HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Saturday, February 4, 2006

Health Appropriations Bill Passes in House

The Conference Committee's budget reconciliation bill, S. 1932, passed on Wednesday, 214-214.  This is the same version that passed the Senate in November (see my earlier post on this), so it's on its way to the President for his signature. In addition to the features described below by the Kaiser Family Foundation's Daily Health Policy Report, the law will require HHS to continue the moratorium on enrolling new specialty hospitals for up to six months after the date of enactment.  Here's Kaiser's summary of other major features of the bill:

The House on Wednesday voted 216-214 to approve the fiscal year 2006 budget reconciliation bill (S 1932), which contains more than $39 billion in cuts, including $6.4 billion from Medicare and $4.8 billion from Medicaid, the New York Times reports (Stolberg, New York Times, 2/2). The House on Dec. 19, 2005, voted 212-206 to approve the bill, but procedural moves in the Senate required the House to vote on the bill a second time before the legislation could move to President Bush for consideration. The Senate on Dec. 21, 2005, voted 51-50 to approve the legislation (Kaiser Daily Health Policy Report, 2/1). All House Democrats voted against the bill, and all but 13 Republican voted in favor of it. Four Republicans who voted in favor of the bill in December voted against it on Wednesday (Fagan/Hurt, Washington Times, 2/2). Under the Medicaid provisions of the bill, most beneficiaries would be required to pay higher copayments for health care services and could be denied service for lack of payment. In addition, penalties would increase for seniors who transfer assets before they apply for long-term Medicaid coverage. The bill would make seniors with home equity of more than $500,000 ineligible for nursing home benefits. In addition, the bill would increase Medicaid coverage for disabled children whose families earn up to 300% of the federal poverty level, beginning Jan. 1, 2007 (Kuhnhenn, Philadelphia Inquirer, 2/2). Provisions affecting Medicare include higher premiums for beneficiaries, with greater increases for higher-income beneficiaries, and a freeze in payments for home health care providers (New York Times, 2/2). The bill also cancels a scheduled cut in Medicare reimbursements to physicians and provides medical care to some hurricane survivors (Dennis, CQ Today, 2/1).


February 4, 2006 | Permalink | Comments (0) | TrackBack (0)

Friday, February 3, 2006

Teenage Sex: Reportable Child Abuse?

Kansas says yes, and there's a fight going on in federal court to determine whether that really means health care professionals must report their under-age patients' sexual activity to child protective services.  Read all about it in the NY Times.

The controversy stems from an opinion of the Kansas Attorney General (No. 2003-17), interpreting the child-abuse reporting statute (KSA 38-1522).

For more on this story, the Wichita Eagle seems to be all over it.  [tm]

February 3, 2006 | Permalink | Comments (0) | TrackBack (0)

It's Unanimous: Federal Partial Birth Abortion Ban is Unconstitutional

Every federal court that's looked at the federal partial-birth abortion ban (Pub. L. No. 108-108, 117 Stat. 1201) has concluded that its failure to include an exception to protect the health of the woman means it is unconstitutional.  The Second and Ninth Circuits handed down their decisions on Jan. 31, joining the 8th Circuit, which came to the same conclusion last July.  That's three district court defeats and three court of appeals defeats and no wins for DOJ on this one.  There's a cert. petition in the 8th Circuit case that is pending with SCOTUS right now (No. 05-380).  Without a split in the circuits, the Court could still grant review based upon the importance of the subject matter (Rule 10(c)).  Assuming Scalia, Thomas, and now Alito would be interested in getting to this issue, the question is whether there is a fourth justice willing to vote to grant cert.  It's come up in the Jan. 6 and Jan. 20th conferences and returned to the pile for another day.  Is that day now? Stay tuned . . . .  [tm]

February 3, 2006 | Permalink | Comments (0) | TrackBack (0)

Comparative Law IV: Health Care Corruption

Interesting report from Wednesday's Jurist:

Transparency International [official website], an international corruption watchdog group, said Wednesday in its 2006 Global Corruption Report [report materials; press release, PDF] that malfeasance in both private and public sector health care systems around the world was rampant and that it included increased production of counterfeit drugs and bribery and extortion in health care management. The report recommends public access to and independent audits of health care budgets and policies; codes of conduct for health workers and private sector companies and provide ongoing anti-corruption training; independent health care monitoring at the national and international level; and rigorous prosecution of offenders. The study addresses general and financial corruption in particular countries and provides special updates on the US, including campaign finance reform, Sarbanes-Oxley compliance and Congressional ethics.


February 3, 2006 | Permalink | Comments (0) | TrackBack (0)

Naturopaths, Herbalists, and Other CAM Types

Longish article in today's NY Times by Benedict Carey ("When Trust in Doctors Erodes, Other Treatments Fill the Void").  According the article, 14 states license naturopaths; the last time I looked (admittedly, that was 7-8 years ago) the number was a good deal smaller. [tm]

February 3, 2006 | Permalink | Comments (0) | TrackBack (0)

Top 10 SSRN Downloads: Public Health Law & Policy

  1. Tort Reform and Accidental Deaths
    Paul H. Rubin and Joanna Shepherd
    Emory University - Department of Economics and Emory University School of Law
    Date Posted:August 11, 2005
    Last Revised:January 5, 2006
    Working Paper Series
  2. Does Medical Malpractice Reform Help States Retain Physicians and Does it Matter?
    Jonathan Klick and Thomas Stratmann
    Florida State University College of Law and George Mason University, Buchanan Center Political Economy
    Date Posted:November 19, 2003
    Last Revised:December 19, 2005
    Working Paper Series
  3. Mandatory Waiting Periods for Abortions and Female Mental Health
    Jonathan Klick
    Florida State University College of Law
    Date Posted:October 19, 2005
    Last Revised:November 7, 2005
    Working Paper Series
  4. Has Regulatory Devolution Injured American Workers? A Comparison of State and Federal Enforcement of Construction Safety Regulations
    Alison D. Morantz
    Stanford Law School
    Date Posted:July 7, 2005
    Last Revised:December 20, 2005
    Working Paper Series
  5. Sustainable Social Spending
    Assar Lindbeck
    Date Posted:December 5, 2005
    Last Revised:January 19, 2006
    Working Paper Series
  6. The Obesity Epidemic in Europe
    Anna Sanz De Galdeano
    Università degli Studi di Salerno - CSEF, Centre for Studies in Economics and Finance
    Date Posted:November 7, 2005
    Last Revised:November 14, 2005
    Working Paper Series
  7. The Impact of Parental Income and Education on the Health of their Children
    Orla Doyle , Colm Harmon and Ian Walker
    Geary Institute, University College Dublin , University College Dublin - Department of Economics and University of Warwick - Department of Economics
    Date Posted:November 18, 2005
    Last Revised:January 24, 2006
    Working Paper Series
  8. Autopsy on an Empire: Understanding Mortality in Russia and the Former Soviet Union
    Elizabeth Brainerd and David M. Cutler
    Williams College - Department of Economics and Harvard University - Department of Economics
    Date Posted:January 24, 2005
    Last Revised:January 5, 2006
    Working Paper Series
  9. Are there Missing Girls in the United States? Evidence on Gender Preference and Gender Selection
    Jason Abrevaya
    Purdue University - Department of Economics
    Date Posted:October 24, 2005
    Last Revised:October 24, 2005
    Working Paper Series
  10. Society Must Be [Regulated]: Biopolitics and the Commerce Clause in Gonzales v. Raich
    Lewis & Clark Law Review, Vol. 9, No. 4, pp. 853-877, 2005
    John T. Parry
    University of Pittsburgh School of Law
    Date Posted:November 26, 2005
    Last Revised:January 26, 2006
    Accepted Paper Series


February 3, 2006 | Permalink | Comments (0) | TrackBack (0)

Thursday, February 2, 2006

From the "Better Late Than Never" Department

Bill Frist has concluded that the public wants the government to butt out of end-of-life treatment controversies.  (AP/MyWay) [tm]

February 2, 2006 | Permalink | Comments (0) | TrackBack (0)

Michael Porter and Health Care Reform: A Different Kind of Competitive Strategy

A few years ago I blogged on the health-reform ideas of Harvard's Michael Porter, which were prominently displayed in the June 1, 2004, issue of the Harvard Business Review.  Now he's been discovered by Alan Murrary of the Wall Street Journal, whose column unfortunately can be accessed only by paid subscribers.  Fear not, however: the Kaiser Family Foundation's Daily Health Policy Report has provided a nifty summary:

"The health care system seems ripe, not for a grand fix, but for a governmental push in the right direction," but President Bush should examine the work of Harvard Business School professor Michael Porter before he submits his proposals to Congress, Wall Street Journal columnist Alan Murray writes in an opinion piece. Porter last week at the World Economic Forum in Davos, Switzerland, previewed "Redefining Health Care" -- a book scheduled for release in May that he co-wrote with University of Virginia professor Elizabeth Olmsted Teisberg -- Murray writes, adding, "Too bad President Bush and his advisers weren't there." According to Murray, Porter, like Bush, "believes competition can solve much of what ails the health care industry," but Porter believes that "the president is making a big mistake by focusing mostly on cost." Porter believes that the "real problem in health care ... is a lack of good information on quality and outcomes" and that, "without that information, any effort to drive down costs through competition will backfire," Murray writes. In addition, Murray says, Porter believes that the "focus ... should be on value" because the "scandal of today's health care is that the quality is often shoddy." Porter also believes that, although "much of the effort to drive up value needs to happen in the private sector," the "government should take the lead in measuring health care quality and outcomes," according to Murray. He concludes, "If competition is going to rescue the U.S. health care system, it will have to be competition on price and quality" (Murray, Wall Street Journal, 2/1).

Porter's ideas, as Murray presents them, may seem simplistic, but he's nobody's fool (among other things he's one of about 15 University Professors at Harvard University) and his reform theories do not underestimate the enormity of the change that would be required to foster the kind of competition he's talking about.  The book he co-authored with Elizabeth Olmstead Teisberg is due out in May (about a year later than originally planned). It should be well worth waiting for.  [tm]

February 2, 2006 | Permalink | Comments (0) | TrackBack (0)

Seducing the Medical Profession

The N.Y. Times has a good editorial on drug and device manufacturers' financial inducements to get physicians to adopt or promote their products, including links to two eye-opening stories ([1] and [2])filed by Times reporters in the past week. [tm]

February 2, 2006 | Permalink | Comments (0) | TrackBack (0)

SSRN: Public Health Law & Policy Posts in January 2006

A number of these are cross-posted to the health law list, which was published here yesterday.


February 2, 2006 | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 1, 2006

Cornell Revises Hippocratic Oath

Cornell's new version of the Hippocratic Oath apparently resonates with its grads.  It's dropped the inconvenient references in the original to abortion and assisting in suicides, doesn't mention the gods (or god, Greek or otherwise), and Steve Miles (author of a recent study of the original oath, recently reissued in paperback) says it's different enough from the source oath as to not qualify as a revision at all.  Thanks to's blog for this item.  [tm]

February 1, 2006 | Permalink | Comments (0) | TrackBack (0)

SSRN: New Health Care Articles Posted in January 2006


February 1, 2006 | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 31, 2006

False Claims Act Recoveries, 1999-2003

From the Jan. 30, 2006, issue of MANAGED CARE WEEK:

False Claims Act recoveries have surpassed $17 billion since 1986, according to Taxpayers Against Fraud (TAF). Nearly $1 billion was recovered in the first quarter of fiscal year 2006 alone, the organization says. . . . Large False Claims Act cases involving health care in the first three months of FY 2006 include a $704 million settlement with Serono Inc. for the allegedly illegal marketing of Serostim, a $124 settlement with King Pharmaceuticals, a $40 million settlement with Erlanger Medical Center in Tennessee and a $62.55 million settlement with Tenet Healthcare. According to a report released last year by TAF, the federal government's net recoveries from civil health care fraud cases were $5.21 billion between 1999 and 2003.


January 31, 2006 | Permalink | Comments (0) | TrackBack (0)

Top 10 SSRN Downloads: Health Law

Little or no change since the last SSRN/Health Carelisting (Jan. 15). "Unintended Consequences of Medical Malpractice Damages Caps" and "Incentives in Nonprofit Organizations" traded places; all others stayed locked in place:

  1. Safe Storage Gun Laws: Accidental Deaths, Suicides, and Crime
    John R. Lott Jr. and John E. Whitley
    American Enterprise Institute (AEI) and University of Adelaide - School of Economics
    Date Posted:May 22, 2000
    Last Revised:June 10, 2002
    Working Paper Series
  2. Abortion and Crime: Unwanted Children and Out-of-Wedlock Births
    John R. Lott Jr. and John E. Whitley
    American Enterprise Institute (AEI) and University of Adelaide - School of Economics
    Date Posted:May 16, 2001
    Last Revised:June 5, 2001
    Working Paper Series
  3. Stability, Not Crisis: Medical Malpractice Claim Outcomes in Texas, 1988-2002
    Journal of Empirical Legal Studies, Vol. 2, pp. 207-259, 2005
    Bernard S. Black , Charles Silver , David A. Hyman and William M. Sage
    University of Texas at Austin - School of Law , University of Texas Law School , University of Illinois College of Law and Columbia Law School
    Date Posted:October 25, 2005
    Last Revised:January 23, 2006
    Accepted Paper Series
  4. What the Publisher Can Teach the Patient: Intellectual Property and Privacy in an Era of Trusted Privication
    Stanford Law Review, Vol. 52
    Jonathan Zittrain
    Oxford University
    Date Posted:March 9, 2000
    Last Revised:June 30, 2000
    Accepted Paper Series
  5. TRIPs, Pharmaceuticals, Developing Countries, and the Doha 'Solution'
    Alan O. Sykes
    University of Chicago Law School
    Date Posted:February 19, 2002
    Last Revised:March 7, 2002
    Working Paper Series
  6. Unintended Consequences of Medical Malpractice Damages Caps
    NYU Law Review, Vol. 80, pp. 391-512, May 2005
    Catherine M. Sharkey
    Columbia University - Columbia Law School
    Date Posted:February 17, 2005
    Last Revised:June 1, 2005
    Accepted Paper Series
  7. Incentives in Nonprofit Organizations: Evidence from Hospitals
    James A. Brickley and R. Lawrence Van Horn
    Simon School, University of Rochester and Simon School, University of Rochester
    Date Posted:February 14, 2000
    Last Revised:April 2, 2002
    Working Paper Series
  8. Bayh-Dole Reform and the Progress of Biomedicine
    Law and Contemporary Problems, Vol. 66, No. 1
    Arti K. Rai and Rebecca S. Eisenberg
    Duke University School of Law and University of Michigan Law School
    Date Posted:November 23, 2002
    Last Revised:February 6, 2003
    Accepted Paper Series
  9. Medical Problems and Bankruptcy Filings
    Norton's Bankruptcy Adviser, May 2000
    Elizabeth Warren , Teresa Sullivan and Melissa B. Jacoby
    Harvard Law School , University of Texas at Austin - Office of the Vice President and Dean of Graduate Studies and University of North Carolina at Chapel Hill - School of Law
    Date Posted:May 9, 2000
    Last Revised:July 29, 2000
    Accepted Paper Series
  10. The TRIPS Agreement, Access to Medicines and the WTO Doha Ministerial Conference
    Frederick M. Abbott
    Florida State University College of Law
    Date Posted:October 8, 2001
    Last Revised:October 15, 2001
    Working Paper Series


January 31, 2006 | Permalink | Comments (0) | TrackBack (0)

Monday, January 30, 2006

Ethics Code for QIOs

From Modern Healthcare (Fri., 01/27/2006):

The American Health Quality Association, the trade group for Medicare quality improvement organizations, released a code of conduct addressing board structure, board and executive compensation, conflicts of interest and travel reimbursement. The AHQA asked members to promptly adopt the code, approved by its board last month. So far, 17 of 40 QIOs in the group have done so, an official said. According to the code, "consumer representation is essential" on QIO boards, and organizations should seek mechanisms to "continuously infuse" board deliberations with new and different perspectives. In addition, at least one-third of board members should not be compensated by the QIO or contractors of the organization.

Click to read the press release from AHQA and the AHQA Policy. [tm]

January 30, 2006 | Permalink | Comments (0) | TrackBack (0)

Health Care and the Bush Administration

Last week, it was reported (Washington Post, 1/25/06) that "President Bush will propose [in the FY 2007 budget, due out in about two weeks] that Americans be allowed to take tax deductions on more of their out-of pocket medical expenses, as part of an initiative the White House believes will rein in soaring health costs by shifting responsibility toward individuals."  The tax break is part of a three-pronged approach described as follows:

  • The new tax breaks for personal health spending, to be included in the 2007 budget Bush will release in less than two weeks, are designed to help the uninsured and to allow people with insurance to write off a greater portion of the money they spend on co-payments, deductibles and care that is not covered. Under current tax rules, people can deduct medical expenses only if they exceed 7.5 percent of their adjusted gross income.
  • The president also plans to call for an expansion of health savings accounts, an idea long favored by conservatives and approved by Congress slightly more than two years ago, in which people who buy bare-bones insurance policies are allowed to put money into tax-free accounts for their medical expenses.
  • In addition, Bush intends to propose changes to allow people to keep their insurance, without extra cost, if they change jobs or decide to start a business, building on a decade-old law that was designed to make health coverage more "portable."

According to the Post article,

The idea of tax breaks for out-of-pocket medical expenses is borrowed from a recent book by three academics, including two with whom Hubbard has close ties: R. Glenn Hubbard, a former chairman under Bush of the White House Council of Economic Advisers, and John F. Cogan, a White House economic adviser when Ronald Reagan was president. Their book, "Healthy, Wealthy & Wise," calls for all such spending to become tax-deductible. The authors estimate that the revision in tax law would cost $28 billion a year when phased in completely, although they predict much of that lost revenue would be regained through ripple effects the change would create in the health care system.

Several outside health policy experts, both Democrat and Republican, speculated yesterday that the president is unlikely to make such a large financial commitment at a time when the administration has pledged to halve a $400 billion budget deficit during the next several years. Joseph R. Antos, a scholar at the conservative American Enterprise Institute, predicted that Bush will "open this particular door. But how far does it open? We'll see."

When this report first appeared, I wondered how they could possibly control cost increases.  All of the proposals should increase demand for health care services, which can be expected to fuel increases in cost, not decreases.  And expanding the existing tax subsidy for health insurance to include the self-insured and out-of-pocket expenditures would continue the "masking effect" that shields consumers from the true costs of their health-care decisions, not the other way around, as claimed by the President's people.

On Sunday, the New York Times' Robert Pear offered some additional reporting on the President's State of the Union address (scheduled for Tuesday evening) and picked up on some expert opinions that express doubts similar to mine.  [tm]

January 30, 2006 | Permalink | Comments (0) | TrackBack (0)

Sunday, January 29, 2006

$10 Million from Gates Foundation to U of Toronto

Ethics in the third world got a shot in the arm last week in the form of a $10 million grant to the University of Toronto.  Here's the news from the blog:

The University of Toronto has launched a new effort in the developing world, the product of their continuing effort to expand bioethics - considerably - in terms of its focus on the world's health at large. The program is funded by the Bill and Melinda Gates foundation and others for $10 million. Toronto has become the leading program in the world in executing large-scale initiatives in bioethics and this is another great example.


January 29, 2006 | Permalink | Comments (0) | TrackBack (0)

Cartoon Roundup

The Supreme Court's decision in Gonzales v. Oregon (04-623, 01/17/06) seems to have captured the imagination of political cartoonists the past couple of weeks.  Copyright considerations militate against reproducing the cartoons here, but Slate (presumably under license) has loads of 'em, including 'toons by Jack Ohman (The Portland Oregonian), Dana Summers (Orlando Sentinel), Gary Varvel (Indianapolis Star), and Chuck Asay (Colorado Springs Gazette Telegraph).

Bid flu is still popular, too, and has taken a (suprise) decidedly political turn in recent week, e.g.: Steve Breen (San Diego Union-Tribune), Eric Allie (, Bon Gorrell (National/Syndicated), Jack Ohman (The Portland Oregonian), and 3 from Stephane at Bangkok's The Nation (1-2-3).

And the Medicare prescription drug plan pulled down its fair share of ridicule: M.E. Cohen (, Jimmy Margulies (The New Jersey Record), Jeff Parker (Florida Today), and Mike Keefe (Denver Post).

Let's end with one on U.S. health care policy and the Iraq war from Bulgaria's Christo Komarnitski[tm]

January 29, 2006 | Permalink | Comments (0) | TrackBack (0)