HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Friday, March 15, 2013

Adventures in Health Care Cost Cutting

Expect to keep hearing more talk about health care cost cutting, despite charts like this. It's an idee fixe of the Wall Street/Washington corridor, and will only be implemented more vigorously over time.  So perhaps we should take stock of a few cost cutting initiatives. Medicare Part D, it seems, is coming way under its projected budget.  But maybe that's because of "a sharp fall in the number of breakthrough drugs," a sign that innovation in pharma is stalling.  Cost cutting triumph, or logical outgrowth of a system that fails to reward actual contributions to health?

There's also been a lot of pressure on skilled nursing facilities to hold the line on costs.  What are we getting in return? Here's a summary from OIG

Skilled nursing facilities (SNF) are required to develop a care plan for each beneficiary and provide services in accordance with the care plan, as well as to plan for each beneficiary’s discharge. . . For 37 percent of stays, SNFs did not develop care plans that met requirements or did not provide services in accordance with care plans. For 31 percent of stays, SNFs did not meet discharge planning requirements. . . . [R]eviewers found examples of poor quality care related to wound care, medication management, and therapy. These findings raise concerns about what Medicare is paying for. They also demonstrate that SNF oversight needs to be strengthened to ensure that SNFs perform appropriate care planning and discharge planning.

I'm sure the health care cost cutters will use this evidence to demand the SNFs be paid even less---rather than, say, investing real funding in proper training and pay in this vital service sector.  At some point, though, costs get cut so much that Medicaid will become little more than a meaningless plastic card, and "SNF" will stand for "Scarce Nursing Forever." 


March 15, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 13, 2013

Symposium Announcement - Speech, Symbols, and Substantial Obstacles: The Doing and “Undue”ing of Abortion Law since Casey,

Dear Colleagues,  

Please mark your calendars and consider attending Speech, Symbols, and Substantial Obstacles:  The Doing and “Undue”ing of Abortion Law since Casey, a daylong symposium to be held at Berkeley Law on October 4, 2013. The event is co-sponsored by the Center on Reproductive Rights and Justice at Berkeley Law, the Center for Reproductive Rights, and the Berkeley Journal of Gender, Law & Justice

Thought leaders from diverse disciplines will examine the constitutive power and widespread impact of current laws related to abortion in the United States. Discussion will focus on Planned Parenthood v. Casey’s undue burden standard; the way this “standardless standard” is playing out in courts across the country, altering people’s access to and experience of abortion care. Among the day’s many queries will be: 

  • How have legal frames influenced the public’s understanding of abortion and its perceptions of those who seek abortions?
  • How do abortion regulations interact with other areas of law, including freedom of speech?
  • How do abortion restrictions harm individuals, families, and communities, threatening access to services, compelling parenthood, and compounding other forms of marginalization?

We encourage you to visit the Speech, Symbols, and Substantial Obstacles website, to find more information, including panel descriptions and a list of confirmed speakers.  MCLE credits will be available, and registration will open in August. 


Kristin Luker, Faculty Director, Center on Reproductive Rights and Justice, Elizabeth Josselyn, Boalt Professor of Law and Professor of Sociology, UC Berkeley School of Law

Jill E. Adams, Executive Director, Center on Reproductive Rights and Justice, UC Berkeley School of Law

Diana Hortsch, Senior Director of the Law School Initiative, Center for Reproductive Rights

Louisa Irving, Editor, Berkeley Journal of Gender, Law & Justice

Allison Lauterbach, Symposium Editor, Berkeley Journal of Gender, Law & Justice


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

Tuesday, March 12, 2013

The Decision on Soft Drinks in New York City

The papers have been full of handwringing and delight concerning the decision of the New York Supreme Court, Civil Division, New York County, enjoining New York City's prohibition of the sale of sugary soft drinks in containers larger than 16 ounces.  I thought readers of this blog might find direct access to the decision helpful--along with a few observations that I haven't seen in the press discussions.

    --In addition to the American Beverage Association, petitioners challenging the prohibition included the New York Statewide Coalition of Hispanic Chambers of Commerce (representing nearly 200,000 Hispanic businesses), the New York Korean-American Grocers Association (representing nearly 4,000 grocers), the local of the Soft Drink and Brewery Workers Union, the National Association of Theater Owners of New York State, and the National Restaurant Association.

    --For purposes of the prohibition "sugary" drinks are drinks that have more than 25 calories/8 ounces, are sweetened by the manufacturer with sugar or another caloric sweetener, are non-alcoholic, and do not contain at least 50% milk or milk substitute (e.g. soy).  So a 20 oz venti Frappucino is not within the ban, even though it has 570 calories, because it is made with more than half milk.  Neither is a very large margherita . . .  and the prohibition applies only to food service establishments, not to grocery stores (so 7-11 Big Gulps do not come within it).

    --One major (and most successful) contention of the petitioners was that the prohibition violated New York State's separation of powers doctrine, because in enacting it the N.Y. Department of Health & Mental Hygiene had overstepped its authority as legislatively granted.  Under New York law, according to the court, four factors are relevant to this determination:  (1) was the regulation based on policy concerns not related to its stated purpose?  (2) was the regulation enacted on a clean slate without the benefit of legislative guidance, including the guidance of the City Council, the legislative body for the City under the City Charter? (3) did the regulation intrude on ongoing legislative debate?  and (4) did the regulation require technical expertise exercised on behalf of the enacting body?  The court found problems on the first three of these. 

    --One of the more interesting aspects of the opinion is the court's extensive historical analysis of the powers of the Department of Health & Mental Hygiene under the New York City Charter.  The upshot of the analysis--sure to be controversial--is that the Department's powers have been understood by the City Council largely in terms of the control of communicable disease.  (No obesity "epidemic" here.)

    --The court thought that there was considerable ongoing debate both in the NY state legislature and in the NY City Council about various ways of approaching the health issues of obesity.  Both bodies had rejected related issues such as the imposition of a tax on sugary beverages.  The respondents said no one had considered restricting portion size--but the court was unpersuaded by this distinction.  Instead, it thought that the Department was treading on legislative territory.

    --On the fourth factor, the petitioners' argument was that the Mayor's office had drafted the regulation and so bypassed the expertise of the Department.  The court found, however, that the Department had subjected the ordinance to public discussion and to its technical evaluation before enactment.

    --The second major challenge to the regulation was that it was arbitrary and capricious.  Here, the court rejected the argument that the Department didn't have sufficient reason for concern about obesity.  Instead, what the court concluded was arbitrary was that the regulation had so many loopholes that it is bound to fail to have any impact on the problem.

So perhaps the solution is an ordinance that extends to refills, 570 calorie Frappucinos, 600 calorie 50 oz. Double Gulps, and, yes, that 540 calorie 12 oz. margherita . . .



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