Law and Policy of Federal Funding Flows

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Spring 2013 Course
Meets: M, T 8:10am - 10:10am in WCC Room 3038
4 classroom credits

The federal government funds a wide range of activities undertaken by private actors -- individuals, for-profit businesses, and not-for-profit entities, including universities, hospital and research centers. In providing this funding for designated activities, government seeks to assure that certain tasks are undertaken that government itself either cannot undertake directly, or can undertake less efficiently than private actors. Various conditions attach to this funding, relating to how the funded activities may and may not be undertaken, how funds may and may not be spent, and how accountability for activities and expenditures is assured. Using examples drawn from a variety of funding programs, this course will examine some of the fundamental issues relating to governmental decisions to fund private sector activities. Among the questions we will examine will be: are there constitutional, ethical or practical limits to what private activities government may choose to fund; how does government legitimately determine what private actors may receive funding; how are funded programs approved, overseen and monitored; what costs or expenses should be reimbursed or paid, and which should not qualify for reimbursement or payment; with what degree of exactitude may government dictate how private actors implement the activities for which they are funded; and are there reasonable and sustainable differences between government “grants” as opposed to government “contracts.” We will use examples drawn from federal funding of basic science and applied science research, medical research, and medical care (Medicare, Medicaid, categorical funding for public health programs, and controversial medical procedures such as voluntary termination of pregnancy and organ donation); procurement of goods and services for defense, energy and other national purposes; direct subsidies of agriculture and other industries; audit and accountability standards under the Federal False Claims Act and various other "whistleblower" statutes; and the use of the taxation system to subsidize or incentivize private behavior as a substitute for direct funding of the desired activities. Materials will be drawn not only from case decisions, but from the voluminous regulations and guidelines that determine practices in this area (e.g., OMB circulars, Medicare payment regulations, USDA crop subsidy regulations, Defense Department procurement standards). Comparisons will be made to federal funding of local and state government activities. Along the way, we will seek to understand whether, in the massive growth of funding in these areas in recent decades, government has become more "private," or private actors have themselves become an indissoluble part of our permanent government in the post-industrial, post-modern American republic.

Subject Areas: Regulatory Law , Government Structure & Function , Health Law .