HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Saturday, December 29, 2007

Bush Signs Temporary Expansion of SCHIP

Reuters reports on President Bush's signing of temporary extension of SCHIP.  It states,

President George W. Bush on Saturday signed into law a temporary extension of a popular health insurance program for children after months of deadlock with the Democratic-led Congress.


The legislation extends the program that covers about 6.6 million poor children through March 31, 2009, leaving decisions about renewal to the next president and Congress.

The legislation also provides a 0.5 percent increase for Medicare doctors for six months, delaying a scheduled 10 percent pay cut.

Bush twice vetoed more ambitious earlier bills that would have expanded the children's health program to cover about 10 million children in low and moderate income families, despite bipartisan support. . . .

December 29, 2007 | Permalink | Comments (0) | TrackBack (0)

Friday, December 28, 2007

California Court and Rescinding Insurance Policies

A California Appellate Court made it harder for insurance companies in that state to rescind insurance policies when it had failed to check the accuracy of the applications first.  The LA Times reports,

California health insurers have a duty to check the accuracy of applications for coverage before issuing policies -- and should not wait until patients run up big medical bills, a state appeals court ruled Monday.

The court also said insurers could not cancel a medical policy unless they showed that the policyholder willfully misrepresented his health or that the company had investigated the application before it issued coverage.

The unanimous decision by a panel of the 4th District Court of Appeal in Santa Ana is the latest blow to California insurance companies and the way they handle policy cancellations after patients get sick and amass major medical claims.

The insurers' practices are under scrutiny by the state Legislature, the Department of Insurance, the Department of Managed Health Care and the courts. In recent months, state agencies have fined, cited and sued the state's major health insurers for the way they have handled cancellations and treated policyholders.

The decision came in a closely watched case involving Steve Hailey, an Orange County small-business owner whose coverage was canceled by Blue Shield of California after he had a disabling car accident. The ruling in favor of Hailey sends the case back to the lower court for trial and requires Blue Shield to pay Hailey's appellate costs.

At issue for trial, the appeals court said, is whether the Hailey family intended to deceive Blue Shield and whether Blue Shield acted in bad faith by "blindly" accepting their application and taking their premiums until Steve's medical bills got too high.

Spokesman Tom Epstein said Blue Shield, one of the state's largest health plans, looked forward to the trial and would prove that "our underwriting was appropriate and that the Haileys misrepresented numerous important facts on their application." 

The company said it was considering an appeal. . . 

Until now, lower courts have typically dismissed cases in favor of insurers without trials, and insurers have settled confidentially out of court, insurers and policyholder lawyers say.

Bryan Liang, executive director of the Health Law Institute at California Western School of Law in San Diego, said the ruling was consistent with what the state Department of Managed Health Care has said -- that insurers "cannot cancel policies without willful misrepresentation."

The court "went further and stated quite clearly that the current policies of insurers simply do not serve as a basis for legal rescission," Liang said.

In the Haileys' case, Blue Shield rescinded Steve's policy after authorizing more than $450,000 worth of hospital and other medical care. The insurer also demanded that he repay more than $104,000 it spent on his behalf.

Blue Shield contended that Hailey lied on his application about preexisting conditions, failed to disclose a recent emergency room visit and shaved about 45 pounds off his weight.

But Cindy Hailey testified that she filled out the application for the family, including a teenage son, and mistakenly believed that it was asking for information about only her health. . . .

December 28, 2007 | Permalink | Comments (0) | TrackBack (0)

EEOC and Retiree Health Care: Belated Christmas Gift . . . .

The New York Times reported yesterday on this EEOC ruling which declared,

. . . that employers could reduce or eliminate health benefits for retirees when they turn 65 and become eligible for Medicare. The policy, set forth in a new regulation, allows employers to establish two classes of retirees, with more comprehensive benefits for those under 65 and more limited benefits — or none at all — for those older.

More than 10 million retirees rely on employer-sponsored health plans as a primary source of coverage or as a supplement to Medicare, and Naomi C. Earp, the commission’s chairwoman, said, “This rule will help employers continue to voluntarily provide and maintain these critically important health benefits.”

Premiums for employer-sponsored health insurance rose an average of 6.1 percent this year and have increased 78 percent since 2001, according to surveys by the Kaiser Family Foundation. Because of the rising cost of health care and the increased life expectancy of workers, the commission said, many employers refuse to provide retiree health benefits or even to negotiate on the issue.  In general, the commission observed, employers are not required by federal law to provide health benefits to either active or retired workers.

Dianna B. Johnston, a lawyer for the commission, said many employers and labor unions had told it that “if they had to provide identical benefits for retirees under 65 and over 65, they would just drop retiree health benefits altogether for both groups.” In a preamble to the new regulation, published Wednesday in the Federal Register, the commission said, “The final rule is not intended to encourage employers to eliminate any retiree health benefits they may currently provide.”

But AARP and other advocates for older Americans attacked the rule. “This rule gives employers free rein to use age as a basis for reducing or eliminating health care benefits for retirees 65 and older,” said Christopher G. Mackaronis, a lawyer for AARP, which represents millions of people age 50 or above and which had sued in an effort to block issuance of the final regulation. “Ten million people could be affected — adversely affected — by the rule.”

I am sure that this will turn out well . . . . it actually might force the enactment of some rather grand health care reform.   Attaturk at Firedoglake expresses some of the sentiments that I felt when I read the article and responds to the EEOC's Ms. Earp by stating,

No, Ms. Earp, here is what it will do.
For younger retirees (generally prosperous to begin with) the same ol' same ol', i.e. "don't get sick".  For those who retire at 65 or older; or the first group -- when they usually get the far as their former employer is concerned, they can just go ahead and die.

It's all on the tax payers now, and they demand their tax cuts, or so we are always told.  If ever there was a new policy interpretation that you know is going to work out badly, this is it.


December 28, 2007 | Permalink | Comments (0) | TrackBack (0)

Thursday, December 27, 2007

SCHIP Discussion and Realities

DailyKos has a full discussion about the recent veto of SCHIP expansion means for the children in various states.  DemFromCt reports,

. . . . I have been thinking about the state of play at the moment with SCHIP and where we go from here politically. This 12/20 summary is from

SCHIP Outlook

White House spokesperson Dana Perino in a statement said, "With this (SCHIP) bill, we can be assured that children will continue to have coverage, and Democrats won't be able to play election-year politics with children's health" (Neikirk, Chicago Tribune, 12/20).

The measure does not address an SCHIP policy directive announced in August by CMS that states must enroll 95% of children in families with incomes up to 250% of the federal poverty level before expanding eligibility, The Hill reports. Acting CMS Administrator Kerry Weems said that the Bush administration would not require states to disenroll children from the program despite the requirement. House Energy and Commerce Committee Chair John Dingell (D-Mich.) said that Weems' statement contradicts the policy, adding, "Perhaps CMS officials are reading their directive differently than the rest of us."

An analysis by the Georgetown University Health Policy Institute's Center for Children and Families found that 14 states provide SCHIP coverage to children in families with incomes greater than 250% of the poverty level and that they "will likely be forced to roll back their eligibility levels at some point before August 2008 or assume new coverage costs with state funds." Democratic Caucus Chair Rahm Emanuel (Ill.) on the House floor Wednesday said, "Because of the president's executive order, kids in those states will actually come off the rolls in August." The National Governors Association on Monday sent a letter to Congress asking it to "address the issue raised in the ... guidance issued by CMS" (Young, The Hill, 12/20).

[Rahm] Emanuel said SCHIP will be addressed this summer, when the new rules take effect. He said, "What we can't resolve, the American people will resolve in November," adding, "This will be the first thing a Democratic president will get done. We don't need March '09" (Johnson, CongressDaily, 12/19).

So, without defending (or piling on) the Democrats in Congress, who are having issues with caving on Iraq and perhaps a few other items, I would have been happier with more public votes. However, reality sometimes intrudes, and here are some realities:

Some states, at least, were running out of money. Georgia, for example:   The latest plan would extend funding for PeachCare and other programs like it around the country through March 2009 - a timeline first proposed by Rep. Nathan Deal, a Duluth Republican who took a leading role in previous negotiations on SCHIP.

The Baucus-Grassley measure would keep PeachCare funding at its current levels. But it would add additional funds to prevent Georgia and about 20 other states from running out of money early - a problem that this year forced Georgia lawmakers to freeze and cap enrollment for the state’s eligible children...

"With appropriate funding," she said, "children already enrolled and eligible for PeachCare can continue without interruption of their health care."

Since Oct. 1, PeachCare has been operating under month-long - and, in the latest case, weeklong - extensions of its current funding, leaving Georgia officials worried about running out of money in early 2008.

While it made political sense to fight up to the edge, Georgia went over the edge 10/1 and could not enroll new children (who, despite government caps,  have a habit of piling up when you are not paying attention). . . .

December 27, 2007 | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 25, 2007

Santa's Health

AMNews reports on the Santa's ability to make his yearly trip

Physicians suspect that Santa Claus is able to make his annual around-the-world gift-giving journey because he is vigilant about getting yearly influenza vaccinations, having regular checkups and staying physically active, according to a statement issued by the Pennsylvania Medical Society last month.

"Santa never misses an appearance or a delivery, and that makes me think he gets an annual flu shot. He knows how dangerous it would be for him to spread influenza to the children, elves or Mrs. Claus, and how disappointing it would be for him to come down with the virus," said William Lander, MD, a family physician in Bryn Mawr, Pa. and past president of the organization. 

The society issued this statement during the holiday season to point out what could be learned about Santa's longevity that may be applicable to patients.

"What we tried to do with this was take something relevant to the time in the calendar as an opportunity to educate patients about what they should be considering for their health," said Daniel Glunk, MD, an internist in Williamsport, Pa. and president-elect of the medical society.

According to the statement, the man in red most likely takes precautions against skin damage by using gloves, lip balm and sunscreen. His fitness routine probably includes flexibility and balance exercises to allow him to shimmy down chimneys and walk along rooftops, although physicians do worry that the extra weight around his middle will eventually be to his detriment.

"Getting him into an obesity program would probably help Santa's longevity, and I have hope that he and Mrs. Claus will get their weight down in the next year or two," Dr. Lander said.

Physicians elsewhere concur with much of the statement, and many suspect Santa maintains his overall health by staying in an occupation he loves. He stays mentally agile by making lists of who is naughty and nice. Time spent with animals such as reindeer also could keep him going.

"Certainly, the Grinch has a very short life expectancy because he does not have a positive mental attitude," said James Applegate, MD, a family physician in Grand Rapids, Mich. "And caring for animals has been shown to improve your longevity."

Although the lead health concern for Santa seems to be his girth, some also worry about the potential harm he faces from occupational hazards.

"My first concern is whether he could be developing the metabolic syndrome because of his truncal obesity, but he's had a good long life. He might be one of these people who are fit and fat," Dr. Applegate said. "But I wonder whether he might have lung disease like emphysema or COPD.I would want to check his lung function to make sure that coal dust and coming down chimneys is not a problem for him."

Serious holiday health concerns

Contemplating Santa's health and well-being is a lighthearted way to discuss with patients the importance of preventive care. But the holiday season also tends to bring with it some very serious developments that can have a grave impact -- on both people and the health care system. Specifically, this time is marked by increases in heart attack deaths.

"In many ways, the holidays constitute 'the perfect storm' for heart attacks, and emergency departments typically experience an influx of cardiac patients," said Linda Lawrence, MD, president of the American College of Emergency Physicians.

The circumstance has been documented by several studies. Notably, a paper in the Dec. 21/28, 2004, Circulation highlighted the occurrence of spikes around Christmas and also New Year's Day. The article estimated that 42,039 deaths from 1973 to 2001 could be attributed to the holiday season. The magnitude of the effect also increased from year to year.

"Hospitals need to be aware that there's an increase, and need to be adequately staffed," said Robert A. Kloner, MD, PhD, director of research at the Heart Institute of Good Samaritan Hospital in Los Angeles. He has authored several papers on this subject, including an editorial accompanying the Circulation study. "Physicians need to be aware of the phenomenon so they can advise their patients."

The exact cause of what are being called "Merry Christmas coronaries" and "Happy New Year heart attacks" is unknown; colder temperatures do not appear to explain them. Experts suspect they are caused by a combination of overindulgence and waiting until the holiday season is over to get medical attention. Regular medications may be forgotten. Emotions can run high. Patients tend to drink more alcohol, eat more and exercise less, but the holidays also might require them to be more physically active in ways that are not good for them.

"Patients with cardiac disease need to find someone else to shovel their snow," Dr. Kloner said.

December 25, 2007 | Permalink | Comments (0) | TrackBack (0)

Sunday, December 23, 2007

Tragic Transplant Payment Denial

Many of you may be aware of the recent actions by CIGNA health insurance to deny payment for a liver transplant to Nataline Sarkisyan.  I am linking to one recent discussion of the incident.   I still have not figured out all the facts but it is surely a terrible case if the media's accounts are accurate.  Christy Hardin Smith at Firedoglake writes,

Insurance companies make money by finding ways to not pay claims. That's the truth of it.   This past week, we sadly saw the result of this in the death of Nataline Sarkisyan.  From the CA Nurses Association:

On Dec. 11, four leading physicians, including the surgical director of the Pediatric Liver Transplant Program at UCLA, wrote to CIGNA urging the company to reverse its denial. The physicians said that Nataline “currently meets criteria to be listed as Status 1A” for a transplant. They also challenged CIGNA’s denial which the company said occurred because their benefit plan “does not cover experimental, investigational and unproven services,” to which the doctors replied, “Nataline’s case is in fact none of the above.”

The CA Nurses Assoc. organized a massive protest against Cigna's spreadsheet-based decision, but the turnaround from Cigna came too late for Nataline, who passed away without ever receiving her transplant. C&L has news video on the story, and it is absolutely heartbreaking.

I keep thinking about this poor girl's parents, having already gone through so much with their child who battled and survived cancer only to face this latest hurdle, to be told by doctors -- including the head of pediatric transplant surgery at UCLA -- that she had at least a 65% chance of surviving six months or more with a liver transplant...and then be told by their for-profit insurers that they wouldn't pay to save their child's life.   Death by spreadsheet and profit margin, indeed.  All Spin Zone lays it out (via RawStory):

AP/AR is is business shorthand for “accounts payable / accounts receiveable”. In theory, as long as AR > AP on the corporate ledger, a company is profitable and satisfies the needs of its stakeholders (business partners, customers, vendors, employees, and stockholders). So, most large companies employ teams of individuals who manage corporate risk. Guidelines and protocols are established to enable these teams to make decisions on when it makes economic sense to spend money, approve projects, and invest in research and development.

It’s all about risk management. Keep this in mind as you read further — because you are a risk, not a client — to your healthcare, life, auto, and homeowners insurance providers....

The conflict between medical treatment needs and the corporate bottom line happens in a whole lot of medical cases. In the abstract, you can see why this happens. . . .

December 23, 2007 | Permalink | Comments (0) | TrackBack (0)

Use of Civil Rights Law for Low Reimbursements

The National Law Journal has an interesting article about the most recent use of civil rights laws to challenge reimbursement rates.  It reports,

Rural health care providers who serve the poor have the right to sue state officials using civil rights law to challenge limited reimbursement of certain costs, the 4th U.S. Circuit Court of Appeals has held.

This is the first time that private right of action has been recognized by any circuit in this particular section of the law. The 1st Circuit, however, in 2005 presumed such a right without finding it specifically in the same Medicaid Act section, in Rio Grande Cmty. Health Ctr. Inc, v. Rullan, 397 F.3d 56 (1st Cir.).

The recent 4th Circuit opinion by Judge Allyson K. Duncan did provide an out for the states. The ruling held that health care providers can waive their right to sue in contract terms with the state, without violating federal law.

'All over the place'

"This is exactly the kind of case where the circuits go all over the place," said Ken Woodington of Davidson, Morrison & Lindemann in Columbia, S.C. He represented South Carolina in the 4th Circuit case, Pee Dee Health Care v. Sanford, No. 06-2108.

"It's the first of its kind, but there are 65 subsection provisions of the Medicaid Act and circuits will look at each one and decide individually if they create a right of action — and circuits split," he said.

The dispute began in 2005 when a coalition of rural health care providers sued over plans by South Carolina Governor Mark Sanford to curtail the state's Medicaid program by reducing some coverage in a way that the providers argued violated federal Medicaid regulations. . . .

The case was removed to federal court by the state. At that point, claims expanded to include a challenge to amounts paid to reimburse the health care providers for Medicaid expenses dating back to 2001. The reimbursement issue was appealed to the 4th Circuit by Pee Dee Health.  The 4th Circuit also held that Pee Dee had waived its right to challenge the state-court forum in its contract with South Carolina.  If there is no appeal, it would go back to the state court for resolution, Woodington said.

December 23, 2007 | Permalink | Comments (0) | TrackBack (0)

FDA Preemption Lawsuits reports on the latest in pre-emption lawsuits in the drug products liability arena.  It states,

In two appeals that could have a huge impact on the litigation of drug product liability cases, the 3rd U.S. Circuit Court of Appeals heard arguments this week on the issue of whether plaintiffs should be pre-empted from suing over allegedly inadequate warnings on prescription drugs because the warning labels were approved by the Food & Drug Administration.

Lower court judges have reached opposite conclusions, with U.S. District Judge Michael M. Baylson in the Eastern District of Pennsylvania holding that such claims are pre-empted, and U.S. District Judge Jerome B. Simandle in the District of New Jersey holding that they are not.

Both cases stem from suicides in which the plaintiffs claim that manufacturers of antidepressant drugs failed to warn of the increased risk of suicide.

In Colacicco v. Apotex Inc., Baylson found that the plaintiffs' state law tort claims are pre-empted because Congress granted control to the FDA to regulate the prescription drug industry, including the authority to regulate "the specifics of drug labeling."

But in McNellis v. Pfizer Inc., Simandle concluded that a state tort claim was not pre-empted because the FDA's regulations "empower drug manufacturers to enhance the labeling warnings beyond the approved text when new risks emerge." . . .

December 23, 2007 | Permalink | Comments (0) | TrackBack (0)

Popcorn to be Safer in New Year

According to the Associated Press, popcorn manufacturers are removing the chemical diacetyl, which has been linked to cases of bronchiolitis obliterans, a rare life-threatening disease also known as popcorn lung.
The AP reports,

The nation's four biggest makers of microwave popcorn have removed a flavoring chemical linked to a lung ailment in popcorn plant workers from nearly all their products. The companies say all their microwave popcorn recipes should be changed by January. But it might take several months for the reformulated popcorn to replace all the older varieties on store shelves.

In August, the Weaver Popcorn Co. of Indianapolis said it had removed the butter flavor diacetyl from all its microwave popcorn varieties. ConAgra Foods Inc. of Omaha; General Mills Inc. of Golden Valley, Minn.; and the American Pop Corn Co. of Sioux City, Iowa, all promised in September to change their microwave popcorn recipes. Those three companies sell Orville Redenbacher, Act II, Pop Secret, and Jolly Time microwave popcorn.

"We want to assure our consumers they can continue to enjoy their favorite popcorn with complete confidence," said ConAgra's Stan Jacot, who oversees popcorn marketing for the company.  The chemical diacetyl has been linked to cases of bronchiolitis obliterans, a rare life-threatening disease often called popcorn lung.  Diacetyl occurs naturally in foods such as butter, cheese, and fruits, and the FDA has approved its use as a flavor ingredient.

December 23, 2007 | Permalink | Comments (0) | TrackBack (0)