February 3, 2012
Worth Reading This Week
Russell Korobkin, Bounded Rationality, Moral Hazard, and the Case for Relative Value Health Insurance, SSRN
Abigail Moncrieff & Eric Lee, The Positive Case for Centralization in Healthcare Regulation: The Federalism Failures of the ACA, SSRN/Kansas Journal of Law & Pubic Policy
Worth Reading This Week
Stacey Tovino, Reforming State Mental Health Parity Law, SSRN/Houston J. Health L. & Pol'y
Sharona Hoffman, The Drugs Stop Here: A Public Health Framework to Address the Drug Shortage Crisis, SSRN/Food & Drug Law Journal
Elizabeth Weeks Leonard, Affordable Care Act Litigation: The Standing Paradox, SSRN/AJLM
Marshall Kapp, If We Can Force People to Purchase Health Insurance, then Let’s Force Them to Be Treated Too, SSRN/AJLM
The Individual Mandate, Downer Pigs and Federalism
With all of the attacks on the federal government’s power to mandate the purchase of health care insurance, one might have expected more criticism of the Supreme Court’s decision last week in National Meat Association v. Harris.
In that case, a unanimous Court invalidated California’s effort to exclude unhealthy, "downer" pigs, sheep and goats from the food supply, on the ground that Congress had reserved regulatory authority over slaughterhouses to the federal government. Even though California’s law was prompted by video footage documenting the ineffectiveness of federal regulation, the Court denied Americans the ability to turn to their state legislatures for protection.
Why so little concern? Perhaps the health care mandate is more salient, while the risks from food poisoning seem remote. Still, from a federalism perspective that worries about an expansive national government, the preemption of state regulation seems particularly troublesome in National Meat Association. State governments traditionally have assumed responsibility for protecting the public health. After the federal government has seized that responsibility and failed to carry it out properly, critics of federal power should be especially angry.
From my perspective, it would be better if efforts to contain Congress were directed at policies that compromise the public's health rather than at those that will enhance it.
[cross-posted at The Faculty Lounge]
February 1, 2012
The Hippocratic Math
Here's an abstract of my review of Gregg Bloche's fascinating book, The Hippocratic Myth:
Not many policymakers or scholars can write with the authority of Gregg Bloche. Bloche is not only a law professor, but a physician, who knows his way around a hospital. Throughout The Hippocratic Myth, Bloche cements his authority in the mind of the reader by relating stories of his experience as a clinician. In each of these stories, his humane and insightful approach as psychiatrist shines through. These fluently-written passages strike one as the work of one of those rare practitioners who manages to care deeply about the patient at hand while simultaneously contextualizing the encounter in a larger framework. Thus The Hippocratic Myth should take its place among other well-received books by physicians with a sense of the big picture, including Atul Gawande’s The Checklist Manifesto and Better and Jerome Groopman’s How Doctors Think.
In The Hippocratic Myth, Bloche leverages this authority to advocate for a more cost sensitive health care system, where individuals frankly acknowledge that they should expect trade-offs between cost and access to certain forms of care. My concern in this review is that Bloche the caring and expert physician would have a tough time in a health care world too deeply influenced by Bloche the cost-conscious author.
Bloche's book is one of those rare volumes that merits a careful read by scholars, classroom reading by students, and a broad popular audience.
X-Posted: Health Reform Watch.
Should surgeons transplant a uterus into a woman who was born without a uterus or has had a hysterectomy and wants to become pregnant? The debate reminds us that efforts to promote family values often neglect the interests of the infertile.
Transplanting life-extending organs, like hearts, livers, lungs and kidneys, has become well-accepted, but ethicists have raised additional questions about transplantation for life-enhancing body parts like faces and hands. It's one thing to assume health risks for the possibility of a longer life, but are the risks of being a transplant recipient justified by improvements in the quality of life?
As surgeons contemplate uterine transplants, the closer scrutiny can make sense--for example, what risks are posed to the child from the drugs that the woman must take to prevent her body's immune system from rejecting the transplanted uterus? (Proponents of uterine transplants, like Dr. Giuseppe Del Priore, observe that kidney and other organ transplant recipients who take the same drugs have become pregnant and given birth without harm to their children.) We should be careful before adopting a new kind of transplantation.
On the other hand, it's troubling to see scholars question uterine transplants on the ground that giving birth to one's own child is not that important an interest. According to an ethics professor, "tons of people have perfectly normal lives without gestating a biological child." Yet, the alternative for the woman lacking a functioning uterus is to have children with the participation of another woman. This may work for many women, but the legal battles that can follow gestational surrogacy illustrate the risks of that alternative, as well as the significant role that gestation plays in forming motherhood.
Many women may be perfectly happy despite losing their ability to carry a pregnancy, but that should not lead us to dimiss the interests of those women who very much want to become mothers after pregnancy. Indeed, when infertility is a consequence of cancer or its treatment, some cancer survivors describe the loss of fertility as causing as much emotional pain as the cancer itself. Our society often discriminates against the infertile out of a tendency to dismiss the impact of infertility on personal well-being.
There are many important reasons why women want to bear their own children. Women may want to have children with their chosen partner and without the involvement of third parties (an interest considered in this article). They may want to benefit from the ties with their children that develop during pregnancy. For these and other reasons, we should be careful not to be overly skeptical of uterine transplants.
[cross-posted at The Faculty Lounge]
January 30, 2012
Health Law Headlines of the Week (Week of Jan. 22, 2012)
A Fair and Balanced View of the Administration’s Environmental Regulation
On December 21, the Obama Administration released a new “mercury rule” to cut emissions of mercury, arsenic, and other toxic air pollutants from coal- and oil-fired power plants. Last week, the Administration made a stunning decision to stop the Keystone XL Pipeline project, reported here.
But the reality is that the Obama Administration has sided with industry on many environmental decisions. As recently as September 2, President Obama bowed to the demands of congressional Republicans and some business leaders and withdrew a proposed regulation to reduce concentrations of ground-level ozone, the main ingredient of smog See article here.
In July, the Administration issued a rule that exempts broad categories of industrial solid waste from regulation under the Clean Air Act (including scrap plastics, spent solvents and industrial sludges) if they are burned for energy by the company that generates them. Environmentalists have filed a lawsuit challenging the rule as a dangerous loophole that will release harmful toxins into the air.
Also this year, the Administration has been criticized by environmentalists for a Department of Energy investment in a multibillion dollar coal fired power plant in Mississippi, for its refusal to ban the harmful food additive BPA, and approval of offshore oil development plans, to name a few examples.
Recent decisions may indicate that Obama is willing to make politically risky decisions to protect the environment. But his overall record indicates that his Administration does not always side with environmentalists.
January 29, 2012
Guest Blogger James T. O'Reilly: What will the RomRichOrum Alternate to PPACA Look Like?
Floridians who saw pale, overstressed law professors revive themselves over the semester break are now seeing a larger wave of perhaps $10,000,000 in television spending by pale, overstressed “campaign media consultants” in the runup to the Jan. 31 primary between Gingrich, Romney, and Santorum. With Florida’s massive Medicare and Medicaid populations, it’s a good time to look amidst the campaign rhetoric for specifics to answer the question:“If not Obamacare, which you detest, which alternatives to the PPACA would you adopt?”
I have more than a little interest in the subject, as West expects me to write a 2012 update to my textbook, Healthcare Rulemaking Guide (shameless plug omitted). The real test of a lawbook author is not history or process, it is prognostication of the future. The writer must tell the reader what she or he will need to know in 4-6 months, given the long lead time of production and marketing at large publishers. So I have been tuning in to the preferences expressed by the campaigns. Obama has his, of course, so one must focus on the phenomena emerging from the GOP side. The Supreme Court’s 5 separate issues will stand or fall as they may; I am looking past them to the Republican alternative formats and attempting to cover their alternative among the options for 2012-2013’s edition.
Killing the universal mandate is of course a way for the health insurance giants to simultaneously lose purchasers and declare the tradeoff elements of PPACA “inoperative” as the balance had been struck for insurers’ support in early 2010. And doing what Tea Party leadership in the governor’s office of states like Ohio want, the death of the “Insurance Exchanges” model, is apparently popular with the conservatives who champion the rights of states to be free of federal controls (with the exception of those absolutely necessary controls on states that impinge on “job creators”). The 2,200 pages of PPACA contain many small provisions for which lobbyists fought successfully and these are unlikely to be undone.
But what will President Gingrich’s CMS do with Medicare cost controls in place of the “radical change” that PPACA provides? Which health insurer’s lobbyist is closest to the ear of the former Speaker; what is Humana’s desire for squeezing physicians while AMA lobbyists are pressing for loosening controls on prescribers? Everyone is against fraud, everyone who voted in the South Carolina primary was for middle class family values, but what specific statutory changes will follow the de-funding of the PPACA compromise? Romney has spoken in generic terms of citizens (note the distinction from the much-bashed immigrants) being free to purchase private insurance that is aided by some form of state directions. President Santorum will protect the sperm, the egg, and everything before birth, but is vague about governmental aid in paying for the care of the child thereafter.
Surely there is a Tampa GOP convention platform committee maven who is busy scribing the party’s specific plans for funding affordable health care “when The People rise up and end the nightmare of Obamacare”. Is there a health law prof out there who aspires to be that maven – if so, can you please share with us how your RomRichOrum candidacy will change the details of the PPACA bargain for the better?-James T. O'Reilly
Guest Blogger Jeff Hammond: The Doctor Will See You…Again
Here is a fascinating post from Jason Schafren, blogging as the Healthcare Economist about the ad hoc bundling that Medicare foists upon its contracted physicians and other suppliers. At least for many of the services Schafren lists, the service of the assistant, extender, derivative supplier, etc., is, in fact reimbursed, no matter how low. But, as John Goodman notes, Medicare will not reimburse primary care physicians if they want to treat co-morbidities during the same office visit. Is it any wonder, then, that physicians are now in the practice of asking patients to make separate appointments for treating those comorbidities? As Goodman states:
Medicare has strict rules about how tasks can be combined. For example, “special needs” patients typically have five or more comorbidities — a fancy way of saying that a lot of things are going wrong at once. These patients are costing Medicare about $60,000 a year and they consume a large share of Medicare’s entire budget. Ideally, when one of these patients sees a doctor, the doctor will deal with all five problems sequentially. That would economize on the patient’s time and ensure that the treatment regime for each malady is integrated and consistent with all the others.
Under Medicare’s payment system, however, a specialist can only bill Medicare the full fee for treating one of the five conditions during a single visit. If she treats the other four, she can only bill half price for those services. It’s even worse for primary care physicians. They cannot bill anything for treating the additional four conditions.
All hail inefficiency! Now, couple depressed gross reimbursement (based on number of complaints) with a base reimbursement system that is biased against primary care physicians, and you have two elements of a perfect storm brewing against primary docs and their willingness to remain in a system that seems decidedly set against them. Why do doctors, no matter how well-meaning and public-spirited, continue to put up with this financial abuse?
(H/t to Goodman’s post forthe reference to the Healthcare Economist blog.)-Jeff Hammond
Jacobson on Teaching Health Law to Nonlawyers
For anyone who regularly or occasionally needs to communicate legal topics to nonlawyers, I recommend Peter D. Jacobson's reflective column on the topic in the Journal of Law, Medicine, and Ethics. Here are a few quotes from the piece reflecting his perspective:
What I want public health students to learn is very different from my approach to teaching law students. For one thing, the key objective for the former is for future health care executives/public health policymakers to understand the role law plays in their strategic decision-making environment. In contrast, law students need to know how the health care system works to provide effective legal advice and representation. . . .
[I]t is not important to me whether [non-law] students can remember the elements of a medical liability claim or the elements of an antitrust action five years later. Much more important is that they leave the class with a sense of how to think about the law in meeting their day-to-day and long-term responsibilities.
One central goal of the class is to ensure familiarity "with key terms and concepts of how the legal system operates." The idea is to assure that those interacting with attorneys know the right questions to answer, developing some sympathy for the necessarily ambiguous aspects of client advising:
Because of the rapid changes in how heath care is organized, financed, and delivered, [executives often] cannot expect clear answers from their attorneys. Understanding the law’s inherent ambiguity is an important goal for future health care executives to comprehend. That way, they will not feel overly confident that they can address legal challenges on their own.
Joan Robinson once called economics a valuable course of study, if only to avoid being fooled by economists. A similar point could be made about law teaching outside the law school; as Jacobson notes, at their best, "students become increasingly comfortable with how to use the law to advance their strategic objectives while simultaneously realizing the law’s limitations."
Jacobson also mentioned a great exam question he recently asked:
In an increasingly competitive market, it seems timely to re-examine the legal system’s oversight of the health care enterprise. What public accountability function should the legal system provide in either the transition to a market-driven system or in a world with accountable health care organizations (ACOs) and health insurance exchanges? Does the trend toward consolidation require new ways of thinking about the legal system’s role? If so, what approaches would you recommend?
Those are questions we'd all do well to ponder. [FP]