HealthLawProf Blog

Editor: Katharine Van Tassel
Akron Univ. School of Law

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Tuesday, May 10, 2011

Follow-up on Environmental Cancer Risk Recommendations

One year ago Friday, the President’s Cancer Panel released a report entitled Reducing Environmental Cancer Risk: What We Can Do Now.” It examined the impact of environmental factors on cancer risk and recommended actions to address them. In a cover letter the authors urged the President “most strongly” to “use the power of your office to remove the carcinogens and other toxins from our food, water, and air that needlessly increase health care costs, cripple our Nation’s productivity, and devastate American lives.” The National Public Radio presentation of “On Point” with Tom Ashcroft featured its findings in a broadcast available here

As described in a news article, the report criticized regulators and industry for using "woefully outdated" estimates of environmentally caused cancers to set regulations and "to justify its claims that specific products pose little or no cancer risk." The recommendations included a variety of ways to reduce exposures to carcinogens. Richard Clapp of Boston University's School of Public Health called the report "a call to action." Much of the report is devoted to what federal agencies, scientists and physicians can do to improve environmental health. A progressive newsletter article blamed weak regulations and inadequate enforcement upon industry’s power over government agencies.

Over the past year, has any action been taken to respond to these recommendations? It appears that the report has been widely read and disseminated, but so far the Administration’s attention on health care has been focused on the wider issues of patient coverage. On the other hand, private organizations have been disseminating the report’s information, so the word is getting out. For example, as recently as March 2011 groups like EmpowHER and Sierra Club have been using the report to call for lifestyle and policy changes. The Pesticide Action Network reports that it and its partner organizations are gathering tens of thousands of signatures to deliver to President Obama demanding a national cancer prevention plan as outlined in the report’s recommendations.

But the report has not been forgotten by the Administration, and has been studied in the context of its primary focus, Obama’s new health care plan. A few weeks ago, the President’s Cancer Panel issued an addendum to the report entitled, “How the Patient Protection and Affordable Care Act (PPACA) and Other Recent Legislative Activity May Impact the Panel’s Recommendations”, available here. The new report concludes that increasing health care access, and numerous other provisions of PPACA either directly address or potentially facilitate implementation of the Panel’s recommendations in this report. It is an interesting read.

 [MM]

 

May 10, 2011 | Permalink | Comments (0) | TrackBack (0)

The Picture of Health: Medical Ethics and the Movies

One of our recent guest bloggers, Jennifer S. Bard, Professor of Law at Texas Tech, has contributed a chapter to a new book of interest The Picture of Health: Medical Ethics and the Movies edited by Henri Colt, Silvia Quadrelli and Lester Friedman. This book is a collection of 80 short essays that describe how film and literature can be used to teach medical ethics:

Bard Film and literature have long been mined for interesting examples and case studies in order to teach biomedical ethics to students. This volume presents a collection of about 80 very brief, accessible essays written by international experts from medicine, social sciences, and the humanities, all of whom have experience using film in their teaching of medical ethics. Each essay focuses on a single scene and the ethical issues it raises, and the volume editors have provided strict guidelines for what each essay must do, while also allowing for some creative freedom. While some of the films are obvious candidates with medical themes -- "Million Dollar Baby", "The Diving Bell and the Butterfly" -- some are novel choices, such as "Pan's Labyrinth" or "As Good as it Gets". The book will contain several general introductory chapters to major sections, and a complete filmography and cross-index at the end of the book where readers can look up individual films or ethical issues.

The essay contributed by Professor Bard deals with the 1993 made-for-television movie And the Band Played On which is a  based on the 1987 book And the Band Played On: Politics, People, and the AIDS Epidemicby Randy Shilts. Professor Bard summarizes her essay as follows:

This essay discusses the role AIDS played in developing today’s patient information privacy laws and also highlights the importance of teaching about AIDS to a generation who cannot understand the fear and hate it engendered.  Not only does the story of the early days of AIDS in the United States serve as a warning about how easily values of justice and compassion can be put aside in the face of fear, it is also important as we begin to understand how infectious disease in general “got left out of bioethics” because, until the coming of AIDS, it was seen as no longer a threat. Margaret P. Battin, Leslie P. Francis, Jay A. Jacobson & Charles B. Smith, The Patient as Victim and Vector: Ethics and Infectious Disease, 42 (Oxford: Oxford University Press, 2009).  In chronicling the start of the last great epidemic, this movie presents an opportunity to reshape bioethics so that we are better able, not just medically, but also ethically to address the emerging, and re-emerging, infectious threats that are sure to come.

Watching events unfold, we see scenes demonstrating that, despite rising death tolls, societal, and by extension political, prejudice against homosexuals made it impossible to marshal the resources needed to study and fund the disease until it started having “innocent victims” such as babies born with HIV and hemophiliacs infected through use of clotting factor made from the blood of hundreds of donors.  It starkly presents the concept of the “innocent” versus “non-innocent” victim which so often marks the outbreak of any new disease and which, in the case of AIDS, still lingers. 

Both in recreating the history of an epidemic and in challenging what has become conventional wisdom, the movie is an essential teaching tool now that there are at least two generations of Americans with absolutely no memory of a time without AIDS.  Today, when we understand exactly how to prevent the transmission of AIDS, including how to treat these patients without personal risk to health care professionals, and when even more significantly we have drugs that can often convert it into a manageable chronic condition rather than a death sentence, it is easy to forget the initial shock and the instinct to lash out against and disassociate ourselves from the victims of a disease that came out of nowhere and killed everyone who contracted it. 

And the Band Played On brings bioethics outside of the hospital and laboratory to show how soon values such as justice, privacy and compassion can become compromised in the face of fear. 

[KVT]

May 10, 2011 | Permalink | Comments (0) | TrackBack (0)

Sunday, May 8, 2011

Guest Blogger Vickie J. Williams: Medicare Choice as an Expression of Senior Empowerment

Williams_31 Professor Marshall B. Kapp of Florida State University has posted an interesting abstract on SSRN suggesting that transforming Medicare from a defined benefit program into a defined contribution opportunity for senior citizens would embody a “more positive vision of older individuals and their capabilities.”  His premise is that Medicare’s defined benefit structure is paternalistic and presumes that older persons must be protected from the risks of wrong decisions, rather than allowing them to make their own decisions about the delivery and financing of their health care services.  Prof. Kapp advocates for the recent proposal of Congressman Ryan to transform Medicare into a premium support system, in which the federal government would pay a subsidy to seniors to purchase private insurance plans that they select.  As evidence of how such a premium support program can be successful, Prof. Kapp cites Medicare Part D, the prescription drug benefit added to Medicare in 2003.  Prof. Kapp points out:

One might question why the same older individuals who (with informational and social support) are able to navigate the complicated waters of prescription drug plans are—across the board—too hopelessly feeble-minded to pick intelligently among comprehensive health plan alternatives.

Although it is likely that most people would agree that the expansion of Medicare to include a prescription drug benefit was a good thing for Medicare beneficiaries, as compared to having no prescription drug benefit, it is less clear whether most people would agree that the current structure of Medicare Part D is better than a defined prescription drug benefit for Medicare beneficiaries would have been.  Prof. Kapp’s citation of the success of Medicare Part D to bolster his argument reminds me of the studies that pharmaceutical companies present to the Food and Drug Administration to support approval of new drugs—studies that show that the new drug is better than no treatment at all, but do not compare the new drug to available, and presumably cheaper, drugs already on the market to treat the condition.  Certainly, having coverage for prescription drugs is better than having none, but that doesn’t mean that the type of coverage available is the better than another option that might be available.

Because prescription drug plans (PDPs) do not have to provide a standard drug formulary,  each PDP can offer a different set of drugs (although they must all have at least one drug in each therapeutic category and class of covered Part D drugs).  When a Medicare beneficiary chooses a PDP, she is basically guessing what drugs she will need in the upcoming plan year.  She might guess correctly, in which case the plan will suit her needs well, and she will feel “empowered.”  But if her health condition changes (and senior citizens’ health conditions can change suddenly and precipitously, regardless of how mentally acute they are at present), she might guess wrong, in which case she is stuck with her wrong decision, and her family or society in general will pay the consequences along with her.  I doubt that Medicare beneficiaries who guessed wrong, and wind up with no coverage for a particular drug they need, feel particularly “empowered” by their “wrong decisions.”  The same thing would happen on a larger scale if all Medicare beneficiary health care needs were subject to this game of roulette.  All of the information in the world does not turn a game of chance into a sure thing—knowing the odds of winning doesn’t somehow make a gamble any less of a game of chance.  You can protect yourself against the risk of gambling by choosing not to play.  Seniors cannot protect themselves against the risk of making a wrong decision when choosing a health care plan by choosing not to get sick or older. 

Prof. Kapp acknowledges that there must be safeguards built into a defined contribution system of Medicare for older persons who lack the capacity to make autonomous choices, but it is unclear how we would determine capacity issues to trigger these safeguards.  Much has been written about the difficulty of determining when it is time to take away the car keys from older people, and the agonizing family and doctor-patient discussions that can ensue from the need to make such decisions.  How much more difficult would it be to tell your older loved one that you don’t believe she can choose her health care plan?  Or would we subject older Americans to government-mandated capacity testing to determine when they can no longer make a health care plan decision for themselves?  Neither choice is very attractive. Trying to institute a capacity testing policy would make the contentious inter-generational debates about requiring older adults to submit to periodic re-testing for driver’s licensing pale by comparison. Certainly subjecting older adults to mandatory capacity testing to determine their capability to make decisions is at least as paternalistic as providing them with a defined health care benefit.

It is hard to define a “wrong decision” in the context of health insurance.  It is irrelevant whether you are an older person or a young person when it comes to making such decisions.  For example, many of my law students make a choice to forego health insurance, or to buy a very cheap, basic policy with many exclusions or low benefit caps (which will become unavailable as PPACA is implemented).  When I ask these students why they decided to forego health insurance, many times they will make the rational economic argument that as young, healthy people, they are unlikely to need extensive medical care, and can fund whatever minimal care they need out-of-pocket more cheaply than buying health insurance.  A few years ago, a young, healthy 29-year old student of mine made this economically rational decision to forego health insurance, choosing to get her routine medical care from low-cost clinics.  She started to feel ill, and was ultimately diagnosed with advanced ovarian cancer.  Her lack of health insurance inhibited her ability to get timely care throughout her ordeal, and caused her and her family inordinate amounts of stress at a time when their energies and attentions would have been better spent elsewhere.  She died about 6 months after the diagnosis.  Did she make a “wrong decision?”  Or was she a victim of a capricious illness that didn’t care what choices she made?

Perhaps a two-tiered Medicare system, where basic health care is provided to older adults through a defined benefit plan, along with a defined contribution that they can use to pay for some combination of health care goods and services beyond the basic package, would be a way to acknowledge that a majority of older adults are vibrant, robust individuals fully capable of making their own decisions, while still protecting them from the vagaries of illness and the increasing likelihood as they age that they will experience a sudden deterioration in their mental or physician condition.   According to T.R. Reid’s exploration of health care finance in industrialized countries around the world, The Healing of America, Switzerland, a bastion of powerful insurance companies, uses a system like this for all Swiss citizens.  We should be able to acknowledge the autonomy of older Americans without subjecting them to the unfettered vagaries of the marketplace.   

- Vickie J. Williams

May 8, 2011 | Permalink | Comments (1) | TrackBack (0)

Friday, May 6, 2011

Worth Reading This Week

Mixed Messages on Malpractice

In January H.R.5 (Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2011), here was introduced in the House. Just hours later this year's State of the Union address, available here, included a somewhat intriguing statement: "I'm willing to look at other ideas to bring down costs, including one that Republicans suggested last year -- medical malpractice reform to rein in frivolous lawsuits." Why would the President make such a statement? Was this a Clintonesque attempt to capture the opposition's agenda? Another move to the center? Or a signal that there was a malpractice reform deal to be done this year (after its rejection last year) to save healthcare reform?

The Republican legislation (H.H.5) isn't even that interesting, retooling reforms that have been passed in most states over the last 30 years (combined with a long shot attempt at protecting drug companies) although avoiding even more draconian measures that are still being dreamt up by well-lobbied state legislatures, such as here. Frankly, it's hard to resist cynicism as yet another cycle of posturing and misinformation about malpractice, error and litigation costs gathers momentum. Then, to make things more interesting, the President included $250m in his budget to fund liability demonstration projects in the states; monies not available for caps but available for Health courts, discussed here (and not incidentally opening up a can of worms involving state constitutions that protect trial by jury!).

The malpractice tragedy is that the only reforms that can find traction are these same politically motivated attacks on a legal process that is clearly inefficient and probably inaccurate, but sometimes seems to be all we've got. A couple of recent reports emphasize the aspects of the medical error disaster that we have failed to address.

The first casts further doubt on the medical profession's ability to police itself. The common law implications of institutions failing to disclose adverse results associated with individual physicians were recently discussed here. But what are the downstream results when institutions do take action against physicians with clinical privileges? The answer, provided in the Public Citizen report, State Medical Boards Fail to Discipline Doctors With Hospital Actions Against Them, available here, is all too frequently, not very much! The report analyses 10 years of data in the National Practitioner Data Bank, here. It found that 5,887, or 55%, of physicians who had their clinical privileges revoked or restricted had experienced no state licensing actions. Over 2000 of this cohort had one or more of the most serious violations, such as incompetence or "immediate threat to safety." It is hard to fault Public Citizen's conclusion:

Hospital disciplinary reports are peer review actions that are one of the most important sources of information for medical board oversight. Subsequent state medical board action against a physician’s license provides a greater assurance than a hospital disciplinary action alone that the practitioners medical practice would be monitored or limited and that other state medical boards and future employers will have a more complete account of a practitioner’s practice history…. Our analysis of physicians with clinical privilege reports but no state licensure action raises serious questions about whether state medical boards are responding adequately to hospital disciplinary reports and whether, as required by federal law, state medical boards are receiving such reports.

The second report serves to remind us of the scale of the medical error problem. Jill Van Den Bos and colleagues in an April Health Affairs article, available here (subscription), sought to quantify preventable adverse events. The researchers concluded,

The estimated total cost of measurable medical errors in the United States was $17.1 billion in 2008, which was 0.72 percent of the $2.391 trillion spent on health care that year in the United States.

Another important conclusion was that "ten errors [headed by postoperative infections and pressure ulcers] are accountable for 69 percent of the total medical cost for measurable medical errors."

As Uwe Reinhardt reminded us last year the total cost of the malpractice system (including defensive medicine) is at most $55 billion, or 2.4 percent of healthcare spending, available here. And, malpractice reform would only reduce a fraction of those costs, maybe 0.5 percent of healthcare spending. Until we recognize that the larger medical error number is the one we should concentrate on, progress will be unlikely. 

Reducing healthcare costs by reducing malpractice costs is not only unlikely but also arguably back-to-front. Mark Rothstein, in "Health Care Reform and Medical Malpractice Claims" available here, convincingly makes that reverse case,

one of the leading reasons why individuals bring medical malpractice claims is to ensure the availability of funds for future medical care. Because health care coverage at affordable rates will be accessible in the public or private sector without regard to preexisting conditions, and annual and lifetime caps will be prohibited, significant numbers of injured patients are likely to forego medical malpractice claims. Consequently, even with more patient visits, the total number of medical malpractice claims is unlikely to rise and might even decline.

Calling out our state medical boards, renewing our commitment to patient safety, and striving to reduce malpractice claims through healthcare reform continue to be more positive avenues for reform than encouraging another cycle of malpractice reform.

[NPT]

 

May 6, 2011 | Permalink | Comments (0) | TrackBack (0)

Thursday, May 5, 2011

Guest Blogger Leslie Francis: An Update on the National Committee on Vital and Health Statistics (NCVHS)

Francis-Leslie In my last “guest” blog, I’m going to put in an unabashed push for a federal advisory committee on which I serve as co-chair of the Subcommittee on Privacy, Confidentiality and Security. The National Committee on Vital and Health Statistics (NCVHS) is one of the oldest federal advisory committees. It is the statutory advisory committee with responsibility for providing recommendations on health information policy and standards to the Secretary of the Department of Health and Human Services (HHS).  The NCVHS website contains a wealth of information about data stewardship, data uses, and data protection.  Over the years, NCVHS has steadfastly advocated for the responsible collection and protection of data needed for the improvement of public health and health care. Balancing the protection of individual privacy and confidentiality with the immense possibilities of health information is not easy, and NCVHS has made many important recommendations in this regard. In this post, I want to highlight two particularly important NCVHS initiatives.

First, NCVHS has led the way in understanding how to protect confidentiality in the development of health information exchanges. In 2006, NCVHS made a broad set of recommendations for safeguarding privacy in the context of a Nationwide Health Information Network. These recommendations included an opt-in for individual participation in health information exchange. They also included assessment of the feasibility of allowing special confidentiality filters for particularly sensitive types of health information, and the importance of developing contextual access controls to electronic health records and health information exchanges.  In 2008, NCVHS recommended that interoperable electronic health records should be designed to allow separate management of sensitive categories of health information. In 2010, NCVHS recommended definitions for certain sensitive categories of information as outlined in federal and state law. These categories include reproductive history, sexually transmitted disease information, genetic information, substance abuse treatment information, and mental health information. In considering these recommendations, it is important to remember that NCVHS is not suggesting that this information should not be available at all. Rather, NCVHS is observing that the law requires separate handling of certain types of health information and, as well, that patients may wish certain types of information to be given special handling.  Without design capabilities for separate handling of mental health information, reproductive information, or sexually transmitted disease information, for example, capabilities for adolescents and their parents to each have access to health records through patient portals may go unrealized.

Second, NCVHS has recently been exploring how to protect confidentiality as interoperable health information is increasingly proving useful for public health purposes. In February, 2011, NCVHS held a working session on community uses of health information. At that session, the Committee heard remarkable examples of uses of local data to improve community health. Many of these uses involve de-identified data or types of data (such as air quality measurements) that do not involve individuals at all, but others involve information that is individually identifiable or that applies to very small geographic areas (such as block or census tract). The benefits of this data are potentially enormous, but at the same time it is critical to ensure that individual confidentiality is protected and that community trust in not jeopardized.  On May 12, NCVHS will be holding a second working session, on models for protecting confidentiality and legitimizing trust. This is very much a “scoping out” enterprise:  given all the power of interoperable data for public health, what are best practices for protecting confidentiality? To listen in, or follow up, go to this link. If any readers of this blog are interested in following up with me on these or other issues about the security, privacy, and confidentiality of health information, I’d love to hear from you.  I can best be reached at francisl@law.utah.edu

Best, Leslie Francis

May 5, 2011 | Permalink | Comments (0) | TrackBack (0)

Missing Care, Missing Drugs: Canaries in the Medical Coal Mine

While Washington has been focusing on repealing or rolling back parts of the Affordable Care Act, persistent embarrassments of the American health system show how untenable the status quo is. Both lower and middle class families are facing serious problems as they contend with providers' and insurers' cost constraints. I'll first address the familiar issue of health disparities. According to a recent news report, Lauren E. Wisk of the School of Medicine and Public Health at University of Wisconsin, Madison "examined data from the 2001-2006 Medical Expenditure Panel Surveys on 6,273 families with at least one child." Wisk's study shows that excessive financial burdens from cost-sharing are keeping many children from getting the care they need:

Families aren't choosing to spend their money on going to the doctor when someone is sick because of how much it cost them to see the doctor last time. They're sacrificing their health because it costs too much to be healthy. . . . We expect that if people aren't getting the care they need, they'll be sicker as a result. When you put this all together and look at the big picture, the cost of health care in the U.S. could actually be causing Americans to be sicker.

We might wonder: how can this be? Isn't the economy in recovery? But we've seen this picture before, in the developing world. Growth does not help everyone. India, for example, has had astonishing economic growth, but it "is home to about a third of the world's underweight and stunted children under the age of 5," and "the impressive economic growth of the past decade has made only a modest dent into the obstinately high incidence of severe underweight and stunting of children in the country." As Amartya Sen has shown, not only China, but also Bangladesh, are ahead of India in reducing the number of underweight children, despite the fact that "GNP per capita of $1,170" in India, "compared with $590 in Bangladesh." The critical number really is median GNP, and beyond that, real allocation to the sectors and concerns that matter. As the US surpasses Ivory Coast and Pakistan in inequality, don't count on gains from growth to go to the people who need it.

It's not just poor patients who need to worry about misplaced priorities in the health care system. We are increasingly seeing shortages of important drugs in the US. (Apparently this issue first caught mass media attention when prisons had a difficult time finding a key barbiturate used in executions.) Given that Congress is busy planning to cut funding for the statistical abstracts of the US and energy research (adding to prior DOJ cuts to studies of industrial concentration in the US), we shouldn't be surprised to learn that "no one is systematically tracking the toll of the shortages." Not many journalists are left to report on the government's failure to report, either. But the head of FDA’s Drug Shortages Program is worried: “This is affecting oncology drugs, critical-care drugs, emergency medicine drugs."

It turns out that much-ballyhooed globalization has some downsides, too:

Continue reading

May 5, 2011 | Permalink | Comments (0) | TrackBack (0)

Guest Blogger Vickie J. Williams: Extreme Concierge Care and Incentivizing Physicians

Williams_31 First, a big thank you to Katharine Van Tassel and the Health Law Prof Blog for allowing me the opportunity to be a guest blogger this month.  With so much going on in the world of health care delivery and financing in the United States, it is an exciting time to be both a student and a teacher of health care law.  Like all good teachers, I consider myself to be both of these things simultaneously.  And besides, everybody around my law school is tired of listening to my rants about health care law and health care delivery reform, so I need a fresh audience.

The New York Times had an interesting article by Paul Sullivan on April 29 about what I call “extreme” concierge medical practices.  These physicians treat the very rich, sort of like what we see on the USA Network television show “Royal Pains.”  The article noted that the number of doctors practicing concierge medicine has risen fivefold in the last five years, but most of these doctors are practicing the more pedestrian model of concierge medicine, where subscriptions cost in the $1,500 - $2,000 range. The typical concierge practice caters to the upper-middle-class who want same-day appointments, extra time with the doctor, etc.  In contrast, “extreme” concierge practices cater to the fantastically wealthy, who, for example, want to have their yachts outfitted with “ready rooms” where a doctor can practice telemedicine remotely on a patient.    These physicians charge as much as $75,000 per year to ensure that clients can access their “extensive Rolodex” of medical specialists without having to endure long waiting lists.

These practices raise both legal and ethical questions, even more so than the typical concierge practice.  Defenders of these practices, such as the American Medical Association, claim that their existence enhances the number of options for health care delivery and financing for all, although it also recognizes the ethical concerns raised by their existence.   And some proponents of these practices appear to embrace a “trickle down” theory of access, claiming that the solutions to access provided by concierge practices will “migrate” to even the poorest people in the world.   Others who practice concierge medicine don’t believe that it will have any real effect on the larger policy issues we face in financing and delivery of health care.

I’m not sure where I come out on this.  I don’t believe in “trickle down” economics, but then I think of the high-powered fashion editor Miranda Priestly (played by Meryl Streep) explaining to her assistant Andy (played by Anne Hathaway) in the movie “The Devil Wears Prada,” that Andy’s cerulean blue ready-to-wear sweater is the product of “trickle-down” from the prior year’s high fashion trend.  The reason that “trickle-down” works in the fashion context is that there are financial incentives for ready-to-wear manufacturers to duplicate what has worked for high-end designers.  Therefore, if we want to see the general population benefit from the “extreme concierge” model, we need to provide incentives like the ones that exist in such practices to doctors in regular practice.  Why do doctors want to go into concierge practices?  They want more control over their schedules, to spend more time with fewer patients, and to be financially rewarded for good outcomes, rather than sheer volume.   They don’t want to spend their days handling insurance paperwork.  How can we provide these incentives to doctors who treat the rest of us?

The Patient Protection and Affordable Care Act (PPACA) takes baby steps towards providing those incentives, through encouraging and rewarding good outcomes rather than just numbers of procedures performed, but we need to do much more.   We need to re-think how we train new doctors, and how we finance their training.  Given the public’s reluctance to engage in anything more than baby steps when it comes to health care reform, it will be a long haul.  But if we keep thinking about what makes doctors want to engage in “extreme” concierge practices,  some good to the general public (other than a new television show) may come out of this model of practice. 

May 5, 2011 | Permalink | Comments (1) | TrackBack (0)

Wednesday, May 4, 2011

Introducing Guest Blogger Vickie Williams

The Health Law Prof Blog is very excited to introduce our new guest blogger, Professor Vickie Williams. Here is her bio and read more here:

Williams_31Associate Dean for Academic Affairs and Associate Professor of Law, Gonzaga University School of Law (Assistant Professor, 2003-2008).  Adjunct lecturer, University of Washington School of Law (2000, 2003).  Teaching areas:  Health Care Law, Civil Procedure, Constitutional Law, Conflict of Laws, Federal Jurisdiction.    Shareholder and associate, Bennett Bigelow & Leedom, P.S., Seattle, Washington (1995-2003). Associate, Perkins Coie, Seattle, Washington (1990-1995).  Professor Williams was a board member, Secretary/Treasurer and then President of the Washington State Society of Healthcare Attorneys from 1997 through 2004.  She is admitted to practice in the State of Washington, the Western District of Washington, the Eastern District of Washington, and the Ninth Circuit Court of Appeals.  She is a member of the American Health Lawyers Association, the Health Law Section of Washington State Bar Association, the Washington State Society of Healthcare Attorneys.  She publishes and speaks on topics related to Health Law, Civil Procedure, Constitutional Law, and the intersection of these areas. 

[KVT]

May 4, 2011 | Permalink | Comments (0) | TrackBack (0)

United Nations Discussions on Sustainability and Informed Consent

The United Nations Commission on Sustainable Development (CSD) is holding its Nineteenth Session at the U.N headquarters in New York City this week. Although not well reported in the U.S. press, it is a major meeting, where the international community discusses action to achieve Integration of social, economic and environmental dimensions of development. This year, the delegates are focusing on transport, consumption and production patterns, mining, chemicals, and waste management. The latter three topics are fertile ground for discussions on protection of health in developing countries.

The CSD emerged from Agenda 21, the plan of action for sustainable development adopted in June 1992 by the United Nations Conference on Environment and Development (UNCED), also known as the “Rio Earth Summit.” Agenda 21 called for the creation of the CSD to ensure effective follow-up of UNCED, enhance international cooperation, and examine progress in the implementation of Agenda 21.

An interesting dynamic so far has been the position of some developed countries on the principle or “free, prior and informed consent,” or the right to be informed about potential dangers to public health and safety, and to be able to reject activities deemed too risky. This appears in the U.N. Declaration of the Rights of Indigenous Peoples, and discussions at the CSD often revolve around indigenous rights since their lands, health and safety are so often affected by development.

This dynamic emerged in working group discussions about policy options on chemicals and mining. In the negotiating text (preliminary versions of all of them available here) on chemicals, the European Union and Mexico introduced language to emphasize parties’ “right to know”, but it was opposed by Canada. Similarly, in the discussion of a negotiating text on mining, the United States, Canada, Australia and New Zealand asked for deletion of language to enable “free, prior and informed consent” regarding indigenous and local communities. In general, the United States calls for adherence to existing standards and conventions, but does not seem to be on the cutting edge of the fight for indigenous rights. But the negotiations are in their early stages.

For excellent day to day coverage of the negotiations, including the positions and “corridor discussions” of many of the parties, see the International Institute for Sustainable Development’s daily reports accessible at their excellent website.

[MM]

May 4, 2011 | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 3, 2011

Move over Massachusetts, Here Comes Vermont

If you don't think Massachusetts or federal healthcare reform have gone far enough then look to Vermont. The Governor's healthcare reform plan, H.202 has now been passed by both the House and Senate. Media coverage is here and here. Industry reaction here. The draft conference committee report is available here. What's unique is that the Vermont universal healthcare plan uses a single payer model (or at least close thereto). The bill starts with an ACA "Health Benefit Exchange for Vermont" with enrollment beginning in 2014. Then, with federal waivers, the exchange will transition to a single payer called Green Mountain Care. [NPT]

 

May 3, 2011 | Permalink | Comments (0) | TrackBack (0)