HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Friday, March 16, 2007

JAMA and Access to Care

This week's issue of the Journal of the American Medical Association contains a series of articles (listing with brief abstract) concerning access to health care. 

March 16, 2007 | Permalink | Comments (0) | TrackBack (0)

Tim Greaney on Antitrust and Health Law Classes

Over at the Antitrust and Competition Policy Blog, Professor Thomas Greaney of St. Louis University School of Law provides helpful information on teaching complex antitrust issues in health law classes.  He states,

In other settings, such as health law and the health financing course, teaching antitrust is, as the saying goes, both a challenge and an opportunity. The challenge is in laying down enough of a base so those who haven’t taken an antitrust course will be on board. The opportunity is in putting the law in context and applying it given the sometimes-conflicting commands supplied by other legal doctrines (eg. Medicare anti-kickback, exempt organization, state corporate, and Stark laws). As to teaching antitrust itself, my casebook (Furrow, Greaney, Johnson, Jost & Schwartz, Health Law [5th Ed Thomson/West devotes 100 pages to the subject. My goal in the casebook was to give  students a look at the application to the health industry of the two most important antitrust concepts: conduct and structure. The former includes classic cartels and moves along the Section One continuum to advertising restraints, and other restraints carrying interesting “professionalism” justifications (standard-setting by medical specialty organizations). The book then goes on to consider the very actively litigated conduct/structural issues raised by partially integrated physician joint ventures and concludes with merger analysis. After that, (and exposure to the other areas of law mentioned above) students are ready to tackle problems (e.g. counseling regarding hospital-physician joint ventures that have both vertical and horizontal competitive dimensions and implicate all the other areas of law just mentioned.)

Finally, the health-antitrust intersection offers an opportunity to bring into class a seemingly endless stream of policy issues (e.g. health system reform proposals;  Tom Campbell’s lamentable physicians union legislation; exclusion payments involving generic drugs and the overall effect of Hatch-Waxman law; allowing HHS to negotiate directly with big pharma for Medicare Part D purchasing). It keeps you young. 

Mmm - I am not sure "young" is quite the word that I would use to describe my attempts to explain antitrust concepts to my classes  -- but certainly it does keep the mind active.

March 16, 2007 | Permalink | Comments (0) | TrackBack (0)

Monday, March 12, 2007

Genetic Testing

Professor Michael Berube has an excellent post on genetic testing at  He writes,

Anyway, just in case you didn’t already know, I happen to have a 15-year-old son with Down syndrome. His name is Jamie, and he rocks. My wife Janet and I didn’t opt for an amniocentesis back in 1991, for reasons I explain in the Globe and Mail piece (and more fully in this book). But in more recent years, tests have been developed which can detect Down syndrome as early as the eighth week of pregnancy, using nothing more invasive than a blood test. So if, like me, you support women’s reproductive rights, and the rights of prospective parents to obtain the medical information they think they might need, and yet you don’t necessarily want people to think of Down syndrome as an automatic reason for terminating a pregnancy, you have to come up with some delicate arguments; you can’t just go around saying that people with Down syndrome are Heaven’s little angels, sent down to us to make us all be nicer to each other, and you better not go around saying that God never gives people things they can’t handle. (Because, you know, He actually does that all the time. He’s really kinda mean that way.) At the same time, you know full well that even the most delicate argument won’t persuade people who think that having a child with Down syndrome is way, way more than they can handle. Those people aren’t necessarily blinkered or selfish, either. As one of Rapp’s interviewees puts it, “If I had this baby at 44, and it had Down’s, who would inherit it?” This is not a trivial question. Jamie was born when I was ten days shy of my thirtieth birthday, and I think about it approximately every day. . . . .

He then writes about a new initiative to expand screening for Down syndrome to all pregnant women.  He states,

. . . . This kind of initiative, I suggest, starts from the presumption that (all else being, cough cough, equal) we’d be generally better off if we could “catch” Down syndrome in utero and prevent people with Down syndrome from being born. As you’ll see if you read my article, I ain’t buying it, because I don’t see the potential eradication of Down syndrome from the species as being analogous to the potential eradication of smallpox or cholera. But I also ain’t buying George Will’s recent response to the new guidelines of the American College of Obstetricians and Gynecologists, which recommend screening for all pregnant women. Because it’s one thing to be skeptical of the idea that screening should be mandatory, and opposed to the idea that screening should be a prelude to abortion; it’s quite another to insist, as Will does, that pregnant women do not have the moral right to make difficult decisions about their pregnancies:

Jon, a sweet-tempered man, was born the year before Roe v. Wade inaugurated this era of the casual destruction of pre-born babies. And he was born just as prenatal genetic tests were becoming routine. Since then, it has become routine to abort babies like Jon because they are like Jon. Without this combination of diagnostic advances and moral regression, there would be more people like Jon, and the world would be a sweeter place.

In my Globe and Mail essay, I respond like so:

Perhaps. And perhaps the world would be a sweeter place if we acknowledged that prospective parents who choose not to bring pregnancies to term are actually making difficult moral decisions rather than engaging in “moral regression.” That way, we could try to persuade people not to abort fetuses with Down syndrome — or any other disability — rather than coercing them into mandatory childbirth regardless of the circumstances.

Now, I suppose it’s all right for George Will to speak of the “moral regression” involved in “the casual destruction of pre-born babies,” because, of course, Will has long advocated universal health care in the United States on the grounds that our current employer-provider system is devastating to people with disabilities, who have an unemployment rate somewhere around 60 or 70 percent. Believing that childbirth is mandatory regardless of the circumstances of the mother or the fetus, Will argues, entails the obligation to provide strong programs of public assistance for the people who are brought into the world as a result.

Ha ha! Just kidding. George Will emphatically opposes universal health care. In that regard, he’s just one of those compassionate conservatives whose concern for the pre-born manages to outweigh concerns for the well-being of the post-born. By contrast, Rayna Rapp argues for a pair of principles that we might very well call “family values”:

The first is the need to champion the reproductive rights of women to carry or refuse to carry to term a pregnancy that would result in a baby with a serious disability. The second is the need to support adequate, nonstigmatizing, integrative services for all the children, including disabled children, that women bear. has a further interesting and informative discussion of his piece, which concludes:

. . . . we, as a society, need to change the conditions that lead to abortions in the first place. And that means comprehensive sex ed, it means contraception, it means emergency contraception. But it also means strengthening the social safety net so that women of limited means can afford to have a child, and it means changing the way that we as a society think about the disabled and the different (and, in the case of widespread sex-selective abortions, about the value of women and girls). When people are confronted with the news that the child they’re expecting will be born with a disability, it can make all the difference in the world if they know that they will have resources available to help them, not just when the child is young and in school, but long after the parents have left this earth.

March 12, 2007 | Permalink | Comments (0) | TrackBack (0)

Kroger Reiterates Plan B Policy reports on Kroger's policy regarding the availability of Plan B (also known as the "morning after" pill).  A Georgia woman alleged that she had been denied the pill at one of Kroger's stores last December.  CNN states,

The Cincinnati-based grocery chain said if its pharmacists object to fulfilling a request, the store must "make accommodations to have that prescription filled for our customer."

"We believe that medication is a private patient matter," said Meghan Glynn, a Kroger spokeswoman. "Our role as a pharmacy operator is to furnish medication in accordance with the doctor's prescription or as requested by a patient."

Abortion rights activists in Georgia announced a statewide campaign Friday to raise awareness about the contraceptive.

Among them was Carrie Baker, who said a Kroger pharmacist in her hometown of Rome, Ga., refused to supply her with the contraceptive. The 42-year-old married mother of two said she asked the store's manager in December to order the contraceptive but was told that the pharmacist refused, even though the decision contradicted company policy.  "I believe this was a responsible decision and the best way to care for my family and myself," she said. "But Kroger doesn't care." . . .

Major pharmacy chains such as CVS Corp., Rite-Aid Corp. and Walgreen Co. also have pledged to ensure that customers can buy Plan B, even if one employee declines to provide service for reasons of conscience.

March 12, 2007 | Permalink | Comments (0) | TrackBack (0)

Medicaid Changes Harm U.S. Citizens

The New York Times reports that a new federal rule intended to prevent illegal immigrants from receiving Medicaid has had the effect of denying Medicaid to many thousands of U.S. citizens who have difficulty complying with new citizenship documentation requirements.  According to the Times,

Under a 2006 federal law, the Deficit Reduction Act, most people who say they are United States citizens and want Medicaid must provide “satisfactory documentary evidence of citizenship,” which could include a passport or the combination of a birth certificate and a driver’s license.  Some state officials say the Bush administration went beyond the law in some ways, for example, by requiring people to submit original documents or copies certified by the issuing agency.

“The largest adverse effect of this policy has been on people who are American citizens,” said Kevin W. Concannon, director of the Department of Human Services in Iowa, where the number of Medicaid recipients dropped by 5,700 in the second half of 2006, to 92,880, after rising for five years. “We have not turned up many undocumented immigrants receiving Medicaid in Waterloo, Dubuque or anywhere else in Iowa,” Mr. Concannon said.

Jeff Nelligan, a spokesman for the federal Centers for Medicare and Medicaid Services, said the new rule was “intended to ensure that Medicaid beneficiaries are citizens without imposing undue burdens on them” or on states. “We are not aware of any data that shows there are significant barriers to enrollment,” he said. “But if states are experiencing difficulties, they should bring them to our attention.”

Since Ohio began enforcing the document requirement in September, the number of children and parents on Medicaid has declined by 39,000, to 1.3 million, and state officials attribute most of the decline to the new requirement. Jon Allen, a spokesman for the Ohio Department of Job and Family Services, said the state had not seen a drop of that magnitude in 10 years.

The numbers alone do not prove that the decline in enrollment was caused by the new federal policy. But state officials see a cause-and-effect relationship. They say the decline began soon after they started enforcing the new rule. Moreover, they say, they have not seen a decline in enrollment among people who are exempt from the documentation requirement — for example, people who have qualified for Medicare and are also eligible for Medicaid. . . .

“Congress wanted to crack down on illegal immigrants who got Medicaid benefits by pretending to be U.S. citizens,” Mr. Jones said. “But the law is hurting U.S. citizens, throwing up roadblocks to people who need care, at a time when we in Wisconsin are trying to increase access to health care.” . . .

Medicaid officials across the country report that some pregnant women are going without prenatal care and some parents are postponing checkups for their children while they hunt down birth certificates and other documents. . . .

Dr. Martin C. Michaels, a pediatrician in Dalton, Ga., who has been monitoring effects of the federal rule, said: “Georgia now has 100,000 newly uninsured U.S. citizen children of low-income families. Many of these children have missed immunizations and preventive health visits. And they have been admitted to hospitals and intensive care units for conditions that normally would have been treated in a doctor’s office.”

Dr. Michaels, who is president of the Georgia chapter of the American Academy of Pediatrics, said that some children with asthma had lost their Medicaid coverage and could not afford the medications they had been taking daily to prevent wheezing. “Some of these children had asthma attacks and had to be admitted to hospitals,” he said.

The principal authors of the 2006 law were Representatives Charlie Norwood and Nathan Deal, both Georgia Republicans. Mr. Norwood died last month.  Chris Riley, the chief of staff for Mr. Deal, said the new requirement did encounter “some bumps in the road” last year. But, he said, Mr. Deal believes that the requirement “has saved taxpayers money.” The congressman “will vigorously fight repeal of that provision” and will, in fact, try to extend it to the Children’s Health Insurance Program, Mr. Riley said. He added that the rule could be applied flexibly so it did not cause hardship for citizens.

In general, Medicaid is available only to United States citizens and certain “qualified aliens.” Until 2006, states had some discretion in deciding how to verify citizenship. Applicants had to declare in writing, under penalty of perjury, whether they were citizens. Most states required documents, like birth certificates, only if other evidence suggested that a person was falsely claiming to be a United States citizen. . . .

I am so glad that this new provision has saved taxpayer money.   Perhaps Mr. Riley should consider how much more expensive it will be to provide health care to these children and families in the future due, at least partially, to the lack of preventive care provided to them now.

March 12, 2007 | Permalink | Comments (0) | TrackBack (0)