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Welcome to IDS 402! When we approach discussions about wellness, we each come to conclusions with our own perspectives that our experiences have shaped. So, as we begin our first discussion, take a moment to consider what has influenced your ideas of wellness and compare those ideas with what you read in this module’s readings.Each discussion is meant to be a collaborative space for conversation in which to process the concepts within the course. To ensure an interesting and respectful discussion, you are encouraged to think creatively about your initial posts and build upon the points made by your peers. Discussing challenges that face our world often means investigating opinions and ideas different from your own. Remember to remain thoughtful and respectful towards your peers and instructor in your discussion post and replies. It is also important to review the module resources and read the prompts in their entirety before participating in the discussion.Create one initial post and follow up with at least two response posts.For your initial post, address the following:In your own words, define the term wellness and discuss how it is used or impacts your daily life and/or community. How does your definition compare with those presented in the readings?What is the influence of wellness on your chosen field of study or profession? How can you use your understanding of wellness in your life?Please put yourself in my shoes, define the term wellness and discuss how it is used or impacts daily life and or community
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Health Care
Federalism and
Next Steps in
Health Reform
Abbe R. Gluck and
Nicole Huberfeld
Introduction
The central theme of this symposium is “next steps in
health reform.” Wherever health reform is headed, it
will certainly draw on the structure, implementation,
and other lessons of the Patient Protection and Affordable Care Act (ACA).
The ACA was designed with a complex amalgam
of health care governance architectures, all of which
have implications for American federalism in general
and federalism in health policy specifically — both
what federalism is and what it does. Most notably, The
ACA’s two key policy pillars were designed with different structural approaches: the Medicaid expansion
was supposed to be uniform nationwide, while the new
health insurance exchanges were designed to give states
the right of first refusal to lead and tailor them. What
happened instead — as a result of political resistance
to the statute combined with the Supreme Court’s decision to make the Medicaid expansion optional — has
been a roiling experiment in modern American health
care federalism. Here, we recount salient aspects of that
experiment, drawing on our five-year study tracking the
federalist and nationalist aspects of ACA implementation. Whatever the next steps in health reform may be,
the relationship between states and the federal government, and among the states themselves, will remain
central issues.
Our study centered on the Medicaid expansion
and health insurance exchanges for multiple reasons: they are central pillars in the ACA’s objective of
near-universal insurance coverage; they operate on a
grand scale that allowed for comprehensive tracking
and analysis; and they rely on the states both in the
law as drafted and in its implementation. We comprehensively tracked implementation of those two
policy interventions across the states from 2012-2017.
We then confirmed our findings with interviews of
key federal and state officials and other stakeholders
involved in implementation.1
We found that the ACA’s implementation has been
marked by four characteristics that have been largely
unexplored in the general federalism literature. First,
state choices to participate in the ACA’s implementation have been dynamic: participation in the national
statutory scheme is not a one-time, in/out question,
but rather, states move fluidly among structural
options that yield different relationships with the
federal government. Second, the federal government,
Abbe R. Gluck, J.D., is Professor of Law and Faculty Director of the Solomon Center for Health Law and Policy, Yale
Law School. Nicole Huberfeld, J.D., is Professor of Health
Law, Ethics & Human Rights, Boston University School of
Public Health and Professor of Law, Boston University School
of Law.
next steps in health reform • winter 2018
The Journal of Law, Medicine & Ethics, 46 (2018): 841-845. © 2018 The Author(s)
DOI: 10.1177/1073110518821977
841
S Y MPO SIUM
especially under the Obama Administration — which
was eager to entrench the statute at any cost — has
been markedly pragmatic about facilitating state
implementation of the law. Third, the aforementioned
features have produced an atmosphere of near constant federal/state negotiation and interstate competition and learning. Finally, implementation has highlighted the importance of intrastate democracy. “The
states” are not a monolithic bloc, although they are
often discussed that way, even by federalism experts.
Legal structures and political considerations unique
to each state made each implementation experience
different from the next. Governors operated with different interests than legislators, even within the same
political party in the same state. The same is true for
state insurance commissioners.
Together, these features of implementation allowed
the states to exert significant power, contrary to a
persistent narrative that the ACA produced a federal
“takeover.” But, intriguingly, we also found that states
gained this power almost independently of any particular structural arrangement, whether federalist
or nationalist. In other words, it has mattered less
for purposes of classic “federalism values” — such as
experimentation, cooperation, autonomy, and variation — whether states operated their own exchanges
or let the federal government run them. What has
mattered most has been state engagement with the
implementation of the law, regardless of the formalities of its architecture. These observations give rise to
the question of whether the values we associate with
federalism, and expect federalist arrangements to produce, are necessarily dependent on particular statutory structures. This question is particularly important to the success of future health reform efforts.
Finally, even as we found it relatively clear that the
ACA enhanced state power over health policy, we
found it difficult to determine if the ACA’s reliance on
the states actually improved health care. Part of the
difficulty stems from societal and political disagreement about first principles. Namely, deep disagreement exists regarding what, if anything, we expect the
government to achieve in health policy — Equality?
Lower costs? Better outcomes? Nothing? The ACA
itself reflects this tension, as it combines a universalist
philosophy of health care for all with continued reliance on private insurance markets, where people can
get only the health care they can afford. But the first
principles are critical for the next steps. It is impossible to know whether federalism in health policy is
worth pursuing if we do not know or cannot agree
about what we seek from federalism or from health
policy in the first place.
842
I. The ACA’s Modern Federalism:
Our Findings
The ACA’s statutory architecture purposefully involved
state policymaking in key features of the law. As
drafted, the ACA had many aims, but its primary goal
was universal health insurance coverage. To accomplish that goal, the law employs two key mechanisms:
expansion of Medicaid eligibility to childless, nonelderly adults, and creation of more robust individual
and small group health insurance markets through
newly-devised “exchanges.”2
Medicaid expansion created a national baseline of
eligibility but relied on states for implementation,
as Medicaid always has done. The health insurance
exchanges were designed to be state-run, with federal
administration as a fallback. These pillars created a
national baseline that was meant to cover individuals
who had been long excluded from health insurance,
but they were also designed to put states in the driver’s seat for many policy choices within that national
baseline.
Although many call the ACA’s federal/state structure a model of “cooperative federalism,” we discovered that this modern health care federalism is significantly more complex than traditional cooperative
federalism doctrine acknowledges. We found the
ACA’s federalism to be dynamic, adaptive, pragmatic,
negotiated, and robust in both horizontal and vertical intergovernmental activity. States learned from
and leveraged the successes of thought-leader states
for gains in their own negotiations. For example, after
Arkansas gained approval for the first demonstration
waiver to use premium assistance to expand Medicaid
eligibility, Iowa, Michigan, and Pennsylvania quickly
moved to build on and “one up” Arkansas’s successful negotiations, with each state gaining some similar and some different policy concessions from HHS.
The federal government adapted each time with the
knowledge that states were learning from one another
and viewed each negotiation as setting the stage for
the next state’s demands.
Federal and state officials each brought different pragmatic goals to the bargaining table. While
the Obama Administration took a long-term view of
entrenching the law — and was willing to compromise policy ideals to achieve that goal — state officials operated with shorter time horizons and took
advantage of the Administration’s eagerness to leverage their own policy concessions. States have even
returned to the bargaining table to seek further concessions when other states win new ones. A recent
example that post-dates our study but demonstrates
its durability is HHS’s approval of Kentucky’s waiver
application implementing a work requirement for the
journal of law, medicine & ethics
The Journal of Law, Medicine & Ethics, 46 (2018): 841-845. © 2018 The Author(s)
Gluck and Huberfeld
expansion population, which was followed quickly by
new waiver approvals — with slight variations — for
Indiana, Arkansas, and New Hampshire. (The validity
of the Kentucky waiver is currently being litigated.)3
Although the policy goals of the Trump Administration’s HHS may be different, these dynamic negotiations continue the patterns of the first five years of
implementation of the ACA.4
These ongoing negotiations have not resulted in a
federal/state binary but rather have produced a variety
of state-led and federally-led models as circumstances
warrant. Indeed, the ACA’s initial structural architecture has turned out to be a mere starting point for the
allocation of policymaking power between the federal
mon representation of that choice is that “blue” states
cooperated by establishing state-run exchanges and
that “red” states rebelled by defaulting to a federallyrun exchange out of resistance to the law. This binary
is false and seriously oversimplified. For instance,
Oregon began with a state-based exchange but then
switched to the federal exchange due to technical difficulties.6 As a result, Oregon’s exchange was structurally the same as Texas’s. Did Oregon become more
“uncooperative,” “sovereign,” or “autonomous” when
it gave up on its state-based exchange and used the
federal exchange? Was it as uncooperative, sovereign,
or autonomous as Texas? Surely federalism has to be
more than a question of attitude.
On the other side, and perhaps counterintuitively given repeated warnings of
a federal takeover, we found that states
While federalism scholars obsess over
exerted real sovereign power when they
common values such as cooperation,
implemented the ACA themselves — they
were not simply acting as administrators.
disobedience, variety, and autonomy, we
States enacted hundreds of state laws,
found those values nearly meaningless in the
enacted new state governance structures,
context of the ACA.
and controlled swaths of health policy
due to their inclusion in the ACA’s statutory architecture. The alternative — leavgovernment and states. Over the years, pragmatic and
ing states out of implementation entirely — would
creative hybrids of national and state-level solutions
have given states no role in health policy whatsoever.
have emerged that have allowed the states to remain
It also would have done nothing to preserve the relin control but also to take advantage of the kind of
evance of the state sovereign lawmaking apparatus —
help for which the federal government has econothe role of state law and state regulation — as ACA
mies of scale — such as financial, administrative, and
implementation has done. Ironically, the states that
technical assistance. Whereas Congress designed the
suffered the greatest power losses are the ones that
ACA with an “either/or” vision — that is, with one or
have refused to engage with implementation at all and
50 policy options in mind — the realities of impleso invited the federal government to take over their
mentation have revealed a sweet spot somewhere in
small group and nongroup insurance markets.
the middle. For instance, while some states created
But to be clear, not every state that defaulted to a
their own exchanges, more than half used variants of
national exchange opened the door to a federal takethe federal model. Several states copied the exchange
over. We found that some red states, eager to mainmodels established in other states, in many cases
tain policy control but needing political cover, worked
using the same consultants, to avoid reinventing the
behind the scenes with the federal government, taking
wheel. As one high-ranking former federal official told
advantage of the Obama Administration’s eagerness
us: “We don’t need 50 of these things, but we might
to help, even as these states publically appeared to
need eight.”5
resist. The ACA was entrenched by these efforts, and
Moreover, while federalism scholars obsess over
states exerted the policy control they desired, but at
common values such as cooperation, disobedience,
the expense of political accountability and transparvariety, and autonomy, we found those values nearly
ency. One official colorfully labeled this the “secret
meaningless in the context of the ACA. Some states
boyfriend model” of state-national relations: a relaexpanded Medicaid from the beginning, others did
tionship coveted by the states, but one that states were
not expand at all, and others negotiated waivers that
unwilling to admit publically for political reasons.7
rode on the coattails of prior states’ successes. Which
Finally, intrastate governance has been a key feastates were more autonomous or more cooperative?
ture of the ACA’s federalism. Each state is an individAs another example, take the question of whether to
ual republic, so states’ unique internal structures have
operate a state-based exchange. Many states appeared
shaped their ACA-related decisions. For instance,
to choose not to run their own exchanges, and a comsome states had preexisting insurance regulations that
next steps in health reform • winter 2018
The Journal of Law, Medicine & Ethics, 46 (2018): 841-845. © 2018 The Author(s)
843
S Y MPO SIUM
affected the design of their exchanges as well as laws
implementing Medicaid that influenced their negotiations over expanding eligibility. State officials also differ from one another, even within the same state. Governors — dealing with a longer time horizon and more
direct accountability to the variety of stakeholders in
their states — bucked legislators in their own parties
to take advantage of the ACA’s benefits. Insurance
commissioners worked with HHS to maintain policy
control, even as their own states’ governors and legislators wished to rebel. These distinctions underscore
the diverse priorities of different members of state
government and the different structures of the state
governments themselves. These internal state dynamics have had a profound influence on national policy
implementation and have been largely overlooked in
the federalism literature.
posed to serve health policy in the first place, or to
serve political expediency, or the structural end of federalism for federalism’s own sake. In other words, we
must interrogate whether federalism is an end in itself
or a means to an end in health care.
In part, this opacity can be attributed to the fact that
the core goals of the American health care system have
never been established through widespread political
or social agreement. Do we all deserve access to health
care or do we only get the health care we can afford?
This fundamental normative question about the role
of the government in health policy has remained unanswered through each effort at health reform from the
Nation’s founding. The Congress that enacted the ACA,
although it moved the needle significantly toward the
idea of universal coverage, was likewise unwilling to go
all the way toward a unified, fully national program and
The harder question is whether the dynamic, pragmatic, negotiated, and
intrastate politics of the modern health care federalism we observed actually
serve health policy well. That question points to two major needs for the field,
one theoretical and one empirical. First, we must do the hard work of settling
on goals for the American health care system, so we know what to aim for
in future efforts to improve it. Second, we need rigorous empirical study of
various policy architectures in statutory implementation to determine which
structural arrangements best accomplish the aims we establish. Only then
will we know whether health care federalism, nationalism, or something in
between should be the goal of the next effort at health reform.
II. Implications for Federalism and for
Health Policy
Our study deconstructs federalism’s commonly
named attributes, including sovereignty, autonomy,
cooperation, and variety, and illustrates that many
common federalism questions are oversimplified, and
perhaps unanswerable, in the context of a modern
statutory scheme such as the ACA. More specifically,
the study challenges the idea that any particular governance arrangement will be the exclusive producer
of any particular set of policy values, including the
values traditionally associated with “federalism.” As
one example, we saw as much policy variation and
experimentation within nationally-run exchanges as
across state-run exchanges.
Whether the ACA’s structural architecture and
dependence on the states actually serve health policy is a harder question. Indeed, it is not even clear
whether the statute’s structural architecture was sup844
retained important aspects of existing private markets.
It is likely that, politically, this incremental approach
was the only way to enact major health reform at the
time. But there is little indication that the specific governance structures used were the result of evidencebased health policy choices.
In the end, our data were clearer about the effect
of the ACA’s governance structure on enhancing state
power in health care than about whether the ACA’s
reliance on state implementation positively affected
common metrics of good health policy, such as cost,
access, and quality. For example, the ACA’s Medicaid expansion as drafted by Congress — which mandated uniform eligibility expansion — was nationalist in structure and would have increased access to
care more efficiently than the current, more federalist, structure has done (created when the Supreme
Court in NFIB gave states a choice), simply by covering millions more lives. In the exchange realm, the
journal of law, medicine & ethics
The Journal of Law, Medicine & Ethics, 46 (2018): 841-845. © 2018 The Author(s)
Gluck and Huberfeld
data is unclear as to whether states that ran their own
exchange did better in terms of costs, broad networks,
or quality than the national exchanges.
Looking forward, as this article went to press, calls
for “single-payer” health reform — a uniform national
insurance coverage plan — were on the rise and for
the first time were gaining political traction. Should
the conversation seriously turn to this structural question, the federalism implications of our ACA study
have important lessons. First, we have seen how, even
within a national governance structure, states can
exert enormous power and produce great variety if the
statute is designed to allow it. Thus, one question is
whether moves toward more nationalist health reform
delivery should put states on the front lines as the ACA
did. Again, it depends on the goals. State participation
can increase variability or not; it depends on statutory
design. At the same time, we also saw a federal government that consistently seems to prefer the states’
help to implement health reform; it does not appear
to want to go it alone. Given these practical considerations, and the entrenched state bureaucracies and
expertise in health care, it may be very difficult to
eliminate the state role entirely. Nor are we certain it
would be wise to do so without empirical examination
of when state leadership in health policy produces the
best results. One major takeaway of our study is that
path-dependent health reform should stop. The next
major effort must involve a conversation about desired
outcomes, implementation capacity, and reforms
grounded in governance structures that have proved
successful in producing results.
architectures — especially when the federal government cares deeply about achieving the goals central
to a law’s implementation.
The harder question is whether the dynamic, pragmatic, negotiated, and intrastate politics of the modern health care federalism we observed actually serve
health policy well. That question points to two major
needs for the field, one theoretical and one empirical.
First, we must do the hard work of settling on goals for
the American health care system, so we know what to
aim for in future efforts to improve it. Second, we need
rigorous empirical study of various policy architectures in statutory implementation to determine which
structural arrangements best accomplish the aims
we establish. Only then will we know whether health
care federalism, nationalism, or something in between
should be the goal of the next effort at health reform.
Note
The authors have no conflicts to disclose.
References
1.
2.
3.
Conclusion
Our study underscores how the concept of federalism
tends to be a proxy for a variety of goals and ideas
in health care and beyond. Federalism sometimes
is advanced as an end in itself, aimed at generating
structural and democratic benefits believed to derive
from multiple layers of government. But federalism
also is a means to an end when it is used by Congress
for improving policy; here, that end is good health
policy. If one takes as true, as we do, that modern federalist arrangements often no longer come from separate spheres of power, but rather tend to come from
state participation in federal law and not exclusion
from it, our study reveals that states are quite good
at leveraging their authority within national statutory
4.
5.
6.
7.
next steps in health reform • winter 2018
The Journal of Law, Medicine & Ethics, 46 (2018): 841-845. © 2018 The Author(s)
For a plenary description of this study and our theoretical
analysis of its implications, see A. R. Gluck and N. Huberfeld, “What Is Federalism in Health Care For?” Stanford Law
Review 70, no. 6 (2018): 1689-1803, available at
(last visited October 17, 2018); see also A. R. Gluck and N.
Huberfeld, “The New Health Care Federalism on the Ground,”
Indiana Health Law Review 15, no. 1 (2018): 7-19 (detailing
interviews).
Patient Protection and Affordable Care Act, Pub. L. No. 111148, 124 Stat. 119 (2010); amended by Health Care and Education Reconciliation Act, Pub. L. No. 111-152, 124 Stat. 1029
(2010).
Medicaid Waiver Tracker: Which States Have Approved and
Pending Section 1115 Medicaid Waivers? Kaiser Family Foundation (May 24, 2018), available at (last visited October 17,
2018).
Stewart v. Azar, Civ. Action No. 18-152 (JEB) (D. D.C., June
29, 2018).
Email from Kevin Counihan to authors (May 18, 2018) (on
file with authors) (recounting remarks made in 2014 at the
Yale Law School Conference on the Law of Medicare and
Medicaid at 50).
L. Norris, Oregon Health Insurance Marketplace: History
and News of the State’s Exchange, Healthinsurance.org (Sept.
14, 2017), available at (last visited October 17, 2018) (“Oregon initially had a fully state-run exchange
— Cover Oregon — but it was plagued with technological failures, and never worked as planned.”).
Telephone Interview with Former Federal Executive Branch
Health Care Officials 2, 3, and 4 (Aug. 5, 2016) (on file with
authors).
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