HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Friday, May 13, 2011

Worth Reading This Week

2011 Milliman Medical Index

The annual Milliman Medical Index is available, here, and as usual contains some useful (and scary) statistics. The cost of healthcare jumped another 7.3% over the last year, with costs doubling in just nine years. Even though the rate of increase is flattening it still exceeds other sectors of the economy. The two largest drivers of cost increase this year? Outpatient facility costs (up 10%) and hospital inpatient care (up 8.6%). The 2011 report also stirs healthcare reform into the mix noting that it is a minor player in the current trends (no surprise) and may not lead to significant changes in the underlying cost of medicine as measured by the index (somewhat surprising?). The full report is available here (PDF).



May 13, 2011 | Permalink | Comments (0) | TrackBack (0)

Thursday, May 12, 2011

The HEALTH Act Moves On

The Help Efficient, Accessible, Low Cost, Timely Health Care (HEALTH) Act, H.R. 5, discussed here last week, has been approved by the House Energy and Commerce Committee, here. The bill contains the core AMA/MICRA wish-list (on which see the RAND study here); noneconomic caps, contingency fee controls, collateral source abrogation, punitive damages standard and cap, several liability, and periodic payments. 

Probably the most interesting feature of the bill is Section 11, the partial preemption provision (Congress clearly hasn't learned much from HIPPA's "more stringent…" language). The statute is broadly preemptive of state laws unless those laws are more favorable to providers. There is a partial exception for caps which states may set lower or higher than the federal ceiling.



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

Ag-Gag: A Black-Boxed Food Supply

I recently discussed the OIRA’s contribution to some terrible incidents in egg safety. Denis Sterns has written a challenging article on the bigger picture, explaining “Why Food in the United States May Never be Safe:”

This article . . . interrogates the idea of food safety by opening the question of whether a rational economic actor in a free market for food can reasonably be expected to invest in improving the safety of the food products he makes and sells. It is precisely the lack of (cr)edibility in the market – i.e., the absence of reliable quality signals, the lack of traceability, the high degree of anonymity, and the destruction of trust – that creates the structural impediments and powerful disincentive for improving the quality and safety of food. . . . Recall the huge public uproar, and swift policy changes, that followed the release of video of “downer” cattle being abused at a California meat plant. To obtain the video, the Humane Society had to sneak someone inside the plant to secretly record the offending conduct.

The secrecy of some food suppliers is very troubling. Stearns proposes constant surveillance of their actions: “With video cameras always in place . . . one can only expect that most of the shocking conditions that are found after the fact of an outbreak would be less likely to occur in the first place.” Stearns also criticizes FDA’s “wholly voluntary and largely ineffective” traceback regulations, which would make it easier to find the source of contaminated food. (Maybe the FDA is too busy chasing down raw milk co-ops.)

Unfortunately, Big Meat appears all too eager to hide their actions from both concerned citizens and animal rights activists. Consider the rash of legislation designed to deter actions like the Humane Society’s:

The animal advocacy group Mercy for Animals sent an undercover investigator to E6 Cattle Company in Texas, where he filmed calf abuse over a two-week period. To prevent such whistleblowing, several states have passed so-called “Ag-gag” laws that would make it illegal to clandestinely film inside slaughterhouses, sparking what animal rights activists fear will be a nationwide trend. . . . “They’re trying to criminalize someone being an eyewitness to a crime,” Jeff Kerr, [PETA]’s general counsel, said.

One of Chinese dissident Ai WeiWei’s biggest “offenses” against the Chinese government was trying to publicize the names of the children killed when shoddy schools collapsed after an earthquake. Criminalization of exposes of contamination and animal abuse in America’s heartland could be one more step toward the convergence of Chinese and US politico-economic structures.


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

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.



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. 


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)