September 7, 2012
Two Presidents: Two Lessons on Two Important Programs: Medicaid in the Spotlight—And an Unintended Truth About Private Health Insurance
This is not a post about fact checking or elections. It’s about two programs that most of us know far too little about—Medicare and Medicaid. Bill Clinton’s Speech and the one made the next day by President Obama at the Democratic are already old news. However, since not everyone watched, three days later, two things stand out. One came from the remarks President Clinton made about Medicaid and the other remarks President Obama made about Medicare. First, President Clinton. The most striking thing to me as a health law professor about his speech is his putting not just a human face on Medicaid, but a middle and even upper class one. He showed people who might imagine they would never need Medicaid how wrong they were. Because for all the visible good Medicaid does for low income pregnant women women and children, it’s the invisible role it plays in the health care of those with disabilities and for the elderly in nursing homes, people who are duly eligible for both Medicare and Medicaid, which makes it the true safety net. It’s really Medicaid that stands between us and a Dickensian landscape of people dying in the street because it pays for the residential care of those who do not need hospitalization but who cannot live at home. It’s possible to pretend that hard work and good fortune could prevent your income from falling to Medicaid eligibility levels, but no one can claim vulnerability from the scenarios President Clinton painted of having a child with autism or a parent who needs nursing home care.
Even people who know the difference between Medicare and Medicaid—the threshold for passing any health law class I teach—do not fully understand the phenomena of dual eligibility in which the two programs work together to take care of people with health care needs, including children with disabilities, of a magnitude beyond what any level of savings or family support can handle.
President Obama, on the other hand, spoke very little about health care, but one phrase jumped out at me—talking about the importance of preserving Medicare he said, “No American should ever have to spend their golden years at the mercy of insurance companies. They should retire with the care and dignity they have earned. “He didn’t say, deserved health care—he said deserved Medicare. And that too isn’t sufficiently understood. Most of us with private insurance have pretty poor care. High deductibles, high co-pays, limits on the prescriptions we can get, and even in more generous plans restrictions on the doctors we can see. In contrast, Medicare offers fantastic coverage with very little hassle and total choice. There are no “Medicare,” or for that matter “Medicaid” doctors. Both programs pay for using the same doctors everyone else does.
If you remember that every American over the age of 65 has to have Medicare as his or her primary payer, you can imagine how likely it is that we would hear of quality and access problems. But we don’t. Not much. Sure, from the physician’s perspectives reimbursements have gotten very low and some practices are closed. But that’s not Medicare’s fault—that’s Congress’s. It’s people on Medicare who can get the foreign prince kind of health care that we hear about so much as proof that our system works. A Medicare patient can go to the Mayo Clinic or MD Anderson or Sloan-Kettering no matter where they live or what kind of job they ever had. Anyone with private insurance knows full well that their options are far more limited.
My point is not to endorse these presidents as it is to emphasize the points they made about these programs. They’re good ones, people eligible for them like them, and they work well. Their problems come from under-funding, not from restrictions on care or lack of choice. Medicare gets the spotlight in a political year—mainly because a good portion of the people enjoying it are well enough to advocate for it. Medicaid recipients are far less articulate because many of them are either very young, very poor or very, very sick. These are people of all ages, including those sustained on life support in vegetative states from which it is unlikely they will ever emerge, children with severe and expensive to manage medical conditions, and the frail elderly who need support to live at home or nursing home care so expensive that it quickly drains the resources of all but the wealthiest families. It’s entirely possible to have serious disagreements with how any entitlement program is run or structured. But before we consider fundamental change, it’s important to understand these two programs and for all their flaws and gaps—where we’d be without them.
Worth Reading This Week
Kathleen Boozang, The New Relators: In-House Counsel and Compliance Officers, SSRN
David Asch & Kevin Volpp, What Business Are We In? The Emergence of Health as the Business of Health Care, NEJM
Kate Greenwood, Carl Coleman, & Kathleen Boozang, Toward Evidence-Based Conflicts of Interest Training for Physician-Investigators, SSRN/JLME
Barbara Noah, The Role of Race in End-of-Life Care, SSRN/J. Health Care L & Policy
September 6, 2012
Announcing Bill of Health, a New Harvard Law School Blog from the Petrie-Flom CenterHarvard Law School's Petrie-Flom Center announces its latest venture: a new blog, Bill of Health. HealthLawProf Blog is pleased to be one of the collaborators on this project. Three of our regular bloggers, Katharine Van Tassel, Frank Pasquale and Nic Terry, will be among Bill of Health's large and diverse roster of bloggers.
From the press release:
Our goal is to provide a one-stop shop for readers interested in news, commentary, and scholarship in the fields of health law policy, biotechnology, and bioethics. You can expect to find regularly updated posts reacting to current events, testing out new scholarly ideas, reviewing the latest books, and announcing conferences, events, and job openings. We also hope to cultivate a strong community of commenters, so that the blog becomes an interactive discussion forum.
A widely collaborative effort, Bill of Health features content from Petrie-Flom affiliates, as well as leading experts from Harvard and beyond. Institutional collaborators include HealthLawProfs Blog, the Yale Interdisciplinary Center for Bioethics, and the Robert Wood Johnson Foundation's Public Health Law Research program at Temple. We've also lined up a stellar cast of bloggers so far, including: Tom Baker, Cansu Canca, Arthur Caplan, Daniel Carpenter, Amitabh Chandra, Greg Curfman, Einer Elhauge, Richard Epstein, Nir Eyal, Michele Goodwin, Rebecca Haffajee, Russell Korobkin, Greg Koski, Katie Kraschel, Stephen Latham, Ted Marmor, Max Mehlman, Michelle Meyer, Abby Moncrieff, Efthimios Parasidis, Wendy Parmet, Frank Pasquale, Suzanne Rivera, Al Roth, Ted Ruger, Bill Sage, Laura Stark, Erin Talati, Nicolas Terry, Katharine Van Tassel, and Daniel Vorhaus. In addition, we'll be joined by some great guest bloggers in the coming months, including Mark Hall, Allison Hoffman, Adam Kolber, Jon Kolstad, Kristin Madison, Anup Malani, Arti Rai, Annette Rid, Chris Robertson, Nadia Sawicki, Seema Shah, Talha Syed, Dan Wikler, and Susan Wolf, as well as a several Petrie-Flom graduate student affiliates. Read more about our team here.
Maine purposefully pushes the interpretive envelope
Of the actions to push the reach of the holding in NFIB that I mentioned last week, Maine's seems to be moving the most quickly. Maine submitted a request to amend its State Plan to the Department of Health and Human Services in August and demanded that HHS expedite the review to facilitate Maine's push to control its budget. HHS denied the request to expedite the review of the amendment (but not the substance of the amendment). On September 4th, Maine Attorney General William J. Schneider filed a petition to have the First Circuit review HHS's refusal to expedite as well as a motion for injunctive relief asking the First Circuit to order an approval of the State Plan Amendment (also seeking funding for money spent while waiting for approval of the Amendment). The heart of Maine's argument appears to be that HHS has "effectively denied" Maine's request, and that the proposal to amend Maine's State Plan flows naturally from the language of the Roberts plurality in NFIB.
Filling in the blanks: The Maintenance of Effort provision in the Medicaid amendments of the ACA requires states to preserve eligibility for current Medicaid enrollees until the insurance exchanges are established in 2014. Governor LePage has claimed that Maine is not bound by the MOE because, like the Medicaid expansion, states' Medicaid funding could be refused if a state violates the MOE provision. Like the Medicaid expansion, the MOE provision is on the radar of such well-funded organizations as the Cato Institute. Michael Cannon has been quoted (Download MOE challenge - BNA article) comparing the MOE to the Medicaid expansion because in both instances, the state could lose all of its Medicaid funding for refusal to comply with the new provision. Professors Jonathan Adler and Jim Blumstein (an architect of the new/old Medicaid analysis in NFIB) agree with Cannon.
Let's be clear about what's happening in Maine. Maine is intentionally pushing for a new decision on coercion and Medicaid, which is clear from the language of its brief to the First Circuit. NFIB does not give Maine permission to ignore the MOE requirement, as I've written here (with Weeks Leonard and Outterson). NFIB had no impact on the MOE provision. The plurality on Medicaid/coercion stated several times that the opinion was limited to the Medicaid expansion. The Court considered only whether states must participate in the expansion of Medicaid delineated in the ACA or if they should be able to 'opt out' without jeopardizing the existing funding they receive for pre-ACA Medicaid programs. In several places, both Roberts and Ginsburg emphasized that the Court's holding was limited to the Medicaid expansion, meaning the remedy of limiting the Secretary's application of 42 USC 1396c did not affect any other aspect of the Medicaid program. No provision of the ACA was struck down and no Medicaid Act provision was struck down; indeed, one could argue that the Medicaid expansion remains a mandate, but that it is unenforceable because the Secretary's administrative remedy for state noncompliance was limited. Thus, we say that effect of NFIB was to render the Medicaid expansion "optional". But, nothing else in the ACA or the Medicaid Act was touched.
Considering the long-standing Marks standard of finding the narrowest point of agreement to understand the precedential value of a plurality opinion, NFIB should not be read expansively. While the Court has clearly signaled an interest in hearing more coercion challenges, Maine is pushing the meaning of NFIB too far.
September 5, 2012
ACA and Legal Immigrants
Since passage of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PROWRA), immigrants entering the US legally have been for the most part ineligible for state Medicaid, at least for their first five years of lawful permanent residency. One of Congress's arguments for excluding legal immigrants from "welfare" was that Medicaid attracted people to the US--but that if they were on notice that it would not be available, they would not form reasonable expectations of coverage. Only the spectre of 40,000 nursing home residents on Medicaid in Miami-Dade County being turned into the streets kept Congress from applying the exclusion to non-citizens in the country before the enactment of PROWRA. In enacting PROWRA, Congress appears to have forgotten that there is an important sense in which we all have interests in our fellow residents' access to health care: decreasing risks of transmission of contagious disease.
The Affordable Care Act will bring some changes. It makes legal immigrants eligible for subsidies for coverage they purchase and makes them subject to the requirement to maintain minimum coverage. Legal immigrants will, however, remain ineligible for federal Medicaid dollars for the first five years of lawful permanent residency. Illegal immigrants are specifically excluded from the individual mandate, are barred from purchasing insurance through state exchanges, and are not eligible for any ACA supports. (For a useful summary, see the Congressional Research Service, Treatment of Noncitizens under the Patient Protection and Affordable Care Act, http://www.ciab.com/WorkArea/DownloadAsset.aspx?id=2189)
Enter Massachusetts. As part of its 2006 health reform, Massachusetts had extended its premium subsidies for low and moderate income residents to legal immigrants. But when the 2009 budget shortfall hit, the legislature eliminated Commonwealth Care coverage for legal immigrants ineligible for federal benefits under PROWRA. (For this group, Massachusetts had borne the full cost of any subsidies under its federal Medicaid waiver for Commonwealth Care). Advocates for immigrants challenged the exclusion under the state constitution. In January, 2012, the Massachusetts Supreme Judicial Court held that the exclusion was discrimination on the basis of alienage or national origin and could not survive strict scrutiny. Finch v. Commonwealth Health Ins.Connector Auth., 461 Mass 232 (2012). An account by two of the counsel for plaintiffs in the case, Lorianne Sainsbury-Wong and Wendy Parmet, went up on ssrn in August, http://ssrn.com/abstract=2117815, and is decidedly worth reading.
I've run a search on this blog for discussions of the Finch case, or for more general discussions of the circumstances of immigrants under ACA. I apologize to readers and my fellow bloggers if I've missed a prior discussion--but I couldn't find one and thought this issue was worth keeping before readers' minds in any event. States considering expanding Medicaid eligibility under ACA will surely face revenue pressures--and may, like the 2009 Massachusetts legislature, curb any impulses of inclusion towards their non-citizen residents. Without advocates such as Sainsbury-Wong and Parmet, their colleagues, and students at Northeastern University Law School, legal immigrants outside of Massachusetts may simply be left out in the (contagious) cold.
September 4, 2012
Worth Reading This Week
Mark Rothstein & Gil Siegal, Health Information Technology and Physicians’ Duty to Notify Patients of New Medical Developments, SSRN/Houston Journal of Health Law and Policy
Ewout van Ginneken & Katherine Swartz, Implementing Insurance Exchanges — Lessons from Europe, NEJM
Leslie Francis, Skeletons in the Family Medical Closet: Access of Personal Representatives to Interoperable Medical Records, SSRN/SLU JHLP
Preventive Health Services and the "War on Religion"
Last week, I participated in a discussion with Professor Ken Klukowski of Liberty University School of Law about the Department of Health and Human Services' (HHS) proposed regulation requiring almost all employers who offer health insurance to their employees to include coverage for prescription contraception. This regulation is based on recommendations from the Health Resources and Services Administration (HRSA) to include all FDA-approved prescription contraceptive methods and sterilization procedures in the list of preventive health services that must be covered without cost-sharing under the Affordable Care Act. It has been a lightning-rod of controversy, mostly because it contains only a narrow exception that would apply only to churches and other houses of worship, as opposed to other religiously affiliated organizations, such as colleges, hospitals, and schools. A number of religiously affiliated organizations, as well as for-profit secular corporations owned by people whose faith prohibits the use of contraception, have sued HHS, claiming that the proposed regulation violates their free exercise rights under the First Amendment, as well as violating various federal statutes. Prof. Klukowski argues that this regulation constitutes an infraction of religious liberty, and amounts to nothing less than a "war" on religion, because the religious exception is so narrow. I argued that requiring a broader exception is not constitutionally required, and in any event, would constitute bad policy and lead to greater government intrusion into religion.
There is no question that reasonable people (and a lot of unreasonable people) can disagree about the scope and meaning of the religion clauses of the First Amendment. This regulation raises a serious issue that requires a thoughtful legal analysis (although I think the thoughtful legal analysis has already been done by the U.S. Supreme Court in United States v. Lee, and the highest courts of New York and California in two cases brought by Catholic institutions in those states challenging similar state-law mandates). But I think it is most interesting that the same people who purport to be "originalists" with regard to the interpretation of the Constitution are quick to assume that the Founders intended corporations, even for-profit corporations, to have religious exercise rights. In fact, there is no evidence that the Founders ever thought that anything other than a natural person or a house of worship would have such rights. Religious corporations of the type that exist today were totally unknown in those times. In addition, opponents of the regulation seem not to be concerned about the courts intruding into the sincerity and strength of a corporation's or its owners' religious beliefs, in order to determine whether a corporation is sufficiently religious to take advantage of an exception to an otherwise-applicable regulation. Such an intrusion would constitute a clear violation of the Establishment Clause. Do we really want the government deciding whether we are religious enough to warrant certain treatment? If I am a Jew, and I keep the Sabbath according to strict Jewish tradition but don't eat kosher when I eat out, am I religious enough to warrant the exception? As a person of faith, I can tell you, that I don't want my government to go there.
Furthermore, it should not shock anybody that people will use religion to gain profits or enhance their position with regard to their secular competitors. If praying every day will save me several thousand dollars in yearly business costs, what am I likely to do, even if I truly believe that religion is a bunch of hogwash? And what about the inevitable balkanization of employment that would come about from a rule that exempts anybody and everybody who claims a religious belief from complying with an otherwise constitutional rule of general application? If I need or think I may need mental health care, I'd better not work for a Scientologist; if I think I may need birth control, I'd better not work for an HVAC company owned by a Catholic. Instead of employers asking questions to potential employees about their religious beliefs, it will be employees asking employers about their religious beliefs. Do we really want this? Will this be good for the economy? Will this breed still more litigation?
The real "war on religion" will begin when the courts intrude into my life to determine whether my religious beliefs are sincere enough to warrant special treatment, and my secular competitors get fed up enough with the unlevel playing field that broad religious exemptions will engender. Then they will exercise their power at the ballot box to throw out the lawmakers who are actually sensitive to religious liberty and nuanced enough to understand the competing concerns that must be accommodated in our nation of many, and no, faiths. After all, we all know that most people will vote their pocketbooks before anything else.
Cross-Posted on Healthy Interests
September 3, 2012
Health Not Health Care
A "Perspective" piece posted online at the New England Journal of Medicine reminds us that while it is important to provide access to health care for all Americans, there is a big difference between promoting health care and promoting health. As the authors observe, "the evidence does suggest that health care as conventionally delivered explains only a small amount — perhaps 10% — of premature deaths as compared with other factors, including social context, environmental influences, and personal behavior."
The authors suggest that health care providers can change what they offer to do a better job of promoting health, but the more important message may be that the "medical-industrial complex" has too much control over health policy in the United States.