Friday, March 7, 2014
The running joke of the Disney Monsters,Inc. movies is that there really are monsters in little kids closets, but they aren't dangerous. But what is dangerous and expensive is the embedded, ingrained, and entrenched practice of training medical students (and nurses) by instilling a fear of law suits. A recent post in the Harvard Bill of Health blog by former medical student Deborah Cho quite accurately describes the communication barrier. I haven't seen research tracking how often the phrase "or you will get sued" is used in instruction, but based on my experience it may be the most common phrase they hear. Without even addressing the vast literature suggesting that postive instruction is at least as instructive as negative, I contend we just can't afford the malpractice bogeyman.
The question now is what can be done about? Tort Reform won't solve this problem. But maybe a change in medical education will. Words and attitudes matter--
I am pleased to announce the call for papers for the University of Kentucky's fourth annual Developing Ideas Conference, which will be held Wednesday, May 21, at the College of Law.
This workshop is designed for untenured and recently tenured faculty to share their nascent ideas for scholarship, just before the plunge into summer research begins, in an informal, supportive, and engaging environment. The day is a roundtable format, and after a 5 minute discussion by the author of the proposal, participants provide suggestions and areas of inquiry to help the author launch into summer projects.
Here is the pertinent information Download UK Developing Ideas Conference 2014. Please direct any questions to me; we hope you can join us!
Thursday, March 6, 2014
Wednesday, March 5, 2014
Well, that is how the Wall Street Journal described the March 3, 2014 grant of certiorari in North Carolina Board of Dental Examiners vs. Federal Trade Commission, anyway. And it is a case about teeth-whitening services in North Carolina, in particular, but it is also a case about whether the North Carolina Board of Dental Examiners violated federal antitrust law by banning non-dentists from offering teeth-whitening services in the state.
The question the case raises is one that haunts all health care provider dominated medical boards. Poised at the intersection of our long tradition of state deference to medical provider self-regulation and the realities of increasing competition, in the dental arena, for lesser credentialed or non-credentialed providers of cosmetic dental services, this case is one to watch.
Georgia State University College of Law and its Center for Law Health & Society have selected 10 faculty fellows to participate in the Future of Public Health Law Education: Faculty Fellowship Program. The program is funded by the Robert Wood Johnson Foundation to foster innovations and build a learning community among those who teach public health law at professional and graduate schools. For more information, visit law.gsu.edu/phlfellowship.
The fellows, chosen from across the country, will develop interdisciplinary courses and programs in public health law at their respective universities during the fellowship year. Their projects will strengthen interdisciplinary education in public health law and promote collaborations with public health agencies and organizations in the fellows’ communities. The fellows are:
- Micah Berman, J.D., assistant professor of public health and law at The Ohio State University College of Public Health and Moritz College of Law, will design a course focusing on updating local public health laws in preparing for public health accreditation.
- Elizabeth Bjerke, J.D., assistant professor with the Department of Health Policy and Management, Graduate School of Public Health at the University of Pittsburgh, will create a practice-based course related to preventive services under the Affordable Care Act.
- Kimberly Cogdell Boies, J.D., M.P.H., associate professor of law and director of the Biotechnology and Pharmaceutical Law Institute at North Carolina Central University School of Law, will introduce two public health law courses using live and on-line teaching formats, develop externship opportunities in public health law.
- Amy Campbell, J.D., M.B.E., associate professor of law and director of the Health Law Institute at University of Memphis Cecil C. Humphreys School of Law, will develop a curriculum that includes a new public health law course, a policy practicum and new externship opportunities for law and public health students.
- Sarah Davis, J.D., M.P.A., clinical assistant professor of law at the University of Wisconsin Schools of Law, Medicine & Public Health, Nursing and Pharmacy, will create an online community learning space to complement students’ public health law externships at local and remote locations.
- Robert Gatter, J.D., M.A., professor of law and co-director of the Center for Health Law Studies at Saint Louis University School of Law, will expand an existing course to include representatives of the state public health department, using case studies and a component on outcomes research in public health.
- Jennifer Herbst, M.Bioethics, J.D., LL.M., assistant professor of law at Quinnipiac University School of Law, will offer a new course for law, medical, public health, nursing and business students that emphasizes teamwork and effective communication among the professions and group problem solving and advocacy skills.
- Laura Hermer, J.D., LL.M., associate professor of law at Hamline University School of Law, will combine clinical work at a new medical-legal partnership with a new course examining the interrelationships between law, socioeconomic determinants of health and public health.
- Heather McCabe, J.D., M.S.W., assistant professor at Indiana University School of Social Work and adjunct faculty at schools of law and public health at Indiana University-Purdue University in Indianapolis, will create a course for students in law, social work and public health to build skills in public health law, policy and advocacy.
- Elizabeth Tobin Tyler, J.D., M.A., clinical assistant professor of family medicine at Brown University’s Warren Alpert Medical School will introduce a course for medical and public health students at Brown as well as law students at the Roger Williams School of Law that will explore the role of law in preventing disease and injury.
HealthLawProf Blog would like to thank our February guest bloggers Professor Sharona Hoffman, Associate Professor Laura Hermer, and Associate Dean Elizabeth Pendo. Here is a short recap of thier posts:
Professor Sharona Hoffman posted the following: Privacy v. Data Use - How to Balance Competing Goals, Is Big Data Necessarily Better Data?, On Receiving A Parkinson's Disease Diagnosis, and The Costs of Falling When Elderly.
Associate Professor Laura Hermer posted the following: Getting Reform Through Reform: "Let's Make a Deal", A Return to Hard Paternalism, Obamacare - Job Killer?, and Unhealthy Waiver Proposals.
Associate Dean Elizabeth Pendo posted the following: Consumer Ratings of Accessible Healthcare Offices and Facilities, and New Study: Quantifying Lack of Access for People with Disabilities.
Monday, March 3, 2014
Genomic research is at an impasse. In the decade since the completion of the first draft of the human genome, progress has been made but few of the grandest promises of genomics have materialized. Biomedical researchers largely agree that one critical thing is essential to propel genomics into the future and maintain its legitimacy: more bodies. Over the past decade a series of distinct yet interrelated efforts at massive recruitment of subjects to participate in biomedical research, while clearly motivated by a desire to drive biomedical research to its next stage of promised critical breakthroughs, have also promoted a privatized conception of citizenship that configures citizens’ duties as serving, not the public good, but rather the good of private corporations – pharmaceutical manufacturers in particular. This reconfiguration of citizenship, in turn, implicates the allocation of related public resources to support drug development.
Friday, February 28, 2014
A big part of the job of being a Health Law Prof is to help students understand the intersection of the many legal specialties that comprise the big tent of "Health Law." Wellness Programs are a good way of doing that because one of the key features of the Affordable Care Act is the flexibility it provides employers to link the cost their employees pay for health insurance with the individual employee's participation in a company sponsored "welleness program." Here's an article I wrote explaining how PPACA went about doing that. Here's a link to the Department of Labor's summary of the current rules and a good overview by the law firm Nixon-Peabody. This report from Rand is an overview of what these programs are and how companies have increasingly fallen in love with them. At this point just about every insurance company is offering to create one--here's some information from Aetna.
The problem is, there's very little evidence that these programs do anything to demonstrably improve health (whatever that may mean). And quite a bit that they may promote many different kinds of social injustice.
This article in the Harvard Business Review does a great job describing the kinds of programs that are now descending on employees and how they are creating disatsifaction without any scientifically supportable improvement in "health."
There is also a growing literature suggesting that these programs may disproportionately discourage workers who employers aren't that unhappy to see go--but might not legally be able to actually fire. Here is some very interesting testimony by Jennifer Mathis Director of Programs, Bazelon Center for Mental Health Law
On Behalf of the Consortium of Citizens with Disabilities.
Michelle Mello at Harvard has coined the term "life-style discrimination" to describe the ways Wellness Programs may target individuals employers may perceive as undesirable because they are obese, smoke or have other non-job related characteristics.
Studying Wellness Programs--and the issues they raise--can be an accessible entry point for students who can easily be intimated by the regulatory complexity of health law and can also be a bridge to understanding how fundamentally the Affordable Care Act has affected the way health care will be paid for and delivered as our students begin their careers in advising those struggling to implement these new regulations.
February 28, 2014 in Access, Affordable Care Act, Consumers, Coverage, Disabilities, Effectiveness, Employer-Sponsored Insurance, Genetics, Health Care, Health Care Costs, Health Care Reform, Health Law, Health Reform, HHS, Insurance, Mental Health, Obesity, Policy, Politics, PPACA, Prevention, Public Health, Quality, Reform, Workforce | Permalink | Comments (0) | TrackBack (0)
Thursday, February 27, 2014
HealthLawProf Blog is very pleased to welcome the first of our two guest bloggers for the month of March, Professor Jonathan Kahn:
Jonathan Kahn is Professor of Law at Hamline University School of Law. He holds a Ph.D. in U.S. History from Cornell University and a J.D. from the Boalt Hall School of Law, University of California, Berkeley. His current research focuses on the intersections of law, race, and genetics, with particular attention to how regulatory mandates intersect with scientific, clinical and commercial practice in producing and classifying genetic information in relation to racial categories. He is the author of Race in a Bottle: The Story of BiDil and Racialized Medicine in a Post-Genomic Age (Columbia University Press, 2012).
You may view his research on his SSRN Author page: http://ssrn.com/author=180388
HealthLawProf Blog extends a warm welcome to the second of our two guest bloggers for March, Associate Professor Ann Marie Marciarille:
Ann Marie Marciarille is an associate professor of law specializing in health care law. Her research interests are in health care regulation and finance with a particular interest in health care reform. Before joining UMKC, she had a long career as health law attorney, including 10 years as a health care antitrust prosecutor for the California Attorney General’s office and several years as a legal services attorney specializing in health care matters.
Professor Marciarille is a summa cum laude graduate of Amherst College and a cum laude graduate of Harvard Law School, where her studies were focused on public interest representation. She also holds a Masters in Theology, specializing in ethics, from Harvard Divinity School.
She has published articles on Medicare reform, health care finance reform and health care provider quality issues. Professor Marciarille taught Health Law, Health Care Reform, Elder Law, Disability Law, and Public Health Law at the University of California, Hastings College of the Law, Boalt Hall/Berkeley Law School and Pacific McGeorge School of Law.
From the Petrie-Flom Center:
In connection with our work on a sponsored research project with the National Football League Players Association, the Petrie-Flom Center seeks to hire a Senior Law and Ethics Associate immediately; please note that this is a distinct position from the one we recently advertised working with Harvard Catalyst on clinical and translational research.
We are seeking a full-time doctoral-level hire (J.D., M.D., Ph.D., etc. in law, ethics, public health, social science, or other relevant discipline) with extensive knowledge of and interest in legal and ethical issues related to the health and welfare of professional athletes. The position will be funded for at least two years, with renewal likely for an additional year or more.
View the full job description and apply here.
As I wrote in an earlier post, Pennsylvania is seeking to predicate an agreement to participate in the Affordable Care Act’s Medicaid expansion on receipt of a federal waiver that would allow the state require “able-bodied” members of its proposed Medicaid expansion population to be either employed or actively seeking work. A number of Missouri legislators are now making a similar, harsher proposal in a new expansion bill. HB 1901, co-sponsored by Reps. Torpey, Barnes, Grisamore, Hampton, Higdon, Molendorp, and Walker, would extend benefits to adults under the age of 65, but directs the department to “apply for a Section 1115 waiver to require workforce participation of individuals otherwise eligible for MO HealthNet such that eligible individuals who are not elderly, disabled, or medically frail shall provide proof of workforce participation. Individuals who fail to provide proof of workforce participation shall be deemed ineligible.”
While the provision is apparently intended to apply only to the expansion population, the language used to describe that population – “all individuals otherwise eligible for MO HealthNet” – renders that interpretation ambiguous. But regardless of its actual referent, work ought never to be an appropriate requirement to impose upon Medicaid beneficiaries. While not all uninsured individuals in the national expansion population work, most do. And employment may not be reasonably feasible for at least some of those who are unemployed, due to disability, caretaking responsibilities, or other issues.
One might argue that a work requirement ought not to be any hardship to those who in fact are employed. However, imposing a work requirement for Medicaid is offensive to all Medicaid beneficiaries. It assumes that, unlike those who have some other source of health coverage, Medicaid beneficiaries are lazy, freeloading, or irresponsible – that if only they lived their lives appropriately, they would be able to get coverage on their own through a respectable and more generously compensated job. It is akin to state laws requiring drug testing for cash welfare applicants. Even though at least one study found that a smaller percentage of welfare recipients in Florida tested positive for drugs than the general population, all welfare applicants are damned as suspected drug addicts through the requirement. The U.S. District Court for the Middle District of Florida recently struck down Florida’s drug test requirement for cash welfare applicants, holding it to impose an unconstitutional warrantless and suspicionless search. While obviously not constitutionally analogous, work requirements share a number of similar, spurious policy justifications, and as such should be rejected.
-Guest Blogger Associate Professor Laura Hermer
Tuesday, February 25, 2014
Global Health Governance: Call for Submissions for special issue on Framework Convention for Global Health
Global Health Governance will be publishing a special issue on a proposed Framework Convention on Global Health (FCGH) in December 2014. The proposal for an FCGH would create a new international framework, grounded in the international human right to health, that would support health at the national and global levels.
For this FCGH special issue, Global Health Governance invites submission of theoretical and empirical policy research articles that examine and analyze how the FCGH could improve health through improved governance and realization of the right to health. We have particular interest in articles on 1) defining and articulating the underlying normative aspects of the FCGH and the prospects of implementing these norms across global, national, and local levels; 2) global health diplomacy and the process of drafting a Framework Convention; 3) institutional and political implementation concerns; 4) the roles of and relationship between state and non-state actors in the formulation and implementation of the FCGH; 5) the connection between existing norms and institutions and the FCGH; 6) strategies and challenges for integrating the norms of the FCGH into existing global, national, and local institutions; 7) accountability under the FCGH; and 8) strategies and challenges for using the FCGH to reshape or build on existing global, national, and local institutions to advance health equity and realization of the right to health. We welcome diverse perspectives on the FCGH, including articles that are supportive or critical of this proposed Framework Convention, as well as articles that propose innovative or alternative models to address global governance for health.
On March 14-15, 2014, Arizona State hosts the Fifth Annual Legal Scholars Conference:
The purpose of the conference is to gather together “juniorish” academics (generally, those who have been in the academy for fewer than 10 years) to receive constructive feedback on their scholarship, to network, and to enjoy Arizona’s March weather!
We charge no registration fees and provide for free: (1) dinner and drinks the night before (Friday March 14th); (2) a spring training game (Cubs vs. Dodgers) or outing to the PHX Zoo for interested attendees; and (3) breakfast and lunch the day of the conference (Saturday March 15th). Attendees, however, must cover all travel and hotel costs.
Each registrant will be asked to submit something for comment and feedback. The paper can be a draft of a work in progress, a recently accepted piece, or even just a half-baked idea; the only limitation is that it should not be a piece that is already published (because the whole point of the conference is to get feedback to improve the piece). Based on the subject of the paper, each conference attendee will be assigned to a group of other attendees with similar scholarly interests. The members of each group will read the papers of the other members of the group, and then provide feedback on those papers. In the past five years, we have had more than 200 law professors from around the country attend and exchange ideas—join this ever-growing group and come to the conference on March 14 & 15th!
If you have any other questions, feel free to email Dean Doug Sylvester at email@example.com.
Hat tip Paul Caron
Monday, February 24, 2014
Guest Blogger Associate Dean and Professor Elizabeth Pendo: Consumer Ratings of Accessible Health Care Offices and Facilities
Learning where people with disabilities seek care, as well as the physical, equipment, and attitudinal barriers they face there, is important. Section 4302 of the Affordable Care Act (ACA) requires the Department of Health and Human Services (HHS) to identify locations where individuals with disabilities access primary, acute, and long-term care, the number of providers with accessible facilities and equipment, and the number of employees trained to care for patients with disabilities. Unfortunately, there has been little progress on this requirement.
Surveys and interviews with patients with disabilities should play a role in this effort. Last week, I shared a study that used a secret shopper method to quantify the lack of access to subspecialists for people with mobility impairments. Other studies of health care offices and facilities, summarized in my prior work here and here, have documented similar barriers, including architectural obstacles and a lack of accessible medical and diagnostic equipment. The studies also reveal a lack of awareness and knowledge about the American with Disabilities Act’s (ADA) requirement of equal access in the health care setting. Accordingly, HHS should not rely on surveys of providers alone, and instead should incorporate other methods, such as surveys and interviews of patients and independent, on-site inspections.
Andra le Roux-Kemp, Deferred Consent in Emergency Care Research: A Comparative Perspective of South African Regulations, 14 J. Phil. Sci. & L. 47 (2014).
I am spending a sabbatical semester as a scholar in residence at the Centers for Disease Control and Prevention (CDC). Several CDC employees have told me that they worry that the public outcry against the National Security Agency’s (NSA) surveillance practices will transform into public opposition to the government’s efforts to use medical records for research and public health purposes. Indeed, long before revelations about NSA surveillance, privacy advocates expressed grave concerns about the privacy implications of health information technology. What I want to emphasize in this posting is that while informational privacy must be safeguarded in every possible way, we ought not prioritize it to such an extent that it prevents us from enjoying the considerable benefits of data analysis. Rather, we should promote both privacy protection and data use simultaneously.
Friday, February 21, 2014
In a concise opinion, Judge Spencer of the Eastern District of Virginia upheld the IRS regulations facilitating tax credits for insurance purchased through federally-run health insurance exchanges. The decision in King v Sebelius cited frequently to Halbig v. Sebelius (which I wrote about briefly here) and proceded much as that decision did. The plaintiffs were individuals who would have been exempt from purchasing health insurance on the Exchanges but for the tax credit offered by the federal government for purchasing health insurance. Their argument was that the ACA only permits tax credits for insurance purchased on state-based exchanges, not federally-run exchanges. Judge Spencer, like Judge Friedman, analyzed the IRS regulations under Chevron's first prong and found that the statute was clear in its intent to create premium tax credits for all Americans purchasing health insurance, regardless of the purveyor of the exchange. Although the court found the statute to be unambiguous, it analyzed the second Chevron prong and found that deference would be appropriate if it were at issue. The court noted that the plaintiffs' claims rendered many absurdities in the ACA that were too tenuous to bear serious consideration, and it granted the United States' request for summary judgment.
The Halbig and King decisions are on solid legal footing, and they have both noted the absurdity of the statutory interpretation being driven by Adler and Cannon. Once again, the real question is what will happen next. Briefs were already submitted in the Halbig appeal. An appeal in King would not be surprising. And, the decision in NFIB v. Sebelius revealed that the Supreme Court is not above absurd statutory interpretation. (Refresher: the Medicaid expansion was not "Medicaid enough" to pass the Court's new coercion doctrine, but it was "Medicaid enough" for the remedy of severing the Secretary's power to enforce the Medicaid expansion against the states, which was found in the original Medicaid Act. See my co-authored work with Weeks Leonard and Outterson, here.)
Thursday, February 20, 2014
The Hall Center for Law and Health at Indiana University McKinney School of Law is proud to welcome Professor Maxwell Mehlman to receive the McDonald Merrill Ketcham Award for Excellence in Law & Medicine for 2014. For more details please see here.
Professor Mehlman serves as Distinguished University Professor, Petersilge Prof. of Law and Director of the Law-Medicine Center, Case Western Reserve School of Law, and Professor of Biomedical Ethics, Case Western Reserve School of Medicine. His lecture is entitled "Are Physicians Fiduciaries for Their Patients?" Professor Mehlman will then join a panel discussion on the topic. The panelists are Mary Ott, M.D., M.A., AssociateProfessor of Pediatrics, Indiana University School of Medicine, Joshua Perry, J.D., M.T.S., Assistant Professor of Business Law and Ethics and a Life Sciences Research Fellow, Indiana University Kelley School of Business (Bloomington) and Mark Rothstein, J.D., Herbert F. Boehl Chair of Law and Medicine, University of Louisville Louis D. Brandeis School of Law, and Director of the Institute for Bioethics, Health Policy, and Law, University of Louisville School of Medicine.
Wednesday, February 19, 2014
Life insurance provides important financial support for surviving family members when income-providers die. Although the surviving spouse is entitled to a Social Security widow(er)’s benefit—the Social Security benefit amount of the deceased spouse, if greater than the benefit amount of the surviving spouse—death may bring a significant drop in Social Security income. If couples were each receiving equal Social Security benefits, for example, the survivor will receive only half of what they were receiving as a couple—but it is unrealistic to expect that expenses will be cut in half by the death of one spouse. Yet life insurance receives far less statutory protection than health insurance; for example, the Genetic Information Non-Discrimination Act does not apply to either life or disability insurance. A recent 6th Circuit decision concluded that ERISA did not protect retirees against cutbacks in life insurance when employer promises were ambiguous. Haviland v. Metropolitan Life Ins. Co., 730 F.3d 563 (6th Cir. 2013).
The plaintiffs in Haviland were General Motors retirees who had been salaried employees. GM reduced their life insurance benefits to a maximum of $10,000. Some 42,000 of these retirees, those retiring between October 1, 1997, and December 1, 2011, have also faced pension plan changes; on June 1, 2012, these retirees were offered the choice of taking a lump sum benefit (supposedly calculated to be the actuarial equivalent of their prior defined benefit plan) or an annuity purchased by GM from Prudential. These retirees and their surviving spouses also lost GM health care benefits and Medicare part B payments at the age of 65, although with an offset of $300/month presumably to cover increased health care costs. So it is understandable that they were concerned about the additional cutback in the financial buffer provided by life insurance in case of death.
GM’s promises to retirees sent conflicting messages. On the one hand, GM reserved the right to make changes in the plan. On the other hand, the letter from Metropolitan Life, the issuer of the life insurance policy, stated that the plan “will remain in effect for the rest of your life,” without any further payment. The plaintiffs contended that MetLife had violated its obligations under ERISA when the plan changed. As important background, ERISA preempts state law claims, so plaintiffs’ state law claims such as breach of contract were dismissed; and ERISA does not provide vesting standards for life insurance, health insurance, or other benefits coming under the “welfare” plans provisions of the statute rather than the pension provisions. The 6th Circuit rejected all of the plaintiffs’ claims. For example, although recognizing that promissory estoppel claims can be brought against ERISA plan fiduciaries, the court limited this possibility to cases in which the plan documents did not unambiguously reserve the right to alter plan benefits. The court also concluded that GM had not violated ERISA fiduciary duties in what plaintiffs had been told; at the time the letters were sent, they correctly represented the plan in place at the time, even though the plan was subject to later change.
Retiree benefits impose costs that in many cases are considered to be unsustainable. However, individuals cannot undo retirement; once retired, they and their spouses are stuck with the circumstances of their retirement. Employers, by contrast, are not stuck, at least with welfare plans when they have reserved rights to change or discontinue. This asymmetry with respect to retiree welfare plans will only continue to exacerbate the impoverished economic circumstances of many retirees.