HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Saturday, February 19, 2005

Keeping Families Together

The Bazelon Center for Mental Health Law reports on the re-introduction of its proposed legislation entitled, "Keeping Families Together" in Congress.   Re-introduced by one of its sponsors Susan Collins (R-Me), the legislation would aid states in encouraging agencies that serve children with mental health issues to work together to provide education, child welfare and juvenile justice.  Most importantly, the bill would increase the availability of home- and community-based services for these children to prevent them from having to be separated from their families in order to receive the care they require.  The legislation is in response to a 2003 Government Accountabilit Office report that found "at least 12,700 cases in fiscal year 2001 of children placed in child welfare and juvenile justice systems so they could access needed mental health services."   This sounds like good family values legislation so I wonder what held it up last year.   Hopefully it wasn't budget issues because those clearly haven't improved at either the state or federal level.  [bm]

February 19, 2005 | Permalink | Comments (0)

NPR Story on Child Euthanasia Debate

This morning's "Weekend Edition" program on NPR had an enlightening discussion of the debate among "[p]arents, doctors, ethicists and politicians in Holland and in Belgium [who] are discussing making euthanasia legal for children suffering from terminal illnesses. Although the issue has been polarizing, legislation has already been introduced in the Belgian Parliament that would enable individuals under 18 years to ask for euthanasia."  [tm]

February 19, 2005 | Permalink | Comments (0)

Friday, February 18, 2005

Ecstasy for Troops

No, this isn't a new recruiting tool to increase our volunteer army, but rather a decision by the Food and Drug Administration to help American soldiers traumatised by their fighting experiences in Iraq and Afghanistan.  According to the Guardian,  the FDA has approved an experiment to see if MDMA, the active ingredient in ecstasy can treat post-traumatic stress disorder, including symptoms such as flashbacks and recurring nightmares. PTSD is a disorder that approximately 30 percent of combat veterans experience sometime during their lives.  According to the article,

Scientists behind the trial in South Carolina think the feelings of emotional closeness reported by those taking the drug could help the soldiers talk about their experiences to therapists. Several victims of rape and sexual abuse with post-traumatic stress disorder, for whom existing treatments are ineffective, have been given MDMA since the research began last year.

Michael Mithoefer, the psychiatrist leading the trial, said: "It's looking very promising. It's too early to draw any conclusions but in these treatment-resistant people so far the results are encouraging. "People are able to connect more deeply on an emotional level with the fact they are safe now."

Obviously there are serious concerns by some that by experimenting with such drugs sends the wrong message, a message about their safety.  It should be interesting to see how these trials progress.   For those who wish to follow-up, Dr. Mithoefer will soon be advertising for veterans to participate in his studies.  [bm]

Thanks to BoingBoing and Majikthise for the information.

February 18, 2005 | Permalink | Comments (0)

Abusive ADA Litigation

The ABA website, ABA net, reports a Senior U.S. District Judge Edward Rafeedies' accusation at a hearing last week that the Frankovich Group, a San Francisco law firm, had engaged in "plainly unethical" conduct  and a "clear pattern of abuse" in its representation of Mr. Jarek Molski, a disabled man in a wheelchair.  Mr Molski had filed approximately 400 lawsuits, almost 200 of them nearly identical, against California businesses since 1998 for alleged violations of the Americans With Disabilities Act.  He also declared that Mr. Molski was a "vexatious litigant" who would have to get a judge's permission before filing any more suits under the ADA in the Central District of California. 

I agree that the number of cases appears rather large, but I also agree with Washington University law school professor Samuel Bagenstos, when he states,

"The reason why these plaintiffs and these lawyers are able to do what they’re doing," . . ."is that even today, 15 years after the statute was adopted, there is still such widespread noncompliance with [the public accommodations provision] of the ADA."

Although in these many case, Mr. Molski's attorneys did go about enforcing the ADA in a manner that appears questionable, it is frustrating for many that the ADA's architectural barrier provisions have yet to be taken seriously.  [bm]

Thanks to Jim Tomaszewski for this article.

February 18, 2005 | Permalink | Comments (0)

Thursday, February 17, 2005

The Pope, His Health and Thoughts about Death

William Buckley wrote a column last week in which he discussed some of his views about death and dying and the new technologies that permit us to prolong out lives and some of the harms that come about due to these technologies.   He specifically focused on the health of Pope John Paul and explained his reasons for no longer praying for his recovery.   His column concludes,

So, what is wrong with praying for his death? For relief from his manifest sufferings? And for the opportunity to pay honor to his legacy by turning to the responsibility of electing a successor to get on with John Paul's work? Muriel Spark commented in "Memento Mori": "When a noble life has prepared old age, it is not decline that it reveals, but the first days of immortality." That cannot be effected by the hospital in which the pope struggles.

In response to that article, Phil Steiger of the "Every Thought Captive" blog provides some further insight into the use of new technologies to extend people's lives, perhaps in ways that are unhealthy rather than healthy.  He states,

I agree that one of the clear benefits of biotechnology is health-I am personally counting on science to save me from diseases such as Alzheimer’s. The current situation with the Pope, however, provides us with a possible example of life extending technologies not being an unqualified good. We might be up against a wall that will be difficult, if not impossible, to overcome-the inevitability of aging and decay. There are two important and conflicting forces at play when we decide to extend life beyond what may be “natural.” On the one hand is the inevitable fact that as we age we decay and deteriorate physically, and on the other hand are technologies which seek to extend physical life. In other words, the promise of life extending technologies is that we will lead longer lives healthier-we will be younger longer. But the reality at this point is that we lead longer lives without our health-we are older longer. (emphasis in original).

The two pieces provide some helpful guidance on how various individuals with differing backgrounds view death and long life.  [bm]

February 17, 2005 | Permalink | Comments (2)

Judge Posner and the Abolition of Medicare

On Gary Becker's and Judge Posner's blog, Judge Posner poses some interesting ideas regarding the future of  Medicare and Medicaid.  He states,

. . . .  As a matter of economic principle (and I think social justice as well), Medicare should be abolished. Then the principal government medical-payment program would be Medicaid, a means-based system of social insurance that is part of the safety net for the indigent. Were Medicare abolished, the nonpoor would finance health care in their old age by buying health insurance when they were young. Insurance companies would sell policies with generous deductible and copayment provisions in order to discourage frivolous expenditures on health care and induce careful shopping among health-care providers. The nonpoor could be required to purchase health insurance in order to prevent them from free riding on family or charitable institutions in the event they needed a medical treatment that they could not afford to pay for. People who had chronic illnesses or other conditions that would deter medical insurers from writing insurance for them at affordable rates might be placed in “assigned risk” pools, as in the case of high-risk drivers, and allowed to buy insurance at rates only moderately higher than those charged healthy people; this would amount to a modest subsidy of the unhealthy by the healthy.

There are some interesting thoughts in the entire piece and I highly recommend it.  It is time to re-think how we can provide greater health coverage, if not universal health coverage, for our population.   I don't necessarily say that I agree with this (and I am not sure that insurers would ever agree to such reforms) but I do think that it is helpful to have intelligent individuals debate the manner in which we provide health care and urge solutions that would provide greater access.  [bm]

February 17, 2005 | Permalink | Comments (1)

Wednesday, February 16, 2005

Global Reproduction

V2_title_large The New England Journal of Medicine has an interesting article on the globalization of reproductive health care and the new tourism that it has created. 

To understand these issues, we must understand the role governments play in regulating reproduction. Historically, reproduction has been largely a private affair — occurring out of view of any authority and beyond government's reach. Yet time and again, governments have extended their power into the reproductive realm, determining, for example, the illegitimacy of certain births or the illegality of certain modes of birth control. Even in the United States, where privacy ostensibly reigns supreme, state governments have traditionally wielded authority over such intimate issues as marriage, contraception, and abortion. Meanwhile, state and federal governments have played a steadily expanding role in allocating and providing health care services. Reproductive medicine, therefore, attracts government in two different guises: as an arbiter of reproduction and as a regulator of health care.  . . . .

After reviewing some of the conflicting international norms and laws that are pervasive in this area of artificial reproductive technologies, the article suggests a new way to approach this globalization of reproductive health care.  It calls for minimal federal regulation and oversight of this emerging industry as well as a new awareness and transparency to these issues.  The article states,

Which leaves us with a final option — a messy one, but one that offers the best chance for bringing public policy and order into the realm of assisted reproduction. This path would involve a combination of minimal federal guidelines and increased oversight by individual states. It would mean encouraging the federal government to periodically release guidelines for assisted reproduction, outlawing procedures that Americans deem abhorrent (reproductive cloning, for example, or human–nonhuman chimeras) and imposing the kind of safety standards that prevail in other areas of medicine. Presumably, some of these regulations could subsequently be agreed upon at the international level, curtailing the most egregious prospects for reproductive tourism. Meanwhile, state legislatures would more actively review the fertility procedures practiced in their states. Rather than leaving these decisions to the courts or the vagaries of the open market, they would tackle the complex process of making public policy — determining, for example, whether sex selection is acceptable, whether insurance companies should cover IVF as a medical necessity, and when procedures for assisted reproduction go too far. If states were to make the "wrong" decision, the combined weight of local lobbying and intrastate competition would most likely force a reversal before too long. 


February 16, 2005 | Permalink | Comments (1)

Country Music Concert as Covered Medicare Item?

Recent articles in the Atlanta Journal-Constitution and Iowa discuss some of HealthSouth's more innovative billings to Medicare.  The Iowa Channel puts it best: 

Painkillers. A wheelchair. A concert by Faith Hill. Which of these is covered by Medicare? All of them, according to the people at HealthSouth.   Some people say music is a tonic to them, but Medicare isn't buying HealthSouth's defense of some artist billing.

According to a newspaper in Birmingham, the health agency booked Hill, Reba McEntire, Amy Grant, Brooks and Dunn, KC and the Sunshine Band, and the country band Alabama for management meetings, then billed Medicare for the cost. McEntire and Alabama were also booked for annual management meetings at Disney World between 1996 and 2001, then billed to Medicare.

A $325 million settlement announced by the Justice Department in December said HealthSouth acknowledged improperly billing Medicare for lavish entertainment and other expenses. But this is the first mention of who performed at the meetings.

Former HealthSouth CEO Richard Scrushy is currently on trial on charges he directed the apparently massive accounting fraud that existed at the company.  He has defended the meetings at Disney World as providing because managers shared cost-savings ideas.   If we didn't understand before, it is becoming increasingly clear why HealthSouth became a target of government investigation. [bm]

February 16, 2005 | Permalink | Comments (0)

GAO Proposes Reexamination of "the Base of the Federal Government"

The GAO has published a new report that proposes re-thinking the federal government's role in 12 areas of national life, including (surprise) health care: "21st Century Challenges: Reexamining the Base of the Federal Government," GAO-05-325SP (Feb. 2005). 

The GAO begins with an observation already made by many observers:

[T]he fiscal policies in place today will—absent unprecedented changes in tax and/or spending policies—result in large, escalating, and persistent deficits that are economically unsustainable over the long term. This conclusion is based on the results of GAO’s long-term budget model, which the agency has used since 1992. Over the long term, the nation’s growing fiscal imbalance stems primarily from the aging of the population and rising health care costs. These trends are compounded by the presence of near-term deficits arising from new discretionary and mandatory spending as well as lower revenues as a share of the economy. Absent significant changes on the spending and/or revenue sides of the budget, these long term deficits will encumber a growing share of federal resources and test the capacity of current and future generations to afford both today’s and tomorrow’s commitments. Continuing on this unsustainable path will gradually erode, if not suddenly damage, our economy, our standard of living and ultimately our national security. Addressing the nation’s long-term fiscal imbalances constitutes a major transformational challenge that may take a generation to resolve.

Having identified health care expenditures as the primary driver of the unsustainable long-term deficits, it should come as no surprise that the GAO has a very long list of health care commitments that it proposes should be reviewed and reconsidered.  Medicare, Medicaid, the VA system, and DOD are the primary areas of concern:

  • The impact that federal health care outlays have on the federal budget cannot be overstated. Medicare and Medicaid—entitlement programs for which federal spending is mandatory—are consuming increasing shares of the federal budget and shrinking the government's flexibility to pay for other federal obligations, such as national and homeland security, environmental cleanup, and disaster assistance. Today, Medicare and Medicaid's combined share of the federal budget—at 20 percent—has more than doubled in the last 2 decades. Moveover, long-term care for chronic illness will be a growing challenge as the aged population continues to grow. In addition, health care expenditures for the Departments of Defense (DOD) and Veterans Affairs (VA) are increasing. DOD’s health care spending has gone from about $12 billion in 1990 to about $26 billion in 2003—in part, to meet additional demand resulting from program eligibility expansions for military retirees, reservists, and the dependents of those 2 groups and for the increased needs of active duty personnel involved in conflicts in Iraq, Bosnia, and Afghanistan. VA’s expenditures have also grown—from about $12 billion in 1990 to about $24 billion in 2003—as an increasing number of veterans look to the VA to supply their health care needs.  THEREFORE:
  • How can we make our current Medicare and Medicaid programs sustainable? For example, should the eligibility requirements (e.g., age, income requirements) for these programs be modified?  How can the federal government best leverage its purchasing power for health care products and services?  What options are there for rethinking the federal, state, and private insurance roles in financing long-term care? How can the benefits, eligibility, and health delivery systems of VA and DOD be optimally structured to ensure quality and efficiency? For example, should changes in eligibility and the benefit structure of VA and the military health system be considered? With billions of federal dollars going to DOD and VA for health care, what options are available to reduce spending growth through increased collaboration in, and integration of, health care delivery between those two agencies?

There are many, many more questions sprinkle throughout the 6 pages devoted to health care issues, including the continued use of health care tax incentives, how to leverage technology to increase access and improve quality without sacrificing privacy interests, cost-effective responses to emerging infectious diseases, and whether to continue America's central role in the WHO's efforts to contain infectious diseases such as SARS and HIV/AIDS.

If this document is used as it is intended - to provide a blueprint for the federal government's re-examination of its role in promoting health at home and abroad - these six pages are going to be required reading for us all.  [tm]

February 16, 2005 | Permalink | Comments (0)

Tuesday, February 15, 2005

Flu Shots and the Elderly

In a new study by the National Institute of Allergy and Infectious Diseases (reported by Reuters and available in the Wall Street Journal (subscribtion only)), doctors found that flu vaccinations did not lower death rates of elderly individuals.  The study concludes: 

"We conclude, therefore, that there are not enough influenza-related deaths to support the conclusion that vaccination can reduce total winter mortality among the U.S. elderly population by as much as half," study author Lone Simonsen wrote in The Archives of Internal Medicine.

The Wall Street Journal (WSJ) article reports further that some doctors believe that vaccinating children may actually be a better strategy for protecting the entire population.  According to the study's lead author, Lone Simonsen, "The study should influence the nation's flu-prevention strategy, perhaps by examing vaccination to schoolchildren, the biggest spreaders of the virus."  Spokespeople for the Centers for Disease Control, however, noted that no policy changes will occur based on one study and they have changed advisory notices on who should receive the flu vaccine for next fall.  However, the WSJ notes that a second study by Emory University's Walter Orenstein(to be published in the American Journal of Epidemiology) also advocates for vaccinating schoolchildren because the flu vaccine is less effectinve in the elderly than in younger people.  [bm]

February 15, 2005 | Permalink | Comments (0)

New FDA Chief

Dr. Lester M. Crawford, the former acting commissioner of the Food and Drug Administration, has been named the new head of the agency.  President Bush announced his appointment yesterday and immediately Congress as well as those who work within or monitor the pharmaceutical industry expressed some mixed reactions.  Dr. Crawford took over last March for Dr. Mark McClellan who left to become head of the Centers for Medicare and Medicaid.  Since then, he has had to deal with several contentious issues, most notably the vioxx/celebrex drug monitoring lapse.   Some speculation exists that he was appointed at this time due to the upcoming drug-advisory commitee hearings on drug safety and how the agency has handled drug safety concerns.

On a related note, CNN is reporting that Dr. David Graham, who testifed earlier concerning vioxx and its dangers to heart health, now claims that he cannot testify and present further findings of the potential dangers of certain pain relievers during the upcoming drug advisory hearings because he feels that his job may be threatened. 

It doesn't sound like the FDA is a place that you would want to work right now.  [bm

February 15, 2005 | Permalink | Comments (1)

Kaiser Publishes Summary of Final Medicare Drug Benefit Rule

The Kaiser Family Foundation has published a useful summary of the semi-massive Jan. 28 final rule implementing the Medicare pharmaceutical benefit added by Congress in 2003 and phasing in beginning in 2006.  [tm]

February 15, 2005 | Permalink | Comments (0)

Monday, February 14, 2005

Bioethics Issues in the Movies

I don't know if you are planning to use some of the issues potrayed in Million Dollar Baby in your health law or bioethics classes.  If you plan to, you should read this editorial by Professor Susan M. Wolf.  A spoiler alert applies to this editorial if you haven't seen the movie and still want to without learning the shocking surprise that it contains.  Professor Wolf provides an excellent (and clarifying) response to those who claim that Million Dollar Baby has a political agenda and is asserting it bluntly.  She points out correctly that the practice that occurs in the movie is not legal anywhere and unlikely to be anytime soon.   She also points out the ways in which responsible individuals could have changed the ending through counseling and other means. I plan to talk to my class about the topic in mid-March when hopefully most of them will have seen the movie.  I highly recommend her editorial.  [bm]

February 14, 2005 | Permalink | Comments (0)

Happy Valentine's Day!

Go Eat Chocolate!!  Ok, maybe not too much chocolate but even some health experts say that a little bit is not too bad for you (I am not quite sure that I buy the alleged health benefits of chocolate but . . . . I would be willing to participate in a clinical trial requiring some tastings to see if it were true).  [bm]

February 14, 2005 | Permalink | Comments (0)

Sunday, February 13, 2005

Minimally Conscious Patient Starts Talking 20 Years Post-Injury

The Associated Press reports (courtesy of MSNBC) that a 38-year-old Kansas woman has started talking 20 years after an accident left her unable to respond to questions no one knew she understood other than through blinks of her eye. 

A week ago, [Sarah Scantlin's] parents got a call from Jennifer Trammell, a licensed nurse at the Golden Plains Health Care Center. She asked Betsy Scantlin if she was sitting down, told her someone wanted to talk to her and switched the phone to speaker mode:

“Hi, Mom.”

“Sarah, is that you?” her mother asked.

“Yes,” came the throaty reply.

“How are you doing?”


“Do you need anything,” her mother asked her later.

“More makeup.”

“Did she just say more makeup?” the mother asked the nurse

After 20 years in a nursing home, "Scantlin still suffers constantly from the effects of the accident. She habitually crosses her arms across her chest, her fists clenched under her chin. Her legs constantly spasm and thrash. Her right foot is so twisted it is almost reversed. Her neck muscles are so constricted she cannot swallow to eat."

It's a heart-warming story, but of interest to bioethicists and health lawyers for other reasons as well. 

First, it is a reminder that we are a long way from understanding the rehabilitative potential of the human brain, or even the plasticity of the human brain.  As a discipline, brain study is still in its infancy, and we have a lot to learn. 

Second, this is the sort of story that gives the families of brain-damaged patients enormous -- and in some cases unrealistic -- hope.  According to Sarah's doctors, the restoration of her ability to speak may have occurred through the spontaneous regeneration of neural pathways that had been destroyed at the time of her accident.  Last week's article in Neurology suggests that the language center in the the brains of some minimally conscious patients is a lot more intact than we've ever before suspected, but restoration of the speech center in such a patient is the rarest of rarities.  In patients diagnosed to be in a persistent vegetative state (or even to be brain dead), however, there is no evidence of any such restorative capacity.  That will not stop families from citing the case of Sarah Scantlin in support of their belief that PVS or brain-dead patients retain the potential to speak.  [tm]

February 13, 2005 | Permalink | Comments (0)

JCAHO Backs Tort Reform

On Thursday, the Joint Commission issued its report on recommended reforms to increase patient safety, "Health Care At The Crossroads: Strategies for Improving the Medical Liability System and Preventing Patient Injury."  In addition to a grab-bag of operational reforms, the report recommends tort-reform measures, as well:

Advocate for court-appointed, independent expert witnesses to mitigate bias in expert witness testimony.

  • Conduct demonstration projects of alternatives to the medical liability system that promote patient safety and transparency, and provide swift compensation to injured patients
  • Encourage continued development of mediation and early-offer initiatives
  • Prohibit confidential settlements – so-called “gag clauses” – that prevent learning from events that lead to litigation
  • Redesign or replace the National Practitioner Data Bank

Partly because of the prominence of JCAHO in the health-care world, and partly because of the members of the Roundtable that produced these recommendations, this report is going to get serious attention, at precisely the same time President Bush has made tort reform on of his top legislative priorities.  Members included:


February 13, 2005 | Permalink | Comments (0)