HealthLawProf Blog

Keroack Resigns

Well, I cannot say that I was overly impressed with his appointment in the first place - so perhaps this shouldn't be a big surprise.   The Associated Press reports,

The head of the federal office responsible for providing women with access to contraceptives and counseling to prevent pregnancy resigned unexpectedly yesterday after Medicaid officials took action against him in Massachusetts.

The Health and Human Services Department provided no details about the nature of the Massachusetts action that led to Dr. Eric Keroack's resignation.

Five months ago, Keroack was chosen by President Bush to oversee the department's Office of Population Affairs and its $283 million annual budget. The pick angered Planned Parenthood and other abortion-rights groups that viewed him as opposed to birth control and comprehensive sex education. Keroack had worked for an organization that opposes contraception.

"Yesterday, Dr. Eric Keroack alerted us to an action taken against him by the Commonwealth of Massachusetts' Office of Medicaid. As a result of this action I accepted his resignation," Dr. John Agwunobi, assistant secretary for health, said in a statement last evening.   . . .

Salon.com reports that his immediate successor will be Evelyn Kappeler, Acting Deputy Director for Population Affairs.

U.S. News Rankings

Professor Paul Caron at TaxProf posts the latest U.S. News rankings.  I know that we aren't supposed to care but when your administration cares, you have to at least give then a look.

Prospect for National Health Reform

Professor Elizabeth Weeks alerts me to a post she wrote concerning recent informative comments by Ned Spurgeon, at Utah (and currently visiting as a distinguished chair at McGeorge) on California health reform, in the context of the Massachusetts and possible national reform plans at Jurisdynamics.

Definitely worth the read!

Long Term Care Insurance Problems

The New York Times reports today on problems faced by the elderly receiving insurance coverage for long-term health care - insurance coverage that they had paid for over many years.  I know that some people oppose government regulation but this article suggests strongly that stronger controls are needed on these policies.

Tens of thousands of elderly Americans have received life-prolonging care as a result of their long-term-care policies. With more than eight million customers, such insurance is one of the many products that companies are pitching to older Americans reaching retirement.

Yet thousands of policyholders say they have received only excuses about why insurers will not pay. Interviews by The New York Times and confidential depositions indicate that some long-term-care insurers have developed procedures that make it difficult — if not impossible — for policyholders to get paid. A review of more than 400 of the thousands of grievances and lawsuits filed in recent years shows elderly policyholders confronting unnecessary delays and overwhelming bureaucracies. In California alone, nearly one in every four long-term-care claims was denied in 2005, according to the state (my emphasis).

“The bottom line is that insurance companies make money when they don’t pay claims,” said Mary Beth Senkewicz, who resigned last year as a senior executive at the National Association of Insurance Commissioners. “They’ll do anything to avoid paying, because if they wait long enough, they know the policyholders will die.”

In 2003, a subsidiary of Conseco, Bankers Life and Casualty, sent an 85-year-old woman suffering from dementia the wrong form to fill out, according to a lawsuit, then denied her claim because of improper paperwork. Last year, according to another pending suit, the insurer Penn Treaty American decided that a 92-year-old man had so improved that he should leave his nursing home despite his forgetfulness, anxiety and doctor’s orders to seek continued care. Another suit contended that a company owned by the John Hancock Insurance Company had tried to rescind the coverage of a 72-year-old man when he was diagnosed with Alzheimer’s disease four years after buying the policy.

Firedoglake reports further on these developments and whether such behavior by insurance companies meets the definition of "bad faith."  Long term care policies are extremely expensive and are supposed to provide peace of mind to elderly individuals who fear being unable to afford nursing home care and fear being a burden to relatives.  Grrr - this was not a great way to start off my day - then, of course, I had to read the New York Times article about increased behavioral problems of children who attend daycare -- grrrr again!!

Yikes - Part-Sheep and Part-Human

CBS news (link with video) is reporting on a new animal: 

A bio-ethical debate is raging at a Nevada university, where scientists have created the world's first sheep with half-human organs.

University of Nevada Professor Esmail Zanjani has spent seven years perfecting the technique, which involves injecting adult human cells into sheep fetuses.  This caused the animals to be born 15-percent human.

Scientists say this development will make it easier to use animal organs when people need transplants. . . .  But the development is likely to revive criticisms about scientists playing God.   Some fear the possibility of silent viruses -- harmless in animals -- being introduced into the human race.

I am bit surprised that this is occurring - it doesn't seem to be the best idea to me.  Time to re-think organ donation policies again.  Thanks to Matthew Yglesias for the link - the comments at his place are pretty funny or would be if this weren't just a bit scary. 

Medical Marijuana Update

Governor (and Democratic Presidential Candidate) Bill Richardson apparently will sign legislation to legalize medical marijuana in New Mexico.  According to the Associated Press,

Democratic Gov. Bill Richardson, poised to sign a bill making New Mexico the 12th state to legalize medical marijuana, said Thursday he realizes his action could become an issue in the presidential race.

"So what if it's risky? It's the right thing to do," said Richardson, one of the candidates in the crowded 2008 field. "What we're talking about is 160 people in deep pain. It only affects them."

The legislation would create a program under which some patients — with a doctor's recommendation — could use marijuana provided by the state health department. Lawmakers approved the bill Wednesday. The governor is expected to sign it in the next few weeks.

Richardson has supported the proposal since he first ran in 2002. But he pushed especially hard for it this year, leaning on some Democrats to change their votes after the bill initially failed.

It is not clear how helpful this proposed law will be to these patients.  Just this week, National Public Radio reported on the Ninth Circuit rejected Angel Raich's effort to use medical marijuana.  Although sympathetic to her claims and recognizing the California had legalized medical marijuana, the court held that Ms. Raich is not immune from prosecution under federal drug laws.  See Raich v. Gonzales (9th Circuit, March 2007).

New Reproductive Rights Blog

Here is the web link to the new Reproductive Rights Blog run by Caitlin Borgmann at CUNY School of Law.  It looks like a super resource.

JAMA and Access to Care

This week's issue of the Journal of the American Medical Association contains a series of articles (listing with brief abstract) concerning access to health care. 

Tim Greaney on Antitrust and Health Law Classes

Over at the Antitrust and Competition Policy Blog, Professor Thomas Greaney of St. Louis University School of Law provides helpful information on teaching complex antitrust issues in health law classes.  He states,

In other settings, such as health law and the health financing course, teaching antitrust is, as the saying goes, both a challenge and an opportunity. The challenge is in laying down enough of a base so those who haven’t taken an antitrust course will be on board. The opportunity is in putting the law in context and applying it given the sometimes-conflicting commands supplied by other legal doctrines (eg. Medicare anti-kickback, exempt organization, state corporate, and Stark laws). As to teaching antitrust itself, my casebook (Furrow, Greaney, Johnson, Jost & Schwartz, Health Law [5^th Ed Thomson/West devotes 100 pages to the subject. My goal in the casebook was to give  students a look at the application to the health industry of the two most important antitrust concepts: conduct and structure. The former includes classic cartels and moves along the Section One continuum to advertising restraints, and other restraints carrying interesting “professionalism” justifications (standard-setting by medical specialty organizations). The book then goes on to consider the very actively litigated conduct/structural issues raised by partially integrated physician joint ventures and concludes with merger analysis. After that, (and exposure to the other areas of law mentioned above) students are ready to tackle problems (e.g. counseling regarding hospital-physician joint ventures that have both vertical and horizontal competitive dimensions and implicate all the other areas of law just mentioned.)

Finally, the health-antitrust intersection offers an opportunity to bring into class a seemingly endless stream of policy issues (e.g. health system reform proposals;  Tom Campbell’s lamentable physicians union legislation; exclusion payments involving generic drugs and the overall effect of Hatch-Waxman law; allowing HHS to negotiate directly with big pharma for Medicare Part D purchasing). It keeps you young. 

Mmm - I am not sure "young" is quite the word that I would use to describe my attempts to explain antitrust concepts to my classes  -- but certainly it does keep the mind active.

Genetic Testing

Professor Michael Berube has an excellent post on genetic testing at Pandagon.com.  He writes,

Anyway, just in case you didn’t already know, I happen to have a 15-year-old son with Down syndrome. His name is Jamie, and he rocks. My wife Janet and I didn’t opt for an amniocentesis back in 1991, for reasons I explain in the Globe and Mail piece (and more fully in this book). But in more recent years, tests have been developed which can detect Down syndrome as early as the eighth week of pregnancy, using nothing more invasive than a blood test. So if, like me, you support women’s reproductive rights, and the rights of prospective parents to obtain the medical information they think they might need, and yet you don’t necessarily want people to think of Down syndrome as an automatic reason for terminating a pregnancy, you have to come up with some delicate arguments; you can’t just go around saying that people with Down syndrome are Heaven’s little angels, sent down to us to make us all be nicer to each other, and you better not go around saying that God never gives people things they can’t handle. (Because, you know, He actually does that all the time. He’s really kinda mean that way.) At the same time, you know full well that even the most delicate argument won’t persuade people who think that having a child with Down syndrome is way, way more than they can handle. Those people aren’t necessarily blinkered or selfish, either. As one of Rapp’s interviewees puts it, “If I had this baby at 44, and it had Down’s, who would inherit it?” This is not a trivial question. Jamie was born when I was ten days shy of my thirtieth birthday, and I think about it approximately every day. . . . .

He then writes about a new initiative to expand screening for Down syndrome to all pregnant women.  He states,

. . . . This kind of initiative, I suggest, starts from the presumption that (all else being, cough cough, equal) we’d be generally better off if we could “catch” Down syndrome in utero and prevent people with Down syndrome from being born. As you’ll see if you read my article, I ain’t buying it, because I don’t see the potential eradication of Down syndrome from the species as being analogous to the potential eradication of smallpox or cholera. But I also ain’t buying George Will’s recent response to the new guidelines of the American College of Obstetricians and Gynecologists, which recommend screening for all pregnant women. Because it’s one thing to be skeptical of the idea that screening should be mandatory, and opposed to the idea that screening should be a prelude to abortion; it’s quite another to insist, as Will does, that pregnant women do not have the moral right to make difficult decisions about their pregnancies:

Jon, a sweet-tempered man, was born the year before Roe v. Wade inaugurated this era of the casual destruction of pre-born babies. And he was born just as prenatal genetic tests were becoming routine. Since then, it has become routine to abort babies like Jon because they are like Jon. Without this combination of diagnostic advances and moral regression, there would be more people like Jon, and the world would be a sweeter place.

In my Globe and Mail essay, I respond like so:

Perhaps. And perhaps the world would be a sweeter place if we acknowledged that prospective parents who choose not to bring pregnancies to term are actually making difficult moral decisions rather than engaging in “moral regression.” That way, we could try to persuade people not to abort fetuses with Down syndrome — or any other disability — rather than coercing them into mandatory childbirth regardless of the circumstances.

Now, I suppose it’s all right for George Will to speak of the “moral regression” involved in “the casual destruction of pre-born babies,” because, of course, Will has long advocated universal health care in the United States on the grounds that our current employer-provider system is devastating to people with disabilities, who have an unemployment rate somewhere around 60 or 70 percent. Believing that childbirth is mandatory regardless of the circumstances of the mother or the fetus, Will argues, entails the obligation to provide strong programs of public assistance for the people who are brought into the world as a result.

Ha ha! Just kidding. George Will emphatically opposes universal health care. In that regard, he’s just one of those compassionate conservatives whose concern for the pre-born manages to outweigh concerns for the well-being of the post-born. By contrast, Rayna Rapp argues for a pair of principles that we might very well call “family values”:

The first is the need to champion the reproductive rights of women to carry or refuse to carry to term a pregnancy that would result in a baby with a serious disability. The second is the need to support adequate, nonstigmatizing, integrative services for all the children, including disabled children, that women bear.

Feministe.com has a further interesting and informative discussion of his piece, which concludes:

. . . . we, as a society, need to change the conditions that lead to abortions in the first place. And that means comprehensive sex ed, it means contraception, it means emergency contraception. But it also means strengthening the social safety net so that women of limited means can afford to have a child, and it means changing the way that we as a society think about the disabled and the different (and, in the case of widespread sex-selective abortions, about the value of women and girls). When people are confronted with the news that the child they’re expecting will be born with a disability, it can make all the difference in the world if they know that they will have resources available to help them, not just when the child is young and in school, but long after the parents have left this earth.

Kroger Reiterates Plan B Policy

CNN.com reports on Kroger's policy regarding the availability of Plan B (also known as the "morning after" pill).  A Georgia woman alleged that she had been denied the pill at one of Kroger's stores last December.  CNN states,

The Cincinnati-based grocery chain said if its pharmacists object to fulfilling a request, the store must "make accommodations to have that prescription filled for our customer."

"We believe that medication is a private patient matter," said Meghan Glynn, a Kroger spokeswoman. "Our role as a pharmacy operator is to furnish medication in accordance with the doctor's prescription or as requested by a patient."

Abortion rights activists in Georgia announced a statewide campaign Friday to raise awareness about the contraceptive.

Among them was Carrie Baker, who said a Kroger pharmacist in her hometown of Rome, Ga., refused to supply her with the contraceptive. The 42-year-old married mother of two said she asked the store's manager in December to order the contraceptive but was told that the pharmacist refused, even though the decision contradicted company policy.  "I believe this was a responsible decision and the best way to care for my family and myself," she said. "But Kroger doesn't care." . . .

Major pharmacy chains such as CVS Corp., Rite-Aid Corp. and Walgreen Co. also have pledged to ensure that customers can buy Plan B, even if one employee declines to provide service for reasons of conscience.

Medicaid Changes Harm U.S. Citizens

The New York Times reports that a new federal rule intended to prevent illegal immigrants from receiving Medicaid has had the effect of denying Medicaid to many thousands of U.S. citizens who have difficulty complying with new citizenship documentation requirements.  According to the Times,

Under a 2006 federal law, the Deficit Reduction Act, most people who say they are United States citizens and want Medicaid must provide “satisfactory documentary evidence of citizenship,” which could include a passport or the combination of a birth certificate and a driver’s license.  Some state officials say the Bush administration went beyond the law in some ways, for example, by requiring people to submit original documents or copies certified by the issuing agency.

“The largest adverse effect of this policy has been on people who are American citizens,” said Kevin W. Concannon, director of the Department of Human Services in Iowa, where the number of Medicaid recipients dropped by 5,700 in the second half of 2006, to 92,880, after rising for five years. “We have not turned up many undocumented immigrants receiving Medicaid in Waterloo, Dubuque or anywhere else in Iowa,” Mr. Concannon said.

Jeff Nelligan, a spokesman for the federal Centers for Medicare and Medicaid Services, said the new rule was “intended to ensure that Medicaid beneficiaries are citizens without imposing undue burdens on them” or on states. “We are not aware of any data that shows there are significant barriers to enrollment,” he said. “But if states are experiencing difficulties, they should bring them to our attention.”

Since Ohio began enforcing the document requirement in September, the number of children and parents on Medicaid has declined by 39,000, to 1.3 million, and state officials attribute most of the decline to the new requirement. Jon Allen, a spokesman for the Ohio Department of Job and Family Services, said the state had not seen a drop of that magnitude in 10 years.

The numbers alone do not prove that the decline in enrollment was caused by the new federal policy. But state officials see a cause-and-effect relationship. They say the decline began soon after they started enforcing the new rule. Moreover, they say, they have not seen a decline in enrollment among people who are exempt from the documentation requirement — for example, people who have qualified for Medicare and are also eligible for Medicaid. . . .

“Congress wanted to crack down on illegal immigrants who got Medicaid benefits by pretending to be U.S. citizens,” Mr. Jones said. “But the law is hurting U.S. citizens, throwing up roadblocks to people who need care, at a time when we in Wisconsin are trying to increase access to health care.” . . .

Medicaid officials across the country report that some pregnant women are going without prenatal care and some parents are postponing checkups for their children while they hunt down birth certificates and other documents. . . .

Dr. Martin C. Michaels, a pediatrician in Dalton, Ga., who has been monitoring effects of the federal rule, said: “Georgia now has 100,000 newly uninsured U.S. citizen children of low-income families. Many of these children have missed immunizations and preventive health visits. And they have been admitted to hospitals and intensive care units for conditions that normally would have been treated in a doctor’s office.”

Dr. Michaels, who is president of the Georgia chapter of the American Academy of Pediatrics, said that some children with asthma had lost their Medicaid coverage and could not afford the medications they had been taking daily to prevent wheezing. “Some of these children had asthma attacks and had to be admitted to hospitals,” he said.

The principal authors of the 2006 law were Representatives Charlie Norwood and Nathan Deal, both Georgia Republicans. Mr. Norwood died last month.  Chris Riley, the chief of staff for Mr. Deal, said the new requirement did encounter “some bumps in the road” last year. But, he said, Mr. Deal believes that the requirement “has saved taxpayers money.” The congressman “will vigorously fight repeal of that provision” and will, in fact, try to extend it to the Children’s Health Insurance Program, Mr. Riley said. He added that the rule could be applied flexibly so it did not cause hardship for citizens.

In general, Medicaid is available only to United States citizens and certain “qualified aliens.” Until 2006, states had some discretion in deciding how to verify citizenship. Applicants had to declare in writing, under penalty of perjury, whether they were citizens. Most states required documents, like birth certificates, only if other evidence suggested that a person was falsely claiming to be a United States citizen. . . .

I am so glad that this new provision has saved taxpayer money.   Perhaps Mr. Riley should consider how much more expensive it will be to provide health care to these children and families in the future due, at least partially, to the lack of preventive care provided to them now.

Selling Organs??

A recent New York Times book review  by Amitai Etzioni, who advocates against selling organs for a variety of reasons, has provoked a bit of a debate.  Kieran Healy, author of Last Best Gifts,  writes here about his support for some organ market.  He states,

At bottom, I think, monetary payments and financial incentives are simply not incompatible with the kind of moral obligations that Etzioni has in mind. We might want to idealize the distinction between morally virtuous gift-exchange and selfishly-motivated market transactions, but this boundary is crossed too often in practice for us to draw a bright line. Moreover, it is crossed in both directions: gift-exchange is often made a vehicle for self-interest; market transactions routinely have strongly moralized or normative aspects. Empirically, I would have two expectations for a viable market for kidneys. First, it would immediately incorporate a great deal of the gift form in order to legitimate itself, with market-matching between donors and recipients working largely at the back-end. Second, it would probably stratify itself in a way that reflected the structure of the U.S. health care system in general, with all that implies about the bottom-end of the market. In that sense Etzioni’s concerns are valid. But those inequities apply also to the communitarian alternative. Why should people feel any moral obligation to participate in a system that does not serve them well in other respects? To think otherwise is a kind of gift fetishism – the belief that we can guarantee the fairness of an exchange simply by insisting that it take the form of a morally obligatory gift.

For more on Etzioni's views on handling the lack of organs, see here.

More Merck News

Law.com has a brief write-up concerning the most recent Vioxx cases.  It reports,

A New Jersey state jury dealt Merck & Co. a mixed verdict Friday in the drugmaker's latest trial over its former painkiller Vioxx.  The Atlantic City jury ruled Merck was negligent and did not properly warn doctors about the cardiovascular risks in the case of one former Vioxx user who survived a heart attack. The ruling sets the stage for a second phase of the trial, starting this week, to consider whether Frederick "Mike" Humeston, 61, of Boise, Idaho, deserves compensatory and punitive damages.

The jury ruled against the second plaintiff in the trial, deciding Merck was not negligent in its marketing of Vioxx but had violated New Jersey's consumer fraud law. That means Kathleen Hermans Messerschmidt, the widow of Brian Hermans of Waupaca, Wisc., at best can recoup three times the amount he spent on Vioxx prescriptions. Hermans died at age 44 after having a heart attack on Sept. 15, 2002.

Merck said the jury's split verdict essentially means jurors decided Merck gave proper warning about Vioxx risks before Hermans died of a heart attack, but not before Humeston suffered his heart attack a year earlier. In between, Merck put a stronger warning in the detailed package insert for Vioxx, under pressure from federal regulators.

Prior to this trial, Merck had won eight cases and lost four in the massive litigation over its former blockbuster arthritis pill. Another trial with two plaintiffs ended in a mistrial in January.

Universal Health Care Popular

The New York Times reports today on a recent New York Times/CBS News poll showing that," A majority of Americans say the federal government should guarantee health insurance to every American, especially children, and are willing to pay higher taxes to do it."  The news isn't all rosy - of course - the US has to decide how to provide such health care.  The article notes,

Americans showed a striking willingness in the poll to make tradeoffs to guarantee health insurance for all, including paying as much as $500 more in taxes a year and forgoing future tax cuts.

But the same divisions that doomed the last effort at creating universal health insurance, under the Clinton administration, are still apparent. Americans remain divided, largely along party lines, over whether the government should require everyone to participate in a national health care plan, and over whether the government would do a better job than the private insurance industry in providing coverage.

Still, it is good to have this issue on the frontburner - especially since life isn't getting any easier for the 47 million people without health insurance.