HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Thursday, October 11, 2012

The DOMA petition you should be following

You may be thinking "DOMA? Hello, this is HEALTH LAW."  Please stick with me for a moment.  The Supreme Court appears to be collecting petitions for certiorari regarding the Defense of Marriage Act, likely to determine which circuit's decision is the best vehicle for considering the constitutionality of this federal law.  One such petition results from the First Circuit's decision in Massachusetts v. Department of Health and Human Services/Hara v. Office of Personnel Managementwhich held that section 3 of DOMA violated the Fifth Amendment's Equal Protection Clause.  The court reasoned that promoting marriage is not rationally related to denying federal benefits to same-sex couples, thereby avoiding the creation of a new category of suspect class.  The twist is that the state of Massachusetts also claims that section 3 of DOMA, which denies federal economic benefits to same-sex couples, exceeds Congress's Spending Clause authority and infringes the state's 10th Amendment rights.  While the First Circuit did not agree with the state on these points, it did incorporate federalism concerns into its Equal Protection Clause analysis by noting that states traditionally have defined marriage, therefore the federal government cannot protect the state of Massachusetts from its own definition of marriage by promoting heterosexual marriage.

The implications of Massachusetts v. DHHS, should it be the petition that is granted, are potentially far-reaching.  Even without the overlay of this litigation, DOMA affects federal healthcare programs.  For example, a gay spouse who did not work outside the home could not obtain spousal benefits from Social Security or automatically receive Medicare Part A benefits.  If the individuals in a same-sex marriage are treated separately for Medicaid accounting purposes, an elderly gay spouse could be vulnerable if his partner is in nursing home care that results in impoverishment because the spouse living at home could lose the family home rather than being protected in the way that heterosexual spouses are.  This is part of Massachusetts' original claim, that it could lose its Medicaid funding entirely for allowing gay couples, legally married in the state, to qualify as spouses for Medicaid purposes.

So, this litigation may have significant healthcare implications because Massachusetts pushed the spending power and Tenth Amendment aspects of the First Circuit's opinion harder after NFIB v. Sebelius was decided, even though it won on Fifth Amendment grounds.  Thus, if the Supreme Court grants this petition, it could clarify the spending and federalism points made in the Medicaid portion of NFIB, which held that the ACA's expansion of Medicaid was unconstitutionally coercive and rendered the expansion effectively optional for states.  The irony of this case is that Massachusetts seeks to preserve its traditional prerogative in an area that is generally reserved to the states - family law - which could place the conservative-leaning justices in a tough spot (for instance, Justice Scalia is a firm believer in protecting the states through the Tenth Amendment, but he also does not believe that same-sex marriage is permissible let alone constitutionally protectable).  The Court could be inclined to soften its protective states' rights stance if it wants to avoid supporting same-sex marriage.  Likewise, a consequentialist decision could result in the Court retreating from limits placed on the spending power in NFIB by allowing Congress to regulate marriage through section 3 of DOMA.  But, if the Court stays true to the spending power limits and strong federalism principles articulated in NFIB, then it would have to strike down DOMA and allow same-sex couples to be counted as married in programs such as Medicare and Medicaid.  Stay tuned...


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

Wednesday, October 10, 2012

Congressmen are Concerned that Meaningful Use Stage 2 is Too Weak

On October 4, four Republican Congressman, all with powerful positions concerning health care, wrote Secretary Sebelius urging suspension of "meaningful use" Stage 2 payments until a stronger program is in place, The Congressmen, Dave Camp (Chair of the House Ways & Means Committee), Wally Herger (Chair of the Ways & Means Subcommittee on Health), Fred Upton (Chair of the House Committee on Energy and Commerce), and Joe Pitts (Chair of the Energy & Commerce Subcommittee on Health), expressed concern that the Stage 2 regulations are too weak to insure genuine interoperability of electronic medical records.  As a result, the Congressmen contended, a great deal of taxpayer money will be wasted on payments for electronic records that do little to improve care or reduce costs.

The Congressmen have a point, despite the apparant partisanship of the letter.  There is a history of apparent reluctance on the part of the Office of the National Coordinator for Health Information Technology, and with it HHS, to meet head-on industry complaints about the difficulty and costs of meeting standards or industry contentions that regulation will stifle innovation. Models of technology forcing that were employed in furtherance of environmental protection appear not to have been considered by ONC and HHS. The requirement to meet Meaningful Use Stage 2 was delayed by a year, from 2013 to 2014, to allow vendors more time to develop products. As I indicated in an earlier post,, ONC has decided not to develop governance rules for health IT exchanges, out of industry concern for impact on innovation.   The stage 2 meaningful use requirements are not very strong, either, as the Congressmen point out. For example, core requirements are only that 50% of prescriptions be electronic, that only 50% of care referrals must be accompanied by electronic care summaries, that only 50% of patients must have access to health information (with 5% using it), and the EHR be capable of generating only one list of patients by condition. (For a handy comparison of stage 1 and stage 2 certification criteria, see All of these--and other--requirements are important to anticipated improvements in care to be garnered from the introduction of EHRs.  For example, generation of lists of patients with a specified condition (e.g. diabetes) may be an important way to ascertain the quality of patient management across a practice.

And there is a great deal of money in meaningful use.  Individual providers may earn over $40,000 over 5 years by becoming meaningful users--even if their EHR, like the one offered by PracticeFusion, is entirely free to the physician-user (but paid for by advertising), I hope that these payments will not simply become a windfall to medical professionals (and those whose products they purchase), but will have the teeth to genuinely improve patient care.


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

Tuesday, October 9, 2012

Shooting an Elephant With a BB Gun and the Problem of Hospital Readmissions

Modern Healthcare (subscription publication) recently featured a story about how some hospitals are trying to reduce hospital readmissions by getting into the housing business.  Both Medicare and Medicaid are beginning to penalize hospitals financially for readmissions of patients that were recently discharged.  But it appears that the problem for many people that lands them back in the hospital after discharge is not poor quality of care in the first hospital stay, or inappropriate discharge, but homelessness.  So hospitals are taking on the project of finding housing for homeless patients, in the hope that doing so will reduce readmissions, lower hospital costs, and prevent hospitals from incurring financial penalties.

Early results of these projects are promising.  In New York City, where the lack of available hosing for low-income, medically fragile people is particularly acute, a pilot program run by the health department which paired such patients with care coordination, social services, and housing, resulted in a drop in hospitalizations by 47% and a reduction of 50% in emergency room visits.  Spending for hospital care fell by 27%, and emergency room spending by 30%.  Similar projects in Minneapolis and San Francisco are also underway.

Dr. Josh Bamberger, the medical director for Housing and Urban Health at the San Francisco Department of Health, is a firm believer in a strong connection between stable housing and managing medical problems.  He says "I think that providing healthcare for the homeless without housing is like shooting an elephant with a BB gun."

These efforts by hospitals and health care systems to address the problems of hospital recidivism through social interventions point out that reducing costs in the health-care system will not happen if we merely penalize the providers who are treating the symptoms of poverty, mental illness, substance abuse, and homelessness, and blame them for health-care outcomes that come about because of problems outside of their control.  High health-care costs are not solely the result of failure to take personal responsibility for one's health, nor are they solely the result of greed and waste in the system or poor quality care. They are the result of complex and pervasive problems with no easy solution.

The legal community has  recognized this over the past ten years, and is addressing it through the use of medical-legal partnerships.  In these partnerships, a lawyer is placed at a hospital or community health center that treats low-income people, and is trained to work with patients on the problems of poverty that cause poor health outcomes.  It now appears that hospitals and health-care systems are embracing this holistic approach as well.  Tracking the results of these projects, both for health-care outcomes and for costs, should yield useful data regarding how to reform our health-care system so that we get what we pay for.

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

Monday, October 8, 2012

The Limits of Advance Directives

While it is important for people to express their wishes about end-of-life care in advance, a court case in Hawaii reminds us that advance directives do not always ensure that patient's wishes will be followed. Karen Okada wrote a living will, which the hospital ethics committee found to express a desire not to have a feeding tube in her current condition. A family member has objected, on the basis that he is acting in accordance with his authority as an appointed surrogate. Unfortunately, patients' preferences can be frustrated by their families or their health care providers.



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