HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

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)