HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Thursday, May 14, 2009

Video of Potential Supreme Court Picks has a brief video collection of some of the individuals who have been named as the potential Supreme Court Justice to replace Justice Souter.  It is a fun review with some interesting moments.

May 14, 2009 | Permalink | Comments (0) | TrackBack (0)

The Informed Consumer Choices in Health Care Act of 2009

Time Magazine has a brief story on the many varieties of health insurance that individuals have and how difficult it is to figure out what will and will not be covered.  Karen Tumulty writes,

The fact is, it's hard to be an informed consumer when you are buying a product as complicated as health insurance. As Georgetown University's Karen Pollitz and a team of researchers discovered recently, even policies that look alike can offer very different coverage. They studied two policies in California, for instance, and found that someone undergoing a typical course of breast cancer treatment would end up spending under $4000 with one plan and more $38,000 with the other –- even though the two policies had offered similar deductibles, co-payments, and out-of-pocket limits. They summed up the problem this way:

Knowing whether insurance provides adequate coverage can be a challenge. Health insurance policies are complex products, highly variable in their design, and key information about how coverage works is not always disclosed during marketing. Further, health insurance promises protection against future, unknown events. Consumers who are healthy today can find it difficult to anticipate future medical problems and costs and harder still to evaluate how insurance might cover those needs . . . .

It turns out there are three people on Capitol Hill who agree. Senator Jay Rockefeller (D-W.Va.) and Congresswomen Rosa DeLauro (D-Conn.) and Allyson Schwartz (D-Pa.) plan to introduce a bill today that they are calling The Informed Consumer Choices in Health Care Act of 2009. Among its provisions is a requirement that insurance policies provide an explanation of the coverage they offer, similar to the nutrition label you now see on a packaged food. Something that looks like this, explaining how the policy would work under a variety of scenarios for various diseases and conditions like heart attacks and cancer. . . . 

May 14, 2009 | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 13, 2009

Professor Bard: Op-ed on the Swine Flu Preparation

Now that we have had some time to react to the swine flu, Professor Bard has some thoughts on the way in which health officials have responded and are responding to this public health threat.  She writes,

There is a Yiddish saying which translates as “man plans and God laughs” and another that describes “any problem that can be solved with money” as “not a problem.” In the case of the past few days’ media frenzy over the discovery of a new strain of influenza, H1N1, it is easy to misunderstand these messages. Clearly, the dire predictions about the deadly “swine flu” did not come true and although highly infectious, this new strain of flu doesn’t seem particularly lethal. But no one’s laughing with relief. Instead, many members of the public, media and government are reacting to this wonderful news with outrage. How dare the media and the public health establishment frighten them with unsubstantiated hype? Have we all been victims of some sort of hoax or joke? How can we spend money, especially now, to plan for something that probably won’t happen. I suggest that this is entirely the wrong message.

Until the mailing of anthrax spores to politicians and media figures in the weeks following 9/11, the threat of either bioterrorism or pandemic flu were ignored and those who tried to raise the issue dismissed as alarmists. Was the world in any greater danger of either natural pandemic or bioterrorism after 9/11 than before? Absolutely not. Did that scare make us more ready? Indeed it did. For the first time in more than 40 years, since the end of the terrifying polio epidemics, federal, state and local governments started assessing and rebuilding their almost nonexistent public health infrastructures. Today, almost every business, school and government agency has a pandemic flu plan, yet the infrastructure to address a true pandemic doesn’t exist. . . .

So what should be our take-home message? Well, the idea that we can really plan against doomsday is laughable. But the notion that we won’t spend the money to plan for a lot of very bad things that are actually relatively likely to happen but might not because of disaster fatigue isn’t funny. There are plenty of threats that we do have the ability to address with adequate resources and H1N1 is a perfect example. Within days scientists were working on a vaccine and the CDC was distributing stocks of antiviral drugs all over the country. It’s a problem we can solve with money. The threat of pandemic flu and other disease is as real today as it was in 1918 when ten times as many Americans died of influenza at home as on the battlefield in World War I. Consistent funding for planning and maintaining the public health infrastructure is what can prevent disaster. Lets not let what looks like a narrow escape turn out to be an excuse to stop spending money on public-health infrastructure. Planning isn’t anything to laugh about.

May 13, 2009 | Permalink | Comments (0) | TrackBack (0)

Same Sex Couples in the Hospital

The New York Times provides some insight into the issues facing same sex couples in the hospital.  Tara Parker-Pope writes,

During a medical emergency, a patient’s husband, wife, parents or other family members often are close by, overseeing treatment, making medical decisions and keeping vigil at the bedside.  But what happens if the hospital won’t allow you to stay with your partner or child?

That’s the challenge many same-sex couples face during health care emergencies when hospital security personnel, administrators and even doctors and nurses exclude them from a patient’s room because they aren’t “real” family members. The issue is addressed in a new report from The Human Rights Campaign Foundation, a gay, lesbian, bisexual and transgender civil rights group, and the Gay and Lesbian Medical Association. The groups have created a Healthcare Equality Index for hospitals that focuses on five key areas: patient rights, visitation, decision-making, cultural competency training and employment policies and benefits.

This year, 166 facilities across the country agreed to participate in the report, about twice as many as last year. The group says nearly 75 percent of the hospitals have policies to protect their patients from discrimination on the basis of sexual orientation. However, sometimes the policies aren’t correctly implemented by hospital workers. Some examples of unfair treatment of gay couples cited by the group include:

  • A Bakersfield, Calif., couple rushed their child to the emergency room with a 104 degree fever. The women were registered domestic partners, but the hospital only allowed the biological mother to stay with the child. Although hospitals typically allow both parents to stay with a child during treatment, in this case, the second parent was forced to stay in the waiting room.

  • An Oregon man whose registered domestic partner was unconscious was told to leave the hospital room because it was time for family members to make decisions about his care. He was forced to plead his case before hospital administrators before being allowed to stay with his partner, who was dying. . . .

While heterosexual couples typically don’t have to provide marriage licenses to hospitals in order to prove they are husband and wife, same sex couples often must document their relationship to hospital officials before being allowed to take part in a partner’s care.

“There is a real disconnect between what might be a good written policy or state law and actual implementation of that policy or law,” said Ellen Kahn, family project director for the HRC. “If you’re presenting as two men in a couple and you say, ‘This is my partner. I’ll make medical decisions,’ you’re asked a lot of questions. Who is this person to you? Do you have legal documentation that verifies that? A parent, sister or nephew could have more rights under the law than a same-sex partner who has been together 20 years.” . . .

May 13, 2009 | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 12, 2009

Patenting Genes

The New York Times reports on a recent law suit filed against Myriad Genetics for patenting a genes closely linked to breast and ovarian cancer.  John Schwartz writes,

When Genae Girard received a diagnosis of breast cancer in 2006, she knew she would be facing medical challenges and high expenses. But she did not expect to run into patent problems.  Ms. Girard took a genetic test to see if her genes also put her at increased risk for ovarian cancer, which might require the removal of her ovaries. The test came back positive, so she wanted a second opinion from another test. But there can be no second opinion. A decision by the government more than 10 years ago allowed a single company, Myriad Genetics, to own the patent on two genes that are closely associated with increased risk for breast cancer and ovarian cancer, and on the testing that measures that risk.

On Tuesday, Ms. Girard, 39, who lives in the Austin, Tex., area, filed a lawsuit against Myriad and the Patent Office, challenging the decision to grant a patent on a gene to Myriad and companies like it. She was joined by four other cancer patients, by professional organizations of pathologists with more than 100,000 members and by several individual pathologists and genetic researchers. The lawsuit, believed to be the first of its kind, was organized by the American Civil Liberties Union and filed in federal court in New York. It blends patent law, medical science, breast cancer activism and an unusual civil liberties argument in ways that could make it a landmark case. . . .

Dr. Chung and others involved with the suit do not accuse Myriad of being a poor steward of the information concerning the two genes at issue in the suit, known as BRCA1 and BRCA2, but they argue that BRCA testing would improve if market forces were allowed to work.  Harry Ostrer, director of the human genetics program at the New York University School of Medicine and a plaintiff in the case, said that many laboratories could perform the BRCA tests faster than Myriad, and for less money than the more than $3,000 the company charged. Laboratories like his, he said, could focus on the mysteries still unsolved in gene variants. But if he tried to offer such services today, he said, he would be risking a patent infringement lawsuit from Myriad. . . .

The decision to allow gene patents was controversial from the start; patents are normally not granted for products of nature or laws of nature. The companies successfully argued that they had done something that made the genes more than nature’s work: they had isolated and purified the DNA, and thus had patented something they had created — even though it corresponded to the sequence of an actual gene. . . .

In the future, genetic tests are likely to involve the analysis of many genes at once, or even of a person’s full set of genes. Some 20 percent of the human genome is already included in patent claims, amounting to thousands of individual genes, says a draft report from the National Institutes of Health. The report warns that “it may be difficult for any one developer to obtain all the needed licenses” to develop the next generations of tests. . . .

May 12, 2009 | Permalink | Comments (0) | TrackBack (0)

Medicare Future Financial Problems

Ezra Klein provides a brief overview of the annual trustees report released today and what it means for the future of the Medicare program.  He writes,

The Annual Trustees Report is out today, telling us something akin to what we already knew: Medicare and Social Security are in bad shape, and getting worse. The headlines will emphasize the dates of insolvency. Medicare runs out of money in 2017, two years earlier than anticipated by last year's report. Social Security falls in 2037, four years earlier than predicted in last year's report. But as the WaPo graph to your right shows, these estimates change year-to-year. The exact year might make the headlines, but it's the least reliable piece of the report. . . .

Conversely, the crude fix for Medicare -- and this is only the hospital insurance side of Medicare -- is more brutal. "The Medicare Report shows that the HI Trust Fund could be brought into actuarial balance over the next 75 years by changes equivalent to an immediate 134 percent increase in the payroll tax (from a rate of 2.9 percent to 6.78 percent), or an immediate 53 percent reduction in program outlays, or some combination of the two." To put it simply, imagine how much health care your grandparents can access. Now cut it by a bit more than half. They're not allowed to be in the hospitals on every odd day, or on holidays. There you go.

The relative urgency of Medicare's problem is pretty simple to explain. As the Trustees Report says, "While both programs face demographic challenges, rapidly growing health care costs also affect Medicare." In other words, Social Security is only affected by demographics. Medicare is also being buffeted by rising health care prices. If we can't get those under control, we can't fix Medicare. And if we can't fix Medicare, then it's not just the Medicare program that will be insolvent. It's the federal government.

May 12, 2009 | Permalink | Comments (0) | TrackBack (0)

Monday, May 11, 2009

Diane Rehm on Health Reform

Today's Diane Rehm -

10:00Update on Health Care Reform

Guest host: Steve Roberts

Guest host Steve Roberts leads a discussion of the latest efforts to meet time lines set by Congress and the White House to overhaul the nation's health care system, including proposals to offer a public insurance option.


Russell Mokhiber, Founder of "Single Payer Action" and owner/editor of the weekly newsletter "Corporate Crime Reporter."

Len Nichols, director of the health policy program at the New America Foundation

Julie Rovner, health policy correspondent for National Public Radio, author of "Health Care Policy and Politics A-Z," and contributing editor for National Journal's CongressDaily.

Stuart Butler, Vice President, Domestic and Economic Policy Studies, The Heritage Foundation

May 11, 2009 | Permalink | Comments (0) | TrackBack (0)

Dueling Opinion Pieces Health Reform

Paul Krugman of the New York Times has an opinion piece on health care reform today and states,

Is this the end for Harry and Louise? 

Harry and Louise were the fictional couple who appeared in advertisements run by the insurance industry in 1993, fretting about what would happen if “government bureaucrats” started making health care decisions. The ads helped kill the Clinton health care plan, and have stood, ever since, as a symbol of the ability of powerful special interests to block health care reform.  But on Saturday, excited administration officials called me to say that this time the medical-industrial complex (their term, not mine) is offering to be helpful.

Six major industry players — including America’s Health Insurance Plans (AHIP), a descendant of the lobbying group that spawned Harry and Louise — have sent a letter to President Obama sketching out a plan to control health care costs. What’s more, the letter implicitly endorses much of what administration officials have been saying about health economics.

Are there reasons to be suspicious about this gift? You bet — and I’ll get to that in a bit. But first things first: on the face of it, this is tremendously good news. . . . .  

Before we start celebrating, however, we have to ask the obvious question. Is this gift a Trojan horse? After all, several of the organizations that sent that letter have in the past been major villains when it comes to health care policy.   I’ve already mentioned AHIP. There’s also the Pharmaceutical Research and Manufacturers of America (PhRMA), the lobbying group that helped push through the Medicare Modernization Act of 2003 — a bill that both prevented Medicare from bargaining over drug prices and locked in huge overpayments to private insurers. Indeed, one of the new letter’s signatories is former Representative Billy Tauzin, who shepherded that bill through Congress then immediately left public office to become PhRMA’s lavishly paid president.

The point is that there’s every reason to be cynical about these players’ motives. Remember that what the rest of us call health care costs, they call income. . . .

I would strongly urge the Obama administration to hang tough in the bargaining ahead. In particular, AHIP will surely try to use the good will created by its stance on cost control to kill an important part of health reform: giving Americans the choice of buying into a public insurance plan as an alternative to private insurers. The administration should not give in on this point.

But let me not be too negative. The fact that the medical-industrial complex is trying to shape health care reform rather than block it is a tremendously good omen. It looks as if America may finally get what every other advanced country already has: a system that guarantees essential health care to all its citizens. . . .

The Wall Street Journal's Kimberle A. Strassel takes a very different approach and writes,

Listen. That sound of silence? That's what's known as the united Republican response to President Barack Obama's drive to socialize health care.

The president has a plan, and he's laid it on the table. The industry groups that once helped Republicans beat HillaryCare are today sitting at that table. Unions are mobilized. A liberal umbrella group, Health Care for American Now, is spending $40 million to get a "public option," a new federal entitlement that would kill off private insurance. Democrats passed a budget blueprint that will allow them to cram through that "public option" with just 51 votes.  . . . .

            Republicans? They're trying to figure out what they think.    

Well, not all of them. Earlier this week I ended up in the office of Oklahoma Sen. Tom Coburn, where the doctor was hosting North Carolina Sen. Richard Burr. The duo is, for the second time, crafting a comprehensive reform that would lower costs, cover the uninsured, and put Americans in control of their health care. And while the senators decline to talk GOP politics, their bill raises the multitrillion-dollar question: Will the party have the nerve or sense to coalesce behind some such conservative alternative to the Democratic product? . . . .

Their (Republicans) own bill overhauls the tax code, currently stacked in favor of corporate employees, to provide a tax credit to every American to purchase insurance. It expands health-savings accounts. It creates state health-insurance exchanges, where private insurers compete to cover Americans, including the uninsured. (This is partly modeled on the Medicare drug program, which has provided seniors with choice and held down costs.)

More broadly, it seeks to reorient financial incentives so that the system is no longer focused, as Mr. Coburn puts it, on "sick care," but on preventing the chronic diseases that eat 75% of health expenditures. These incentives would be used to lower costs and discourage insurers from cherry-picking patients. The bill also dives into Medicare and Medicaid reform.

Yet no small number of Senate Republicans are biding their time in Max Baucus land, waiting to see what the Democratic finance chairman produces as a "bipartisan" product. (Read: A bill the president wants.) This crowd has taken to heart Mr. Obama's accusation that they are the party of "no," and think it might be easier to be the party of Baucus, or the party of Baucus-lite, or the party of nothing whatsoever. . . . .

As for Messrs. Coburn and Burr, they spent a good half hour with me enthusiastically explaining why a competitive market would improve health, provide control and choice, lower costs, and tackle entitlements. It's a good pitch. If only the rest of America could hear the party make it.

May 11, 2009 | Permalink | Comments (0) | TrackBack (0)

Sunday, May 10, 2009

Cutting Health Care Growth

The New York Times reports on the health industry and its willingness to slow health care spending.  Robert Pear reports,

Doctors, hospitals, drug makers and insurance companies will join President Obama on Monday in announcing their commitment to a sharp reduction in the growth of national health spending, White House officials said Sunday.  The officials said the plan could save $2,500 a year for a family of four in the fifth year and a total of $2 trillion for the nation over 10 years. That could make it less expensive for Congress to enact comprehensive health insurance coverage, a daunting challenge facing the Obama administration.

At this point, administration officials said, they do not have a way to enforce the commitment, other than by publicizing the performance of health care providers to hold them accountable. By offering to hold down costs voluntarily, providers said, they hope to stave off new government price constraints that might be imposed by Congress or a National Health Board of the kind favored by many Democrats.

In remarks prepared for delivery to health care providers on Monday, Mr. Obama says: “These groups are voluntarily coming together to make an unprecedented commitment. Over the next 10 years, from 2010 to 2019, they are pledging to cut the growth rate of national health care spending by 1.5 percentage points each year — an amount that’s equal to over $2 trillion.” “Reform is not a luxury that can be postponed, but a necessity that cannot wait,” Mr. Obama says.

In a letter addressed to Mr. Obama, six leaders of the health care industry say: “We will do our part to achieve your administration’s goal of decreasing by 1.5 percentage points the annual health care spending growth rate, saving $2 trillion or more. This represents more than a 20 percent reduction in the projected rate of growth.” The letter was signed by executives of the Advanced Medical Technology Association, a lobby for medical device manufacturers; the American Hospital Association; the American Medical Association; America’s Health Insurance Plans, a trade group for insurers; the Pharmaceutical Research and Manufacturers of America; and the Service Employees International Union. . . . .

May 10, 2009 | Permalink | Comments (0) | TrackBack (0)

Friday, May 8, 2009

Professor Orentlicher on Health Reform

This week's Journal of the American Medical Association contains an article by Professor David Orentlicher on health reform and how and what three components a successful reform should contain.  He writes,

For the first time since 1994, there appears to be a real window of opportunity to enact universal health care coverage. President Obama and leading members of Congress have made health care reform a top priority. With 45 million individuals uninsured, and millions more finding their health care insurance inadequate, the United States may finally join the ranks of other industrialized countries and guarantee coverage for all of its citizens.

Proposed reforms take many forms and run a broad range in terms of their underlying philosophy, sources of financing, and role for the government. Many advocates want to rely more on competition and the market, whereas others believe greater government intervention is essential. Some call for more patient responsibility, while others focus on reform of physician practices.

Many of the arguments are familiar. Market proponents claim that government intervention will stifle innovation, lower quality, and drive up costs. Supporters of a bigger role for the government respond that health care markets are dysfunctional. According to this view, competition in health care does not work as it does in other sectors of the economy, but instead generates high costs and wasteful spending.

This Commentary considers the history of public welfare programs in the United States to identify proposals that actually can achieve universal coverage. Universal coverage is not the only goal of health care reform; reforms also should improve quality and contain costs. Nevertheless, universal coverage is a key goal, and it is essential to identify the viable options for reaching it.

A variety of approaches could in theory ensure coverage for everyone, and in practice have done so in many countries. But only a few approaches could do so in the United States, where social values and the structure of political power set important limits on the kinds of public programs that can succeed. Specifically, to achieve universal coverage, a government plan should include 3 basic components.. . . . ..        With these 3 elements—a federal program funded by payroll taxes for all US individuals—there are 3 main options for achieving universal access to health care.

(footnotes deleted).

May 8, 2009 | Permalink | Comments (0) | TrackBack (0)

Massachusetts Health Reform Update

The Columbia Journalism Review has another great update on the Massachusetts Health Reform and whether it appears to be working to provide access to health care.  It may not be as successful as some in the press have reported.  Trudy Lieberman writes,

. . . . Whatever residents think of the mandate and its tax penalty (this year about $1000), they have driven down the number of uninsured to roughly three percent of the population—the lowest rate of any state. And it has brought health care to people who didn’t have it before. “It’s easy to damn the whole thing, and I see the cracks,” says Meg Kroeplin, who heads Community Partners, a non-profit group in Amherst that works with outreach workers who sign people up for insurance. “But I see a ton of people who were told their whole lives they can’t have it and now they do.” Of the 432,000 newly insured residents, 76,000 got coverage from Medicaid, 169,000 qualified for state subsidized coverage, 148,000 got it from their employers, and the rest bought individual policies.

The cracks Kroeplin sees, however, raise questions about whether a system that relies on private insurance and public coverage with strict eligibility requirements can ever achieve universality and bring seamless, timely care to everyone. “Is care seamless in Massachusetts?” Kroeplin asks rhetorically. “No, it is not.”

Some people who need care will always be left out. Because the building blocks of Massachusetts coverage are disjointed, people still seek treatment at the state’s safety net hospitals and emergency rooms, which wasn’t supposed to happen as people became insured. The Globe just reported that more people are seeking care in emergency rooms, and that the cost of treating them increased by 17 percent from 2005 to 2007, a period that includes two years covered by the law. The problem, it seems, is more complicated than simply mandating insurance coverage. . . .

May 8, 2009 | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 5, 2009

NewsHour on the Flu

Tonight on the NewsHour - Health Concerns Create Economic Worries in Mexico

Tonight on the NewsHour: Senior NewsHour correspondent Ray Suarez looks at Mexico City's attempt to balance the safety of its residents during the H1N1 outbreak with the economic health of businesses and workers around the city.

 For more information and more reporting from Mexico on the flu outbreak, please visit our global health site at

Last night, the NewsHour had an interesting segment on the flu as well:

Flu in Mexico

Tonight on the NewsHour: Senior correspondent Ray Suarez reports from Mexico City on the new developments in the H1N1 epidemic. The NewsHour spoke with Mexico City residents affected by the illness and visited with top government epidemiologists, frontline doctors, and public health officials for the latest on what to expect from the virus.

May 5, 2009 | Permalink | Comments (0) | TrackBack (0)

Monday, May 4, 2009

Pace of Health Reform - Fast

Doug Trapp at AMNews reports on the recent Senate Finance Committee meeting on health reform.  He writes,

The Senate Finance Committee, whose leaders appear to have taken the helm in the health system reform debate, started a round of public talks with health organizations in a run-up to an aggressive reform timetable.

National reform legislation in the Senate will likely show the influences of an April 21 roundtable discussion. It focused largely on how a rural health system improved care and lowered costs for chronically ill patients, how patient needs and incentives should drive reform, and whether a federal health agency should have more authority to innovate.

The Senate Finance Committee roundtable on improving care and reducing costs was the first of three on major health reform topics. Two more are scheduled for May. Committee members in the days following each discussion will review and comment on each corresponding piece of the legislation before the final package is unveiled publicly for a formal committee markup and vote, possibly as early as June.

Senate Finance Committee Chair Max Baucus (D, Mont.) said it's time to move. "If we don't act now -- that is this year -- the consequences will be dire."

Sen. Charles Grassley (Iowa), the committee's highest-ranking Republican, said tackling health care, which accounts for 16% of the nation's economy, is daunting. "This is the toughest and most needed issue that Sen. Baucus and I have ever been involved in."

The Finance panel and the Senate Health, Education, Labor and Pensions Committee began conferring with health care organization leaders about legislation last year. House committee chairs began holding hearings more recently, and Republican groups in the House also are working on their own proposals. House and Senate committee chairs have agreed to try aiming for floor votes on reform legislation before the August congressional recess.

May 4, 2009 | Permalink | Comments (0) | TrackBack (0)

Reforms to Fraud and Abuse Laws

BNA provides a helpful overview of legislation in Congress to reform the False Claims Act to strengthen the statute after several court decisions limited its impact.  The story provides,

Both houses of Congress April 28 acted on amendments intended to strengthen the False Claims Act, 31 U.S.C. §3729 et seq. The full Senate by a 92-4 vote passed the Fraud Enforcement and Recovery Act, S. 386, which includes amendments to the FCA as part of broader legislation to combat financial fraud by amending the federal fraud laws and providing additional funds for enforcement, and the House Judiciary Committee voted out the False Claims Act Correction Act, H.R. 1788, by a 20-6 vote.

The House April 28 also approved the Fight Fraud Act of 2009, H.R. 1748, which contains language similar to the sections of S. 386 that expand the federal fraud laws to improve enforcement of mortgage fraud, securities fraud, financial institution fraud, and other frauds related to federal assistance and relief programs. . . . 
The Senate Judiciary Committee report accompanying S. 386, S. Rep. No. 111-010 (Mar. 23, 2009), explained that the FCA amendments are necessary because the “effectiveness of the FCA has recently been undermined by court decisions limiting the scope of the law and allowing subcontractors and non-governmental entities to escape responsibility for proven frauds.” . . .
Thus, the report stated, liability would attach “whenever a person knowingly makes a false claim to obtain money or property, any part of which is provided by the Government without regard to whether the wrongdoer deals directly with the Federal Government; with an agent acting on the Government's behalf; or with a third party contractor, grantee, or other recipient of such money or property.” The report emphasized that the FCA would reach all false claims submitted to state administered Medicaid programs.
The Senate amendments also “correct” the U.S. Supreme Court's decision in Allison Engine , which, according to the committee report, held that the government must prove that an FCA defendant intended that the government itself pay the claim in order for liability to attach, thus creating “a new element in a FCA claim and a new defense for any subcontractor” as well as creating “ a significant question about the scope and applicability of the FCA to certain false claims, effectively limiting FCA coverage for some Government programs and funds” that were traditionally covered by the FCA. . . . . (there is much more so read for the full article for the other changes).
        House FCA Amendments -   According to a Congressional Research Service summary of H.R. 1788, the False Claims Act Correction Act of 2009, the bill would amend the FCA by:
• repealing the requirement that a false or fraudulent claim for payment must be presented directly to a federal employee or member of the Armed Forces, thus tying liability for claims directly to federal money and property, regardless of to whom the claim is presented;
• revising requirements for alternate remedies affecting qui tam actions and related qui tam plaintiff awards;
• allowing dismissal of a private action based upon prior public disclosures only upon timely motion to dismiss by the Attorney General;
• revising the prohibition of retaliatory action against whistleblowers to include materially hindering the person in obtaining new employment or other business opportunities;
• requiring the government to pay from the proceeds of an action for financial losses suffered by administrative beneficiaries, thus permitting actions for fraud instituted against nontaxpayer funds under federal trust and administration;
• extending the statute of limitations for bringing a civil action;
• requiring the government, if it elects to intervene in an action, to file its own complaint, or amend the relator's complaint, with the government's complaint relating back to the filing date of the original qui tam complaint to the extent that the government's claim arises out of the same set of facts;
• declaring that a relator's complaint is not required to identify specific claims that result from an alleged course of misconduct if: (1) the facts alleged, if ultimately proven true, would provide a reasonable indication that one or more false claims are likely to have occurred; and (2) the complaint provides adequate notice of the specific nature of the alleged misconduct to permit the government effectively to investigate and defendants fairly to defend such allegations;
• declaring void any contracts, agreements, or private terms or conditions of employment that limit or circumvent the rights of a person to bring a qui tam action;
• declaring that no court–ordered seal on a qui tam action prevents the government or the relator from serving the complaint or related documents upon state or local law enforcement authorities;
• modifying procedures for civil investigative demands; and
• citing circumstances in which the government may move to dismiss a qui tam action by a federal employee (who has, in effect, not exhausted administrative procedures for addressing the allegations in the false claim complaint). . . .
No decision has been made as to when H.R. 1788 will be brought to the House floor for a vote, or whether that bill will be reconciled with S. 386, the Fraud Enforcement and Recovery Act, a House Judiciary spokesman told BNA April 30. The House and Senate bills are very similar in their FCA amendments, although they contain differences in language, the spokesman said.
It is possible both H.R. 1788, The False Claims Act Correction Act, and H.R. 1748, the Fight Fraud Act of 2009, which contains provisions similar to S. 386's broad fraud provisions but not the FCA amendments, could be reconciled with S. 386, the spokesman said.
The Obama administration issued a statement strongly supporting enactment of S. 386, including the FCA amendments. The legislation would amend the FCA in several important respects so that it remains a potent and useful weapon against the misuse of taxpayer funds, the statement said.
Sen. Chuck Grassley (R-Iowa), a co-sponsor of S. 386, applauded the passage of the act, saying it will help to protect Americans from fraud and recover taxpayers' money lost to fraud. Grassley said in a statement that the Fraud Enforcement and Recovery Act strengthens the False Claims Act, one of the best civil tools available to root out fraud in government. From 2000-2008, the Justice Department recovered more than $15 billion in fraud for the government using the False Claims Act.

May 4, 2009 | Permalink | Comments (0) | TrackBack (0)

Human Rights and Disability website

From InSITE, information about a helpful new website:  Human Rights and Disability website -

The United Nations’ Human Rights and Disability website was founded on the premise that "persons with disabilities are entitled to the enjoyment of the full range of civil, cultural, economic, political and social rights embodied in international human rights instruments on an equal basis with other persons." To this end, the site recognizes and affirms the identification of persons with disabilities as holders of rights and subjects of law. It further seeks to globally empower disabled persons by providing them a means to actively participate in society through respect, accommodation, and the "four core values of human rights law" which are of particular importance to the disabled: dignity, autonomy, equality and solidarity. The site is a fount of information for the researcher who seeks to explore international human rights law specifically from a disability perspective. It provides an historical context for the development of this facet of international human rights law as it began with the United Nations in 1981 in the "International Year of the Disabled" and continued through the adoptions of the World Programme of Action Concerning Disabled Persons, the Standard Rules on the Equalization of Opportunities for People with Disabilities, and the Vienna Declaration for Human Rights. The site provides additional discussion of the various relevant provisions in the Charter of the United Nations and the 1948 Universal Declaration of Human Rights. In support of the efforts of the United Nations High Commissioner for Human Rights to protect and monitor the human rights of persons with disabilities, the site provides free access to extensive resources including links to full text HTML versions of relevant treaties and various other international instruments, including General Assembly resolutions and declarations, Commission on Human Rights resolutions, and Resolutions adopted by other United Nations bodies. It also provides links to several full text HTML versions of studies on human rights and disability in English, French and Spanish. Reports of the United Nations High Commissioner for Human Rights are also available in English, French and Spanish. To further the objective of monitoring human rights and disability, the site also identifies various treaty-monitoring bodies, provides links to each of their committee’s websites, and examines their efforts to integrate a disability rights perspective into their monitoring activities. The site additionally provides several links to pages within the UN system of websites and also to outside non-governmental organizations. Unfortunately, the site’s list of current events and recent developments is rather dated; the most recent items provided are from 2004. Information pertaining to a "proposed new convention" is also very dated. Although the site could use some attention in this regard, it otherwise serves as an excellent resource for a broad array of international materials narrowly examined from the perspective of those advocating for the recognition and protection of human rights of individuals with disabilities. [AE]

May 4, 2009 | Permalink | Comments (0) | TrackBack (0)

Sunday, May 3, 2009

Medical Malpractice Claims Decline in Massachusetts

The National Law Journal reports on the decline in medical malpractice claims in Massachusetts and provides some suggestions on why the decline may have occurred.  Shari Qualters writes,  Massachusetts medical malpractice lawsuit filings continued their downward trajectory last year, with cases falling below the 500 mark for the first time this decade, according to Massachusetts state court data.

According to the data recently released by Barbara J. Rouse, the chief justice of the Superior Court, and first reported by Massachusetts Lawyers Weekly, 485 cases were filed last year, down by about 4% from 504 new cases filed in 2007. New case filings slid by 32% from 708 in 2000.   Lawyers attribute the decrease in filings in most years since 2000 to the low percentage of plaintiffs' verdicts, hospitals' efforts to communicate more effectively with patients and families after an adverse medical outcome and a 2004 Massachusetts law change that decreased interest payments on legal judgments.   Andrew C. Meyer Jr., a founding partner of Boston-based medical practice boutique plaintiffs' firm Lubin & Meyer, said a low percentage of plaintiffs' verdicts is increasingly discouraging lawyers who don't specialize in medical malpractice from taking new cases. . . .

Rindler also credits a 2004 Massachusetts state law change, which altered the prejudgment interest rate attached to medical malpractice awards.  "The amount of interest that might accrue on a potential judgment is [now] substantially lower if the plaintiffs win at trial," Rindler said. "The total award will be lower."   Under the prior system, medical malpractice awards were assessed 12% interest starting with the date the claim was filed. Now, the prejudgment interest rate is prime plus 4%, said Massachusetts Medical Society spokesman Richard P. Gulla.

May 3, 2009 | Permalink | Comments (0) | TrackBack (0)

Saturday, May 2, 2009

New Medicare Secondary Payer Obligations

The Legal Update from the law firm of Littler Mendelson reports on the new Medical Secondary Payer obligations of employers and insurance companies: 

Beginning July 1, 2009, many employers and insurance companies will be required to report claims for workers' compensation claimants that are also Medicare beneficiaries to the Centers for Medicare and Medicaid Services (CMS) and become subject to a $1,000 per day per claimant penalty for failure to comply with this mandatory reporting requirement.

At a time where Medicare is massively under-funded, a new reporting requirement set to take effect on July 1, 2009, will significantly increase Medicare's ability to identify situations in which Medicare is paying for medical expenses that should be borne by so-called "primary payers," including workers' compensation plans.1 By statute, Medicare is a "secondary payer" with respect to medical expenses associated with workplace injuries. As such, if Medicare pays medical expenses on behalf of a Medicare beneficiary who is injured in a work-related accident, Medicare is entitled to reimbursement from the responsible party or insurance carrier for that expenditure. When Medicare makes such payments, the payments are considered to be conditionally paid expenses subject to recovery.

In order to both reduce the amount of medical expenses paid on behalf of Medicare beneficiaries who are properly payable by an employer or insurance carrier and to more completely recapture conditionally paid expenses via the statutory subrogation claim process, Congress amended the Medicare laws to impose a mandatory reporting obligation on workers' compensation plans. The amendments leave the procedure for pursuing subrogation claims unchanged. . . .

May 2, 2009 | Permalink | Comments (0) | TrackBack (0)

Friday, May 1, 2009

Early Warning of Flu Missed . . . .

McClatchy News reports that one biosurveillance firm noticed an uptick in respiratory illness in Mexico and tried to alert various health authorities but without results.  Les Blumenthal writes,

A Washington state biosurveillance firm raised the first warning about a possible outbreak of swine flu in Mexico more than two weeks before the World Health Organization offered its initial alert about a public health emergency of international concern.   Both federal and international health officials had access to the warning from Veratect Corp. Later e-mails calling attention to the company's subsequent report that the disease was possibly spreading in Mexico were sent to 10 officials of the Centers for Disease Control and Prevention, said Robert Hart, the company's chief executive.  Hart said he wasn't sure why health officials didn't act sooner.  "They have a lot of other responsibilities," Hart said on Thursday. "But every day makes a difference."

CDC officials in Atlanta said they were aware of Veratect's claims and hadn't been working with the company.  "We have nothing to add about their claims," said CDC spokesman Llelwyn Grant, adding that the CDC and other public health agencies had plans in place to deal with a flu pandemic and responded rapidly once they became aware of the Mexican outbreak.

Veratect, based in Kirkland, Wash., uses a technique known as "data mining" to automatically search tens of thousands of Web sites daily for early signs of looming medical problems or civil unrest anywhere in the world. Anything of interest is turned over to a team of 35 analysts to determine its significance and to post on the company's Web site. The company markets access to its Web site to government agencies, businesses and others and has tried unsuccessfully to sell its service to the CDC, the World Health Organization and the Department of Homeland Security. . . .

On April 6, 18 days before the WHO issued its alert, Veratect reported on its Web site a strange outbreak of respiratory disease in La Gloria, Mexico, noting that local residents thought the outbreak was linked to contamination from pig breeding farms nearby.

Hart said the information was available to the CDC and many state and local health authorities. The company's server showed an epidemiologist at the Pan American Health Organization, which is part of the World Health Organization, looked at the message about the La Gloria outbreak twice, on April 10 and 11, Hart said. . . .

Hart said he wasn't critical of the CDC or other health organizations, adding that what was needed was an effective global health monitoring system that Veratect should be a part of.  "Hindsight is great and it's hard to say whether (the delay) altered anything," he said. "The only way to stop anything like this is to break the cycle."  Others, however, cautioned that the use of data mining to track a possible disease outbreak was untested and said a number of questions about its effectiveness remained unanswered.  "This approach is not yet vetted," said Dr. Marguerite Neill, an infectious disease specialist at Brown University and a spokeswoman for the Infectious Disease Society of America. "It is an interesting idea, but we haven't used it before."

Neill said the problem with using information picked up through data mining was determining whether it was just an indication of a routine disease outbreak or something much more serious.  "It needs to be put in a clinical or epidemiological context," she said. "I'm not sure Veratect can do that."

May 1, 2009 | Permalink | Comments (0) | TrackBack (0)

Health Reform and Pandemics

Matthew Yglesias points out the need for health reform that this swine flu outbreak has reinforced.  He writes,

The CDC’s “Swine Flu and You” page offers the following under the heading of “what should I do if I get sick”:

If you live in areas where swine influenza cases have been identified and become ill with influenza-like symptoms, including fever, body aches, runny nose, sore throat, nausea, or vomiting or diarrhea, you may want to contact their health care provider, particularly if you are worried about your symptoms. Your health care provider will determine whether influenza testing or treatment is needed.

Of course as Igor Volsky points out:

But for the millions of Americans who can’t afford to purchase health insurance, a visit to a “health care provider” is an expensive proposition. . . .   According to the latest Kaiser Poll, 60 percent of Americans say that “they or a member of their household have delayed or skipped health care in the past year” and many are “substituting home remedies or over the counter drugs for doctors visits.” . . . .

More broadly, the epidemic serves a reminder that the health care system is in many ways a public function. Free markets work very well for ordinary consumption goods, but Tamiflu is not an ordinary consumption good. . . . .

May 1, 2009 | Permalink | Comments (0) | TrackBack (0)

Doctor v. Patient Decisions

Ezra Klein points out an interesting difference between the left and right on the issue of who should be making the decisions on a variety of health care issues:

If you look at the health care policies favored by liberals and the health care policies favored by conservatives, here's the general difference: Conservatives believe the decision-maker in health care is the consumer. Liberals believe it's the doctor. And so conservative policies try to change consumer behavior. Liberal policies try to change doctor behavior.

That's why conservative policies tend to focus on how individuals pay for care: High deductible health care plans, for instance, make consumers spend more out of pocket, and so they're more price sensitive, and in theory, more careful. Single payer health care and other versions of the "global budget" theory change the way providers are compensated (overprescription means underpayments), and so, in theory, change the behavior of doctors. . . . .

This, I think, gets back to the need to change the behavior of doctors rather than consumers. Patients mainly know to ask for what their doctors tells them to ask for. That's a bit less true in the age of WebMD. But their underlying tendency is to want everything done, no matter the cost, no matter the evidence. A conservative would say that that's because they don't feel the cost. If they did, they'd be quicker to demand the evidence. A liberal would say that people don't worry about cost when they're dealing with their daughter's life. They largely offload decision-making to the doctor, and so the key is that the doctor has appropriate incentives and evidence to help them make wise decisions rather than to enable desperation. . . . .

May 1, 2009 | Permalink | Comments (0) | TrackBack (0)