Margaux J. Hall (Columbia Law School; World Bank – Law and Justice (LEGAL)) has posted A Fiduciary Theory of Health Entitlements (Cardozo Law Review, 2014, Forthcoming) on SSRN. Here is the abstract:
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The Affordable Care Act's "contraceptive mandate" continues to generate controversy in courts and academic literature. While a growing body of scholarship analyzes the merits of employers' religious freedom claims, academics and commentators have overlooked a more fundamental tension illuminated by the Act but predating its enactment: historically, the law has empowered employers to make almost all health cost, quality, and access decisions on behalf of employees with virtually unlimited discretion, even when those decisions have subverted employees’ interests. While contraceptives are the current lightning rod for controversy, tensions exist around a wider range of services.
Academic literature has not adequately recognized the conflicts that result when employers select employees' health insurance terms, and the law itself provides no current framework to resolve those conflicts. This Article proposes an employee-centric framework to do so. It contends that employees have a property-like interest in health insurance, grounded in the Affordable Care Act's statutory entitlements and employer mandate, and in the inherent structure of employment-based healthcare financing. After all, employees pay for their health insurance either directly through premium contributions or indirectly through a wage-benefit tradeoff. Nevertheless, the law undermines their rights by empowering employers to make coverage decisions on their behalf with respect to those entitlements.
The Article introduces fiduciary law to re-theorize the healthcare relationship between employers and employees. It suggests that employers act as fiduciaries when they make coverage decisions on employees' behalf and should have corresponding duties. It finally describes doctrinal obstacles and opportunities, in implementing the revised fiduciary account.