HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Saturday, April 16, 2011

The Massachusetts Time Machine

Is Massachusetts once again pointing to the future of healthcare with cost curve-bending proposals described in the Washington Post, here? Governor Patrick favors an ACO-like "integrated care" system that would replace fee for services. The proposals date back to the Massachusetts Special Commission, available here 

April 16, 2011 | Permalink | Comments (0) | TrackBack (0)

Friday, April 15, 2011

The Globalization of Health Care: Conference Announcement and Call for Attendance Requests

On May 20-21, 2011 The Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics at Harvard Law School will host a conference on the Globalization of Health Care. Please refer to the conference schedule for further information. We will bring together leading scholars and policy-makers in the fields of law, public health, public policy, medicine, and government, to discuss several overlapping and diverging instances of health care globalization, including topics on medical tourism, research and development and telemedicine, medical worker migration, globalization and health care equity, and organ transplantation. Though the event is a closed door forum, we have a limited number of spaces available for outside attendees doing research on these topics. If you are interested in attending, please email Kathy Paras, with a sentence or two describing your research background and your specific interest in attending. Please submit your requests no later than May 6, 2011. The availability of space is very limited, but we will do our best to accommodate requests. While there is no registration charge to attend, approved attendees are responsible for their travel expenses.

April 15, 2011 | Permalink | Comments (0) | TrackBack (0)

Guest Blogger Thomas L. Hafemeister - Ten Years After Troxel: Grandparent Visitation Disputes Still Jeopardize the Physical and Mental Health of Children

Historically, parents had the exclusive right to determine with whom their children could associate.  As a result, grandparents did not have a substantive right to access and interact with their grandchildren, although their ability to dictate the terms of inheritance often provided a practical means to ensure this access. 

 In recent years as families increasingly fractured and adult offspring became less dependent on their parents, but elderly people attained greater ability to lobby for desired legislative changes, all fifty states enacted grandparent visitation statutes to enable grandparents, under certain circumstances, to obtain a court order granting them contact with their grandchildren, even when the grandchildren’s parents object.  These court orders are often sought following the divorce of the grandchildren’s parents or the death or termination of the parental rights of one of their parents, typically a traumatic time for all of the parties involved but particularly for these children, and the development of a rift between the grandparents and the custodial parent. 

Last summer marked the tenth anniversary of Troxel v. Granville, 530 U.S. 57 (2000), the U.S. Supreme Court’s one and only foray into the world of grandparent visitation disputes.  As I wrote in anticipation of the Court’s ruling:

These judicial proceedings almost inevitably produce highly polarized positions, can be bitterly contested and highly acrimonious, and may lose sight of the interests of the children caught in the middle of these controversies.  Those who support grandparents' visitation tend to emphasize that grandparents can play an important role in their grandchildren's lives by serving as mentors, role models or family historians.  hey may even take on a major responsibility for rearing these children and may provide an important source of emotional stability, nurturing and affection.  Opponents to grandparents' visits tend to argue that court-mandated grandparent visitation can undermine parental authority and parent-child relationships and interfere with parents' ability to shape the values and education of their children.  They also claim such visits could harm children by interjecting them into the midst of an ongoing conflict between parents and grandparents.

Sadly, there is little empirical research in general on grandparents' roles in child development or that specifically addresses court-mandated grandparent visitation, including the effects of mandated grandparent visitation and whether judicial proceedings resolve or exacerbate the problems that led to the initial petition.  Although there has been little research directly on point, we do know that custody disputes in divorce proceedings are among the most bitterly contested and acrimonious of judicial proceedings and that such proceedings can have a harmful impact on the children involved.  Also, litigation in general may disrupt relationships, diminish understanding and cooperation, impose an economic and emotional toll, and extend the time needed to resolve a matter.  Furthermore, social scientists have established that the nature of the process used to resolve disputes can strongly influence parties' acceptance and support of the outcome.  For example, individuals consider proceedings to be more fair and satisfactory, regardless of the outcome, when permitted to voice their views and to share in the decision-making process (Lind et al., 1990).

 Thomas L. Hafemeister & Shelly Jackson, Grandparent Visitation: Who Should Decide? 31(2) APA Monitor on Psychology 81 (2000). 

The passing of Troxel’s anniversary received little attention, perhaps a reflection of the Court’s failure to clearly resolve the matter before it.  In Troxel, the Court struck down a Washington state law that permitted “any person” to obtain court-ordered child visitation rights over the objection of the child’s parent if that person could establish that visitation was in the best interests of the child.  Although it rejected what it characterized as the “breathtakingly broad” Washington statute and recognized the fundamental constitutional right of parents to make decisions concerning the care, custody, and control of their children, the Court did not find such statutes to be inherently unconstitutional. 

Its deeply splintered opinion, however, provided little resolution or guidance to courts reviewing other such enactments and virtually guaranteed continued extensive litigation of this fiercely contested issue, notwithstanding the potentially deleterious impact of this litigation on the physical health and mental health of the children that are the center of these controversies.  Ironically, as one commentator stated, what Troxel did recognize was “the terrible emotional and financial cost of grandparent visitation suits for parents and children.”  Joan Catherine Boal, That “Thorny Issue” Redux: California Grandparent Visitation Law in the Wake of Troxel v. Granville, 36 Golden Gate U. L. Rev. 121, 156 (2006). 

As a result, hardly a month goes by without an appellate ruling being issued that attempts to untangle yet another grandparent visitation dispute.  For recent examples, see Burst v. Schmolke, No. 2010-CA-1036 (La. Ct. App. Apr. 7, 2011)(“it is this Court's position that despite both parties' efforts to relitigate the entire juridical history of this case each and every time they come to court, this Court will only address the pertinent and instant issues”); In re Tatiana V., No. D057624 (Cal. Ct. App. Mar. 16, 2011); In re A.R.P.L.M. v. B.S., No. 71A03-1010-MI-514 (Ind. Ct. App. Mar. 15, 2011). Further, and not surprisingly in light of how sharply contested these cases are, the Supreme Court has continued to be inundated with petitions to provide greater direction and clarity to the law governing these disputes.  The most recent such case comes out of Texas.

In Texas, a grandparent may file a suit to obtain “possession of or access to” a grandchild if the grandparent’s child who was one of the parent’s of the grandchild is incarcerated, incompetent, dead, or has lost custody of the grandchild, and the grandparent

 overcomes the presumption that a parent acts in the best interest of the parent’s child by proving by a preponderance of the evidence that denial of possession of or access to the child would significantly impair the child’s physical health or emotional well-being.

 Tex. Fam. Code §§ 153.432, .433 (2011). 

The Texas Supreme Court was presented with a case in which the mother of two young daughters passed away in September 2007.  It appears that initially relations between the surviving parent and the maternal grandfather and his wife were amicable.  Visits occurred every four to six weeks and child care assistance was provided.  As often happens, however, slightly over a year later the relationship began to deteriorate.  The grandchildren were taken to visit on Christmas Day rather than Christmas Eve, the father remarried, and visits were less frequent, which was attributed, alternatively, to the father’s new wife or to the grandfather and his wife’s refusal to follow set conditions for visits such as avoiding certain topics of conversation and adhering to a particular bedtime.  The court interpreted Troxel to require “evidence that the parent was unfit, that the children’s health and well-being would suffer, or that the parent intended to exclude grandparent access entirely” before a court could infringe on the parent’s fundamental liberty interest to make child rearing decisions and order grandparent access. 

 Ultimately, the Texas Supreme Court determined that the evidence introduced by the grandfather was nothing more substantial than the grandchildren’s understandable sadness resulting from losing a family member and missing their grandparents.  Thus, the court ruled, the grandfather had not met his “hefty statutory burden.”  Also addressed by the court was a related and frequently raised procedural question regarding who should be brought into these cases to assess the psychological health of the grandchildren and how this assessment should be conducted.  Here, the question was whether the trial court’s appointment of an expert to serve both as the childrens’ guardian ad litem and as an expert psychologist evaluating the children and their relationship to the parties involved violated the father’s constitutional rights to make child-rearing decisions.  In re Scheller, 325 S.W.3d 640 (Tex. 2010), petition for cert. filed, 79 U.S.L.W. 3570 (U.S. Apr. 5, 2011) (No. 10-1092)

It remains to be seen whether the U.S. Supreme Court will grant certiorari in this case to provide further guidance in how to resolve these knotty disputes, although based on past history this seems unlikely.  However, as I noted in anticipation of Troxel, the continuing problem is that courts tend to:

focus on the competing normative visions of family life without giving adequate attention to the process used to address individual disputes over grandparent visitation—a process that may exacerbate rather than resolve such disputes.  What state statutes have done is to place these disputes in the laps of the courts, even though it has been widely acknowledged that courts are poorly equipped to resolve such disputes. The result has been to impose a hierarchical decision-making model that places decision-making authority in the hands of a single person, notwithstanding that person's ability to successfully resolve the dispute.

 An alternative to assigning ultimate decision-making authority to a judge is to establish a framework for a consensus-based approach where the concerned parties are brought together to focus on what should be their overarching concern—namely, the children's welfare.  Rather than rely on a rights-based analysis to resolve this controversy, the Court may wish to note that family mediation (which may include counseling) is widely employed in divorce proceedings—proceedings that involve deeply felt and volatile positions about family life.  Rather than employing the "blunt instrument" of the courts, grandparents filing a visitation petition should perhaps instead be diverted to use dispute resolution.  This can reduce the likelihood of an outcome being unilaterally imposed that is resisted and resented.

Furthermore, it is unlikely that a single outcome can permanently resolve such disputes, as visitation may need to be addressed periodically throughout children's development as their relationships with adults evolve.  A mediation-type mechanism may lay groundwork enabling parties to resolve future disputes themselves, thereby avoiding the necessity of revisiting the courts for resolution.

Thomas L. Hafemeister & Shelly Jackson, Grandparent Visitation: Who Should Decide? 31(2) APA Monitor on Psychology 81 (2000). 

--Thomas L. Hafemeister

April 15, 2011 | Permalink | Comments (0) | TrackBack (0)

Worth Reading This Week

PPACA and Progressive Constitutionalism

The constitutional aspects of PPACA have focused on concerns about congressional authority to enact the Act.  On April 15, at an Ohio State Law Journal symposium on progressive constitutionalism, Prof. Rebecca Zietlow will be presenting an important positive perspective on the constitutional issues.  Here’s the abstract for her talk: 

Popular constitutionalism has played a pivotal role in progressive constitutional reform.  Indeed, progressive constitutional change rarely if ever occurs without political activism.  In my talk, I will examine the 2010 Patient Protection and Affordable Care Act as an example of progressive constitutionalism.  My choice may seem surprising to some.  To the extent that health care reform has been linked to popular constitutionalism, it has been the opposition to the act that has been the most vocal, as Tea Party activists argue that the act unconstitutionally infringes on states’ rights and individual liberty.  Often left out of this portrayal is the fact that the health care reform act itself did not come from a vacuum.  It was the result of years of activism on behalf of affordable health care.  Many supporters of the reform argued that health care was a fundamental right.  Leading members of Congress who supported the act agreed.  Yet, these days supporters of health care reform primarily focus on the dry legal issues of whether Congress had the power to enact the statute under the commerce and spending clauses.  My talk will discuss what might be gained from refocusing the debate to one about whether health care is a fundamental human right that should be protected by our government and recognized in our constitution.


April 15, 2011 | Permalink | Comments (0) | TrackBack (0)

Thursday, April 14, 2011

Gregg Bloche's The Hippocratic Myth

Georgetown law professor Gregg Bloche’s new book, The Hippocratic Myth, looks to be a major contribution to health policy debates. I haven’t had time to read it yet, but many reviews and radio shows give the impression of a rigorous work leavened with engaging narratives of individual patients and providers.

Bloche’s approach to rationing will rekindle many of the health care debates of 2010. A former advisor to the Obama health policy team, Bloche concludes that:

Medicine’s therapeutic potential has surpassed our ability to pay for it, but our elected officials are afraid to tell us. The historic health reforms enacted last year will protect 30 million Americans from the Darwinian cruelty of lack of access to care. But contrary to much wishful thinking in Washington, these reforms do little to stave off looming medical cost catastrophe. Our future fiscal and social stability will turn on our ability to gain control of spending without imperiling patients’ trust in their caregivers.

Bloche also observes the importance of the medical profession in upcoming bioethical debates:

Medical judgment incorporates hidden political and moral beliefs, and doctors have become key political and legal decision-makers—on such matters as child custody, criminal punishment, access to performance-enhancing drugs, and the politics of obesity, abortion, and homosexuality.

Doctors and the rest of us will need to address the morality of innovations we never thought possible. Drugs that block—or boost—biological mechanisms of stress resistance, brain-scanning methods that read minds, and medicines that interfere with formation of traumatic memories are among the technologies that will soon be with us.

During his interview with NPR’s Leonard Lopate, Bloche mentioned an aspect of insurer practice that renders suspect many consumer-directed ideals of medical care. Many insurers’ care protocols are kept secret, as proprietary information. Bloche found the practice deeply troubling, and I agree. Insurers’ criteria for providing care are important aspects of the service they are providing. They should not be hidden from patients or doctors. In more encouraging news, Bloche notes that he has not lost an appeal of a medical coverage decision to an insurer.

Enforceable Contracts for Cheaper and More Limited Care

Bloche seems committed to permitting consumers to make enforceable contracts for lower levels of care. Tyler Cowen evoked that form of a la carte insurance in his evaluation of the recent Ryancare proposal:

Let’s say it’s 2027 and I’ve just turned 65. I fill out a Medicare application on-line and opt for a plan with superior heart coverage (my father died of a heart attack), not too much knee coverage and physical therapy (my job doesn’t require heavy lifting), no cancer heroics (my mother turned them down and I wish to follow her example), and lots of long-term disability. Is that so terrible an approach? Is it obviously worse than having the Medicare Advisory Board make all of those choices for me?

Cowen worries that “Perhaps an individual will choose ‘no coverage for lung cancer,’ but the government cannot precommit to the outcome of no coverage.” But Bloche makes a point in an NPR interview that suggests that a physician’s decision to withhold care in that instance would not violate the Hippocratic Oath:

The rationale there is that the doctor who stints on care three years later when you get really sick is acting in accordance with your preferences as you expressed them in the employee benefits office three years before. And therefore, the doctor is not violating the Hippocratic Oath. The doctor is merely complying with your preferences when you rolled the dice in the employee benefits office.

Of course, that is in the private insurance context, not Medicare, and I don’t know if that distinction would make a difference for Bloche. But it does help me see how the book attracted a blurb from a Heritage Foundation analyst. Contemporary conservative health policy experts are committed to giving individuals the chance to buy low-cost plans, and so far the Obama Administration has been quite accommodating in granting waivers for them. My sense is that Bloche is committed to a minimum essential benefits approach that would allow consumers to opt out of “cancer heroics” (perhaps defined as biotechnology drugs costing over $7 million over one’s lifetime?), but not to waive “lung cancer” coverage generally.

Bloche argues in the book that:

[M]edicine’s capabilities and costs will inexorably grow. Increasingly, doctors will need to say no to care that’s technologically possible and that could prolong life, but that does so in competition with other national priorities. We must empower them to do so even when the consequences seem tragic. But we must give them this power without asking them to break faith at the bedside. To this end, the current regime of covert rationing, under cover of ‘medical necessity,’ should be supplanted by visible resource allocation rules–rules set for doctors and patients by social institutions. (58-9)

Transparency of this sort will compel us to come to terms the truth that insurers must say no to beneficial care to stay within the limits we impose when we seek low prices for products for products and services, elect politicians who promise low taxes, and choose cheaper health care plans for ourselves.

Though I hate to disagree with such an eloquent statement by so eminent a scholar, I am slightly troubled by that language. I think money saved from the health sector is more likely to go to new adventures in the Middle East or dot-com, housing, and commodities bubbles than it is to be allocated to “other national priorities.” Health care is only one of many sectors where US-style casino capitalism has seriously distorted capital allocation.

I also believe that the invocation of “we” here glosses over the moral role of redistribution in an extremely unequal economy. A privately insured person who really wants a procedure can spend himself down to bankruptcy, then apply for Medicaid. At that point, the government must make a decision. Given that “the government collected less in taxes in 2010 than it has in over three generations, and tax rates are at historic lows” for the very wealthy, I don’t think it is entirely fair to say “we” can’t afford certain care. Rather, those at the top of the income and wealth scale are increasingly supporting politicians who will not tax the wealthy. The current scarcity of care for the least well off is not a natural feature of the world; rather, it is epiphenomenal of repeated decisions not to impose certain tax burdens today even though they would have seemed perfectly fair 50 years ago. Since a “Wall Street transactions tax of only 0.50% on short-term speculation could raise up to $170 billion annually,” I fail to see an imperative to reduce incomes in the health sector until problems in much less socially productive sectors are addressed.

On the other hand, if our government “of the top 1%, by the top 1%, for the top 1%” continues, major cuts to the health sector are inevitable. If they must come, we need more trusted and fair voices like Bloche’s at the table. As Daniel Alpert has observed, “the U.S. has engineered a winner-take-all economy and indebted both the majority of its people and its government to keep a ‘don’t tax, but spend anyway’ consumerist fantasy alive.” Bloche helps us face the difficult task of unwinding the consequences of all those bad economic decisions.

Bloche is also admirably restrained in his sense of how much current law can do to rationalize health care spending. As he notes in a book excerpt:

30 percent of health spending [is] wasted on worthless care—about the price of the $700 billion mortgage bailout, squandered each year. . . [One study estimated that only] about 10 to 20 percent of medical procedures rest on “gold-standard” evidence — randomized clinical trials. . . . Risky and pricey therapies routinely make their way into common use without such studies. . . .

Change is looming. The 2010 health reform law created a “Patient- Centered Outcomes Research Institute,” funded by levies on Medicare and private insurers, to sponsor such research. But the funding level, less than a tenth of a percent of what Americans spend on health care each year, will do little to increase the fraction of medical decisions that rest on science. And the Institute’s governing body — composed mostly of representatives from the hospital, insurance, and drug and device industries, as well as physicians — seems almost designed to enable stakeholders to block studies that threaten their interests. Moreover, multiple provisions in the law (sought by providers and drug and device makers) hobble Medicare’s ability to base coverage decisions on research the Institute sponsors.

The mix of hope and realism in the paragraphs above reflects the judicious sensibility of the many Bloche articles I have had the good fortune to learn from. I look forward to reading his book. [FP]

X-Posted: Health Reform Watch.

April 14, 2011 | Permalink | Comments (0) | TrackBack (0)

Commonwealth Fund on ACOs


Comprehensive first take on ACOs from The Commonwealth Fund's Commission on a High Performance Health System concludes:

.... much work needs to be done to establish and spread ACOs and learn from innovative care systems. Success requires the development of trust among all the parties, as well as a willingness to test multiple approaches, measure results, and adapt rapidly to improve performance. Government leadership and flexibility are essential, as are activated and engaged clinicians and patients who embrace accountability for better care and health outcomes.

The report makes recommendations grouped around the following:

1. Strong Primary Care Foundation

2. Accountability for Quality of Care, Patient Care Experiences, Population Outcomes, and Total Costs

3. Informed and Engaged Patients

4. Commitment to Serving the Community

5. Criteria for Entry and Continued Participation That Emphasize Accountability and Performance

6. Multipayer Alignment to Provide Appropriate and Consistent Incentives

7. Payment That Reinforces and Rewards High Performance

8. Innovative Payment Methods and Organizational Models

9. Balanced Physician Compensation Incentives

10. Timely Monitoring, Data Feedback, and Technical Support for Improvement

Full report available here.



April 14, 2011 | Permalink | Comments (0) | TrackBack (0)


Excellent summary of recent literature by Kevin Sack in NY Times, available here.

Cited NEJM articles are here and here.


April 14, 2011 | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 12, 2011

Ozone Hole Expanding but Legal Measures Helping

Last week The UN Environment Programme (UNEP) and the World Meteorological Organization (WMO) have released an assessment titled “Scientific Assessment of Ozone Depletion: 2010,” which reports record stratospheric ozone loss in the Arctic. According to the assessment, ozone depletion has reached an unprecedented level over the Arctic due to the continuing presence of ozone-depleting substances (ODS) in the atmosphere and a very cold winter in the stratosphere. Because the hole allows increased UVB (ultraviolet radiation with 280-320 nm wavelengths) to reach the Earth, according to the Environmental Protection Agency’s briefing, the effects on humans could be increases in nonmelanoma skin cancer, malignant melanomas and cataracts -- a clouding of the eye’s lens. It also has effects on crops and other vegetation. The only good news is that the hole is mainly in the Arctic, where few humans venture – but it is expanding. The only other “good” news  I could find in the report was that the Montreal Protocol and its Amend­ments and Adjustments have prevented additional profound changes to stratospheric ozone.


April 12, 2011 | Permalink | Comments (0) | TrackBack (0)

Monday, April 11, 2011

Adverse Events and Medicare Patients, By Hospital

CMS has added Hospital Acquired Condition (HAC) Measures to its Hospital Compare Website, here. The rates, derived from billing data reflect per hospital incidences of common adverse events (Foreign object retained after surgery, Air embolism, Blood incompatibility, Pressure ulcer stages III and IV, Falls and trauma, Vascular catheter-associated infection, Catheter-associated UTI, and Manifestations of poor glycemic control).

A couple of weeks ago the American Hospital Association (AHA) published a "Quality Advisory urging hospitals to review and check the accuracy of the HAC data," available here. AHA members are clearly not happy with this data bonanza. As the advisory noted:

Hospitals strongly oppose inclusion of the HACs for reporting on Hospital Compare. CMS has never made specifications available for the calculation of the HAC rates, so fundamental assessments of the accuracy of capturing the incidence of these conditions have never been conducted. Hospitals continue to urge CMS not to publish these data.

Slowly but surely CMS seems to be nudging safety data reporting in the direction of the UK's comprehensive outcomes reporting, here. Of course, in the U.S. many states such as Illinois, Maryland, and Minnesota have their own publicly viewable safety databases that are not restricted to, e.g., Medicare patients and seem to have interfaces that are more patient-friendly than that favored by CMS. Unfortunately, CMS uses a zip file that opens into a spreadsheet; no doubt this will suit quality wonks and the occasional newspaper reporter (such as from the Chicago Tribune, here) but falls well short of the standard set by recent federal health sites such as But, perhaps we should be grateful that at least the data is getting published.



April 11, 2011 | Permalink | Comments (0) | TrackBack (0)