HealthLawProf Blog

Editor: Katharine Van Tassel
Creighton University School of Law

Friday, July 20, 2012

Two Approaches to Health Disparities

This is a very interesting video on addressing health disparities.  It's particularly enlightening to compare Onie's approach to promoting health to that of Accretive--an entity with vastly more resources, support from Wall Street investors, and backing from Rahm Emmanuel and a former secretary of Health and Human Services.  


July 20, 2012 | Permalink | Comments (0) | TrackBack (0)

Predicting ACA's Consequences

Two weeks ago I blogged about criticisms that were being raised about the financial consequences of the Affordable Care Act.   I referenced in particular an article by John Klatch of the organization, Americans for Tax Reform.  In response to that posting I heard from Professor Fran Miller, one of the smartest people I know, who is currently a visiting Professor of Law University of Hawaii at Manoa, & Professor of Law Emerita Boston University School of Law.  Professor Miller referred me to an article in Forbes which showed ACA as having far less an effect on capital gains taxes than Klatch suggested.  This got me curious both about the specific claims made about ACA’s effect on the capital gains tax and, more generally, the continued back and forth about what bad things lay ahead now that ACA was the law of the land.

First, whether or not ACA can in any sense be described as increasing the Capital Gains tax rates depends on your definition of cause and effect.   Whether ACA was upheld or not, the current Capital Gains tax rates, which temporarily lowered rates, are set to expire in 2013.  If Congress takes no further action, rates will go up.

But second, it seems that ACA has become something of a blank slate onto which Americans are still imposing their own hopes, fears and concerns.  Rather than fade away, interest has intensified with the new topic being debate over what is likely to happen as the Act is implemented.   Picking up on nature of speculation, the public editor of the New York Times, Bill Keller, felt compelled to write a this article “debunking” myths about ACA, discussed here by the National Catholic Reporter, which itself was debunked in the fast response by Foreign Policy Journal.

A related stream of commentary comes from those asserting that there will still be flaws in our health care system even when ACA is fully implemented.  See here.

What to make of this?   The public seems to be caught in the middle with Fox News reporting divisions along party lines among Democrats who want to move on and focus on the future of health care in the United States and Republicans who are still committed to at least partial repeal.   The Fox results are similar to those found by the Kaiser Family Foundation shortly after the decision.




July 20, 2012 | Permalink | Comments (0) | TrackBack (0)

Worth Reading This Week

Kaplan: The Top Ten Myths of Medicare

Richard L. Kaplan (Illinois), Top Ten Myths of Medicare

In the context of changing demographics, the increasing cost of health care services, and continuing federal budgetary pressures, Medicare has become one of the most controversial federal programs. To facilitate an informed debate about the future of this important public initiative, this article examines and debunks the following ten myths surrounding Medicare: (1) there is one Medicare program, (2) Medicare is going bankrupt, (3) Medicare is government health care, (4) Medicare covers all medical cost for its beneficiaries, (5) Medicare pays for long-term care expenses, (6) the program is immune to budgetary reduction, (7) it wastes much of its money on futile care, (8) Medicare is less efficient than private health insurance, (9) Medicare is not means-tested, and (10) increased longevity will sink Medicare.


July 20, 2012 | Permalink | Comments (0) | TrackBack (0)

Thursday, July 19, 2012

2013-2015 Academic Fellowship Program at the The Petrie-Flom Center for Health Law, Bioethics, and Biotechnology at Harvard Law School

The Petrie-Flom Center for Health Law, Bioethics, and Biotechnology at Harvard Law School is currently accepting applications for the 2013-2015 Academic Fellowship Program on a rolling basis through November 16, 2012.

The fellowship is designed for applicants who have the intellectual focus to make top-rate academics in health law policy, bioethics or biotechnology, and who would benefit from time to develop their ideas and writing before they enter the academic job market. Our prior fellows have found homes on the law
faculties at Harvard, Berkeley, BU, UCLA, the University of Arizona, Cornell and the University of Illinois. The fellowships include stipends of $60,000/yr for two years, a research budget, limited benefits and access to the full range of the Center's and Harvard's facilities and research resources. 

If you know of any well-suited candidate who might be interested, please direct them to the call for applications available here to learn more:


July 19, 2012 | Permalink | Comments (0) | TrackBack (0)

A New Poll on Public Approval for the Court: Sour Grapes?

A New York Times/CBS News poll indicates that the public's support for the Supreme Court is at a low after the Healthcare Cases were decided.  The Times reports:

The nation is now evenly divided, with 41 percent of Americans saying they approve of the job the court is doing and the same share voicing disapproval, according to a new poll conducted by The New York Times and CBS News. In a poll a few weeks before the health care decision, the court’s approval rating was 44 percent and its disapproval rating 36 percent.

More than half of Americans said the decision in the health care case was based mainly on the justices’ personal or political views. Only about 3 in 10 of them said the decision in the case was based mainly on legal analysis. ...

More than half of Republicans now express disapproval of its work, compared with just over a third in early June. Among Democrats, the court continues to be somewhat more popular, with about half approving and a third disapproving.

Among independents, positive views of the court also held steady, with about 4 in 10 Americans approving. But disapproval among independents rose, to 43 percent from 32 percent.

The poll seems to have mostly measured sour grapes:

Partisanship also affected the public’s assessment of how the justices conducted themselves in rendering the health care decision. Nearly two-thirds of Republicans said it had been based on politics, compared with about 4 in 10 Democrats and more than half of independents.

I am not certain that the Court should care that the public believes its most high-profile case this term was politically motivated. The 7 in 10 who believe it was political and not legal analysis probably knew little about the ACA and even less about the Constitution or how the Court applies it.  And, despite the lack of civic knowledgeAmericans seem to hold the Court in high esteem, regardless of whether they "approve" of its work.  Perhaps "approval" is the wrong way to ask the question. 

Either way, I remain convinced that the Obama administration needs to strengthen its information campaign for the ACA.

July 19, 2012 | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 18, 2012

On Political Opposition to the ACA

Here’s a really brief summary, excerpted from Jonathan Bernstein:

1. Opposing the ACA Medicare cuts was what Republicans ran on in 2010, and are running on today.

2. Republicans support the cuts that they ran, and are running, against. Soon after arriving in Washington, that Tea Party class of 2011 voted for the Ryan budget which contained the very Medicare cuts they campaigned against.

3. [There is] absolute Republican opposition to the long-term cost-cutting measures in ACA (such as the IPAB) — while at the same time Republicans also have been bashing Barack Obama and the Democrats for not being willing to do “entitlement reform.”

Thus, Ross Douthat is unfair to say that “There was no meaningful Republican plan for reform during the heat of the original debate, and for all the notional talk about repealing and replacing, much the same void exists today.” There was a plan, and there is a plan. The plan is just being disguised or disclaimed as vigorously as tax-exempt groups now hide their donations. (For example, “even as Aetna’s president publicly voiced support for” the ACA, his company secretly donated millions to groups that attacked the plan. Private insurers generally spent over $100 million in this way over 15 months.) To understand what either party in the DC will do regarding the future of health care, we should look to their donor base, rather than their publicly stated positions. [FP]


July 18, 2012 | Permalink | Comments (0) | TrackBack (0)

Carter v. Canada: A Landmark Right to Die Case?

On June 15, 2012, the British Columbia Supreme Court handed down a much-anticipated judgment in Carter v. Canada, [2012]B.C.J.No. 1196; 2012 BCSC 886, 2012 BC.C. LEXIS 2467.  The case challenged Canada's prohibition on assisted suicide, to the extent that it restricted physician-assisted dying sought voluntarily by competent, grievously and irremediably ill adults. The constitutional argument was that the prohibition violated the Canadian Charter of Rights and Freedoms s. 15 equality rights and s. 7 rights to liberty and security of the person.  The nearly 200-page (in LEXIS) opinion is an extraordinary review of the current state of the law and practice of aid-in-dying, including extensive and careful discussion of medical ethics and end-of-life practices, the law in various jurisdictions where aid-in-dying is permissible, and the feasibility of effective safeguards.  

The plaintiffs in the case were Gloria Taylor, a patient with ALS who wanted to know that she could arrange for physician assistance should her condition become unbearable to her; Lee Carter and Hollis Johnson, the son and son-in-law of a patient with spinal stenosis who arranged for her to go to DIGNITAS in Switzerland for an arranged death; and Dr. William Schiochet, a family practice physician in Victoria willing to participate in aid-in-dying in appropriate circumstances.

The argument that prohibiting aid-in-dying violates s.15 equality rights depends on the differing circumstances between patients who are able to take their own lives and patients who, because of physical disabilities, require assistance of others. Section 15 of the Charter provides that every individual has "the right to equal protection and equal benefit" of law "in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability."  This provision does not preclude law with the object of ameliorating conditions of disadvantaged individuals. Reasoning that the "animating norm" of this provision is substantive equality based on the enumerated ground of physical disability, the Court concluded that the absolute prohibition of assisted suicide imposed a disproportionate burden on people with physical disabilities. The Court applied the norm of substantive equality both to cases in which the allegation was that the plaintiff had not received equal benefit of the law and to cases such as this one in which the plaintiff contended that the law had the effect of unduly burdening individuals in the protected class. Finally, the court reasoned, the prohibition did not function to protect disadvantaged individuals, but to deprive them of the dignity of choice.

S. 7 of the Charter provides that everyone has "the right to life, liberty and security of the person" and may not be deprived of these rights "except in accordance with the principles of fundamental justice."  Here, the defense argument was that this was a limit on liberty in accord with fundamental justice.  The Court, in rejecting this argument, found that the absolute prohibition was overbroad and grossly disproportionate to any anticipated harms.  Instead, the Court invited the government to design safeguards to ensure that aid-in-dying was permissible only in appropriate cases.

In issuing the decision, Justice Smith placed a one-year stay on the ruling to give the Canadian government time to consider its options.  The stay included a "constitutional exemption" for Taylor, allowing her to get help to end her life if she so wished.  On July 13, the Canadian federal government announced that it is appealing and sought a stay on the decision, including the exemption for Taylor.  Stay tuned.

The case was litigated with great care and included a remarkable set of affadavits and testimony in favor of and opposed to aid-in-dying, from experts in bioethics, end of life treatment, and disability discrimination. The discussion of the evidence about the efficacy of safeguards, especially those aimed to insure voluntariness of the patient's decision such as assessments of competence or structures to avoid physician influence or forms of social coercion, are especially enlightening. For opponents, the decision has become a focus of resistance.  Whatever happens as the case is appealed, the opinion is worth reading (and assigning to students, at least in part) as analysis of the justification for legalization of aid-in-dying with appropriate safeguards.


July 18, 2012 | Permalink | Comments (0) | TrackBack (0)

New IOM Report: Higher Payments Are No Cure For Doctor Shortage

An Institute of Medicine report issued yesterday and reported on at Kaiser Health News concluded that while "there are wide discrepancies in access to and quality of care across geographic areas, particularly for racial and ethnic minorities,” these variations do not appear to be due to Medicare payments and were unlikely to be influenced by changes in rates.

The committee concluded that Medicare beneficiaries in some geographic pockets face persistent access and quality problems, and many of these pockets are in medically underserved rural and inner-city areas. However, geographic adjustment of Medicare payment is not an appropriate approach for addressing problems in the supply and distribution of the health care workforce. The geographic variations in the distribution of physicians, nurses, and physician assistants and local shortages that create access problems for beneficiaries should be addressed through other means.

The alternative solutions put forth in the report include having Medicare pay for services such as telemedicine that improve access to medical care in underserved regions. Another poposal was to encouraged states to change scope of practice laws so that nurse practitioners can provide more care, something the institute has pushed for in the past.


July 18, 2012 | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 17, 2012

Southern Illinois University--Garwin Distinguished Professor of Law and Medicine

The Southern Illinois University School of Law is seeking nominations and applications for the Garwin Distinguished Professor of Law and Medicine for the 2013-14 academic year.  Established in 1996, the Garwin Professorship is funded in part by a grant from the Garwin Family Foundation which was established in 1993 for the purposes of fostering education and academic research.  Support for the position includes a competitive salary, benefits, travel allowance, housing for one year, and a research assistant.

Applicants must possess the Juris Doctor degree or its equivalent from a nationally-accredited law school, be currently on the faculty of an accredited school of law or other graduate professional school, and have an outstanding national reputation as a health law/policy scholar and teacher.  Factors to be considered in assessing candidates for the Garwin Distinguished Professorship include the following: scholarly and teaching record, honors received (e.g. awards, fellowships, etc.), participation and leadership in national and international organizations, letters of recommendation, and other factors relevant to assessing qualifications for this position.

For Associate or Full Professor rank: significant teaching experience and demonstrated achievements in scholarship consistent with the tenure and promotion standards of the Southern Illinois University School of Law. For details see:

A complete application will require a letter of application detailing your interest, qualifications and relevant experience, along with a vitae or resume and three references with names. Address or email applications to:

Patty Lynn, Assistant to the Dean
Mail Code 6804
Southern Illinois University School of Law
1150 Douglas Drive
Carbondale, Illinois 62901


July 17, 2012 | Permalink | Comments (0) | TrackBack (0)

The Federal Subsidy for Federal Exchanges Kerfuffle

The Section 1401 drafting error first raised by Adler and Cannon, here, gets the WonkBlog treatment, here, including comments from the academy. The definitive post at the moment is, not surprisingly, by Tim Jost, here. [NPT]

July 17, 2012 | Permalink | Comments (0) | TrackBack (0)

Congress and the Dangers of Lead Exposure

Yet again, the U.S. Congress exhibits cognitive dissonance on toxic chemical exposure. Last week, witnesses at the Senate Environment and Public Works Committee hearing entitledthe Latest Science on Lead’s Impacts on Children’s Development and Public Health” established that children’s health can be affected by lower exposures to indoor lead than previously known. In an opening statement, Senate majority leader Barbara Boxer pointed out that while the Centers for Disease Control (CDC) is responding to these new scientific findings by lowering the levels of indoor lead that require action, the FY 2013 budget proposal cuts CDC programs that address this exposure (the Healthy Homes and Lead Poisoning Prevention Program). See also the CDC testimony attesting to the improved studies.

The EPA also protects against lead exposure and is now undergoing an Integrated Science Assessment that synthesizes and evaluates science that forms the foundation for the Clean Air Act ambient air standards for lead. See the EPA’s testimony.  No doubt any tightening of standards will meet strong opposition in the House, which correlates weaker environmental health protections with strengthening the economy.


July 17, 2012 | Permalink | Comments (0) | TrackBack (0)

Monday, July 16, 2012

Medicaid Expansion and Political Posturing

While several governors have announced their intentions to reject the Affordable Care Act's Medicaid expansion option, there is good reason to view their statements as political posturing rather than indications of the future of their states' Medicaid programs. As the New York Times reported last week, hospitals and other health care providers will lobby state legislatures hard to participate in the expansion. Moreover, the terms of the expansion are quite favorable for states, with the federal government picking up the full cost initially and 90 percent after a gradual reduction in the federal share.

The real budgetary burden for states comes not from the Medicaid expansion but from the "woodwork" effect in the pre-ACA Medicaid program. Many currently eligible persons have not signed up for Medicaid. When the individual mandate to purchase health insurance and streamlined enrollment for Medicaid kick in under ACA, they will encourage these eligibles to sign up, and the federal government's share of their costs will be its current share, which may be as low as 50 percent, not the 90-100 percent share for the expansion population. The governors threatening to opt out may be hoping that a Romney administration blocks ACA or that Congress will sweeten the Medicaid expansion deal even more, but in the end, it will be a big surprise if any states opt out. Talk is cheap, but declining billions of federal dollars is not.

[DO, with hat tips to Larry McCullough and Ed Richards]

July 16, 2012 | Permalink | Comments (0) | TrackBack (0)