilgrim official]. “We know that cuts in Medicare are being used to fund national health care reform. And we also had concerns about our ability to build a network of health care providers that would meet the needs of our seniors.

See also Foster R. S. , “The Estimated Effects of the Affordable Care Act on Medicare Beneficiaries,” Testimony before the Ways and Means Committee, U.S. House of Representatives (February 10, 2011), available at <http://waysandmeans.house.gov/uploadedfiles/foster_testimony_2–10_hearing.pdf> (last visited June 16, 2011) (Chief Actuary of CMS testifying that “in 2017, when the MA [Medicare Advantage] provisions [of the PPACA] will be fully phased in, enrollment in MA plans would be lower by about 50 percent (from a projected level of 14.5 million under the prior law to about 7.3 million under the new law)”).

Food Stamp Act of 1964, Pub. L. No. 88–525, 78 Stat. 703 (codified as amended in scattered sections of 7 U.S.C.).

S. R. Kunkel and V. Wellin, eds., Consumer Voice and Choice in Long-Term Care (New York: Springer Publishing Company, 2006).

Editorial, “Big Insurance, Big Medicine,” Wall Street Journal, October 26, 2010, at A18;

Suderman P. , “The Rise of Consumer-Driven Care: Will ObamaCare Put a Stop to the Most Promising Way of Controlling Health Care Costs?” Reason.com, May 28, 2010, available at <http://reason.com/blog/2010/05/28/new-at-reason-peter-suderman-o> (last visited June 16, 2011) (“Consumer-driven plans work in part because they are customizable and cheap. But under the new health care law, that may not be the case for long.”).

Levin Y. , “Repeal - Now More than Ever,” Weekly Standard 16, no. 8 (2010): 7.