Tuesday, February 11, 2014
On October 15, 2013 my husband, at the age of 55, learned that he has Parkinson’s Disease. He had had a tremor for many months, and when it grew more persistent and became accompanied by stiffness and other discomfort, Andy decided it was time to see a neurologist. We had been anxious for days before the appointment. Hours of Internet searches encouraged us to cling to the hope that the tremor was benign, as many are. But we also knew that we could get life-changing news from the doctor.
The neurologist did a very thorough examination. Then, without indicating that he was ready to deliver his decree, he blurted out, “Well, this is clearly Parkinson’s Disease.” He explained that it was a degenerative, neurological disease caused by loss of dopamine cells in the brain and that it usually progresses over decades. The doctor discussed a variety of drugs and recommended one for Andy to try first, assuring us that “most patients tolerate this one well.” He instructed us to make another appointment in three months and left the exam room to see his next patient.
What followed were some of the most difficult days of our marriage. Life had changed in an instant. We were consumed by fear that our future was bleak and uncertain, that our place in the world had permanently shifted, that our sense of ourselves would never be the same. And our next medical appointment was not for three months.
Guest Blogger Associate Dean Elizabeth Pendo: New Study: Quantifying Lack of Access for People with Disabilities
Many thanks to Katharine and the other editors for inviting me to share my thoughts this month. One of my areas of interest is the impact of inaccessible medical and diagnostic equipment on access to basic health care for people with mobility disabilities. In the course of my research, I see many stories such as this one:
It took a while . . . but I gradually realized that I wasn’t getting the same level of care I had received when I could walk, and get on the scale, and climb up on the examination table. Doctors were prescribing dosages based on what they guessed I weighed, so I began thinking maybe I should be weighed. And doctors stopped routinely examining the back of my body, because it's so difficult to get clothes on and off when you can't stand up that they took the easy way out.
This was from a quote from John Lonberg, a plaintiff in the first class-action challenging inaccessible medical equipment, Metzler v. Kaiser Foundation Health Plan. He eventually developed a pressure sore, which required surgery by the time it was detected. How many other men and women across the country share his experience? The Annals of Internal Medicine recently published a study focused on that question, one of the first to quantify the lack of access to subspecialists for people with mobility impairments.
The surveyors used a “secret shopper” method, reminiscent of the investigatory testing model used to document discrimination in housing, lending, employment and public accommodations. Posing as fictitious patients, they attempted to make appointments with a variety of subspecialists in four large cities. In each case, the surveyor explained to the scheduler the chief symptoms relevant to the practice and medical history, which included obesity, a condition requiring the use of a wheelchair, and the inability to self-transfer during the appointment.
Monday, February 10, 2014
Where does one start with AOL CEO Armstrong's ridiculous and unfeeling justifications for changes in his company’s 401(k) plan. Cable TV and Twitter came out of the blocks fast with the obvious critiques. And the outrage only increased after novelist Deanna Fei took to Slate to identify her daughter as one of the subjects of Armstrong’s implied criticism. Armstrong has now apologized and reversed his earlier decision.
As the corporate spin doctors contain the damage, Armstrong’s statements likely will recede from memory, although I am still hoping The Onion will memorialize Armstrong’s entry into the healthcare debate (suggested headline, "CEO Discovers Nation's Healthcare Crisis Caused by 25 Ounce Baby”). But supposing (just supposing) your health law students ask about the story in class this week. What sort of journey can you take them on?
February 10, 2014 in Affordable Care Act, Cost, Coverage, Employer-Sponsored Insurance, Health Care, Health Care Costs, Health Care Reform, Health Economics, Health Law, HIPAA, privacy | Permalink | Comments (0) | TrackBack (0)
Friday, February 7, 2014
Opponents of the Affordable Care Act (ACA) have claimed for years that it will “kill jobs.” Because of ostensibly onerous and expensive mandates, higher taxes, and increased regulations, the ACA will cause employers to shed jobs, refrain from hiring additional workers, and reduce the hours present employees work.
Indeed, now it appears even the Congressional Budget Office, the nonpartisan source of information on all things financial for Congress, agrees. On Feb. 4, CBO released its projection that 2.5 million fewer Americans will be employed by the end of the next ten years as a result of the ACA.
Will this occur because CBO projects that employers will decide to cut jobs or hours in an effort to avoid the ACA’s “play or pay” provision, or because increased benefit costs under the ACA will make it untenable for employers to open new positions? Not particularly (although it does project a possible very small and speculative effect as a result of the employer mandate). Rather, “[t]he estimated reduction stems almost entirely from a net decline in the amount of labor that workers choose to supply, rather than from a net drop in businesses’ demand for labor, so it will appear almost entirely as a reduction in labor force participation and in hours worked relative to what would have occurred otherwise rather than as an increase in unemployment … or underemployment…” (CBO, pp 117-18).
Thursday, February 6, 2014
Medicaid cutbacks and prescription footwear: Plaintiffs prevail against New York’s cost cutting measures
Pressures to cut back Medicaid benefits continue to be impressive. In a noteworthy decision, New York’s effort to limit funding for prescription footwear was recently rebuffed by a New York federal district court.
In the class action suit, New York Medicaid patients challenged the state’s decision to limit coverage of medically necessary prescription footwear and compression stockings to selected conditions, Davis v. Shah, 2013 WL 6451176 (W.D.N.Y. 2013). Footwear coverage was limited to use as an integral part of a lower limb orthotic appliance, as part of a diabetic treatment plan, or to address growth or development issues in children. Compression stockings were limited to patients during pregnancy or for treatment of venous stasis ulcers. New York contended that the limits were a reasonable legislative compromise necessitated by funding constraints. It argued that the limits prioritized the most common serious conditions, eliminated coverage for needs that could be met with ordinary footwear (such as bunions or hammer toes), and saved the state over $14 million that could be used on other Medicaid expenditures. New York admitted, however, that the plaintiffs’ conditions were serious even though not on the list: for example, multiple sclerosis, paraplegia, and cellulitis. The plaintiffs argued that the limits violated the Medicaid Act, the Rehabilitation Act and Title II of the Americans with Disabilities Act, and the U.S. Constitution.
With respect to the Medicaid statute, New York provides nursing home services for the categorically needy and the medically needy and must therefore provide home health benefits for these groups who are appropriate for the services. New York argued that prescription footwear was not a “home health benefit” because it was not “medical supplies, equipment, and appliances suitable for use in the home” and instead was a prosthetic, an optional benefit. The court applied both deferential review (appropriate when the US Department of Health and Human Services has approved the state plan, as here) and de novo review to find that the state’s understanding of the home health benefit provision was reasonable. A problem for the plaintiffs' argument is that they included at least one amputee whose footwear was arguably prosthetic, thus blurring the line. On this point, the court granted summary judgment for the state.
As an alternative, the plaintiffs argued that the footwear limits violated the Medicaid Act’s “reasonable standards” provision, 42 U.S.C. § 1396a(a)(17)(2013) since they did not allow for individualized determinations of medical necessity. Indeed, a diabetic with peripheral neuropathy would be covered but a patient with multiple sclerosis-caused peripheral neuropathy would not be covered. Regulations under the statute prohibit arbitrary denial of a benefit to an otherwise eligible beneficiary solely because of diagnosis, 42 C.F.R. § 440.230(c) (2013). New York contended that because prosthetics are an optional benefit, it had greater flexibility to make determinations based on diagnosis and could impose cost-control limits on patients with less serious diagnoses. The court rejected this argument, reasoning that a classification based on diagnosis for utilization control reasons that failed to serve people in similar medical need was not valid, and granted summary judgment to the plaintiffs on this claim. For similar reasons, the court granted the plaintiff’s claim that the limitations violated the Medicaid Act’s comparability provision, 42 U.S.C. § 1396a(a)(10)(B) (2013). A final argument under the Medicaid Act under which the plaintiffs were granted summary judgment was that the state could not discontinue Medicaid coverage for a service without giving them any notice at all.
With respect to disability discrimination, the plaintiffs contended that the limitations violated the integration mandate of the ADA, that services be delivered in the most integrated setting appropriate to the person’s needs. The plaintiffs argued that without prescription footwear, they were at significant risk of worsening of their conditions and the resulting need for institutionalization. The state contended in response that decisions about allocating scarce funds in the face of competing demands cannot be discrimination as long as rationally related to a legitimate state purpose. The court agreed with the plaintiffs, reasoning that unjustified isolation might result from the limitations imposed by the state’s decisions. When state policies lead to such discrimination, the court stated, the public entity must make reasonable modifications unless such modifications would fundamentally alter the service being provided. Carefully pointing out that the plaintiffs were not seeking a service that New York did not provide to anyone, the court concluded that the limitations were discriminatory under the ADA.
This is not the only recent case in which plaintiffs have prevailed against arbitrary limitations on Medicaid benefits. In Conley v. Dept. of Health, 287 P.3d 452, 465–468 (Utah Ct.App.2012), the court held that Utah's decision to cover assistive speech devices for children and pregnant women but not for adults under the home health benefit violated the Medicaid Act. These cases illustrate the importance for states seeking Medicaid cost-savings to look to such matters as treatment efficacy or determinations about individual patients' needs, rather than drawing arbitrary lines.
Tuesday, February 4, 2014
It seems that everyone is talking about “big data.” The New York Times deemed this the “Age of Big Data” in a 2012 article and a Google search for the term yields over 14 million hits. I am spending a sabbatical semester at the Centers for Disease Control and Prevention, and here too there is much enthusiastic discussion of big data. Large databases containing electronic health records (EHR) and genomic data from millions of patients have the potential to facilitate medical discoveries, improve health care outcomes, and promote public health. Big data resources are being established by government agencies such as the Centers for Medicare and Medicaid Services, the Food and Drug Administration, and the Department of Veterans Affairs. They are also being launched by private entities such as Geisinger Health Systems, Explorys, the Electronic Medical Records and Genomics Network (eMERGE), and many others.
While the promise of big data is considerable, so are the challenges it poses. First, big data collections may be populated by data that is of poor quality, incomplete, or even deliberately distorted. Second, very careful attention must be paid to study design in order to avoid biases and other flaws.
HealthLawProf Blog extends a warm welcome to our third, and final, guest blogger for the month of February, Professor Sharona Hoffman. Here is her short bio:
Sharona Hoffman, J.D., LL.M., is the Edgar A. Hahn Professor of Law and a Professor of Bioethics at Case Western Reserve University. She is also the Co-Director of the Law School’s Law-Medicine Center and has been a member of the faculty since 1999. Professor Hoffman served as Associate Dean for Academic Affairs from 2006 until 2009.
Prior to becoming an academic, Ms. Hoffman was a Senior Trial Attorney at the Equal Employment Opportunity Commission in Houston; an associate at O'Melveny & Myers in Los Angeles, where she spent much of her time working on the Exxon Valdez oil spill case; and a judicial clerk for Judge Douglas W. Hillman of the U.S. District Court of the Western District of Michigan. Spring 2007, Professor Hoffman was a Guest Researcher at The Centers for Disease Control and Prevention (CDC) Public Health Law Program. From 2008-12, she served on the Board of Scientific Counselors for the CDC’s Office of Public Health Preparedness and Response. In 2013, Professor Hoffman was selected by the Robert Wood Johnson Foundation as one of six inaugural scholars-in-residence in public health law. In this capacity, she worked with the Oregon Health Authority on the challenges of regulating in-home care agencies.
Professor Hoffman received her B.A. magna cum laude from Wellesley College, her J.D. cum laude from Harvard Law School, and an LL.M. in health law from the University of Houston.
She teaches Health Law and related courses, Employment Discrimination, and Civil Procedure. She was voted First Year Teacher of the Year in 2011 and 2012.
Professor Hoffman has published over fifty articles and book chapters on employment discrimination, health insurance, disability law, biomedical research, the concept of race and its use in law and medicine, emergency preparedness, and health information technology. Her work has appeared in the Georgetown Law Journal, William & Mary Law Review, Boston College Law Review , and many other publications. She twice received Case Western Reserve University’s Mather Spotlight Series Prize for Women’s Scholarship (2005 & 2013). She has lectured throughout the United States and internationally and has been quoted widely in the press, including in USA Today, BusinessWeek, The Los Angeles Times, and The New York Times.
Professor Hoffman is currently on sabbatical, spending the semester in Atlanta, Georgia. She is serving as a visiting scholar at both Emory University School of Law and the Centers for Disease Control and Prevention.
Sunday, February 2, 2014
HealthLawProf Blog extends a big welcome to our second guest blogger for the month of February, Associate Dean Elizabeth Pendo:
Elizabeth Pendo is the Associate Dean for Academic Affairs and a Professor of Law at the Saint Louis University School of Law. She is also Professor of Health Management and Policy at the Saint Louis University School of Public Health (secondary appointment). Elizabeth teaches and writes in disability law, bioethics, and health law. Her scholarship focuses on the difference disability makes in settings such as the health care system and the workplace. She recently published articles exposing inaccessible medical equipment as a barrier to care for people with mobility disabilities, and comparing civil rights and health care reform responses. Other areas on inquiry include sociological models of disability and their impact on care, accessible public rights-of-way, and the use of genetic information in the workplace. Elizabeth has published with a number of law journals and peer-reviewed journals, and frequently submits testimony and comment to agencies and legislatures. She is an elected member of the American Law Institute, and a recent recipient of the YWCA Leadership Award, the Women’s Justice Legal Scholar Award, and the first SLU Faculty Excellence Award for Excellence in Diversity & Social Justice.
How flexible will CMS be in granting waivers to expand Medicaid coverage under the Affordable Care Act (ACA) in states still holding out? Should states be permitted to insert provisions ostensibly intended to promote “personal responsibility” in such waivers? Given CMS’s approval of Michigan’s “Healthy Michigan” plan at the end of 2013, and given that other states, such as Indiana and Pennsylvania, seek to go even farther in their waiver proposals, we may not yet have seen the limits of CMS’s flexibility in permitting state holdouts to join the ACA expansion fold.
Healthy Michigan is perhaps the most modest of several state proposals based loosely on the Healthy Indiana Plan, a waiver program that has been in effect since 2008. Healthy Michigan expands Medicaid to all childless adults in the state from age 19 through 64 earning up to 133% of the federal poverty level (FPL). Enrollees will be responsible for nominal cost-sharing and, for those earning between 100% and 133% FPL, premium amounts up to 2% of their income.
HealthLawProf Blog is very pleased to welcome our first of three guest bloggers for February, Associate Professor Laura Hermer:
Laura Hermer, JD, LLM, is an Associate Professor of Law at Hamline University School of Law in St. Paul, MN. Her current research focuses on changes in access to health coverage and care under the Affordable Care Act, with a particular focus on underserved populations. Her most recent article, “The Future of Medicaid Supplemental Payments: Can They Promote Patient-Centered Care?,” will be published in the Kentucky Law Journal (Merle Lenihan, co-author). Prior to joining the faculty at Hamline, Hermer was an Assistant Professor in the University of Texas Medical Branch’s Institute for the Medical Humanities and Department of Preventive Medicine and Community Health, and Director of the Health Economics and Policy Theme in the School of Medicine.
Roy G. Spece, David V. Yokum, Andrea-Gale Okoro, Christopher T. Robertson, Would Disclosures of Conflicts of Interest Change Patients’ Decisions and, If So, Would that Make Them 'Material' Information?, SSRN.
Thomas F. Cotter, Patents, Antitrust, and the High Cost of Healthcare, Antitrust (Forthcoming 2014).