HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Thursday, May 10, 2012

Worth Reading This Week

Wednesday, May 9, 2012

Guest Blogger Thaddeus Pope: Publishing Health Law Scholarship for Clinicians

Pope 3



With the close of the spring semester, the thoughts of most law professors turn to scholarship, to that “big” summer writing project.  Not me.  My summer is, instead, committed to a series of smaller research and writing projects. 

Over the past two years, I have found myself publishing more in medical and bioethics journals, and less in traditional law reviews.  For example, of nine (9) new articles that I have published, so far in 2012, only one was in a traditional law review.  The others were in book chapters, JAMA, Chest, Am. J. Bioethics, and other journals.  In 2013, I plan to tip the balance back toward traditional law reviews (and a book:  Pulling the Plug:  The Legal History of Medically Managed Death).  But I want to comment on the largely non-traditional composition of my current scholarship portfolio.

While law reviews are targeted primarily to other law professors (and sometimes to lawyers and judges), medical and bioethics journals are targeted primarily to “front line” health care providers.  I enjoy writing for this audience.  After all, much of health care law is implemented, on a day-to-day basis, directly by medical providers without the involvement of lawyers.  I hope that my scholarship helps these providers better understand the law for which they (alone) are primarily responsible.   

Let me provide a specific example.  This winter, I published an article titled “The Unbefriended: Making Healthcare Decisions for Patients without Surrogates” in The Journal of Clinical Ethics.  The “unbefriended” or “unrepresented” patient is one of the most vulnerable in society.  Unfortunately, in healthcare facilities across the United States, there are thousands of incapacitated patients and residents who have no reasonably available surrogate.  Who can consent to needed medical treatment for these individuals?  Who should?  The legally authorized options vary significantly from jurisdiction to jurisdiction.  Furthermore, frustrated with the practicability of the main default option, guardianship, many facilities have developed various extralegal mechanisms.  Other facilities, sticking within the letter of the law, violate their ethical and medical obligations to unbefriended patients.  To give guidance to these facilities, I synthesized and organized the complete range of legal and non-legal approaches. 

I could have published this manuscript as a law review article.  Indeed, at over 20,000 words, The Journal of Clinical Ethics published it in two parts.  If traditional law reviews were better indexed on Medline, then I might not have made this placement decision.  But I wanted to reach the clinicians for whom the issue was most relevant.

- Thaddeus Pope 

May 9, 2012 | Permalink | Comments (0) | TrackBack (0)

Guest Blogger Nicole Huberfeld: PPACA’s Hidden Coherence

Nicole-Huberfeld-FULLMany thanks to Katharine and the other editors for allowing me to crash their party this month.  One of the major arguments against severability in the Patient Protection and Affordable Care Act (PPACA) litigation is that the law addresses many problems in many different ways, thus the minimum coverage provision should be severed if the Court decides (against precedent) that Congress has exceeded its commerce power.  The legislation is extensive and does address diverse healthcare concerns, but it seems unfortunate that the United States had to take the position that its law does not hang together as a whole.  What government would choose to explain such significant legislation in this way?  Just two of today’s many health-related news items, which themselves appear disconnected, indicate how it is not such a stretch for PPACA to be described as addressing longstanding, related problems in American medicine.

First, Governor John Hickenlooper signed Colorado Senate Bill 134 today, a law that directs Colorado hospitals to take a number of steps toward financial transparency, fairness, and bill planning before they can resort to collection agencies.  The Denver Post reports that the “prime impacts” of the law will be:

  • Hospitals cannot charge the uninsured covered by the bill more than the lowest negotiated price offered to insurance companies or other third parties.
  • All hospitals must make financial-assistance information obvious to consumers online, posted in the hospital and printed on bills.
  • The hospitals must try to help low-income patients set up an extended payment plan before they are referred to collection agents.

Colorado’s new law echoes PPACA Section 9007, entitled “Additional Requirements for Charitable Hospitals.”  After many years of attempting to require more concrete provision of and evidence of charity care from tax-exempt hospitals, Congress has instituted requirements that 501(c)(3) hospitals refrain from aggressive collection practices unless they introduce “financial assistance polic[ies]” and determine whether the nonpaying patients are eligible for such assistance.  In addition to strengthening the rules for obtaining the subsidy that is charitable status, this new policy could facilitate earlier, more treatable, and less costly care, as patients will not fear the bankruptcy that could result from receiving treatment.       

Second, the Institute of Medicine has just issued a report providing a multifarious approach to obesity prevention and reversal, which the IOM summarizes as follows:

Left unchecked, obesity’s effects on health, health care costs, and our productivity as a nation could become catastrophic.  The staggering human toll of obesity-related chronic disease and disability, and an annual cost of $190.2 billion for treating obesity-related illness, underscore the urgent need to strengthen prevention efforts in the United States. … The IOM evaluated prior obesity prevention strategies and identified recommendations to meet the following goals and accelerate progress:

Integrate physical activity every day in every way

Market what matters for a healthy life

Make healthy foods and beverages available everywhere

Activate employers and health care professionals

Strengthen schools as the heart of health

On their own, accomplishing any one of these might help speed up progress in preventing obesity, but together, their effects will be reinforced, amplified, and maximized.

The IOM’s report will aid those who seek the funding for obesity prevention that PPACA has made available through the Prevention and Public Health Fund and other mechanisms. 

Neither the IOM report nor the new restrictions on tax-exempt hospitals is directly related to the “individual mandate,” but these stories are still connected.  American health can be advanced by improving aspects of the system that have been disparate since the early 1900s: public health, hospital organization and behavior, and payment mechanisms.  If obesity trends downward, then Americans will be healthier for not suffering the collateral diseases the IOM highlights (hypertension, diabetes, heart disease, etc.).  And, when medical need arises, a patient is more likely to seek care, rather than waiting until a disease is more advanced and thus more expensive, if hospitals are fair in charging and collecting practices.  Insurers will have more healthy bodies in the risk pool, which should help to keep premiums down.  The various moving parts ease each others’ function. 

This is not to say that the law is so cohesive that the individual mandate should not be severed; it would be bizarre to strike down such an extensive law over one element of its scheme.  But, the Obama Administration seems to be missing the chance to tell a more coherent tale of its signature legislation.

- Nicole Huberfeld

May 9, 2012 | Permalink | Comments (1) | TrackBack (0)

Introducing Guest Blogger Nicole Huberfeld

The Health Law Prof Blog is pleased to introduce our second guest blogger for the month of May, Professor Nicole Huberfeld. Here is her short bio:





Nicole Huberfeld is Professor of Law at the University of Kentucky College of Law and Bioethics Associate at the University of Kentucky College of Medicine.  Nicole teaches structural constitutional law and a variety of healthcare law courses.  Her scholarship focuses on the cross-section of constitutional law and federal healthcare programs with a particular interest in federalism and Spending Clause jurisprudence.  Her latest article, Post-Reform Medicaid before the Court: Discordant Advocacy Reflects Conflicting Attitudes, is forthcoming in the Annals of Health Law.  She also published Federalizing Medicaid in the University of Pennsylvania Journal of Constitutional Law in December and a book review of The Politics of Medicaid with the Journal of Legal Medicine in March.  She was the recipient of the Duncan Teaching Award, a nominee for the University of Kentucky Great Teacher Award, and a nominee for the ALI Young Scholars Medal.  Previously, she was the Health Law Faculty Fellow at Seton Hall Law School.  While at Seton Hall, she created and was Director of the Health Care Compliance Certification Program, which educates compliance officers of pharmaceutical and medical device companies in corporate and healthcare compliance.  Prior to academic life, she practiced regulatory and transactional healthcare law in New York and New Jersey.


May 9, 2012 | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 8, 2012

If Health Insurance Mandates Are Unconstitutional, Why Did the Founding Fathers Back Them?

Elhauge_EEiner Elhauge, Petrie Professor of Law at Harvard Law School and Founding Director of the Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics, has written a compelling series of articles in The New Republic citing solid evidence to rebut the claims of those who challenge the constitutionality of Obama Care’s individual mandate by asserting that purchase mandates are unprecedented. In the first of the series, If Health Insurance Mandates Are Unconstitutional, Why Did the Founding Fathers Back Them?, Professor Elhauge explains:   

[t]he founding fathers, it turns out, passed several mandates of their own. In 1790, the very first Congress—which incidentally included 20 framers—passed a law that included a mandate: namely, a requirement that ship owners buy medical insurance for their seamen. This law was then signed by another framer: President George Washington. That’s right, the father of our country had no difficulty imposing a health insurance mandate.

That’s not all. In 1792, a Congress with 17 framers passed another statute that required all able-bodied men to buy firearms. Yes, we used to have not only a right to bear arms, but a federal duty to buy them. Four framers voted against this bill, but the others did not, and it was also signed by Washington. Some tried to repeal this gun purchase mandate on the grounds it was too onerous, but only one framer voted to repeal it.

Six years later, in 1798, Congress addressed the problem that the employer mandate to buy medical insurance for seamen covered drugs and physician services but not hospital stays. And you know what this Congress, with five framers serving in it, did? It enacted a federal law requiring the seamen to buy hospital insurance for themselves. That’s right, Congress enacted an individual mandate requiring the purchase of health insurance. And this act was signed by another founder, President John Adams.

Read the entire elegantly crafted series here, here and here



May 8, 2012 | Permalink | Comments (0) | TrackBack (0)

Hospital Fees and the Uninsured

BillFor some time, observers criticized hospitals for billing their uninsured patients the rack rate while charging insured patients far less. Under the Affordable Care Act, hospitals must offer their uninsured patients discounts similar to those negotiated with insurers. But many uninsured patients have been billed in the past at hospital list prices. On Thursday, May 10, the Indiana Supreme Court will hear oral arguments on the question whether the high hospital rates for the uninsured were unreasonable and therefore unenforceable. The specific issue before the court is whether uninsured plaintiffs can bring their claim--the trial court had dismissed the case for failure to state a claim, and the court of appeals reversed..





May 8, 2012 | Permalink | Comments (0) | TrackBack (0)