HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Saturday, August 11, 2012

Immigration Laws Affect Health Status

As some of you who attended the panel on immigration and health law issues chaired by Wendy Parmet at which Nathan Cortez, JoNel Neuman and I spoke, one of the serious consequences of law’s like Arizona’s SB 170 is that it discourages people from seeking medical care for themselves and their children for fear of being stopped and asked for immigration papers. This short article in the American Journal of Public Health describes what was essentially an incidental finding in a study of childhood obesity: concern about being stopped by the police has had a negative impact on public health.  The authors write that “Our findings from a study on childhood obesity in Flagstaff suggest that the law changed health-seeking behaviors of residents of a predominantly Latino neighborhood by increasing fear, limiting residents’ mobility, and diminishing trust of officials. These changes could exacerbate barriers to healthy living, limit access to care, and affect the overall safety of the neighborhood.”

The article calls for more research into this phenomena (hint for those considering applying for funding to study law & public health issues).  The same week it decided the Affordable Care Act case, the Supreme Court also upheld provisions of SB 170 which allow local and state law enforcement to check the immigration status of individuals who they are questioning for other reasons, it is likely that other states will soon adopt similar laws. This is a good example of a direct link between a law which has nothing to do with financing health care and a change in the health status of those affected.


August 11, 2012 | Permalink | Comments (0) | TrackBack (0)

Friday, August 10, 2012

Mental Health, Accommodation, and Understanding

One of the great challenges of both disability law and institutional governance is to determine how to fairly and empathically respond to the physical and emotional challenges of workers and clients.  Gregory Duhl's review of Margaret Price’s Mad at School: Rhetorics of Mental Disability in Academic Life should be of great interest to those grappling with these difficult issues. 


August 10, 2012 | Permalink | Comments (0) | TrackBack (0)

Meaningful Adoption: What We Know or Think We Know About the Financing, Effectiveness, Quality, and Safety of Electronic Medical Records

I've posted a new article, here, that takes a critical look at the "Meaningful Use" subsidy program for Electronic Medical Records.

As ONC is working hard to draft the final regulations for Stage 2 of Meaningful Use (MU), its policy teams are working on the framework for Stage 3. Although the stimulus program has several more years to run early adopters who sought to maximize their receipt of federal funding will soon be reaching the mid-point of their journey. As a result data points are now emerging for some of the more important features of the program’s implementation. These data points can be compared to expectations set both in 2009 and earlier. This article reviews the history of MU and examines the level of current and projected implementation. It challenges the basis for some of the positive cheerleading surrounding the subsidy program and questions the quality of the installed base of EMRs. The critical analysis then extends outside of compliance with the quality and effectiveness requirements of MU to safety externalities and their regulatory and liability implications.


August 10, 2012 | Permalink | Comments (0) | TrackBack (0)

Worth Reading This Week

Thursday, August 9, 2012

The trope of flexibility

On Monday, Cindy Mann, Director of the Center for Medicaid and CHIP at CMS, spoke to the National Conference of State Legislators and assured them of CMS's permissive approach to participation in the Medicaid expansion.  Her statements were striking for their willingess to allow states flexibility in joining, participating in, and dropping the new expansion population.  Mann indicated this was CMS's interpretation of the Court's decision in NFIB, but CMS is offering much more flexibility than the Court required.  

Why would CMS read NFIB so broadly when it appears to limit HHS authority, or at least devolve a great amount of authority to the states?  One word: coverage.  If the agency's goal is to get as many lives as possible enrolled in Medicaid, then presenting the states with flexibility is probably the way to do it, at least in the current political environment.  But, Republican Governors have scoffed at Mann's offer of total flexibility.  It is hard to imagine any level of flexibility that would satisfy them beyond block grants with no conditions attached.

This drive for coverage should be balanced with the reality of payment sufficiency; will CMS be ‘flexible’ about what states pay the providers for the Medicaid expansion too?  CMS faces perverse incentives in its enforcement of the Medicaid Act - the federal government saves money if the states pay less for Medicaid services, even though the Act demands sufficient payment to ensure equal access to medical care in a geographic region.  If the states underpay their providers, the expansion population will have a very hard time accessing medical care.  Until now, CMS has been notoriously lax in enforcing the Equal Access provision, but it is in the process of writing final regulations to explain how that requirement should work.  CMS should ensure that the Equal Access regulations achieve the goals of Medicaid expansion rather than continue the old patterns of nonenforcement.  Otherwise, the "flexibility" offered to the states for enrollment of the newly eligible will only provide a veneer of coverage.




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

Backing off on Pollution from Animal Feed Lots

In June, the DC Court of Appeals upheld the  Environmental Protection Agency’s authority to regulate greenhouse gas emissions (i.e. from cars and power plants), declaring in its opinion that the EPA was “unambiguously correct” that the Clean Air Act requires the EPA to impose limits once it has determined that emissions are causing harm. The EPA is clearly committed to going forward on health threats in the air.

However, the Administration seems less committed on water pollution threats. As Pew Charitable Trusts accurately reported, the EPA has just abandoned its proposed rule that would collect information about concentrated animal feeding operations (CAFOs). These lots often confine thousands of animals and generate massive quantities of waste, often containing heavy metals, hormones, antibiotic residues, and nutrients such as nitrogen and phosphorus. Many US drinking water sources are at risk from these discharges, but there is not much information collected about them.

On July 31, the North Carolina Environmental Justice Network and two other groups filed a lawsuit alleging a hog farm in North Carolina is illegally discharging animal waste into creeks, rivers, ditches and lands surrounding the facility. The groups measured unacceptably high levels of nitrogen, phosphorus, and fecal coliform in the waters. Examples like this abound, and illustrate the need for collecting this discharge information.


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

Wednesday, August 8, 2012

A Tale of Two Conferences


During the past two weeks, Washington DC has been the site for two conferences of note to those interested in health law.  One was a conference of optimism and excitement, the other a conference of empiricism and concern.

The 19th International AIDS Conference was held July 22-27. The DC location was itself grounds for optimism:  the lifting in 2010 of the US restrictions on entry by persons living with HIV meant that the conference could once again be held in the US. Information about the conference--including rapporteurs notes about sessions as they are posted--can be found at There are also many wonderful blogs about the conference, including the National Latino AIDS Action Network,, and the blog*AIDS*gov with conversations from AIDS 2012, The conference was addressed by a glittering list of political, entertainment, and philanthropic superstars. The theme of the Conference was "Turning the Tide Together" and the official press release billed it as beginning "the march toward the end of the AIDS epidemic."  Coinciding with the opening day of the conference were local Washington events, including a "keep the promise" march and performance by Wyclef Jean.  Here's Victoria Pickering (my sister)'s photo of the march: 

 flickr user vpickering

Far more sober was the second conference, the National Conference on Health Statistics,  There was no address by Secretary Sebelius or Bill Clinton or Bill Gates. There were no parties or receptions--not even the potato chip gathering that used to serve (I am told) as a way for health statistics folks to schmooze.  Instead, there was an opening session devoted to the tremendous economic importance of good public health statistics overshadowed by the deep fear that government cutbacks are gutting this essential resource.  There were many wonderful sessions about the data that are increasingly being made available, about data standards and usability, and about the health progress that is made through good data. All slides from the conference will be available on the web site relatively soon.  My own hope is that public policy makers recognize the importance of these public resources before they starve.


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

Tuesday, August 7, 2012

Tax Credits, Federal Exchanges, and Misplaced Blame

It appears that congressional opponents of the Affordable Care Act will stop at nothing to derail it, even if it means that their own constituents would suffer.  Recently, House Republicans on the Oversight and Government Reform Committee questioned the Internal Revenue Service's ability to apply tax credits to the purchase of health insurance in federal insurance exchanges that will be set up by the federal government in states that refuse to set up their own insurance exchanges.  These tax credits are designed to make private insurance affordable for moderate-income consumers who want or need to purchase insurance on these exchanges.  So if the the law is not interpreted to allow the IRS to apply the tax credits in states that refuse to set up health insurance exchanges, consumers in those states will be forced to either purchase insurance they cannot afford, or pay the tax due for failure to purchase health insurance.  Even though the non-partisan Congressional Budget Office and the congressional Joint Committee on Taxation agree with the IRS, these sage representatives apparently know better.

 I assume that the overall strategy here is to ensure that people in these states get so upset by the unaffordability of insurance on the exchanges (due to the lack of tax credits available to them) that they blame the supporters of the law for this debacle, rather than the politicians who are apparently willing to sacrifice their own constituents' well-being and pocketbooks in favor of their agenda.  This reminds me of the ACA Supreme Court dissenters' concerns that the Medicaid expansion in the ACA could confuse voters by blurring the lines of political accountability between the federal government and the states.  The argument is that voters who are upset by the expansion of Medicaid and the bureaucracy needed to achieve the expansion would blame the states, rather than the federal government, for the expansion, and that this poses a danger to our federalist system.  Apparently, the opponents of the ACA do not share this concern of misplaced blame when it comes to playing politics in Congress.

I quote the late Telly Savalas as Kojak: "Who (really) loves ya, baby?


Cross-Posted on Healthy Interests

August 7, 2012 | Permalink | Comments (0) | TrackBack (0)

Monday, August 6, 2012

RomneyCare Part 2

The Massachusetts Health Care Cost Containment Bill may have been long on rhetoric and short on enforcement mechanisms, here, but today it became law, here. Will we look back on this as the beginning of the end for fee for services? [NPT]

August 6, 2012 | Permalink | Comments (0) | TrackBack (0)

Information Technology’s Failure to Disrupt Healthcare

I've posted a new piece, Information Technology’s Failure to Disrupt Healthcare, here.

Information Technology (IT) surrounds us every day. IT products and services from smart phones and search engines to online banking and stock trading have been transformative. However, IT has made only modest and less than disruptive inroads into healthcare. This article explores the economic and technological relationships between healthcare and healthcare information technologies (HIT), asks (leveraging the work of Clayton Christensen) whether current conceptions of HIT are disruptive or merely sustaining, and canvasses various explanations for HIT’s failure to disrupt healthcare. The conclusion is that contemporary HIT is only a sustaining rather than disruptive technology. Notwithstanding that we live in a world of disruption, healthcare is more akin to the stubborn television domain, where similarly complex relationships and market concentrations have impeded the forces of disruption. There are three potential exceptions to this pessimistic conclusion. First, because advanced HIT is not a good fit for episodic healthcare delivery, we may be experiencing a holding pattern while healthcare rights itself with the introduction of process-centric care models. Second, the 2010 PCAST report was correct, the healthcare data model is broken. If Stage 3 of the MU subsidy program or some other initiative can fundamentally rethink interoperability (and we can fix the privacy issues) investment and innovation will migrate to data services built on top of shareable data. The final and potentially most interesting exception may be Mobile Medical Apps; products that are built on hugely disruptive platforms and championed by some of our most disruptive companies. Leveraging the growing computing power of smartphones and linkable biometric sensors, these apps hold the promise for “healthcare everywhere” and may be where the real disruption of healthcare will begin.

Comments gratefully received. [NPT]


August 6, 2012 | Permalink | Comments (0) | TrackBack (0)

Misguided Genetic Exceptionalism

DnaWhile society should be careful about its uses of genetic testing and its efforts to modify the genome, some people overreact when dealing with DNA. Consider two recent examples reported in the media.

A genetic cancer test. In a fascinating series on genetics in medicine, Gina Kolata reported in the New York Times on a genetic test for ocular melanoma. The test distinguishes between curable and fatal forms of the melanoma, yet some physicians do not offer the test to their patients (though they disclose the availability of the test).

Of course, some patients may choose not to know which type of melanoma they have. Both curable and lethal types are treated in the same way--surgical removal--and knowing that death is certain may be too unsettling for a number of patients with the fatal form.

But to not even offer patients the chance to know seems odd. If the diagnostic test were not a genetic one, I suspect the physicians would act differently. For example, if doctors were able to distinguish between curable and fatal forms of ocular melanoma when tumor cells were sent to the pathology lab for standard cellular analysis, there would not be the same reluctance to offer patients the opportunity to find out which kind of tumor they had.

To be sure, the fact that a particular medical test is genetic may increase the potential for concerns with the test. But many genetic tests do not pose any special problems. Physicians should not let a genetic label mislead them.

Fighting dengue fever. A second example of problematic thinking about genetics appeared in the New Yorker in an article by Michael Specter about genetic modification of the Aedes aegypti mosquito to eliminate dengue fever. If the mosquito can be eradicated, so can the dengue fever virus, which kills many and for which there is no vaccine or antiviral therapy.

Continue reading

August 6, 2012 | Permalink | Comments (0) | TrackBack (0)

Sunday, August 5, 2012

Worth Reading This Week