Tuesday, September 17, 2013
[W]hen you actually look at the bill itself, it incorporates all sorts of Republican ideas. I mean, a lot of commentators have said . . . "this is sort of similar to the bill that Mitt Romney, the Republican governor and now presidential candidate, passed in Massachusetts." A lot of the ideas in terms of the exchange, just being able to pool and improve the purchasing power of individuals in the insurance market. That originated from the Heritage Foundation.
Heritage immediately cried foul, but its response wasn't terribly convincing. As the Obamacare rollout continues, the Administration is developing a record of rebuffing liberal groups and catering to employers. It's turned a deaf ear to union complaints. Costs in the exchanges may be controlled, but in return for restricted networks. Employers are announcing plans to dump employees onto those exchanges.
The Obama/Heritage disagreement suggests far more about political style than it does policy substance. The President tries to prove how moderate he is; the right responds with a renewed emphasis on its purity and principle. But elites on both side of the ideological divide agree that health care costs must be cut. The Affordable (not necessarily Quality, or Accessible) Care Act does that, reflecting the balance of power in the Washington that generated it.
Monday, September 16, 2013
Criminal Charges Sustained Against Chemistry Professor for Death of Assistant in Lab Accident Requires New Focus on Lab Safety Laws
Many of us who teach and write in the area of "research law" area are far more familiar with the regulations protecting human subjects of research than the more general safety of those who conduct research. We, and our students, need to become familiar with the patchwork of laws and agencies regulating safety in labs and other research settings. For example, until we had an accident on our own campus, I had never heard of the U.S. Chemical Safety Board which is “an independent federal agency charged with investigating industrial chemical accidents” but whose jurisdiction also extends to colleges and universities. It's like the NTSB for labs.
We all need to be following the criminal trial of Dr. patrick G. Harran, a professor of chemistry at the University of California, Los Angeles. The case involves the horrific and tragic death in 2008 of Sheharbano (Sheri) Sangji, a 21 year old college graduate working in Dr. Harran's lab while applying to law school. In other words, she was not a UCLA student.
Following her death, the University, its Board of Regents and Dr. Harran all faced criminal charges based on violations of the California state labor code. The charges against the University and the Regents were dropped based on a lab safety agreement between the University and the Los Angeles County District Attorney’s Office, but a California court has rejected Dr. Harran’s motion to dismiss the charges and scheduled a pre-trial hearing for October 3rd.
The defendant moved to dismiss, but the court denied his motion. This case also provides an important link between health law and employment law since it is theCalifornia Labor Code that is the source of the criminal charges against Dr. Harran. Against his strong protests, the case is going forward on an interpretation of the law finding him, not the university, the employer of his lab assistant.
For anyone not yet using "Google Alerts" this is a great way to keep track of a story that is not well covered by the national press.
Saturday, September 14, 2013
Lucinda Vandervort, HIV, Fraud, Non-Disclosure, Consent and a Stark Choice: Mabior or Sexual Autonomy?, 59 Crim.
It is always a pleasure to showcase one of our co-bloggers!
Professor Jennifer Bard was featured recently by Public Health Newswire in a piece that explains the effects of public health law, the intersection between public health law and public health agencies, her exciting new research and the future of health law.
APHA member Jennifer Bard, JD, PhD, MPH, was recently selected for the Scholars in Residence Program, an initiative funded by the Robert Wood Johnson Foundation and administered by the Network for Public Health Law to advance RWJF’s over-all mission of improving both the health of everyone in America and their health care—how it’s delivered, how it’s paid for, and how well it does for patients and their families. It is designed specifically for law professors to apply their expertise by assisting state, local or national public health agencies in tackling critical issues. One of six scholars chosen for the distinguished fellowship, Bard will work with local health officials in Lubbock, Texas, to explore legal options to address bed bugs. Learn more about her work and the opportunities that exist for the law to improve public health.
How has law improved public health over the past decade?
A number of new federal laws over the past decade are starting to contribute enormously to improving the public’s health. One example is the new food safety laws. Another is finally extending the FDA’s jurisdiction to include tobacco. As another example, some of the most dramatic improvements in public health have come from changes in laws regarding waste disposal.
What are some pressing public health concerns where the law can play a significant role?
The Feminist Legal Theory Collaborative Research Network is sponosoring panels at the Law and Society Annual Meeting in 2014.
Within Law & Society, the Feminist Legal Theory CRN seeks to bring together scholars across a range of fields who are interested in feminist legal theory. There is no pre-set theme to which papers must conform. We would be especially happy to see proposals that fit in with the LSA conference theme, which is the role of law and legal institutions in sustaining, creating, interrogating, and ameliorating inequalities. We welcome proposals that would permit us to collaborate with other CRNs, such as the Critical Research on Race and the Law CRN or the Gender, Sexuality and the Law CRN. Also, because the LSA meeting attracts scholars from other disciplines, we welcome multidisciplinary proposals.
If you would like to present a paper as part of a CRN panel, please submit a 400-500 word abstract, with your name and a title, on the Feminist Legal Theory CRN TWEN page (details provided below). If you would like to serve as a chair or a commentator for one of our panels, or if you are already planning a LSA session with four panelists (and papers) that you would like to see included in the Feminist Legal Theory CRN, please let Rachel Rebouche know (email@example.com). In addition to these panels, we may try to use some of the other formats that the LSA provides: the “author meets readers” format, salon, or the roundtable discussion. If you have an idea that you think would work well in one of these formats, please let us know.
Proposals for paper presentations are due Wednesday, Sep. 18, 2013.Or, sign onto Westlaw, hit the tab on the top for “TWEN,” then click “Add Course,” and choose the “Feminist Legal Theory” CRN from the drop-down list of National TWEN Courses. If you do not have a Westlaw password, please email Seema Mohapatra at firstname.lastname@example.org and ask to be enrolled directly.
Liezl van Zyl, Ruth Walker, Beyond Altruistic and Commercial Contract Motherhood: The Professional Model, 27 Bioethics 373 (2013).
Tal Bergman Levy, Shlomi Azar, Ronen Huberfeld, Andrew M. Siegel, Rael D. Strous, Attitudes Towards Euthanasia and Assisted Suicide: A Comparison between Psychiatrists and Other Physicians, 27 Bioethics 402 (2013).
Vickie J. Williams, Life-Sciences Dual Use Research of Concern, Public Health, and the Doctrine of Unconstitutional Conditions, 7 St. Louis U. J. Health L. & Pol'y (Forthcoming 2014).
Jenni Millbank, Resolving the Dilemma of Legal Parentage for Australians Engaged in International Surrogacy, 27 Australian J. of Fam. L. (Forthcoming 2013).[KVT]
The Journal of Legal Medicine invites submissions of articles addressing issues at the nexus of law and medicine. The Journal also welcomes substantive reviews of new books that intersect legal and medical topics.
The Journal of Legal Medicine, the flagship publication of the American College of Legal Medicine, is a peer-reviewed, professionally edited, academic journal, published and marketed by Taylor & Francis. The Journal, which is published quarterly, has a national and international circulation.
Author information for manuscript preparation and submission can be found at: http://www.tandfonline.com/action/authorSubmission?journalCode=ulgm20&page=instructions#.Uicvtj8WmOg
Manuscript submissions are accepted for consideration on an ongoing basis. Submissions should be made electronically through ScholarOne, as described at the link above.
As reported by the Huffington Post, California will remain one of only three states prohibiting payment to women for providing oocytes for research. (The other two states are Massachusetts and South Dakota) The California ban on the sale of oocytes for use in research was enacted in 2006 in reaction to the state's 2004 commitment to funding for stem cell research. The California legislature sought to end the ban, but was rebuffed by Governor Jerry Brown's veto this past Tuesday. Women's groups such as NOW, reproductive rights groups such as Planned Parenthood, and fertility experts such as ASRM supported permitting payment for oocytes. The California Catholic Conference, the Center for Genetics and Society, and the California Right to Life Committee supported continuing the ban.
Governor Brown's veto message sounded several themes. He began with "not everything in life is for sale, nor should it be." He continued by noting that the questions raised "are not simple; they touch issues that are both philosophical and personal." And he concluded that true informed consent would not be possible because the long term risks of oocyte harvesting are unknown and because payment "compounds" the problem.
Although there is something to these themes, they seem to me to be at best half truths--and deeply problematic ones at that. Oocytes are used in stem cell research, but they are also used extensively in fertility research. Governor Brown's veto relegates this kind of research to reliance on altruism. An argument could be made that all research where the risks to participants are unknown should rely on altruism, but we are far from accepting that position in current research practice; placing women participants and fertility and stem cell research in that position singles them out for restrictions not imposed on others. An an argument could be made that informed consent is at least very difficult when risks are unknown--but this is not an argument that applies to women alone. Nor should women be treated as though they were more likely to be susceptible to the blandishments of monetary compensation than men might be and more in need of protection from choosing the benefits such compensation might have for them. While correct that the choice to provide oocytes is personal and may reach deep very deep questions about ethics and metaphysics, Governor Brown by imposing the veto is in effect making the choice for many others. The Governor's veto in the current context is paternalizing and unjust.
We might of course want to think far more generally about the role of payment in fertility care and in health care more generally. Governor Brown's remark that not everything should be for sale is indeed worth pondering--many blogs worth!--but in far different directions from the one taken in his veto.
Monday, September 9, 2013
Can the Affordable Care Act succeed? Many current discussions presume that's entirely a function of how well it's administered. But given the importance of premium subsidies and their linkage to the poverty line, perhaps the biggest challenges to making care "affordable" are larger trends in the economy. As Marco Ferreira has noted, "One of the main approaches to defining affordability considers other (non-health related) necessary budgetary requirements on families. Necessary budgetary requirements include childcare, food, housing, taxes and transportation." As those other costs go up, the chance of health care being affordable goes down.
With that in mind, consider the percentage of householders under age 30 with the following problems in 2011:
Unpaid essential needs: 20.2%
Unpaid rent or mortgage: 10.7%
Evicted for non-payment: 0.7%
Unpaid utility bills: 14.5%
Disconnected utility: 2.8%
Disconnected phone: 6.3%
Unmet need for doctor: 9.8%
Unmet need for dentist: 12.5%
Not enough wanted food: 22.8%
Food insecure household: 16.1%
Some foundations may dispute those figures. But the larger picture is clear. As in many other areas of the economy, the problem lies as much (or more) in improving the job outlook and wages as it does in cutting prices. You can't squeeze blood from a stone. Nor can you make a vital service like health care "affordable" when oligopolies in finance, communications, and energy squeeze more and more from families with less and less.
Thursday, September 5, 2013
Don't miss a fascinating article in the August 30th issue of Science, "Poverty Impedes Cognitive Function." The article contends that there is a causal explanation for the correlation between poverty and disfunctional behavior, such as the failure to keep medical appointments or to employ healthy behaviors. Put crudely, the connection is that people in poverty have to think about so much just to keep going that they don't have the cognitive bandwidth to make carefully reasoned decisions.
The authors of the article, Anandi Mani, Sendhil Mullainanthan, Eldar Shafir, and Jiaying Zhao, present two studies in support of their claim. The first study involved four experiments in which shoppers at a New Jersey mall were paid participants. The income level of the shoppers varied, from the bottom quartile of US income to over $70,000. In the first experiment, participants were asked to think about a decision about how to pay for car repairs, and were randomized to inexpensive ($150) or expensive ($1500) costs of the repair. They were then asked to perform simple cognitive tests on a computer. Among those asked to think about the inexpensive repair, there were no significant differences by income level in performance of the cognitive task. By contrast, there were significant differences in performance by income among those confronted with the more expensive repair. Variations on this experiment involved problems where sums of money were not involved (to control for math anxiety), incentives in the form of getting paid for getting the right answers on the cognitive tests, and situations in which participants came to a decision about the financial problem, engaged in intervening activities, and then were asked to perform the cognitive tests. Each of these variations produced results similar to the initial experiment: the performance of people in poverty on the cognitive tests was significantly associated with the expensive repair, but the performance of those in higher income groups was not.
In the authors' second study, participants were a random sample of sugar cane farmers in Tamil Nadu in southern India. They were interviewed before and after the cane harvest. Pre-harvest the farmers faced more significant financial pressures (as measured by criteria such as numbers of pawned items, numbers of loans, and the like) than post-harvest. Performance on cognitive function tests was significantly higher post-harvest than pre-harvest. Because the cane harvest extends over a considerable time period, the authors were able to control for calendar effects; the difference was similar early or later in the 5 month period of the harvest. The authors conclude that poverty has about the same cognitive consequences as the loss of a night's sleep.
To be sure, other variables might explain the authors' findings. They are careful to discuss many of these such as physical exertion, stress, nutrition, or training effects. If the authors are right, however, their findings have some impressive implications for health policy. One, which they note, is that it may just be more difficult for people who are poor to perform complex tasks needed to apply for eligibility for programs such as Medicaid (why are we surprised that so many who are eligible don't sign up?). Another is that programs designed to incentivize healthy behaviors may just not work very well if they ignore cognitive loads.
September 5, 2013 in Access, Affordable Care Act, Consumers, Health Care Costs, Health Care Reform, Health Economics, Health Reform, Medicaid, Obesity, Prevention, Public Health, Uninsured | Permalink | Comments (0) | TrackBack (0)
Tuesday, September 3, 2013
Faculty Fellowships in Public Health Law - Call for Applications
Applications are invited for 10 faculty fellowships in public health law education.
Georgia State University College of Law and its Center for Law, Health & Society are leading an initiative funded by the Robert Wood Johnson Foundation for a faculty fellowship program to promote public health law education. Ten faculty members from law schools or schools/programs of public health will be selected to participate in a yearlong fellowship program designed to foster innovations in educational programming (including clinical, externship, and other experiential learning) and to build a strong learning community among faculty who teach in the public health law field.
All fellows, with their deans’ support, will design and implement a project for curricular change in public health law education at their home institutions. Each fellow will be paired with a faculty mentor in public health law. The fellows will begin their fellowship year by attending an intensive 10-day educational Summer Institute on July 16-26, 2014 in Park City, Utah. Over the course of the academic 2014-2015 fellowship year, the fellows and their mentors will regularly share ideas, experiences and models for public health law teaching, providing opportunities for professional growth and leadership development.
• Applicants must have a J.D. degree and be employed in a full-time faculty position at a law school or school/program of public health, or be a full-time faculty member affiliated with a law school or school/program of public health, with a tenure-track, tenured, clinical-track, joint, or comparable faculty appointment;
• Applicants must have at least three years of full-time teaching experience at a graduate- or professional-school level by July 2014; previous background in health care law, public health law, or related subjects is preferred;
• A dean’s transmittal letter of support for the proposal is required, as well as
two letters of reference.
For the complete list of eligibility and selection criteria and to review the full Call for Applications, visit www.law.gsu.edu/PHLFellowship.
HOW TO APPLY
• The application period opens Tuesday, Sept. 3, 2013. The deadline for applications is Friday, Dec. 13, 2013. Letters of reference are due Friday, Dec. 6, 2013.
• For instructions on how to apply and complete information about the program, download the full Call for Applications at www.law.gsu.edu/PHLFellowship.
Questions? Contact Stacie Kershner, associate director for the Center for Law, Health & Society, at email@example.com or 404-413-9088.
Wednesday, August 28, 2013
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]
Monday, August 26, 2013
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 challenge.gov 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
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 firstname.lastname@example.org. 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.
A letter from our fine colleagues at the Cleveland-Marshall College of Law:
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 email@example.com.
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
Raphael Cohen-Almagor, First Do No Harm: Pressing Concerns Regarding Euthanasia in Belgium, 36 Int'l J. of L. & Psychiatry ___ (2013).
Linda Christine Fentiman, Are Mothers Hazardous to Their Children's Health?: Law, Culture, and the Framing of Risk, 21 Va. J. of Soc. Pol'y & the L. (Forthcoming 2014).
Robert B. Leflar, Medical Malpractice Reform Measures and Their Effects, 144 Chest 306 (2013).
Edmund Henden, Heroin Addiction and Voluntary Choice: The Case of Informed Consent, 27 Bioethics 395 (2013).
Wednesday, August 21, 2013
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.
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.[FP]
Tuesday, August 20, 2013
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?
Saturday, August 17, 2013
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
Herbert J. Hovenkamp, Anticompetitive Patent Settlements and the Supreme Court's Actavis Decision, 15 Minn.
of Law, Sci.
Dayna Bowen Matthew, Reining in the Rogue Squadron: Making Sense of the 'Original Source' Exception for Qui Tam Relators, 69 Wash.
Genevieve Grant, David M. Studdert, The Injury Brokers: An Empirical Profile of Medical Expert Witnesses in Personal Injury Litigation, 36 U.
of Melbourne L.
Rev. __ (2013).
Lisa Cosgrove, Emily Wheeler, Drug Firms, the Codification of Diagnostic Categories, and Bias in Clinical Guidelines, 41 J.
of Law, Med.
& Ethics __ (2013).
Jacob S. Sherkow, Federal Trade Commission v. Actavis, Inc. and Reverse-Payment or Pay-for-Delay Settlements, 31 Nature Biotechnology 316 (2013).
David Orentlicher, The FDA's Graphic Tobacco Warnings and the First Amendment, 369 New Eng. J. of Med. 204 (2013).
Kate Greenwood, 'Litigant Regulation' of Physician Conflicts of Interest, 29 Geor. St. U. L. Rev. __ (2013).