Saturday, March 3, 2012
A February 21, 2012 New York Times article entitled “Catholic Hospitals Expand, Religious Strings Attached” addresses the challenges that arise when Catholic healthcare systems acquire healthcare providers and extend religious proscriptions to the newly acquired facilities and practitioners. Specifically, the article raises concerns about women’s access to reproductive health services, particularly in communities where Catholic ownership of hospitals and other providers dominates. Much of this same kind of market activity occurred in the early 90’s in anticipation of market reforms associated with Clinton healthcare reform. So, while these are not new issues, they are no less difficult to resolve, perhaps in part because we have all become more politicized in our approach to problem solving, which almost seems impossible to imagine, but there it is. In a 1995 Houston Law Review article entitled DECIDING THE FATE OF RELIGIOUS HOSPITALS IN THE EMERGING HEALTH CARE MARKET, I attempted to propose a middle ground of accommodation that would facilitate access to care while providing Catholic healthcare providers with the space required to continue to be true to their religious beliefs. I believe that the prescription remains as valid today as it was when written over a decade ago.
Catholic healthcare comprises a ministry, whereby the sisters or diocese that provide the health services are committed to ensure that they act in way that is true to the teachings of the Catholic Church. Catholic healthcare providers are living the gospel, which is replete with instances of Jesus ministering to the sick – he attended to healing the mind, body and spirit. This holistic healing mission began when various religious orders first established their hospitals, and continues today, albeit with fewer religious and more laypersons continuing the legacy of the Catholic healthcare mission. Catholic healthcare has served an essential role in the United States since the nation’s inception, frequently being the only provider of care to the poor in numerous communities. That dedication to the vulnerable segments of society continues today. Catholic healthcare providers were the first in many communities to treat compassionately, without judgment and without discriminating, those with HIV/AIDS. Mission statements for Catholic providers focus on ensuring care to the homeless, to immigrants, whether documented or not, and to the underserved and uninsured. According to statistics available on the Catholic Health Association web page, Catholic healthcare is a national leader in its provision of birthing rooms and breast cancer treatment, geriatric services, nutrition programs, social work services and pain management programs. The disappearance of Catholic hospitals would decimate access to care in rural communities. Catholic hospitals have long been on the forefront of the call for healthcare reform that provides access to all, and support President Obama’s health reform efforts.
Catholic hospitals’ delivery of healthcare is informed by Catholic Social Teaching broadly and specifically by what are called The Ethical and Religious Directives for Catholic Health Care Services, which are promulgated by the United States Conference of Catholic Bishops. Catholic Social Teaching rests on centuries of philosophical and theological learning to guide not only the Church but society in general on such questions as the relationship between labor and capital, the respectful treatment of employees and the importance of unions to workers, distribution of goods and services, and human rights to social goods such as health care. The Ethical and Religious Directives, which are informed by Catholic teaching, are moral guidelines specific to healthcare, to aid in resolving such ethical issues as pregnancy termination, contraception, and euthanasia. Obviously, the clinical situations in which these guidelines are implicated can be extremely complex, and sometimes require nuanced analysis by those with a deep understanding of Catholic moral theology and medicine. Like any intellectual discipline, theologians, bishops, and healthcare providers sometimes disagree among themselves as to the appropriate application of these guidelines to a specific situation. So, yes, it is true that Catholic healthcare providers are committed by their religious beliefs to operate in ways that may be different than secular providers, but these differences extend far beyond the moral limitations on the kinds of reproductive and end-of-life care they provide. Even in the face of severe budget cuts, Catholic hospitals continue to provide pastoral care to their patients, caregivers, and families; engage in constant assessment of fidelity to mission; and have been leaders of all hospitals with regard to measuring tax-exempt facilities’ provision of community benefits.
My ultimate point is two-fold. First, Catholic healthcare is too important to the country’s healthcare system to be reduced in our assessment of its value to religious proscriptions that may interfere with access to a limited universe of services, albeit what are generally considered essential healthcare services. While some may dissent from application of Catholic teaching in particular instances, the continued and pervasive presence of health providers committed to the dignity of every person whom they treat is an ultimate societal good. Where disagreement persists, it is important that the Church engage in sincere dialogue with all segments of society, with a willingness to be informed from medical, ethical, and sociological perspectives.
As Catholic providers partner, merge or otherwise collaborate with secular healthcare providers, community stakeholders, including licensing agencies, should demand and receive a clear understanding of the implications for healthcare access of the proposed alliance. Each bishop acts as the ultimate arbiter of the Ethical and Religious Directives, which means that interpretations can vary by diocese. For example, a minority of bishops have raised questions about the kind of emergency care administered by hospital emergency departments to rape survivors, out of an over-abundance of medical and moral caution, in my view, that the treatment might interfere with a pregnancy. Thus, it is essential that regulators understand the implications of Catholic teachings for healthcare access, so that patients clearly understand the limitations of Catholic providers and, where appropriate, have alternatives to access services. Our healthcare system has and will likely always be extremely pluralistic. We have, and should continue to make every effort, to accommodate the religious beliefs of providers, while ensuring access to care to which patients are legally entitled.
Further, the public debate about what kind of care should be legally available should take seriously the perspective of those whose viewpoints are informed by moral concerns, whether those concerns arise from religious or philosophical principles. Finally, both The United States Catholic Conference and individual bishops should ensure that they receive a robust analysis of ethical issues related to healthcare from the Church’s best theologians with relevant expertise before promulgating guidance to those engaged in healthcare ministry. Importantly, bishops should also hear from those who are involved daily in caring for and ministering to patients.
The ultimate goal of reform is one upon which both Catholic healthcare providers and proponents of women’s health agree – increased access to healthcare for all. Collaboration on the pursuit of this unified goal should enable us to identify means by which the plural interests of the stakeholders can be accomplished. Transparency and conversation are key to achieving these ends. In my conversations with those concerned about changes in the healthcare delivery system, I have always found them to be very respectful of religious freedom, appreciative of the role religious providers play in society, and desirous of finding a common way forward. While the number of religious sisters is shrinking in the United States, women remain a significant presence in the leadership of Catholic healthcare. A cursory review of the areas where Catholic healthcare predominates reveals a strong commitment to women’s health and wellness. For these reasons, I feel confident that common ground exists to ensure access to health care for all, while carving out space for Catholic fidelity to the demands of their religion.
The Health Law Prof Blog is honored to introduce our guest blogger for the month of March, Professor Kathleen Boozang. Here is her short bio:
Professor Kathleen Boozang has been at Seton Hall Law School since 1990 where she teaches a variety of health law courses in person and on-line including the survey health law course, a course on health care fraud in the life sciences industry, and death and dying. In her scholarship, Professor Boozang has dedicated much of her career to nonprofit governance issues with a special focus on religiously sponsored hospitals. In the last several years, however, she has expanded her research and teaching to explore the legal and policy issues related to the global pharmaceutical and medtech industries, many of which make New Jersey their headquarters.
Professor Boozang serves on the Board of Directors of the American Health Lawyers Association. She is a Fellow of The Hastings Center, an independent nonprofit bioethics research institute, as well as a Fellow of the American Bar Foundation, an honorary organization of legal practitioners. She is also a member of the American Law Institute and participates on the consultant group for the Principles of Nonprofit Law. She serves on the Editorial Board of the Journal of Health and Life Sciences Law and is a past editor-in-chief of the Journal of Law, Medicine & Ethics. She is past president of the American Society of Law, Medicine & Ethics and also previously sat on the Advisory Board of the Journal of Health Law.
Throughout her legal career, Professor Boozang has been active in public service. She has served on numerous advisory boards and committees for healthcare providers and for the states of New Jersey and New York, including serving as an advisor to the New Jersey Attorney General Task Force on Physician Compensation by Pharmaceutical Companies, which resulted in the promulgation of proposed regulation. She is a former member of the New York State Task Force on Life and the Law, an interdisciplinary commission with a mandate to develop public policy on bioethical issues. Professor Boozang currently serves on the Board of Trustees of the St. Joseph Healthcare System in New Jersey.
Professor Boozang served as the Vice Provost of Seton Hall University in South Orange, New Jersey in 2010 and 2011. Prior to moving to the university’s main campus, Professor Boozang served for eight years as the Law School’s Associate Dean, and then for two years as the Associate Dean for Academic Advancement, with oversight of two of the Law School’s Centers of Excellence: the Gibbons Institute of Law Science and Technology, and the Center for Health & Pharmaceutical Law & Policy.
Professor Boozang was named the Seton Hall University Woman of the Year in 2006 and the Washington University Law School’s Young Alum of the Year in 2004. She graduated from Washington University School of Law in St. Louis, Mo., where she was inducted into the Order of the Coif and served as the managing editor of Law Quarterly. She received her LL.M. from Yale Law School in 1990.
Friday, March 2, 2012
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
Thursday, March 1, 2012
One of Dr. Greg House's consistent observations is that patients lie to their doctors (e.g., "I don't ask why patients lie, I just assume they all do"). Now, Health Affairs has an interesting piece by Iezzoni and colleagues, here, that casts considerable doubt on physician commitment to open and honest communications with patients. The summary of the published survey findings includes the following:
Overall, approximately one-third of physicians did not completely agree with the need to disclose serious medical errors to patients, almost one-fifth did not completely agree that physicians should never tell a patient something untrue, and nearly two-fifths of physicians did not completely agree that they should disclose their financial relationships with drug and device companies to patients.
Perhaps more important, one-fifth of physicians reported not fully disclosing medical mistakes to patients because of fears of lawsuits, and just over one-tenth said that they had told patients something untrue in the previous year.
Wednesday, February 29, 2012
Fraud and abuse detection and deterrence is one of the most rapidly evolving areas of health care law. I found this backgrounder from Perkins Coie on recent developments very helpful. A few years back, Kathy Giannangelo wrote a good introduction to the use of data mining technology in the field. A few excerpts:
On the national level, the Centers for Medicare and Medicaid Services (CMS) created the Medicare-Medicaid Data Match Program, or Medi-Medi project, in 2001. . . . Federal regulations require that each state Medicaid agency maintain a claims processing and information retrieval system (the Medicaid Management Information System). The Surveillance and Utilization Review Subsystem, a mandatory component of the Medicaid Management Information System, exists to safeguard against inappropriate payments for Medicaid services. Patterns of fraudulent, abusive, unnecessary, or inappropriate utilization can be detected by analyzing and evaluating provider service utilization.
According to section 6034 of the Deficit Reduction Act, the Medi-Medi programs are to use computer algorithms to search for payment anomalies. The abnormalities being sought include billing or billing patterns identified with respect to service, time, or patient that appear to be suspect or otherwise implausible. This data-oriented approach to mining combined Medicare and Medicaid claims to detect improper billings and utilization patterns has created the ability to find vulnerabilities in both programs.
While the field of surveillance studies often critiques dataveillance, these strike me as model initiatives for the types of corporate audit trails that should be adopted far more widely in an economy as complex as ours.
Sunday, February 26, 2012
Position Announcement: Boston University School of Law - Visiting Assistant Professor Program in Health Law
The Boston University School of Law announces openings in its Visiting Assistant Professor Program in Health Law.
PURPOSE: The BU Health Law program is an interdisciplinary research and teaching effort at Boston University, including the School of Law and the Department of Health Law, Bioethics & Human Rights at the School of Public Health. The Health Law program is dedicated to scholarly research at the intersection of law and health policy, broadly conceived. Topical areas include, but are not limited to: health care financing and organization; insurance; global health; public health; emergency preparedness; bioethics; health & human rights; cost, quality and access; health care markets; food & drug law; biomedical research; innovation; and health disparities. The Visiting Assistant Professor in Health Law is a post-JD experience designed to prepare candidates for tenure-track faculty positions in law schools.
PROGRAM: Recipients will hold a full-time, two-year appointment in the School of Law as a Visiting Assistant Professor. Recipients teach one seminar per semester (six credits per year) and devote the balance of their time to research and writing. Recipients also participate in faculty workshops at BU and can observe health policy and research in practice at Boston Medical Center. Professor Wendy Mariner and Associate Professors Kevin Outterson and Abigail Moncrieff lead the program. Other faculty members include Professor George Annas, Professor Leonard Glantz, and Professor Emeritus Fran Miller.
The program builds on the unique strengths of BU programs in Law and Public Health, giving the candidate multi-disciplinary exposure to the richness of health law, with support from BU faculty mentors. Recipients will also want to take advantage of the wealth of educational and cultural opportunities available in the city of Boston.
STIPEND AND BENEFITS: The recipient will be provided with an office, library privileges, health benefits, and a stipend of approximately $50,000. You are invited to attend all faculty scholarship workshops. Depending on a candidate’s interests and BU’s resources, a recipient may be able to spend time in other supporting BU Schools.
ELIGIBILITY: Applicants must hold a JD or other similar degree in law. Outstanding academic credentials and an excellent research proposal will be required. Preference will be given to candidates who have a strong draft article in health law that has potential for development and publication. Boston University is an equal opportunity employer.
APPLICATION: Applications will be accepted on a rolling basis starting February 15, 2012 for the academic years 2012-14 (2 years). Applications are due by March 31, 2012. Include the following materials as pdf files:
• Curriculum Vitae;
• University transcripts;
• Research proposal in health law of not more than 2000 words;
• Writing sample, in draft form; and
• Three letters of recommendation, emailed directly from the recommender.
All application materials should be e-mailed to: Leanne Chaves email@example.com.
Questions may be directed to Professor Mariner firstname.lastname@example.org, Associate Professor Moncrieff email@example.com, or Associate Professor Outterson firstname.lastname@example.org.
Hamline University School of Law is hosting a conference in November entitled Honoring Patients Treatment Choices at the End of Life: New Tools, New Challenges, New Limits. Anyone interested in speaking at the Symposium and/or publishing in the Hamline Law Review's Symposium issue should submit both a CV and a 500-word abstract to email@example.com by March 30th, 2012. More details are here.
The O’Neill Institute for National and Global Health Law is seeking exceptionally qualified candidates to serve as O’Neill Institute Fellows. Housed at Georgetown University Law Center in Washington, DC., the O’Neill Institute is a leading research institute for health law. For more details about the Institute and its ongoing work please visit www.oneillinstitute.org.
Fellows are based at the Law Center and report to the O’Neill Institute Director and to the Faculty Director. Law fellows work on academic legal research and scholarship projects. Duties include working closely with faculty to produce scholarly works for publication, in some cases leading to joint publication. Allocation of time is mainly determined by O’Neill Institute Faculty needs and taking into account fellow preferences; additionally, some time may be allocated to O’Neill projects. Fellowships are for one year with possible extension for two years, and will begin in July 2012. Fellows will receive an annual salary of $66,747 with great benefits.
Candidates should have a J.D. degree (or the equivalent), exceptional academic credentials, including publications, and health law-related research interests in areas like public health law, global health law, domestic health care law, empirical studies, regulatory impacts of health, health and human rights, etc. Successful candidates will have knowledge and/or experience in aspects of national and or global health law and ethics. A post-graduate degree (MPH, LL.M.), health degree, or significant work experience may be preferred.
Applications should be submitted electronically at the following website http://www.law.georgetown.edu/oneillinstitute/about/application-fellowship.html and must include: CV, cover letter, writing sample, professional references, official law school transcript, and other graduate school transcripts (if applicable).
The application deadline is Friday, February 29, 2012. Any questions about the position should be directed to firstname.lastname@example.org.
Rule Requiring Pharmacy to Deliver Prescribed Medications Regardless of Religious or Conscientious Objection Held Unconstitutional
A decision that was handed down by the U.S. District Court in the Western District of Washington this week in Stormans v. Selecky held that the Washington State Department of Health’s Pharmacy Board’s rule that requires pharmacies to deliver lawfully prescribed drugs or devices to patients, with no exception for conscientious or religious objection, was unconstitutional as applied to a licensed pharmacy and two licensed pharmacists who challenged the rule. The opinion may be found at http://www.wawd.uscourts.gov/documents/HomePageAnnouncements/C07-5374%20Opinion.pdf. Hat tip to Vickie Williams, Associate Dean for Academic Affairs, Gonzaga University School of Law.