HealthLawProf Blog

Worth Reading This Week

Barry Furrow, Health Reform and Ted Kennedy: The Art of Politics...and Persistence, SSRN/New York University Journal of Legislation and Public Policy

Brietta Clark, Using Law to Fight a Silent Epidemic: The Role of Health Literacy in Health Care Access, Quality, and Cost, SSRN/Annals of Health Law 

Bradley Areheart, Disability Trouble, SSRN/Yale Law & Policy Review

Art Caplan, Book Review, Vaccination: Facts Alone Do Not Policy Make, Health Affairs (subscription)

[NPT] 

 

Medicaid Cuts and the March Toward a Charity Model of Care

Last week, Nic Terry compiled a list of current threats to Medicaid funding. As he noted then, Medicaid coverage is increasingly becoming meaningless for those seeking specialist care. Though more people are slated to enter the program, policymakers are unlikely to fix these flaws before they arrive. To the contrary, “physician reimbursement will decrease, and hospitals are looking to cross-subsidize some of their Medicaid patient expenditures from the privately insured.” Something to remember next time we here about how imperative it is to cut public health expenditures: there is an inevitable pressure to “rob Peter to pay Paul.”

The budget drama narrative has so far focused on Republican efforts to further slash (orend) Medicaid, and Democratic resistance. But now even the Obama Administration is showing signs of reverting to form and endorsing a patina of Medicaid coverage without its substance. It is now too scared to even try to assess the full extent of the access problem. Like “death panels” before, the buzzword “spying on doctors” ended a promising program to measure the relative difficulty of getting access to care using different forms of insurance.

Obama officials are also engaged in more troubling substantive capitulations. Consider this CBPP report:

An Obama Administration proposal that’s on the table for budget negotiators would reduce federal Medicaid expenditures by reducing the federal share of Medicaid and CHIP costs, shifting costs to states and likely prompting states to cut payments to health care providers and to scale back the health services that Medicaid covers for low-income children, parents, people with disabilities, and/or senior citizens (including those in nursing homes). . . . The proposal would replace the various matching rates at which the federal government reimburses states for their costs in insuring people through Medicaid and CHIP with a single “blended rate” for each state. A state’s blended rate would be set at a level that provided the state with less federal funding than under current law, thereby saving the federal government money.

Abigail Moncrief has noted that states “are statutorily required—and should be judicially required—to pay a reasonable price for the services they buy” by the Medicaid Act’s equal access provision (42 U.S.C. 1396a(a)(30)(A)). But the Obama Justice Department is apparently complementing the budget team cost cutters by arguing that the Supremacy Clause does not “provide[] a cause of action for an injunction to enforce” the equal access provision. As Steve Vladeck observes, this is “a shift in policy that, if endorsed by the Supreme Court, would make it all-but-impossible to enforce the equal access mandate–one of the most important statutory requirements of the Medicaid program.”

Put it all together, and you have what bloggers Joan McCarter and Digby call a serious reversal for the President:

I don’t think anyone expected the Democratic leadership and the president to walk away from their own hard fought health care reforms before they even had a chance to be implemented. . . . I did think they would have wanted to give their legacy issue a chance to be implemented in full at the beginning, so they could continue to brag about bringing health care to 30 million uninsured Americans if nothing else. . . .But as the president says, in these tough times the government has to tighten its belt just like all American families. I guess he must realize that one of the things American families have had to cut out is their health insurance. So much for that legacy.

Perhaps a “balanced solution” to the budget debate is impossible now. But let’s at least acknowledge where we are heading with the endless Medicaid cost cutting. Much of thedeveloping world has what is essentially a “charity option” for the very poor: they have nowhere near the purchasing power necessary to buy care, but have to rely on the kindness of strangers or NGO’s. We are not imminently headed to that level of catch-as-catch-can care for all of the Medicaid population’s problems: very urgent problems will continue to get attention due to some combination of EMTALA and Medicaid funding. But for many other types of issues, we may need to rely more and more on a combination of cost-shifting and charity. One model is the Global Eye Foundation in India, where “more than 80 percent of the surgeries that the model hospital performs are free of cost to the patient.” When you hear establishment economists talk about increasing the “competitiveness” of the American labor force, and fighting rising health care costs, remember that moving to adeveloping world model of care is one powerful way of achieving those ends.  [FP]

 

Spies Like Us

Providers don't like having comparative ratings (such as HACs) published, here. Neither do they relish visits from data-rich detailers, here. And, some of them seem prone to overreacting to patients posting their opinions on web sites, here. Now, we discover, they are opposed to "secret shoppers."

Access to care isn't getting any easier, as the recent research on attempts to make appointments for Medicaid-covered children, here, made clear. So, back in April, HHS slipped a notice into the Federal Register, here, outlining a plan to "collect data from physician offices in order to accurately gauge availability of Primary Care Physicians (PCPs) accepting new patients, assess the timeliness of services from PCPs, and gain insight into the precise reasons that PCP availability is lacking." It seemed innocuous enough and was designed to probe the same private-public vector as the Illinois Medicaid audit. However, the proposal was perhaps a little too explicit in describing its preferred methodology, using "mystery shoppers." 

The HHS plan (including some of its scripted survey questions) was detailed in the New York Times earlier this week, here. It probably only took one quote from a doctor to scupper the plan, “I don’t like the idea of the government snooping… It’s a pernicious practice — Big Brother tactics, which should be opposed.”

Soon, according to Politico, here, a senator was circulating a draft letter to the Secretary and the critical headlines multiplied. By Tuesday the program was put on "indefinite hold," here, although an HHS spokesman tried hard to convince us that  “Politics did not play a role in the decision”

And to think, we were under the impression that a new world of transparency had arrived as outcomes and effectiveness research were poised to mend the healthcare system! [NPT]

 

Sixth Circuit Upholds Individual Mandate

By a 2-1 vote, the Sixth Circuit upheld the individual mandate as a valid exercise of the Commerce Clause power.  For those keeping score of political affiliation, one of the two majority judges was appointed by President Carter, the other by the second President Bush. The dissenting judge was appointed by President Reagan. (Thanks to Marty Lederman for reporting the decision on the con law professors list-serv.)

[DO]

The Debate Continues...

Yesterday, the White House Office of Management and Budget (OMB)  released the final 2011 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities, available here.

In stark contrast to the claims being from some House members that regulations are costing too much, the report concludes that the benefits of federal regulations promulgated between 2000 and 2010 far exceed their costs. For pollution regulations, the benefits were mainly realized in the area of public health. One of the notable environmental regulations assessed was the joint greenhouse gas emission/fuel economy standards for light-duty vehicles, where costs were valued at 3.3 billion dollars, compared to 11.9 billion dollars in benefits. This comes at the same time that the House has passed a bill (H.R. 910) that removes EPA’s authority to regulate emissions of Greenhouse gases.

[MM]

Guest Blogger Lindsay F. Wiley: Public Nuisance and Public Health

The Supreme Court’s 8-0 decision last week in American Electric Power v. Connecticut certainly has implications for environmental health.  The Court ruled that the federal common law public nuisance claim that the Second Circuit would have allowed to proceed was displaced by the Clean Air Act.  But AEP is more than just a climate change case.  Similar nuisance claims have been brought against the tobacco industry, firearms manufacturers and distributors, lead paint and pigment manufacturers, and other industries that are alleged to substantially and unreasonably interfere with public health and welfare.  It’s certainly possible that the Court’s reasoning in AEP could also apply to other public health threats.  As Lyle Denniston  wrote for SCOTUS Blog, to the extent that “targeted activities are covered by a broad federal regulatory law like the Clean Air Act, the new decision would appear to close them down.”  In any case, the great majority of innovative public nuisance suits have been dismissed on a wide range of procedural and substantive grounds. 

There’s a growing body of legal literature surrounding public nuisance.  As the cases appear to be winding down, the literature is taking a turn from practical, advocacy-oriented pieces toward more theoretical examinations of how courts have handled these challenging cases.  Tom Merrill recently put up a paper on SSRN asking Is Public Nuisance a Tort?  He argues that “legislatures rather than courts are the proper institution to identify the circumstances in which public nuisance liability exists, as well as who has authority to institute a public nuisance action.”  Much of the scholarship surrounding nuisance has similarly focused on procedural issues grounded in separation of powers. 

I’m currently wrapping up a project that situates the doctrinal debate over the substantive scope of public nuisance within a broader debate over the legitimate scope of public health law.  As Wendy Parmet and others have argued, public health provides a unique and valuable lens for examining a wide range of legal problems.  But it provides a particularly appropriate theoretical framework for understanding public nuisance law.  Public nuisance law and public health law share a common heritage in the police power of the state.  It is widely agreed that the defining trait of a public nuisance is a substantial and unreasonable interference with a right held in common by the general public, including interference with public health, safety, welfare, morals and convenience.  But the unique characteristics of public health have been misunderstood and misrepresented in the adjudication of public nuisance claims and in some of the academic commentary on nuisance. At the same time, public health law scholars have failed to fully appreciate the richness of the ties between nuisance and public health. 

I argue that the current trend toward rejection of industrial public nuisance liability is part of a broader tension over the proper scope of public health law.  In particular, the debate over the meaning of a “public right” in the context of public nuisance law and the debate over the meaning of the “public” in public health law are in many ways one and the same.  In both disputes, the stakes are high.  Designating a problem as “public” changes the rules of the game.  If a state or municipality suing in parens patriae successfully pleads substantial and unreasonable interference with a public right, the door is opened to flexible doctrines of causation and fault that make liability more likely.  If a concern is designated as a public health threat, legal doctrines that privilege state intervention over private interests come into play. 

Both of these debates arise out of a mounting tension between the science and politics of public health.  On one hand, evolving scientific understanding suggests that addressing social and environmental determinants of health is crucial to protecting the public’s health.  On the other, there are deeply held political and philosophical beliefs about where the boundary between public and private responsibility for health legitimately lies.  This tension will continue to play out in contexts ranging from sin taxes on sugared beverages to workplace wellness programs that incentivize employees to lower their body mass index.  Situating public nuisance liability within public health jurisprudence sheds new light on the doctrinal controversy over nuisance.  But at this point, the legal battle over nuisance seems to be nearly lost.  The project’s more significant contribution may be its suggestion that the controversy over public nuisance is indicative of what the future holds for public health law. 

 - Lindsay F. Wiley

Google Health, To Bury or To Praise?

According to Google's official blog, here, "Google Health" will be "retired" in January. Google Health was the first major company's entry into the personal health records (PHR) space (Microsoft's Health Vault is a different animal). It was announced in 2008 around the time the Bush Administration must have realized that market failures were going to derail its EHR project. A PHR model must have seemed a perfect substitute. It lacked the first mover, “misaligned incentives,” and network effects market failure problems associated with the Administration's national EHR model. Because PHRs operated in an essentially unregulated zone little touched by the HIPAA Code, jumping on the PHR bandwagon was nicely consistent with the Administrations' position that over protective privacy regimes were responsible for slowing EHR implementation. And, the PHR narrative could be conveniently interwoven with the then popular push for Consumer Directed Health Care (CDHC). As I suggested, here, a few months later, "PHRs are dangerously flawed adjuncts to or substitutes for provider-centric records, and, while lacking many of the touted quality or cost-reduction benefits of the of- ten-criticized EHRs, they pose substantially higher levels of risk regarding security, privacy, and confidentiality."

I stand by those comments and do not mourn the passing of the most visible PHR system. But, I do regret failing to appreciate the importance of Google Health being built on the universal language of the web. A few months ago the President’s Council of Advisors on Science and Technology (PCAST), available here, recommended that the, now government-stimulated, national EMR project should refocus its efforts on records interoperability and achieve that by concentrating less on records databases and more on segmented data expressed in a universal exchange language (likely an XML variant). This markup language would provide the metadata that could provide patient identifying information, privacy protocols, and provenance relating to those data elements. That data could then be accessed by providers through specialized and secure search engines that would crawl the meta-data. PCAST was pretty flawed as far as any short term implementation and rightly set off a lot of privacy and security alarms. But, longterm its concept of how to achieve efficient data interoperability may prove to be correct. After all, the closest to any PHR that most of us will see near term is a patient portal tacked on to the end of a provider's EMR. It may be accessed through a browser but it will be built on APIs that limit us to interactions with some of the proprietary data locked up in the EMR.

Chilmark Research has an insightful post, here, listing a number of explanations for Google Health's death. Google itself explained the demise of its PHR project as follows, "[W]ith a few years of experience, we’ve observed that Google Health is not having the broad impact that we hoped it would. There has been adoption among certain groups of users like tech-savvy patients and their caregivers, and more recently fitness and wellness enthusiasts. But we haven’t found a way to translate that limited usage into widespread adoption in the daily health routines of millions of people."

But, I wonder whether putting that quote through Google Translate would produce something closer to "we do search across web data but the government decided to spend $27 billion of your money creating electronic records silos built on proprietary formats that neither we nor any of your other doctors can search." If that's anywhere close to the real reason why they are burying Google Health, surely it raises the question of whether we will be praising the current Administration's EMR project design after the stimulus money runs out. [NPT]