Tuesday, January 28, 2014
Stephanie M. Greene, After Caronia: First Amendment Concerns in Off-Label Promotion, 51 San Diego L. Rev. (Forthcoming 2014).
Sami Jabir Alsolamy, Islamic Views on Artificial Nutrition and Hydration in Terminally Ill Patients, 28 Bioethics 96 (2014).
Farhat Moazam, Aamir M. Jafarey, Bushra Shirazi, To Donate a Kidney: Public Perspectives from Pakistan, 28 Bioethics 76 (2014).
Aasim I. Padela, Steven W. Furber, Mohammad A. Kholwadia, Ebrahim Moosa, Dire Necessity and Transformation: Entry‐Points for Modern Science in Islamic Bioethical Assessment of Porcine Products in Vaccines, 28 Bioethics 59 (2014).
Mohammed Ghaly, Pre‐Modern Islamic Medical Ethics and Graeco‐Islamic‐Jewish Embryology, 28 Bioethics 76 (2014).
Alison Shaw, Rituals of Infant Death: Defining Life and Islamic Personhood, 28 Bioethics 76 (2014).
Nancy Levit (UMKC) & Allen Rostron (UMKC) have updated their incredibly useful document, which contains two charts for the Spring 2014 submission season covering 203 law reviews.
The first chart (pp. 1-54) contains information gathered from the journals’ websites on:
· Any special formatting requirements
· How to request an expedited review
· How to withdraw an article after it has been accepted for publication elsewhere
The second chart (pp. 55-61) contains the ranking of the law reviews and their schools under six measures:
· U.S. News: Peer Reputation Rating
· U.S. News: Judge/Lawyer Reputation Rating
· Washington & Lee Citation Ranking
· Washington & Lee Impact Factor
· Washington & Lee Combined Rating
They also have posted a list of links to the submissions information on each law journal’s website. Nancy also notes:
(Hat tip: Paul Caron)
#SixWordPeerReview is a twitter meme inspired by this forum from Princeton. The meme has recieved responses that range from the hilarious to the cringeworthy. Check out #SixWordPeerReview, posted by Paul Caron. His favorite?
· You didn't cite my paper: reject
· Your bibliography is a giant selfie
· Too similar to my next paper
· I don't understand the stats. Accept
· Nobody gets tenure with Comic Sans
· OK accept. Sent from my iPhone
· Contradicts my findings. Can’t be true
· Let's pretend I don't know you
· Author made all required revisions. Reject
· For sale: doctoral degree, never used
· My anecdote beats your controlled study
· Statistically significant different from actually significant
· You should not be citing Wikipedia
· Please cite more of my papers
(Hat Tip: Inside Higher Ed.)
Beginning in fall 2014, Boston University will offer a six-year Doctor of Medicine (MD) and Doctor of Law (JD) degree through a joint program between two of its most prestigious professional schools – the Schools of Law and Medicine. Yale is the only other university in New England to offer an MD/JD program.
The complex interactions of medicine and law combined with changes in health policy and government regulation and mandates create a need for individuals trained in both disciplines. Career paths for graduates holding MD-JD degrees include health care administration, health law including legislation, medical policy (e.g. health disparities or medical licensing) and intellectual property issues related to medical research and technologies.
“From the implementation of the Affordable Care Act to patenting innovations in biotechnology to managing the growing complexities of health care organizations, the legal and medical fields have become increasingly intertwined,” said BU School of Law Dean Maureen A. O’Rourke. “We want to prepare future leaders who can manage the rapid changes that are happening in these interdisciplinary fields.”
“By collaborating across the University with our outstanding law school colleagues, we have designed an outstanding comprehensive MD/JD programs to prepare students for leadership roles in hospital or health care systems, medical policy or academic administration.” said BU School of Medicine Dean and Medical Campus Provost Karen Antman, MD.
Students will earn both degrees in 6 years, one year less than if they pursued the two degrees independently. Students will complete the first three years of the medical school curriculum, then spend their fourth and fifth years fully integrated into the JD program at the School of Law. They fulfill their remaining medical and law course requirements in the sixth year of the program. Students will apply to both schools for acceptance into the program. The first students will be accepted in spring of 2014. Matriculating students will be advised by faculty members from both Schools.
For more information go to http://www.bu.edu/law/central/jd/programs/dual/medicine/.
The SIU Schools of Law and Medicine are organizing a CLE/CME program in Germany this summer (May 31-June 7) entitled Nuremberg's Legacy: Law, Medicine, & Ethics. During this week-long journey, participants will visit Munich and Nuremberg to learn about the role of law, medicine, and ethics in Germany during and after WWII. For more information about this program and to register go to http://e2.ma/message/hi9eg/d7xvnh.
Position Announcement: Southern Illinois Healthcare (SIH) Distinguished Visiting Professor of Law and Medicine
Title & Rank: Southern Illinois Healthcare (SIH) Distinguished Visiting Professor of Law and Medicine, Visiting Professor of Law.
The Southern Illinois University School of Law is seeking nominations and applications for the SIH Distinguished Visiting Professor of Law and Medicine for the 2014-15 academic year. With 35 faculty members and approximately 350 students, the Southern Illinois University School of Law enjoys one of the best student-faculty ratios of any law school in the country. The School, and its Center for Health Law and Policy (established in 2004), offer an outstanding health law program with a variety of courses as well as co-curricular and extracurricular activities. This includes a unique M.D./J.D. dual degree program offered in conjunction with the SIU School of Medicine. The School of Law also offers an LL.M. in Health Law and Policy, as well as a Masters of Legal Studies in Health Law and Policy. In conjunction with the American College of Legal Medicine, the School of Law participates in the publication of the Journal of Legal Medicine (since 1981) and Legal-Medical Perspectives (since 2000). The School also hosts each year (since 1992) the National Health Law Moot Court Competition, the only national competition focusing on health law issues. Since 1999, the School has also sponsored the annual SIH/SIU Health Policy Institute. Additionally, beginning in 2006, the School of Law has hosted each spring the John and Marsha Ryan Bioethicist in Residence.
Stephen M. McJohn, Top Tens in 2013: Patent, Trademark, Copyright and Trade Secret Cases, 12 Northwestern J. of Tech. & Intell. Prop. (Forthcoming 2014).
Christa van Wyk, In Search of the Holy Grail of Medicine (and a Coherent Legal Framework for Stem Cell Research), 76 J. of Contemp. Roman-Dutch Law, 206 (2013).
Jenni Millbank, Numerical Limits in Donor Conception Regimes: Genetic Links and 'Extended Family' in the Era of Identity Disclosure, 22 Med. L. Rev. (Forthcoming 2014).
Lisa Eckstein, Jeremy R. Garrett, Benjamin E. Berkman, A Framework for Analyzing the Ethics of Disclosing Genetic Research Findings, 41 J. of Law, Med. & Ethics (Forthcoming 2014).
Luisa Fernanda Herrera Sierra, Lina Maria Diaz Vera, Patentes De Medicamentos: Incentivos a La Innovación O Límites a La Salud Humana? Un Análisis Desde La Propiedad Intelectual Y El Derecho De La Competencia (Pharmaceuticals Patents: Incentives for Innovation or Limits to Human Health? An Analysis from Intellectual Property and Competition Law), La Propiedad Inmaterial 31 (2013).
Ethan M.J. Lieber, Medical Malpractice Reform, the Supply of Physicians, and Adverse Selection, 57 J. of L. & Econ. (Forthcoming 2014).
Monday, January 20, 2014
What are We Learning About Brain Death from the McMath and Munoz cases?
By Jennifer S. Bard, J.D., M.P.H., Ph.D.
With the understanding that this is one of those topics that health law professors are supposed to know something about, here is a quick update of what’s going on. Along with my own views about the possible misuse by hospitals of declaring brain death in what are really medical futility cases.
Jahi McMath, age 12, in California who lost consciousness after a routine tonsillectomy and Marlize Munoz, age 32 in Texas who collapsed on her kitchen floor have both become involuntary public figures as their families struggle to make sense of both their medical conditions, which are complex, and of the laws which have declared them both legally dead based on a lack of brain activity. In legal terms, a person declared “brain dead” has the same status as any other dead person. Each state is entitled to make its own decision of whether or not to adopt a brain death statute. California’s and Texas’ are similar in that they require the “complete cessation” of all brain activity. The declaration of death is, in all states, a legal act. Most hospitals have a policy similar to this one which set criteria and require the participation of at least two doctors. A declaration of death cuts off any rights of the individual. The family of someone declared dead is no longer a surrogate decision maker. Rather, they have something like property rights to the disposal of the remains. More pointedly, a declaration of death ends all eligibility for medical insurance, including Medicaid and Medicare. If a family decides to release the organs for donation, their host becomes not a patient but rather a “heart beating organ donor.”
When a family wants to donate their loved one’s organs, a declaration of brain death is helpful mechanism for doing so. Indeed, a series of high profile cases involving anencephalic infants in the 1990s pointed out the frustrations of parents who wanted to donate their children’s organs but could not because they retained minimal brain function. However, there is never any legal need for a declaration of brain death in order for a family to withdraw life sustaining treatment. In 1993 bioethicist Robert Veatch wrote an important article in the Hastings Center Report in which he pointed out that “no one really believes that literally all functions of the entire brain must be lost for an individual to be dead.” And indeed, no one really believes that a piece of paper converts a warm, breathing body from alive to dead.
Many families in the McMath’s situation would have, even in their shock, heeded the doctors advice and stopped treatment. Although we do not, yet, know what actually happened, I suggest that it is possible that cases like the McMath’s can arise when hospitals and doctors seek to pressure families into withdrawing treatment by, essentially, taking away their right to receive care. This can be a lot more direct than the often times consuming and complex process of withdrawing "futile" care. Indeed, in the actual absence of all brain function there are no interventions that can replace the complex functions of the human brain and deterioration and decay are inevitable.
Although it is easy enough to say that Jahi’s family’s refusal to accept reality stems from ignorance or grief, it is not fair, as some have done, to call them crazy for mistrust of a diagnoses that is based in theory, not reality. Jahi may be irrevocably brain injured, but there are increasing signs that she may indeed have some brain function. Her thrashing movements may be reflex, not purposeful—but corpses do not have reflexes. This week, neonatologist Dr. Paul Burn notes, without citation so we do not know if it is true, that Jahi, has regained sufficient hypothalamus function to regulate her own body temperature. A corpse does not regulate its own body temperature.
This is not to suggest that the doctors are wrong about the amount of brain damage she has sustained or her chances of even retaining a sliver of consciousness—but that is not the same as “complete cessation” of all brain activity.
In contrast to the case in California, Marlize’s family, in Texas, want to let her go. The hospital is invoking a provision of the Texas Advanced Directives Act law which prohibits a hospital from withdrawing life sustaining treatment from a pregnant women. It may be, as bioethics experts law Tom Mayo at SMU explain, that this law does not apply after a declaration of death, but only when the mother is in a permanent coma. But, again, this points out the limits of using the legal concept of brain death to describe the medical condition of any particular person. Marlize may well be dead, but her fetus certainly is not. But until Marlize’s family gets clarification in the case it has filed in Tarrant County, or, ultimately, the Texas Supreme Court this distinction does not change their situation.
So where does that leave a health law professor? One of the reasons brain death is so hard to define is that we know relatively little about how the brain works. As the American Academy of Pediatrics Guidelines Determination Of Brain Death In Infants And Children,“ No randomized control trials examining different strategies regarding the diagnosis of brain death exist.” It even seems increasingly likely that we are not even sure where all of what we consider to be brain function happens—it turns out-—as folk wisdom has always believed—that a lot of it may happen in our guts. .
It may be that these two cases spur changes to the law—although other equally publicized situations have not-but for teaching purposes they both are helpful in exposing law students to how much we actually do not know about the human body and, especially, our brains.
Wired Magazine, in August 2011, ran a fascinating article called, “7 Creepy Experiments That Could Teach Us So Much (if they weren’t so wrong). These “7 Creepy Experiments” include some truly creepy things like using “a synthetic virus” to insert into an embryonic cell a “reporter” gene (green fluorescent protein, for example) in order to track embryonic development throughout the life cycle or deliberately separating twins at birth in order to study them.” I use it in my Human Subject Research Law class to get students thinking about the limits of consent, but more generally it and these cases tell us something about the reality that we need to make and enforce law in the face of limited information.
Sunday, January 19, 2014
While Jahi McMath’s family had to fight to maintain treatment for their daughter after she lost brain function and was declared dead, Marlise Munoz’ family is fighting to stop her treatment after she lost brain function and reportedly was declared dead. Ms. Munoz is pregnant, and the hospital hopes that doctors there will be able to deliver her child after it becomes viable.
Should Ms. Munoz’ pregnancy make a difference? Many observers do not think so, and have denounced the hospital that is continuing to provide artificial ventilation and other intensive care (e.g., here and here). But there is no clear answer in ethics or law for cases like this. Reasonable people can differ, and reasonable hospitals can come down on either side of the question whether Ms. Munoz’ family can refuse further care on her behalf or whether the hospital should try to bring her fetus to term.
Indeed, courts have disagreed on the question whether even a mentally competent pregnant woman can refuse medical treatment that is needed to protect the health or life of her fetus. Some courts have sided with the woman’s right to decide; others have sided with the public interest in preserving fetal health. Courts have been especially willing to require treatment when it would not pose any risk to the woman’s health. If Ms. Munoz is dead, continued medical care cannot cause any harm to her health.
In some ways, the argument for continued care is weaker with a dead pregnant woman. In the cases involving mentally competent women refusing treatment, the women want to bear the child. They just want to do so without certain medical interventions. Ms. Munoz' family believes she would not want to bear the child at this point, and they do not want her to bear the child either. It’s not only unwanted medical treatment that is being imposed. There also is unwanted parenthood being imposed on Ms. Munoz and her husband.
Moreover, unlike the usual pregnancy, Ms. Munoz’ fetus will not become viable if left alone. All in all, this is a very hard case, and it is important to treat it as such. The interests of Ms. Munoz and her family are important, but so is the societal interest in protecting fetal life. Harsh condemnation of the hospital and its medical staff is not warranted.
[cross-posted at Faculty Lounge and orentlicher.tumblr.com]
Friday, January 17, 2014
On Wednesday, Judge Friedman (U.S. District Court, District of Columbia) granted summary judgment to Secretary Sebelius in Halbig v. Sebelius (2014 WL 129023). Individual plaintiffs and small businesses, supported by the Cato Institute, Competetive Enterprise Institute, and others, challenged the availability of tax credits in federally-run Health Insurance Exchanges as exceeding the IRS's administrative authority. The court found that the statute, Congress's intent, and the legislative history of the Affordable Care Act supported the IRS's regulations. Thus, tax credits will be available in Exchanges whether the insurance is purchased on an exchange created by a state or an exchange created by the federal government standing in the state's shoes. The opinion engaged in careful statutory analysis and found the first part of the Chevron test answered the legal questions the plaintiffs presented (though a footnote provided a quick second step analysis anyway). Professor Gluck called this decision a big win for the ACA given that Chevron deference was not necessary in the court's analysis, and the court's methodical statutory analysis is certainly persuasive. (Professor Bagley posted a similarly sanguine analysis here.) By all accounts, this decision is a win for the Obama Administration.
This solid decision ought to end this frivolous litigation, but the plaintiffs have already stated that they will file an appeal. As I discussed here and here, even though these challenges have no statutory traction, the plaintiffs are financially well supported, and they have the means to continue pressing their theories up the federal court ladder. And, the political climate inspires unhappy policy losers to pursue their desired outcome through the judicial branch when they have lost in the legislative and executive branches. Although the decision in NFIB v. Sebelius allowed the ACA to move forward, it opened the courthouse doors to litigation such as this, which pushes legal reasoning in directions that would not have been considered serious before the successes of the NFIB litigation. While I do not believe that Halbig et al. have a real case for preventing tax credits in federally-run exchanges, that will not necessarily prevent another federal court from finding a differently.
Sunday, January 5, 2014
This year's program of the section on Law, Medicine, and Health Care was devoted to the intersections between public health, health care, and sustainability. The program ranged widely, from factory farming to tensions between environmental justice and climate change activists. Given the program's scope, it is not surprising that it was sometimes disjointed. Nonetheless, it was an admirable effort to bring public health, environmental, and individual health issues together. Kudos--and thanks--to Ani Satz for organizing.
Most importantly, for those of us who teach health law, the program was a critical reminder that the environment and health are inextricably related. Diabetes and obesity are health and health care problems, but they are also problems of the built environment and of food insecurity. Antimicrobial resistance is a health care problem, but it is in part causally related to the massive use of antimicrobials in animal feed. Asthma is a health care problem but exacerbated by poor air quality. And so on.
And so obvious. Less obvious is what those of us who teach health law ought to do about it. Co-teaching with colleagues in environmental or agricultural or animal law? Developing clinics that address environmental and health hazards together? Seeking to develop placements for our students in public health settings? Insisting that the food in Food and Drug Administration really ought to take center stage?
Presentations at the session will eventually make their way into print at the Journal of Law, Medicine, and Ethics.
While the law has recognized for decades that death occurs when a person’s brain no longer functions, the case of Jahi McMath reminds us that people continue to disagree about the timing of death. For many people, death occurs only when a person’s heart has permanently stopped beating.
In almost all states, the absence of brain function signifies death, even if the person’s heartbeat can be maintained by medical care. New Jersey, however, permits people to reject “brain death” on the basis of their religious beliefs and insist that death be declared only upon the loss of all cardiac function.
New Jersey has it right. When people hold different and legitimate views about life and death, we should accommodate their views as much as possible. Indeed, we do so to a considerable extent at the beginning of life. In some sense, we let women decide about the legal status of their fetus, as long as they choose a point between conception and viability. For women who do not view embryos as persons, the law permits abortion until viability. And for women who view their offspring as people at the moment of conception, the law provides protection from harm to their fetuses by other people.
There are costs when people are provided intensive care after they meet brain criteria for death, but there also are costs when we don't tolerate sincerely held, minority viewpoints in society. It's often better to err on the side of toleration, especially as with cases like Ms. McMath’s, the costs of toleration are a trivial amount of what we spend on health care overall.
[cross-posted at orentlicher.tumblr.com]
Tuesday, December 31, 2013
Christina Davik, We Know Who You Are and What You're Made Of: The Illusion of Internet Anonymity and its Impact on Genetic Discrimination. 64 Case W. Res. L. Rev. 17 (2013).
Predictions for 2014: ACA, Combined with Social Media, will Improve Healthcare Quality, Cost and Access
A 2012 Consumer Reports investigation concluded that “[m]ore than 2.25 million Americans will probably die from medical harm this decade . . . . That’s like wiping out the entire populations of North Dakota, Rhode Island, and Vermont. It’s a manmade disaster."
The long-time practice of custom-based medicine in the United States may be partly to blame. National initiatives started by the Patient Protection and Affordable Care Act (ACA or Obama care) are designed deal with this problem by moving the US to a contemporary, evidence-based model of medical practice. The evidence-based model of medical practice is grounded in empirical data created by clinical outcomes and effectiveness research. This empirical data can recommend the best treatment for a steadily increasing number of clinical disorders.
I predict that, in 2014, the US will see improvements in the quality of care and reductions in its cost as a result of ACA's push for evidence-based medical practice.
And consumers will flock to providers who offer better care at lower costs by relying on a rapidly growing number of new mobile apps for data-sharing and healthcare decision assistance. I predict that all major insurance companies will offer these smartphone-based tools.
Consumers are demanding transparency in all their transactions, they want it in health care now and they will be tweeting about where they are finding it and where they are not.
Thus, ACA, combined with new technologies and social media, will incentivize major changes in healthcare quality, cost and access starting in 2014.
Monday, December 30, 2013
As health care cost inflation has slowed markedly, some observers have cited the Affordable Care Act (ACA) as a major factor—even though the moderation in health care spending began before ACA’s enactment. To be sure, some of ACA’s important cost containment provisions may be playing a role, such as its push for accountable care organizations and its emphasis on paying for quality of care rather than just quantity of care.
Or maybe cost containment is simply the result of a recession that has reduced the spending power of Americans, with a significant contribution from an important pre-ACA trend (about 20 percent of the cost slowdown according to one study). For some time, employers and insurers have been increasing the public’s “skin in the game” by increasing the individual’s share of health care costs through premiums, deductibles and copayments. We’ve known for a long time that making health care more expensive for patients can discourage them from seeking care, so it isn’t surprising that higher patient costs would help contain health care spending. But we also know that patients don’t always distinguish between unnecessary care that can be forgone and necessary care that should be sought.
Time will help us sort out the causes of health care cost containment—if indeed it persists. In the meantime, we should be careful to distinguish between what we would like to be true and what we know to be true.
[cross-posted at orentlicher.tumblr.com]
Friday, December 27, 2013
Today’s New York Times describes the Republican Party’s search for an alternative to the Affordable Care Act (ACA). With millions of Americans about to receive their health care through ACA health insurance exchanges, GOP members of Congress recognize that reform rather than repeal is the more sensible strategy.
Interestingly, proposals by leading Republicans look very much like ACA and especially like the favored reform proposal of former Obama senior staffer, Ezekiel Emanuel. While Emanuel has embraced ACA’s individual mandate, his preferred approach to reform is a universal voucher for health care coverage (also discussed here). According to the Times, U.S. Representative Paul Ryan soon will release a revised version of a universal voucher that he and U.S. Senator Tom Coburn proposed in the past. The main difference between Emanuel’s voucher and the Ryan-Coburn voucher is in the amount of coverage. Emanuel would cover the full cost of an insurance plan with standard benefits (akin to the essential benefits requirement of ACA), while Ryan and Coburn pegged the value of a voucher at a fixed dollar amount, about 50-60 percent of the cost of a standard insurance policy. As with ACA, Ryan and Coburn would have established health insurance exchanges, required insurers to meet minimum standards and protected persons with pre-existing conditions from discrimination (though perhaps not to the degree that ACA protects them).
There are good reasons to prefer universal vouchers to ACA. When all Americans, rich and poor, are in the same program, the program works much better. Consider in this regard the differences between Medicare and Medicaid. ACA may promise nearly universal coverage, but persons at higher incomes still will receive their health care mostly through their employers rather than through ACA’s health insurance exchanges or the Medicaid expansion. That gives the political influential a much smaller stake in the success of ACA than they would have in a universal voucher program.
It’s not surprising that there is more agreement than disagreement on the specifics of health care reform. As many observers noted during the health care reform debate, the individual mandate for health care coverage began as a conservative alternative to Clinton health care, and Mitt Romney championed an individual mandate as governor of Massachusetts. As with immigration reform and other policy initiatives, the chief stumbling block to progress is not the lack of common ground but the strong political incentives for elected officials to pursue a policy of conflict.
[cross-posted at orentlicher.tumblr.com]
Tuesday, December 17, 2013
Stacey Tovino, a rock-star health law professor and Lincy Professor of Law at the UNLV William S. Boyd School of Law and I were nearly knocked off our chairs at a presentation by Wellesley College Professor Charlene Galarneau, PhD on The ACA Exemption of Health Care Sharing Ministries at the ASBH- American Association of Bioethics and the Humanity’s annual Meeting last month. If you are a health law professor (or hobbyist) and do not yet know what a Health Care Sharing Ministry is, prepare to be surprised. It is NOT insurance but rather a non-binding agreement among people of faith to share their health care costs. As the Alliance of Health Care Sharing Ministries explains, “A health care sharing ministry (HCSM) provides a health care cost sharing arrangement among persons of similar and sincerely held beliefs. HCSMs are not-for-profit religious organizations acting as a clearinghouse for those who have medical expenses and those who desire to share the burden of those medical expenses.” It specifically does not provide the essential services of an ACA qualified plan. Yet those without health insurance who are participating in one of these ministries are exempt from the obligation to purchase insurance or pay a penalty—even though it is highly likely that the cost of their care will fall on the community where they become sick and seek treatment. Read more about it here and here. Health Care Sharing Ministries are among the 9 exemptions in the Affordable Care Act, yet have not attracted significant attention. Given their important role in exempting large numbers of people from the obligation of obtaining health insurance, they deserve a place, or at least a shout-out, in all of our classes.
December 17, 2013 in Access, Affordable Care Act, Coverage, Health Care, Individual Mandate , Policy, Politics, PPACA, Private Insurance, Public Health, Uninsured | Permalink | Comments (0) | TrackBack (0)
Thursday, December 12, 2013
Recommended reading: Abbe Gluck on the many reasons that federal tax credits for insurance purchased in the Exchanges apply to both federal and state exchanges. I have posted on this issue before, and I continue to believe the challengers' arguments are specious. Professor Gluck brings a unique perspective to the argument given the empirical work she has performed (with Lisa Bressman) on federal legislative processes. Her excellent blog post on Balkinization is available here.
Tuesday, December 10, 2013
Accommodations for people with disabilities in professions remains controversial. In medicine as in law, courts defer to the judgments of professional organizations regarding appropriate qualifications. An illustration is a recent district court ruling in Pennsylvania that it is not a reasonable accommodation to alter the multiple choice format for the examination for Board certification in pediatrics. Rawdin v. American Bd. of Pediatrics, 2013 WL 5948074 (E.D.Pa). This decision is troubling both for its understanding of disability and for its deference to the board certification process.
According to the district court, Rawdin was "by all accounts, an excellent pediatrician." Yet Rawdin had a cognitive disability resulting from earlier surgeries for a brain tumor--a disability that affected his ability to process remembered information out of context in a manner that would enable him to succeed on tests in the multiple choice format. Despite several tries, Rawdin could not pass the board certification exam given by the American Board of Pediatrics (ABP). Because of his failure to obtain Board certification, Rawdin was dismissed from his positions in the Neonatology Department of the Children's Hospital of Philadelphia (CHOP), where he had served for 5 years and become the Assistant Director of CHOP's nursery, held a faculty post, and was part of the Academic Clinician Track at the University of Pennsylvania School of Medicine. Rawdin brought suit against the ABP under Title III of the ADA seeking alternative testing as an accommodation. The district court held that Rawdin was not a person with a disability under the ADA (as amended by the ADAAA) and that, even if he qualified for statutory protection, the accommodation he sought was not reasonable because it would be a fundamental alteration of the ABP testing procedure.
The court's ruling against Rawdin rested primarily on the determination that his disability did not bring him within the statutory protection of the ADA. As the case arose after the effective date of the ADAAA, the court applied the amendments' more expansive standard for determining disability. The court agreed that Rawdin's memory processing difficulties are a mental impairment and that test taking is a major life activity. However, the court still concluded that Rawdin was insufficiently affected to meet the statutory standard, reasoning that his cognitive processing abilities were at least average for the general population and so his limitation was not substantial. This comparison--between Rawdin's abilities and the general population, not between Rawdin's abilities had he not had the brain tumor and Rawdin's abilities as affected by the tumor and its treatment--was not changed by the EEOC in light of the ADAAA. Interpretations such as this illustrate the irony of the ADA, even as amended by the ADAAA: there are many who could work successfully or meaningfully access accommodations but who remain unprotected by the ADA even in its amended form.
Although the Rawdin court's determination that Rawdin did not warrant statutory protection was sufficient for its decision, the court also reached out to state that Rawdin's request to that the Board certification exam in essay form was not a reasonable accommodation. In thus concluding, the court judged that the ABP was an academic institution and thus deferred to the ABP's claim that a multiple choice examination was the best way to assess competence in the field. The court also concluded that developing a different exam would impose an undue hardship on the ABP.
The Rawdin court also chose to reach the issue of whether altering the format of the exam was a reasonable accommodation, even though it was unnecessary to its resolution of the case. Deferential to the ABP as to an academic institution, the court concluded that its determination that changes in the exam format would lower standards should be respected. The court also judged that the requested accommodation would be a fundamental alteration of the Board certification process.
The decision's deference to professional determinations is not surprising. However, if the court's description of Rawdin's excellence as a neonatologist is accurate, it illustrates the problematic costs of the ABP's approach.
Tuesday, December 3, 2013
There is another not-very-flattering article about hospital pricing in today's New York Times. When I started working in health care law over 20 years ago, virtually nobody outside of those of us who actually worked with hospital billing offices knew anything about how hospitals set their prices for various services. Now, anybody who reads a national newspaper or major periodical should have some knowledge of it. Will this level of exposure force change? Clearly, market competition doesn't work to control costs in this context. Will this knowledge lead to a push for regional or national price controls?