HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Friday, November 18, 2011

Worth Reading This Week

Thursday, November 17, 2011

A Constitutional Right Not to be Bankrupted by Health Costs

Those challenging the ACA in court profess deep concern about government forcing citizens to buy insurance or pay a fine.  The fundamental harm here is monetary; it’s about being required to purchase insurance, not to use it (or to get any medical care at all).

If the Court agrees with them, why can’t there be a parallel monetary right not to be bankrupted by health care costs?  In the 1973 case San Antonio School District v. Rodriguez, the Supreme Court decided, by a 5-4 vote, that children did not have a constitutional right to education.  But at that time, at least four justices thought the state was obliged to make a decent education available to all.  Why can’t a future Court do the same for health care?

If the current Supreme Court were to declare the ACA unconstitutional, it would need to abandon several landmark precedents.  That’s not a problem for the Roberts Court; it’s already jettisoned once-venerable holdings on campaign finance, equal protection, antitrust, and voting rights.  It did so to promote its libertarian vision.

For many Americans in these tough economic times, rights to education, housing, health care, and food are a lot more meaningful than the right to be free of an insurance mandate.  We the people can locate these ideals in a Constitution and a Declaration of Independence rich with grand and sweeping language.  If those who hate health reform can use our nation’s founding texts to undermine the ACA, those who care about meeting basic human needs need to gear up to use them to do quite a bit more.


November 17, 2011 | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 16, 2011

Einer Elhauge on Medicare as Broccoli

Must-read op-ed closing the loop between the Individual Mandate and Medicare, here, noting:

Opponents of the new mandate complain that if Congress can force us to buy health insurance, it can force us to buy anything. They frequently raise the specter that Congress might require us to buy broccoli in order to make us healthier. However, that fear would remain even if you accepted their constitutional argument, because their argument would allow Congress to force us to buy broccoli as long as it was careful to phrase the law to say that “anyone who has ever engaged in any activity affecting commerce must buy broccoli.”

The only problem is that there may just be a majority of this SCOTUS prepared to say "you should have been more careful." [NPT]

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

Tuesday, November 15, 2011

Guest Blogger Kathy Cerminara: Coverage of Hospice Care as an Essential Health Benefit

Kathy CermineraLast week’s post was about the IOM’s focus on relative value in its report on crafting the essential benefits package under ACA.  In formulating its recommendations, the IOM considered the goals of ACA in interpreting Congress’s instruction that “the Secretary shall ensure that the scope of the essential health benefits . . . is equal to the scope of benefits provided under a typical employer plan.”  (Emphasis added.)  Balancing ACA’s desires to increase access to care and to ensure that benefits are affordable, the IOM recommended that HHS begin designing the essential benefits package by attempting to reflect the benefits packages covered by small employers before ACA.  Generally, as the IOM noted, differences between small and large employer plans tend to coalesce around design features (such as amount of patient cost-sharing) rather than around listed benefits.   Beginning with packages previously covered by small employers may not, however, result in the best relative value in end-of-life care because doing so may leave one essential end-of-life health care benefit by the wayside.

As discussed last week, determining relative value of benefits involves balancing cost-effectiveness and medical necessity.  Traditionally, society has shied away from discussions of cost-effectiveness of care at the end of life, but last week I argued, at the risk of sounding like former Governor Richard Lamm, that costs should be part of the conversation.  Now let’s think about medical necessity.

For patients near the end of life, there can be no dispute that good palliative care is medically necessary, regardless of how one defines that term.  Many patients facing a diagnosis of terminal illness wish, first and foremost, that they be spared physical pain, and palliative care physicians specialize in pain relief.  Advance directive statutes and other legislative and regulatory guidance of medical care near the end of life universally advocate the provision of “comfort care” or other, similarly titled palliative measures.  In Cruzan, the U.S. Supreme Court (or at least some of the justices) came close to stating that patients have a constitutional right to adequate palliative care.  Palliative measures are covered when part of a course of treatment that leads to a patient’s death.

But, medically necessary or not, some private insurers do not cover one tremendously important piece of palliative care.  Hospice care, or the provision of multi-disciplinary services through a team-based approach of caregivers and counselors, is primarily funded through Medicare in the United States.  Employer-provided plans certainly do not universally cover hospice care.  For example, the IOM included in its report a summary of WellPoint small employer benefits packages  that did not list hospice care as a covered benefit.  While some health insurers, such as Anthem Blue Cross Blue Shield, predicted that hospice care would be included on the list of essential benefits, such predictions occurred before the IOM recommended small employer health plan coverage packages as a starting point for design.  Data regarding whether there is a difference in this respect between large-employer benefits and small-employer benefits seems unclear, indicating a need for further study.

Hospice care provides patients with an opportunity to prepare for death in a low-intensity setting, foregoing treatments that merely postpone the moment of death,  Primarily provided at home, most of the insurers covering it, and Medicare and Medicaid, pay on a per diem rate.  Through hospice providers, in other words, patients and their families and caregivers receive multi-disciplinary counseling, assistance, nursing, doctoring, and therapy in the comfort of their own homes for relatively low per diem payments, providing for more peaceful journeys unto death.

As HHS convenes public meetings to discuss the contours of the essential benefits package, it should be wary of becoming too tied to the small-employer package starting point the IOM has recommended.  Whether part of the typical small employer package already or not, hospice care is high-value treatment for patients at the end-of-life, on a relative or an absolute scale.

- Kathy Cerminara

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

Framing the Supreme Court Case

Some of the reactions to yesterday's grant of cert.

Steven Schwinn over at Constitutional Law Prof, here, addresses the South Dakota v. Dole "basic principles of federalism" issue. In the L.A. Times, here, Erwin Chemerinsky looks at the individual mandate challenge and argues "Gonzales vs. Raich reaffirmed that Congress need only have a "rational basis" for believing that it is regulating economic activity that has a substantial effect on interstate commerce. It is inconceivable that it could be successfully argued that there is not a rational basis for believing that the individual mandate has a substantial effect on interstate commerce. Simply adding 50 million people to the rolls of those with healthcare coverage would have an enormous economic effect." 

In the N.Y. Times, here, Reed Abelson, Gardiner Harris and Robert Pear identify the parts of healthcare that will be forever changed whatever SCOTUS decides, noting "From Colorado to Maryland, hospitals are scrambling to buy hospitals. Doctors are leaving small private practices. Large insurance companies are becoming more dominant as smaller ones disappear because they cannot stay competitive. States are simplifying decades of Medicaid rules and planning new ways for poor and rich alike to buy policies more easily." At Politico, here, Joanne Kenen takes a similar approach and identifies "Five health reform fights SCOTUS won't settle" including the contents of the essential benefits package and the future of the Independent Payment Advisory Board. Also at Politico, here, Glenn Thrush assesses "Barack Obama's Supreme Court health care gamble." 

Finally, the aca litigation blog, here, continues to post useful updates on the case. [NPT]

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

Monday, November 14, 2011

Fallon on Scholars' Briefs

With SCOTUS ready to take on ACA, here, a timely essay by Richard Fallon on the quality of Scholars' Briefs, here.

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