HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Wednesday, August 28, 2013

The anti-EMTALA

You have to love a federal appeals court decision that starts off with:  "When holding a hammer, every problem can seem a nail."  It signals to the appellant's attorney that "there is no need to waste any more billable time reading the rest of the opinion, loser."   This is what the 10th Circuit Court of Appeals recently told an emergency room doctor who claimed his termination from his employment with a Colorado hospital violated EMTALA's whistleblower provisions.  Dr. Genova claimed that he was terminated because he complained about overcrowding in the emergency room, and that this was a violation of EMTALA's whistleblower provisions.  The good doctor complained about "patient hoarding" by the hospital in the emergency room, when patients could have been timely served elsewhere.  The problem with this theory is that EMTALA is designed to prevent hospitals from dumping undesireable patients out of their emergency rooms, not to discourage hospitals from treating too many patients in the emergency room.  Thus, Dr. Genova's lawsuit is really based on some anti-EMTALA law that does not exist, at least not at the federal level.  There is also an interesting discussion of the medical staff bylaws that governed Dr. Genova's termination, and the lack of support for a public policy argument.  The opinion is well-worth reviewing for those who are teaching health care law. [VJW]

August 28, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, August 26, 2013

Of Data Challenges

Challenges designed to spur innovative uses of data are springing up frequently.  These are contests, sponsored by a mix of government agencies, industry, foundations, a variety of not-for-profit groups, or even individuals.  They offer prize money or other incentives for people or teams to come up with solutions to a wide range of problems.  In addition to grand prizes, they often offer many smaller prizes or networking opportunities.  The latest such challenge to come to my attention was announced August 19 by the Knight Foundation:  $2 million for answers to the question "how can we harnass data and information for the health of communities?"  Companion prizes, of up to $200,000, are also being offered by  the Robert Wood Johnson Foundation and the California Healthcare Foundation. 

Such challenges are also a favorite of the Obama administration.  From promoting Obamacare among younger Americans (over 100 prizes of up to $30,000)--now entered by Karl Rove's Crossroads group--to arms control and identification of sewer overflows, the federal government has gone in for challenges big time.  Check out to see the impressive list.  Use of information and technological innovation feature prominently in the challenges, but there is also a challenge for "innovative communications strategies to target individuals who experience high levels of involuntary breaks ("churn") in health insurance coverage" (from SAMHSA), a challenge to design posters to educate kids about concussions (from CDC), a challenge to develop a robot that can retrieve samples (from NASA), and a challenge to use technology for atrocity prevention (from USAID and Humanity United).  All in all, some 285 challenges sponsored by the federal government are currently active, although for some the submission period has closed.

These challenges are entertaining, call on crowdsourcing for knowledge production, find new sources of expertise way beyond the Beltway or even US borders, encourage private sector groups rather than government to bear costs and risks of development (or failure), and may bring novel and highly useful ideas to light.  So what's not to like?  I may be just grumpy today, but I have some serious worries about the rush to challenges as a way to solve persistent or apparently intractable problems. 

Challenges may be more hype than achievement, more heat than ultimate light.  They may emphasize the quick and clever--the nifty over the difficult or profound.  They may substitute the excitement of awarding and winning a prize for making real progress on a problem. Most troubling to me, however, is the challenge strategy's potential to skew what government finds interesting and what it is willing to do.  Many challenges have private partners in industry, appear likely to result in for-profit products, or set aside values that may be more difficult to quantify or instantiate.

Take the HHS Datapalooza, for example.  Now entering its fifth year, the Datapalooza is an annual celebration of innovations designed to make use of health data available from a wide variety of sources, including government health data.  "Data liberation" is the watchword, with periodic but limited references to data protection, security and privacy.  A look at the 2013 agenda reveals a planning committee representing start-ups and venture capital.  It also reveals a $500,000 prize awarded by Heritage Provider Network, a managed care organization originally located in Southern California but now expanding in markets in Arizona and New York and serving many Medicare Advantage patients.  The prize was for a model to predict hospitalizations accurately and in advance--so that they could be avoided.   The winning team, powerdot, didn't reach the benchmark needed to win the full $3m prize.  So . . . Heritage is continuing the competition, making more (and apparently no longer deidentified) data available to a select set of leading competitors in the original competition in order to improve the accuracy of the modeling.  (A description of deidentification methods for the data made available to all entrants in the original competition is available here.)  There are of course real advantages in developing a good predictive model--for patients in avoiding hospitalizations, and for Heritage in saving money in patient care.  This is potentially a "win win"--as Mark Wagar, the executive awarding the prize stated, "it's not just about the money; it's personal."  But "it's not just about the money" is telling: the risk of these challenges is that they are about the money, and that the money will come to dominate personal or other values unless we are careful.

Solutions, if my concerns are well-founded?  Trying to turn back the disruptive clock and fight the appeal of challenges is probably futile--although perhaps some of the initial enthusiasm may wane. One solution is to join in--after all, challenges are infectious and potentially innovative--encouraging more challenges aimed at different problems--say, challenges for privacy or security protection alongside challenges for data liberation and use.  Or, challenges for improving patient understanding of their health conditions and informed consent to strategies for managing them--as some of the challenges aimed at patients with diabetes illustrate.  Another solution is to watch very carefully what challenges are offered, who funds them, who wins them, and what is ultimately achieved by them.


August 26, 2013 in Bioethics, Biotech, Competition, Health Care Costs, Health Care Reform, Health IT, Health Reform, Obama Administration, privacy, Reform, Technology | Permalink | Comments (0) | TrackBack (0)

Friday, August 23, 2013

Call for Papers - Choices and Consequences: Health Policy and the ACA

The University of Arkansas at Little Rock Law Review is pleased to announce a call for papers for its 2014 Symposium, on policy aspects of the implementation of the Patient Protection and Affordable Care Act and Health Care and Education Reconciliation Act of 2010 (together, the ACA), to be held on Friday, Feb. 28, 2014.  

The ACA is the most significant change to health care law since the creation of Medicare and Medicaid in the 1960s. The act’s constitutionality was upheld by the United States Supreme Court in 2012, with the limitation that states could not be penalized by losing their federal Medicaid funding for refusing to expand Medicaid under the ACA. 

As a result, states are approaching ACA compliance in various ways. Some have decided to  expand  their  Medicaid  programs  as  anticipated  in  the ACA. Others are opting not to participate in coverage expansion.  Still others, such as Arkansas, are crafting alternative approaches to expanding healthcare coverage. Arkansas has decided to pursue a unique (for now) option–accepting federal money originally designated for Medicaid expansion under the ACA but seeking a federal waiver to use these funds to buy private insurance in the coming marketplaces for about a quarter of a million low-income Arkansans. Arkansas has received federal approval to proceed with its plan for the present.  

The Law Review seeks papers on national and state health policy aspects of the expansion of healthcare coverage, whether through Medicaid expansion and/or other options.  Papers could focus  on  such topics as how the Supreme Court decision politicized  implementation;  legal aspects of such topics as state choices; state- or federally-run marketplaces or partnership agreements;  race,  age and  gender  issues  relating to insurance  coverage; and aspects of Arkansas’s or other states’ plans. Papers may also address non-Medicaid issues associated with the ACA, such as the interface between the ACA and state healthcare laws. 

The University of Arkansas at Little Rock Law Review will publish articles from the symposium in volume 36, which is slated for publication in the spring of 2014. Authors should submit an abstract and a cover  letter to Sydney  Brown,  Symposium Editor, at The deadline for submissions of article proposals is Friday, Oct. 11, 2013; finished articles will be due at the time of the symposium. Please feel free to email Ms. Brown with any questions.


August 23, 2013 | Permalink | Comments (0) | TrackBack (0)

Call for Papers: Issues of Reproductive Rights: Life, Liberty, and the Pursuit of Policy

A letter from our fine colleagues at the Cleveland-Marshall College of Law:

Dear Colleagues,  

You are invited to submit an Article for possible inclusion in the Journal of Law and Health’s Annual Symposium: Issues of Reproductive Rights: Life, Liberty, and the Pursuit of Policy. The Journal of Law and Health is a student-run publication dedicated to publishing innovative articles that offer diverse perspectives on the intersection between law, health and medicine. 

Our Symposium is titled “Issues of Reproductive Rights: Life, Liberty, and the Pursuit of Policy." The selection of this Symposium topic was a result of  major developments in the area of Reproductive Rights in the past year. For example, state legislation in Texas, Ohio, or Arkansas severely restricting women's access to abortion. Another example would be the recent 10th Circuit decision in Hobby Lobby v. Sebelius which provided for-profit corporations with a right to challenge the Affordable Care Act’s so-called “contraceptive mandate” on the basis that a corporation is a “person” who can have and exercise its own religious beliefs. The Symposium aims to give judges, legislators, and academics the opportunity to present research that highlights the legal and ethical issues that may occur because of these developments. 

If you are interested in submitting an abstract for consideration please find the instructions and important dates for submission below. If you have any questions, please don’t hesitate to contact me at

Thank you so much for your time and consideration and we look forward to hearing from you.



Gordon R. Gantt, Jr.
Cleveland-Marshall College of Law
Cleveland State University

Senior Editor- The
Journal of Law and Health


August 23, 2013 | Permalink | Comments (0) | TrackBack (0)

Published This Week

Wednesday, August 21, 2013

Wellness Programs: Controversies Continue

Professor Jill Horwitz has coauthored a very troubling critique of workplace wellness programs, characterizing them as a possible form of cost-shifting to unhealthy workers.

[H]ealth-contingent programs encouraged by the Affordable Care Act rely on the assumption that the returns to health improvement are generally highest for employees with modifiable risk factors, such as an unhealthy diet or a behavior like smoking.

To assess these three assumptions, we reviewed research on the relationships among financial incentives, behavior, health status, and medical spending. We focused on randomized controlled trials involving four conditions—smoking, hypertension, high cholesterol, and obesity—that are typically included in health-contingent programs.

In our review, we found mixed evidence that employees with these conditions have higher health costs than other employees, which undermines the argument that employees with the conditions are particularly effective targets for incentives. We also found little evidence that working-age people change their behavior as a result of financial incentives, particularly over the long term.

These findings suggest that program savings may not, in fact, derive from health improvements. Instead, they may come from making workers with health risks pay more for their health care than workers without health risks do.

Wellness programs are running into resistance at Penn State, as Professor Williams notes below. As the Harvard Business Review blog notes,

Penn State University’s wellness program has become every human resources director’s worst nightmare: national news. . . . [E]ven the major academic proponents of conventional wellness programs don’t think they save money, that vendors make up savings numbers, that the screens they insisted upon can’t even theoretically save money and a whole body of research opposes them, and that all the extra preventive doctor visits they required were useless

The fusion of the nanny state and the nanny corporation is not a pretty sight.  Professor Wendy Mariner recognized problems with wellness programs years ago; too bad the architects of these programs are not paying more attention to her work.


August 21, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 20, 2013

Penn State's Employees Protest Wellness Program as a "Sandusky Tax"

Pennsylvania State University apparently likes to do a lot of things "to the max" besides engaging in higher education scandals.  Reuters reported last week that more than 2,000 faculty and staff employees are protesting Penn State's wellness program.  Unlike most workplace wellness programs, which use more carrots than sticks to encourage employees to take better care of themselves in the hope of decreasing health insurance and health care spending, Penn State uses a really big stick and no carrot.  If an employee does not complete a 12-page on-line survey (which includes a question about men performing regular testicular exams--oh, the irony!) and have a preventive physical, the employee will be hit with a $100 per month paycheck deduction.  The protesting employees are uncomfortable with turning over their private health care information to the companies running the wellness program, and question whether the $1,200 penalty is a "Sandusky tax."  Penn State assures its employees that the program is unrelated to the Sandusky scandal. 


The protest raises interesting legal questions about medical records privacy and the use of coercive measures  to improve health as a condition of employment.  It also highlights the fact that workplace wellness programs may actually increase health care costs, at least in the short-term, as people go get physicals or bloodwork that they would not have otherwise received, in order to answer questionnaires and avoid fines, and the evidence to date is that such programs do very little to decrease health-care costs.  The Affordable Care Act encourages the use of workplace wellness programs.  Will they be the next piece of the law to be delayed or jettisoned?


August 20, 2013 | Permalink | Comments (0) | TrackBack (0)

Saturday, August 17, 2013

Another ACA Delay--and a Proposed Solution

This past week, the New York Times published a story about yet another delay in the implementation of the Affordable Care Act.  Earlier this summer, NPR also reported the delay, which concerns total limits on out of pocket costs that consumers can be required to pay.  Under ACA, beginning in 2014 consumers were supposed to have to meet only one out of pocket limit--$6,350 for an individual and $12,700 for a family--including all deductibles and co-payments.  But the Times story reports that insurers have been granted a year's grace in implementing this requirement and quotes an administration official as attributing this decision to the inability of insurance plans to communicate with each other in determining out of pocket costs. 

Both stories emphasize the plight of patients who are covered under separate medical and pharmacy benefit plans.  Pharmacy plans in particular may have very high copayments, without annual limits.  Patients with expensive drug needs for diseases such as multiple sclerosis are especially hard hit by these benefit structures.

As I ruminated on this delay, it occurred to me that the problem of the plans' inability to communicate with one another is the plan's problem, not the patient's.  To say the least, it does seem rather unfair to have patients bear all of the costs of the delay. 

Moreover, there is a model that could have been used to implement the single limit:  submission of claims for out-of-network care.  Patients do this all the time and receive reimbursement to the extent covered by their plans.  The payer has a record of the claim and can credit it against the patient's deductible.  Why couldn't this model have been applied to the problem of multiple plans for patients?  It would be simple.  These are primarily patients with employer-provided plans.  All that would be needed would be to stipulate which plan is primary for the purpose of maintaining the single out of pocket total.  Medical plans are used to maintaining such totals. If the medical plan were stipulated to be the primary plan, all the patient would need to do would be to submit records of out of pocket payments under their pharmacy plans.  When patients meet the out of pocket total for the year, they would no longer be responsible for copays or deductibles from the primary plan.  How would other plans know about this?  Patients will receive records from their primary plans that they have met their deductible for the year.  They would then be responsible for submitting these records to their other plans--after which the other plans would no longer be able to charge copays or deductibles.

This approach, to be sure, puts the burden on patients to solve the communication problem.  But I'm surprised notbody seems to have entertained this suggestion, in a health care climate that heralds patient responsibility.  Perhaps the difficulty instead is that the multiple-plan structure emerged as a way to limit health care costs for payers by shifting costs to consumers.


August 17, 2013 in Accountable Care Organizations, Affordable Care Act, Consumers, Cost, Employer-Sponsored Insurance, Health Care Costs, Insurance, Payment, Reform, Spending | Permalink | Comments (0) | TrackBack (0)

Friday, August 16, 2013

Published This Week

Tuesday, August 13, 2013

Bringing Emergency Room Misuse to a Strip Mall Near You

National Public Radio aired an interesting story this morning about the proliferation of free-standing emergency rooms in places like strip malls, mostly in suburban locations with relatively affluent, well-insured residents.  These places are equipped to handle life-threatening emergencies in much the same way as hospital-based ERs, and can charge the same high "facility fee" that a full-service hospital charges to reimburse the costs of maintaining expensive equipment and services.  Consumers are likely to confuse them with urgent care centers, and often show up at the free-standing ER for a problem that could be treated appropriately and more cheaply in an urgent care center or a doctor's office.  So rather than easing the problem of inappropriate use of the hospital ER for non-life-threatening problems, these facilities make it easier for well-heeled people to misuse the ER, a problem that had been more prevalent amongst the poor and uninsured in the past.  And if there is a true emergency and the patient needs to be admitted to a hospital as an inpatient, there is the ambulance ride from the free-standing ER to the hospital to pay for.  Not exactly the way to hold down health-care costs.

Another interesting wrinkle on free-standing ERs is that they are not subject to the Emergency Medical Treatment and Labor Act (EMTALA), which prevents hospitals that treat Medicare patients from dumping poor and uninsured patients out of their ERs and into public hospitals without stabilizing or treating them.  So if a poor or uninsured patients shows up in the freestanding ER, she has entered a time-warp back to the early 1980's, when such patient dumping was widespread and not prohibited by federal law.  If this trend of free-standing ERs continues, it may be time to revisit EMTALA.   

August 13, 2013 | Permalink | Comments (0) | TrackBack (0)

National Practitioner Data Bank and Due Process

Over at Bill of Health, Alex Stein posts the following:

An aggrieved patient files medical malpractice suit against a hospital in which he was treated. The hospital and the patient subsequently settle the suit. Their settlement agreement states that the hospital settles the suit “for the benefit of” a physician who treated the patient. Because the patient did not sue the physician, the physician was not a party to this agreement. Pursuant to the Healthcare Quality Improvement Act of 1986 (HCQIA), the hospital reports the agreement to the National Practitioner Data Bank (NPDB). Prior to filing this report, the hospital allows the physician to provide her account of the relevant events. The physician demands a process within which she could demonstrate that her treatment of the patient was faultless, but the hospital denies this demand.

Can the physician challenge the report?

Last week, the Court of Appeals for the Eighth Circuit decided that she cannot: Rochling v. Dep. Vet. Aff’s, — F.3d —-, 2013 WL 4017143 (8th Cir. 2013).

The physician’s principal claim—violation of procedural due process—appeared promising, but the Court turned it down because the physician failed to show the requisite deprivation of a constitutionally protected “life, liberty or property interest.” The physician argued that the report was analogous to a disciplinary proceeding that must comply with due process, but the Court held that “the NPDB report by itself is not a rebuke, censuring or reprimanding.” Rather, explained the Court, “the report simply means that a payment was made “for the [physician’s] benefit.”


The report could not “simply” mean that the hospital made a payment for the physician’s benefit. After all, it was filed with the NPDB pursuant to HCQIA and not with the IRS, pursuant to the tax code. This filing had only one plausible meaning: having the physician’s name on the government’s [black]list of actual and suspected malpractitioners—viewable by state licensing boards and the physician’s prospective employers (HCQIA, §11137)—might improve the quality of healthcare in our country. The contemplated improvement involves employers refusing to hire or credential the physician (Cf. Katharine A. Van Tassel, Blacklisted: The Constitutionality of the Federal System for Publishing Reports of “Bad” Doctors in the National Practitioner Data Bank, 33 Cardozo L. Rev. 2031 (2012)).

If so, the report’s filing clearly diminished the physician’s employment opportunities and earning capacity. There is no other way to see it. The physician’s employment opportunities and earning capacity may not qualify as a “property” interest, but they certainly fall under the “new property” definition (Charles A. Reich, The New Property, 73 Yale L.J. 733 (1964)). The Court nonetheless decided that the report’s effect on the physician’s future employment does not make it a protected “property” interest. I find this decision disappointing and unsatisfactory.  I also find it hard to reconcile with the Supreme Court’s reasoning in Mathews v. Eldridge, 424 U.S. 319 (1976).

Am I wrong?

Alex, you are spot on!


August 13, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, August 12, 2013

Symposium of interest

Just in from Marc Rodwin:

Your readers might be interested in a forthcoming symposium on Institutional Corruption and Pharmaceutical Policy that will be published in the forthcoming issue of the Journal of Law, Medicine & Ethics, 2013: Vol. 14 (3). Below I list a bit of information about the symposium. I have also attached a list of the articles with URL links on SSRN which has free access.  Also, these items can also be obtained through the Edmond J. Safra Center Lab on Institutional Corruption Web page,

The goals of pharmaceutical policy and medical practice are often undermined due to institutional corruption — that is, widespread or systemic practices, usually legal, that undermine an institution’s objectives or integrity. The pharmaceutical industry’s own purposes are often undermined. In addition, pharmaceutical industry funding of election campaigns and lobbying skews the legislative process that sets pharmaceutical policy. Moreover, certain practices have corrupted medical research, the production of medical knowledge, the practice of medicine, drug safety, and the Food and Drug Administration’s oversight of pharmaceutical marketing.

 Marc Rodwin invited a group of scholars to analyze these issues, with each author taking a different look at the sources of corruption, how it occurs and what is corrupted. The articles address five topics: (1) systemic problems, (2) medical research, (3) medical knowledge and practice, (4) marketing, and (5) patient advocacy organizations. Advanced copies of the 16 symposium articles are now available through SSRN online. []  For a summary of each article and the key themes in the symposium see, Marc Rodwin, Institutional Corruption and Pharmaceutical Policy


August 12, 2013 | Permalink | Comments (0) | TrackBack (0)

Saturday, August 10, 2013

Published This Week

Wednesday, August 7, 2013

Useful Article on Human Rights and Reproduction in Europe

In an article just posted on SSRN, "Reproductive health information and abortion services: Standards developed by the European Court of Human Rights," International Journal of Gynecology and Obstetrics 122 (2013) 173–176, Johanna Westeson provides a useful account of three recent decisions by the European Court of Human Rights.  In light of the decisions, she also highlights the importance of the development of professional standards to the evolution of human rights norms.

In the first case, R.R. v. Poland, No. 27617/04, Eur. Ct. H.R.; 2011, the patient had been denied access to diagnosis of a genetic condition of her fetus until after the time at which abortion was legal in Poland.  The ECHR held that this was a violation of her right to information in the context of reproductive health care.  Westeson points out the importance in this decision of the existence of medical standards regarding rights of access to information about maternal and fetal health. In the second case, P & S v. Poland, App. No. 57375/08, Eur. Ct. H.R.; 2012, the patient was a 14-year-old rape victim, for whom abortion in Poland was legally permissible.  However, she was subjected to a variety of forms of humiliating treatment, including release of her confidential information to the press and removal from the custody of her supportive mother . The ECHR determined that her treatment had violated the right not to suffer inhuman and degrading treatment and the right to respect for private life of both the patient and her mother.  Here, Westeson emphasizes the importance placed by the ECHR on ethical standards for when and how conscientious objection by providers is permissible.  Westeson also notes the ECHR's decison not to address the claim that the failure to provide emergency contraception violated the adolescent's human rights, and suggests that if Poland had had clearer ethical standards about such contraception, the ECHR might have been willing to take up the question.

The final decision discussed by Westeson is A. B. & C. v. Ireland, App. No. 25579/05, Eur. Ct. H.R.; 2010, a case involving three Irish women who received abortions in the UK.  Abortion is illegal in Ireland except when the mother's life is at stake.  In the case of one of the women, a patient with a form of cancer that could not be safely treated during pregnancy, the ECHR concluded that her inability to determine whether her life was at stake, and thus the legality of an abortion in her case, violated her right to private life.  For the other women, not suffering from life-threatening conditions, the ECHR concluded that Ireland was justified prohibiting abortion given the deep moral views of the Irish people.  Westeson is critical of the court's refusal to conclude that there is a human right to abortion, failure to recognize that travelling abroad is not an option for many women and is degrading for others, and inability to recognize that life and health may be difficult to distinguish in the abortion context.  Had the WHO Safe Abortion Guidelines been available in 2010, Westeson hypothesizes, the ECHR might have had medical judgments to rely upon in reaching a conclusion that threats to the women's life and health cannot be easily distinguished.

Westeson's discussion is worth reading both as a useful summary of the cases and as suggestive of how evolving standards of medical ethics and practice can be useful to courts in dealing with complex human rights issues. 


August 7, 2013 in Europe, Health Law | Permalink | Comments (0) | TrackBack (0)

Concerns About Network Adequacy for Health Insurance Plans in Exchanges

My home state of Washington is about as far along in the process of creating a functional health insurance exchange as any state in the country.  So when the Washington State Office of Insurance Commissioner announced that only four companies were approved to offer plans in the exchange, out of nine applicants, I was curious as to why the other five had been turned down. 

 According to the Insurance Commissioner, the companies whose plans were not approved "struggled to guarantee access" to hospitals and providers.  Many of the companies that were not approved were traditionally purveyors of Medicaid managed care plans, such as Molina, or otherwise have a history of insuring low-income people, such as Community Health Plan of Washington.  The failure of these plans to be able to ensure that they would have sufficient providers who are willing to contract with them to care for the newly insured says two important things about the state of our heatlh care for low-income people--comparatively few doctors are willing to treat these people now, and doctors have a high level of distrust of the insurers who have traditionally cared for them.  One of the biggest challenges for the ACA will be to change the attitudes of both consumers and providers towards providing care to those of low or moderate income.

The Insurance Commissioner's announcement highlighted another interesting fact that confirms that at least one of the problems with the ACA that are anticipated are likely to come to fruition.  Although a total of 31 plans were approved, in many of the rural counties of Washington, residents will have a choice of only one insurer. The problem of coverage in rural areas will be a real one.  At least the customer service reps for the three insurers who did not want to provide insurance in the rural counties won't have to learn names like "Okanogan," "Wahkiakum," and "Pend Oreille."

August 7, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, August 5, 2013

Is Big Data Overhyped?

For some in Silicon Valley, the rise of new data and communication networks creates unprecedented opportunities to solve problems like obesity, traffic, and flu pandemics. For example, an app like FitBit or LoseIt can keep track of calories and buzz a dieter once he goes over his daily limit. Futuristic early warning systems can warn drivers away from bottlenecks, and detect emerging influenza outbreaks.

Evgeny Morozov’s illuminating book To Save Everything, Click Here challenges both “internet centrism” and “solutionism.” The internet may, for instance, make traffic worse. Moreover, solutionism tends to “reach for the answer before the questions have been fully asked.” Is the problem really traffic, or something deeper in the way cities and opportunities are arranged? Solutionism tends to prioritize issues that widely accessible tech can address: small, algorithmically decomposable bits of wicked problems.

While a solutionist might think of gamified calorie counting as a wonderful new way to fight obesity, a more sober analysis of the problem will lead us to doubt the smartphone will make us svelte. Similarly, calorie counts may be a great disclosure tactic, but disclosure is only the first step on the road to changing behavior. And our food problem, like our traffic problem, may entail reconsideration of privilege, taste, and inequality as far deeper problems than individual struggles for self-control.

Big data has been linchpin of solutionist narratives about the future of tech in health care. However, there are still major challenges in data quality. Even if the data were perfect, causal inference still may be a challenge, as Hoffman & Podgurski explain:

EHR [electronic health record] vendors are making slow progress towards achieving interoperability, the ability of two or more systems to exchange information and to operate in a coordinated fashion. In 2010 only 19% of hospitals exchanged patient data with providers outside their own system. Vendors may have little incentive to produce interoperable systems because interoperability might make it harder to market products as distinctive and easier for clinicians to switch to different EHR products if they are dissatisfied with the ones they purchased. . . .

Even if the EHR data themselves are flawless, analysts seeking to answer causal questions, such as whether particular public health interventions have had a positive impact, will face significant challenges relating to causal inference. These include selection bias, confounding bias, and measurement bias.

Paul Ohm adds to the data skepticism in a recent essay:

[A]s medical research follows the lead of Google Flu Trends and begins to slip outside these traditional institutions and their concomitant safeguards, we should be concerned about the relative lack of controls. Particularly as more medical research is conducted by profit-driven companies—–whether large corporations or small startups—–we should worry about forcing the public to accept new risks to privacy with little countervailing benefit and none of the controls. The worst of all worlds would occur if medical researchers at non-profit institutions began to clamor for relaxed human subjects review in a race to the bottom to compete with their forprofit counterparts.

Ohm’s point about maintaining a baseline of standards is prescient: I have heard at least one behavioral scientist argue that research will migrate out of universities and into private companies if the universities don’t relax IRB standards. Ohm also questions whether something as celebrated as Google Flu Trends has led to actionable data:

Who has created an app, therapy, or epidemiological study based on the colors on [Google's flu maps]? Has a traveler ever avoided boarding a plane to a city on a distant coast because of the relative difference in the shading of the oranges between home and destination? The answer, I suspect, is that none of these positive results has occurred. Instead, the project’s primary mission is to market Google: we are reminded by a colorful map that Google is not evil.

As I’m sure the Washington Post will be soon be reminding us of cloud services generally.


X-Posted at Concurring Opinions

August 5, 2013 in Disparities, Effectiveness | Permalink | Comments (0) | TrackBack (0)

Call for Proposals: The Role of Nonprofits Under the Affordable Care Act

AALS Section on Nonprofit
Philanthropy Law

AALS Section on Law,
Medicine and Health Care

Call for

2014 Annual Meeting
Section Panel

Friday, January 3, 2014,
10:30 a.m.–1:15 p.m. 

The Role of Nonprofits Under the Affordable Care Act 

The Sectionon Nonprofit and Philanthropy Law is issuing a call for proposals for its session on the role of nonprofit organizations under the Affordable Care Act of 2010 ("ACA").  The panel, co-sponsored by the AALS Section on Law, Medicine and Health Care, will be held on Friday, January 3, 2014, from 10:30 a.m. to 1:15 p.m., at the AALS 2014 Annual Meeting in New York, New York. Presentations might address the ACA's impact on nonprofit and other tax-exempt organizations; the ACA’s new  requirements for 501(c)(3) tax-exempt hospitals; the participation of tax-exempt hospitals in Accountable Care Organizations (ACOs); and nonprofit Consumer Operated and Oriented Plans (CO-OPs).

Panelists will be a mix of presenters chosen through this call for proposals and solicited panelists with relevant expertise.  Presenters will have the opportunity to publish their papers in the Indiana Health Law Review. To submit your proposal, please email a short abstract (one or two paragraphs) of your proposed paper to Rob Katz, Chair of the Section on Nonprofit and Philanthropy Law, at, and Elizabeth Weeks Leonard,, Chair of the Section on Law, Medicine and Health Care, at The deadline for abstracts is August 31, 2013.  If you have any questions, please send them to Rob Katz and Elizabeth Weeks Leonard.  


August 5, 2013 | Permalink | Comments (0) | TrackBack (0)

Friday, August 2, 2013

Health Law Position: Southern Illinois University School of Law

Assistant, Associate, or Full Professor of Law

Southern Illinois University School of Law seeks to fill up to four full-time tenure-track or tenured faculty positions to begin in the 2014-2015 academic year. With a range of curricular needs, the School of Law welcomes applications from candidates with a wide variety of interests including Health Law,  as well as Contracts, Torts, Legislative and Administrative Process, Family Law and other courses.

Rank & Title: For Associate or Full Professor rank: significant teaching experience and demonstrated achievements in scholarship consistent with the tenure and promotion standards of the Southern Illinois University School of Law.

Duties &Responsibilities: Classroom instruction, scholarship, and service.

To Apply or Nominate a Candidate: A complete application will require a letter of application detailing your interest, qualifications and relevant experience, along with a vitae or resume and three references with names.

Address or email applications to:

Patty Lynn,
Assistant to the Dean
Mail Code 6804
Southern Illinois University School of Law
1150 Douglas Drive
Carbondale, Illinois 62901


Deadline for application: October 1, 2013 or until position is filled.



August 2, 2013 | Permalink | Comments (0) | TrackBack (0)

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