HealthLawProf Blog

Position Announcement: Associate Director for the Center for Law, Health & Society at the College of Law at Georgia State University

The College of Law at Georgia State University seeks to fill the position of Associate Director for the Center for Law, Health & Society. Established in 2004, the Center’s mission is to advance the key role that law plays in promoting society’s health through research, education, and professional and community engagement at local, national, and international levels. The Center’s health law program is currently ranked 5th nationally by U.S. News and World Report.   

This position is the primary professional administrative position for the Center for Law, Health & Society. The Associate Director reports directly to and works under the supervision of the Center Director to help meet Center goals and determine administrative priorities. Specific responsibilities include management of new and on-going Center programs, projects, and activities under the Center Director’s priorities, including academic programs; professional education programs and conferences; student advisement and coordination with the health law program; and other community-building and other outreach activities and events with Center constituencies. The Associate Director provides other administrative support to the Center Director, including background research and development of new Center initiatives and activities; researching, identifying, and developing opportunities for extramural funding; writing grant and funding proposals and reports; and facilitating long-term strategic planning. He or she manages Center communications, public relations, and outreach activities, including writing and production of Center newsletters, brochures, other collateral, and Web content; preparation of correspondence and reports for internal and external constituents; and developing media relations. He or she oversees the daily functions of the Center, including implementing Center policies, procedures, systems, timelines, and deadlines; coordinating meetings; reviewing budget and making purchasing decisions; and troubleshooting day-to-day administrative tasks. 

We seek a motivated and confident self-starter with proactive problem-solving abilities. The position requires excellent and effective skills and abilities in the following areas: oral, listening, and written communication skills; interpersonal and teamwork skills; ability to respond effectively to, and collaborate and work well with, diverse internal and external Center constituencies, including University staff, students, faculty, external professionals, and others from diverse backgrounds; time management, project management, and organizational skills; ability to work efficiently and independently; flexibility and ability to multi-task; ability to be focused, detailed, and thorough while not losing sight of the big picture; ability to work within established timeframes and deadlines; ability to learn quickly and produce results efficiently; ability to conceive, plan, and strategize for new initiatives; and research skills. A Juris Doctor degree is preferred, and experience in applying for grants and external funding is desired. 

To apply: To apply for this position, please visit the Georgia State University Human Resources Job site, found at: https://jobs.gsu.edu (job vacancy number 0602222). Application materials should include a cover letter addressed to Professor Charity Scott; résumé; writing sample demonstrating ability to be thoughtful, clear, and concise; and contact information for three references. While the position will remain open until filled, applications are strongly encouraged by Friday, December 23, 2011. 

Georgia State University, a unit of the University System of Georgia, is an equal opportunity educational institution and is an equal opportunity/affirmative action employer.

 [KVT]

Guest Blogger Kathy Cerminara: Bioethics and Disability

I hope you all had a Happy Thanksgiving.  In this, my last guest-blogger posting of this series, I thought I’d give you a break from talk about hospice care.

 Rather, I’d like to give a shout-out to Alicia Ouellette at Albany Law School.  Ever since the hectic days during and after the Schiavo case, I, here, and others such as Anita Silvers and Leslie Francis, here, have pondered and resisted an argument various disability advocacy groups, including Not Dead Yet, advanced in the spectacle’s waning days.  Specifically, as Congress and the federal courts considered the case, Not Dead Yet and others argued that removal of a PEG tube from Ms. Schiavo, who had lain in a persistent vegetative state for years without an advance directive requesting withdrawal, would violate the Americans With Disabilities Act.

 In her (relatively) recent book Bioethics and Disability:  Toward a Disability-Conscious Bioethics, Professor Ouellette offers one of the most thoughtful responses to that argument that I have read.  The book displays Professor Ouellette’s great understanding of the viewpoints of persons with disabilities.  Against that backdrop, Professor Ouellette nevertheless concludes that

Not Dead Yet’s argument turns the ADA on its head.  Laws that give people with disabilities access to a choice of medically acceptable treatments protect the rights of people with disabilities – even if one of the choices is the termination of treatment.  It is the denial of access to all available options that would violate the ADA. In fact, surrogacy laws ensure that the ADA’s demand for access is fulfilled.  Substituted-judgment and best-interests-based statutes are reasonable accommodations.  They give the people who lack competence to make their own health decisions access to the same options available to those who have competence.  In this way, surrogacy statutes can be compared to access ramps installed by building owners after the passage of the ADA.  Just as ramps were not the equivalent to stairs (e.g., they might be located in the back of the building and take longer to traverse than stairs), surrogacy laws are not the equivalent to an actual exercise of medical decision making by the disabled person.  Nonetheless, both are reasonable accommodations.  Just like ramps allow the person with the disability to get into a building, surrogacy laws allow the patient access to all appropriate treatment decisions, including no treatment at all. 

So long as a surrogate is choosing between medically acceptable options, the ADA has no role in a medical decision-making case.  . . . .

Thank you, Professor Ouellette, for your work.

- Kathy Cerminara

 

Health Affairs on Community Development

Kudos to Health Affairs and the RWJF for their continuing efforts to focus on the social determinants of health. A recent issue focused on cooperation between the Federal Reserve Bank and community development institutions to assure healthy neighborhoods and health-enhancing social conditions. As editor Susan Dentzer explains: 

The Robert Wood Johnson Foundation became acutely aware of the gap [between the public health and health care sectors and the nation’s community development “industry”] through its sponsorship of the Commission to Build a Healthier America, which the foundation convened in 2008 and of which Williams served as staff director. The Fed’s awareness stems from its congressional mandate to achieve strong, low-inflation economic growth and to help low-income communities become full partners in that process.

So, as the foundation’s Risa Lavizzo-Mourey and Sandra Braunstein of the Fed write, both sectors are now focused on what they might achieve together. Health care providers understand that they can make more headway against chronic disease if residents of a local housing complex have access to safe parks and healthier food. Community developers understand that beyond creating low-income housing, they should also invest in these amenities and even construction or expansion of community health centers.

The program is also podcast as a Health Affairs event.

[FP]; X-Posted at Health Reform Watch.

Call for Papers for the Stetson Law Review Health Law Symposium

The Stetson Law Review has issued a Call for Papers for its Fall 2012 Health Law Symposium. Here is the announcement: 

Stetson Law Review is excited to announce an upcoming Health Law Symposium, to be published in the Fall of 2012. Health Law is a specialty in which political, economic, medical, and ethical issues all present a challenge to practitioners. Health lawyers may need to solve corporate, administrative, securities, contracts, intellectual property, tax, and litigation questions. They may also need to answer ethical and bioethical issues.

We invite you to consider submitting an article for publication in this edition of the Stetson Law Review. This is a unique opportunity to showcase your expertise in this dynamic area to peers and potential clients. 

Each submission must relate to health law in some way. But we want to produce a fresh and relevant book, so we encourage articles that explore unexpected or new areas of health law. General Submission Guidelines: 

 Short Article: usually fifteen to twenty five pages, discussing, for example, the last word by counsel of a recently decided case; 

 Full-length Article: usually twenty-five to forty pages, providing in depth analysis of some significant area of health law.

  Topics may be reviewed by Stetson Law Review’s faculty advisor to ensure that the book contains a balanced variety of articles and topics. 

If you are interested in having your article published in Stetson Law Review’s Health Law Symposium, please contact us at [email protected] for more information. The deadline to commit to submitting an article is January 15, 2012; final articles will be due on July 15, 2012. 

Thank you for your time and consideration. We look forward to working with you!

Stetson Law Review

Editorial Board

Seton Hall Law School and Graduate Institute of International and Development Studies to Offer Executive Course in Intellectual Property and Global Public Health in Geneva, Switzerland

Seton Hall Law School and the Graduate Institute of International and Development Studies Announce an  Executive Course in Intellectual Property and Global Public Health in Geneva, Switzerland:

Intellectual property issues have come to play an increasingly important role in discussions of national and global health problems. Yet, individuals whose primary expertise is health or diplomacy may find these discussions inaccessible because they lack a sufficient understanding of basic intellectual property concepts and their relationship to global public health. To fill this gap, Seton Hall Law School and the Graduate Institute of International and Development Studies in Geneva have joined together to offer an executive course on health-related aspects of intellectual property from a global public health perspective. A key goal of the course will be to develop concrete tools for implementing the World Health Organization’s Global Strategy and Plan of Action on Public Health, Innovation, and Intellectual Property.  Course faculty will include key representatives from the World Health Organization, the World Trade Organization, the World Intellectual Property Organization, academia, industry, and nongovernmental organizations.  The course will be held on the Graduate Institute's campus in Geneva, Switzerland on February 15-17, 2012. 

Further information is available at http://www.graduateinstitute.ch/corporate/executive/training-workshops/ghd-ip_en.html. 

 

Don Berwick Leaves CMS

The CMS Administrator has resigned from his recess appointment that was due to expire at the end of December. The Washington Post, here, and Poliitco, here, have the story. The NPR blog has more information on his deputy and new Obama nominee Marilyn Tavenner, here, and speculates that her path to confirmation is not likely to be any smoother. [NPT]

Sports, Medicine, and Health Law (Part 2)

It should also be noted that that some of the news in the sporting world reflects the many triumphs of modern medicine.  Many players can now resume their athletic careers after what would formerly have been debilitating and career-ending injuries.  And other achievements extend beyond the sporting arena. 

A number of articles (here) recently commemorated the twentieth anniversary of the date when Magic Johnson, then one of the most acclaimed players in the National Basketball Association, announced he was HIV-positive, a disease that was then generally fatal within a relatively short period of time.  In turn, this led him to retire from professional basketball in part because of the unfounded fears of other players that they could contract HIV from him following incidental contact in the course of a game.  With the advancements that have been made in the treatment of HIV, Johnson has survived and prospered. 

Nonetheless, other stories do not have such happy endings.  One sports writer, Joe Posnanski, recently wrote (here):

Some years ago, I got to know a high school football coach in Georgia.  I was writing a newspaper column then, and he coached in a small town on the outskirts of our coverage area.  But I was drawn to him—he was entertaining, and his teams were good, and if there’s one thing we columnists love, it is sure-thing columns.  And he was a sure thing.  I drove out to see him many times, went to dinner with him more than once.  We talked on the phone often—he was funny and happy and thoughtful and all those good things.  I probably wrote 10 columns about him over the years.  I figured I knew him.

So when he committed suicide, I asked myself again and again how I could have missed it.

I came to the conclusion then—a conclusion that has congealed through the years—that people are complicated and contradictory and mysterious and often bewildering. Good people do bad things, bad people do good things, happy people get lost, lost people become heroes.  This is the wonderful and depressing and daunting challenge of writing about people.  Things don’t always make sense.

This was the lead-in to his article on the unfolding story at Penn State University, where Jerry Sandusky, the “legendary” and long-time defensive coordinator of the football team, now retired, has been arrested and charged for allegedly sexually assaulting eight minor male children, assaults that were purported to have happened both while he was a coach and after he retired, including at least one incident that occurred at the football team’s facilities to which he still had access and where he continued to have an office.  A link was provided to the grand jury findings (here).  Sandusky was alleged in the grand jury report to have founded a “charity initially devoted to helping troubled young boys,” but “within [which he] found his victims.” 

In short order, these charges led to the firing of the President of the University and football coach Joe Paterno, who a week-and-a-half earlier to great acclaim had set the Division 1 record for career victories by a coach (here).  Assertions were made that various involved parties had failed to timely intervene or report the occurrence of child abuse of which they were aware (here).  Two weeks later, police said they were investigating child molesting allegations against a longtime assistant basketball coach at Syracuse University (here).

Sadly, until these reports emerged, child abuse had become a somewhat forgotten story in this country, perhaps because the prevalence of this abuse had declined somewhat in recent years (here).  However, another recent report (here) notes “[a]n increase in child abuse, mostly in infants, [which] is linked with the recent recession . . . [and] raises fresh concerns about the impact of the nation's economic woes.”  Furthermore, as I have written in an article (here) that appeared in the Ohio Northern University Law Review:

For almost 150 years . . . child abuse has been widely recognized as a recurrent, pervasive problem—with potentially tragic short- and long-term consequences for a staggering number of children—that calls for a well conceived and executed societal response.  Nevertheless, the consensus is that society is still not adequately preventing or identifying child abuse or appropriately responding to the needs of abused children. . . .  As has often been noted, a society should be measured by how well it treats its most vulnerable citizens.  Preventing and appropriately managing child abuse should be at the top of any ordered society‘s agenda.

* * *

Family violence is the most prevalent form of violence in society today.  There were approximately 3.3 million reports of child abuse (involving 6.0 million children) filed in 2008, with almost 772,000 children determined to be victims of abuse (a figure that represents 10.3 of every 1,000 children in the United States) and an estimated 1,740 associated deaths.  Roughly 2,400 children are found to be victims of abuse per day, three to five children die from child abuse every day (44% of which are younger than one year of age), and 18,000 children per year sustain permanent disabilities as a result of child abuse.  The long-term effects of child abuse include possible brain damage and other physical health problems, developmental delay, learning disorders, low academic performance, poor mental and emotional health, including depression, alcohol and drug abuse, problems in forming relationships, teen pregnancy, sexual victimization, aggressive behavior, juvenile and adult criminal behavior, and abuse of their own children.  Further, the actual number of child abuse cases has been estimated to be as much as 60% higher than the number of confirmed cases.

* * *

Those children most likely to be abused are younger children, children with disabilities or medical problems, and children living in families with relationship difficulties, which include poor parent-child interactions, domestic violence, or unskilled parenting.  Child abuse occurs in all socioeconomic groups . . . , but specific identified risk factors include stress on the family; isolation and a lack of social support, particularly emotional support; poverty, especially when associated with stress and limited resources; and high crime levels in the neighborhood where the family lives.

* * *

Mandatory reporting laws, society‘s primary mechanism for detecting and responding to child abuse, have to some extent exposed the prevalence of child abuse in the nation and raised public awareness of its existence.  However, . . . they have not been the panacea that many hoped they would be. Their success in identifying a large number of cases of child abuse has been accompanied by an even larger number of reports where child abuse has not been found, a failure to detect a still substantial number of cases of child abuse, limited success in responding to substantiated cases of child abuse, and a failure to prevent and deter future abuse.  For example, these reporting requirements fall primarily upon professionals, but research has suggested that the more professionals know about the child protection system . . . the less likely they are to report suspected cases of child maltreatment.

* * *

One group of professionals for whom designation as a mandated reporter has proven particularly controversial involves mental health professionals.  Most of this concern has focused on requirements to report suspicions of child abuse that arise in the course of a therapeutic session.  Information that is disclosed in the course of a therapeutic session is typically required to be kept confidential, in part because of concerns that disclosures, which are often times seen as the keys to therapeutic progress, will be less forthcoming if the client thinks that this information might be disclosed to others.  Moreover, it has been noted that mental health professionals believe that reporting suspected child abuse disrupts treatment and as a result actually increases the risk to the child.  Indeed, one study found that 25% of clients withdrew from treatment after a report was made, while another study determined that clients‘ revelations of incidents of abuse stopped after a mandatory reporting law went into effect.  Nevertheless, mental health professionals are now widely required to submit such reports.

Some states have broadened the range of mandated reporters even further to include the general public.  By 1977, twenty states had passed legislation that mandated that any person who suspects child abuse file a report.  However, this approach has been criticized for enhancing the likelihood of false and potentially damaging and stigmatizing reports, for increasing encroachment on family privacy and parental autonomy, and for deputizing the entire community to be on the lookout for possible abuse when the general community is not adequately trained to accurately detect indications of child abuse.  Indeed, whereas non-professionals now submit 28.6% of all child abuse reports, they account for a disproportional number of the reports where the occurrence of child abuse is not substantiated.  Currently, only eighteen states require all citizens to report suspected child abuse, with one state requiring any public or private official to submit a report.

Insightful articles on child abuse and society’s response to it have been published by Gary B. Melton (here) and by Lois A. Weithorn (here).  For a recent report that physicians sometimes fail to report child abuse, see here.

Is the sports’ world more at risk of these types of behaviors?  Probably not (for recent occurrences of purported child abuse unrelated to sports, see here and here), but as the recent headlines remind us, neither is the sports world immune from these health and life-related problems and the legal issues that flow from them.  In addition, when arguably the most well-known general manager in baseball asserts (here) that the “first rule” in his rebuilding of the franchise is to “Do no harm,” it becomes apparent how intertwined sports, medicine, and health law are today.—Thomas L. Hafemeister, J.D., Ph.D., Associate Professor of Law, University of Virginia School of Law

Sports, Medicine, and Health Law (Part 1)

It has often been noted (here) – at least by sports writers – that Chief Justice Earl Warren in describing how he would begin his days once said: “I always turn to the sports section first.  The sports section records people's accomplishments; the front page nothing but man's failures.”  He might not be as inclined to say that today as you are just as likely to see the problems of the world played out there, ranging from racial insensitivity and bias (here) to labor disputes (here, with a copy of the NBA players’ antitrust complaint against league owners here). 

But increasingly the sports section (or more likely one of the popular websites devoted to sports news) will also be addressing emerging health and related legal issues that extend well beyond the traditional stories that focus on the injuries of players that might limit their athletic efforts.  For example, recent stories described the arrest and suspension of a football coach for driving under the influence of alcohol (here), while others noted criminal prosecutions associated with claims that performance enhancing drugs had been used in cycling events (here and here).

Another line of stories is focusing on sports-related traumatic brain injuries.  Hall of Famer Forrest Gregg, a former member of the Green Bay Packers who played in a then-record 188 consecutive NFL games and was nicknamed “Ironman” for his durability, has just been diagnosed with Parkinson’s disease, a debilitating neurological disorder.  “Gregg, his family and his neurologist say his disease may be related to [the] numerous concussions he suffered during his playing career” (here).  This article also notes that probably the most famous professional boxer of all time, Muhammad Ali, “is mostly mute after years of living with Parkinson's.” 

Another former star of the NFL, Dave Duerson, committed suicide in February at the age of fifty.  As described here, Duerson had complained to family members of his deteriorating mental state during his final months, as well as headaches, blurred vision, and a deteriorating memory.  A final note left to his family read: “Please, see that my brain is given to the N.F.L.’s brain bank.”  Duerson then shot himself in the chest rather than the head, apparently so that an examination of his brain could indeed be conducted.   Although the NFL does not operate a “brain bank,” it has donated $1 million to Boston University’s Center for the Study of Traumatic Encephalopathy, which has examined the brains of twenty former players that developed what is referred to as chronic traumatic encephalopathy (CTE).  This Center announced in May that Duerson’s brain had developed the same trauma-induced condition found in these other players.  CTE has been linked to memory loss, depression, and dementia.  Indeed, a provocative recent study by researchers at the Cleveland Clinic asserts that today’s football helmets are no safer than the leather helmets that used to be worn (here). 

Ironically, Duerson had served for a number of years on a panel that considered claims for disability benefits filed by former NFL players, and which has been reported to be parsimonious in its awarding of benefits for neurological damage, with “Duerson himself [having] told a Senate subcommittee in 2007 that he questioned whether players’ cognitive and emotional struggles were related to football.” (here)  The Boston University Center is now commencing a study that is hoped will provide a means of diagnosing CTE in living individuals, which presently can only be confirmed by examining brains after death (here). 

Awareness is also growing that children and youth are particularly susceptible to sports-related traumatic brain injury.  For example, a recent study (here) determined:

The number of young children treated in hospital ERs for concussions they got while playing on sports teams has doubled in just a decade[,] . . . [that r]oughly half a million ER visits for concussions occurred among 8- to 19-year-olds between 2001 and 2005[, and that a]bout half were sports-related, and 40% of sports-related concussions involved children between the ages of 8 and 13.

In response (here):

Between 2009 and 2010, at least 17 states passed laws to address traumatic brain injury.  In 2011, bills have been introduced in at least 39 states to address different aspects of traumatic brain injury.  The majority of these states (AL, AK, AZ, CA, CO, CT, DE, FL, HI, IA, IL, IN, KS, LA, MD, MA, ME, MI, MN, MO, NE, NV, NH, NY, NC, ND, OH, PA, RI, SC, SD, TN, TX, UT, VT, WI, WV and WY) introduced legislation targeting youth sports-related concussions.

A related news report (here) noted that “[a]bout 20 percent of high school football players and 40 percent of college football players will suffer a concussion at some point in their career, according to the American Academy of Pediatrics” and that:

Thirty-two states [currently] have laws addressing student-athlete concussions and several others could eventually follow suit . . . . Most legislation requires an athlete to leave competition or practice when a concussion is suspected, returning to play only when a doctor or other medical expert consents. 

This reports adds that:

Numerous school districts are using a system called ImPACT, or Immediate Post-Concussion Assessment and Cognitive Testing, which is already deployed by the NFL, Major League Baseball and the National Hockey League.  The tests measure athletes' baseline brain functions at the start of the season by having athletes undergo computer tasks measuring reaction time and memory.  After a suspected concussion, athletes retake the tests to determine if any changes occurred in the brain.  They are sidelined until their condition improves.

However, the risk of being sidelined may lead players to be less forthcoming about indicators of a possible concussion.  It has also been noted (here) that “in-game concussion protocols might be inconsistently applied.”  This, in turn, raises questions about the liability of team physicians’ responsible for implementing these protocols, which at the high school level may be volunteers, and the conflicts of interest they may face.  For a discussion of related legal issues, see here; here; here; here; and here.

(to be continued)

Thomas L. Hafemeister, J.D., Ph.D., Associate Professor, University of Virginia School of Law

Guest Blogger Kathy Cerminara: Angels of Mercy or Roto-Rooters? Regulatory Visions of Hospice Providers

As I essentially argued in last week’s blog posting, and as I have argued here and here, our legal and regulatory structure should assist more patients in accessing hospice care.  One way to assist patients in doing so is by including it in the essential health benefits package; another way is by revising some of the preconditions to coverage of it under current rules.

Certain hospice care providers, however, have been attracting scrutiny because of concerns that they are engaging in fraud and abuse.  Indeed, within ACA, even as it approved certain relaxation of coverage rules, in part on a trial basis, Congress indicated suspicion of hospice care providers by tightening documentation requirements.  In doing so, it followed an earlier, similar step by HHS after years of regulatory concern.  Court files provide reason for suspicion as well.  Earlier this month, a federal court in Dallas unsealed the complaint in a whistleblower lawsuit against Vitas Healthcare’s San Antonio office alleging a conspiracy between Vitas and two HMOs to defraud Medicare.

One reason for increased scrutiny has been a huge increase in Medicare hospice care expenditures coupled with a sharp increase in the number of for-profit hospice care providers.  As I have noted previously:

Regulatory and legislative desire for increased accountability stems from a great increase in Medicare spending on hospice care over recent years.  . . . . Even if it is an economical form of care, it consumes a significant amount of resources. 

The increasing costs are due both to the growing number of Medicare beneficiaries electing hospice care and to the increased number of days hospice beneficiaries, on average, are receiving hospice care. Between the year 2000 and the year 2008, the percentage of Medicare decedents who had received hospice care rose from 23 to 40 percent. The provision of hospice care to Medicare beneficiaries increased at an average rate of 10 percent per year between 2000 and 2007 and still grew, but at the slower rate of 5.5 percent between 2007 and 2008. 

In roughly this same time period, the number of for-profit hospices in the marketplace for hospice services has increased significantly. Between 2001 and 2008, the total number of hospices in America increased by 47 percent, from 2,303 to 3,389. In that time period, the number of for-profit hospices increased by 128 percent, while the number of not-for-profit hospices increased by only one percent. In raw numbers, this translates into an increase of 983 in the number of for-profit hospices (from 765 to 1,748) compared to an increase of 13 in not-for-profit hospices (from 1,184 to 1,197).¹

There may be any number of reasons for the increase in the number of hospice patients and the number of days those patients receive hospice care.  Some of those reasons would be good ones:  more patients may be recognizing the value of hospice services or receiving hospice care long enough to benefit from it than previously.  But the increase in for-profit hospice providers during the same time period has fueled concerns that the increases are due to fraud and abuse.  As Joshua Perry and Robert Stone argue, there’s something about for-profit ownership that encourages regulators, legislators, and, yes, even sometimes the public, to suspect the commercialization of hospice care.  Most “regular folks” with whom I have spoken, for example, have wrinkled their noses and expressed shock when learning that formerly not-for-profit Vitas now is part of the same for-profit corporate structure as Roto-Rooter.

It would be unfair to assert that all the increase in hospice funding is due to fraud, and even more unfair to assert that all fraud emanates in for-profit entities, even if Office of Inspector General investigations and whistleblower lawsuits support such conclusions.  Nevertheless, the combination of an increase in funds flowing toward hospice care providers and the upswing in for-profit entities becoming or acquiring such providers turns heads.

Hospice care in the best sense of the word – the provision of palliative care by a multi-disciplinary team who can act as “guides into death” for patients, families and caregivers – can greatly ease the dying process for all involved.  And, obviously, data, rather than assumptions, should govern our views of corporations providing hospice care.  Studies conflict regarding whether for-profit and not-for-profit healthcare institutions actually differ.  But, for now, expect those competing visions of hospice providers – angels of mercy or Roto-Rooters – to continue to clash in legislators’ and regulators’ minds.

¹ Hospice and Health Care Reform: Improving Care at the End of Life, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1694196## at pp. 25-26.

- Kathy Cerminara

Worth Reading This Week

Dan Keating, Automobile Bankruptcies, Retiree Benefits, and the Futility of Springing Priorities in Chapter 11 Reorganizations, SSRN/Iowa L.Rev.

Cathy Schoen, New 2011 Survey Of Patients With Complex Care Needs In Eleven Countries Finds That Care Is Often Poorly Coordinated, Health Affairs

Leonard J. Nelson, Michael Morrisey & David Becker, Medical Liability and Health Care Reform, SSRN/Health Matrix

[NPT]

 

A Constitutional Right Not to be Bankrupted by Health Costs

Those challenging the ACA in court profess deep concern about government forcing citizens to buy insurance or pay a fine.  The fundamental harm here is monetary; it’s about being required to purchase insurance, not to use it (or to get any medical care at all).

If the Court agrees with them, why can’t there be a parallel monetary right not to be bankrupted by health care costs?  In the 1973 case San Antonio School District v. Rodriguez, the Supreme Court decided, by a 5-4 vote, that children did not have a constitutional right to education.  But at that time, at least four justices thought the state was obliged to make a decent education available to all.  Why can’t a future Court do the same for health care?

If the current Supreme Court were to declare the ACA unconstitutional, it would need to abandon several landmark precedents.  That’s not a problem for the Roberts Court; it’s already jettisoned once-venerable holdings on campaign finance, equal protection, antitrust, and voting rights.  It did so to promote its libertarian vision.

For many Americans in these tough economic times, rights to education, housing, health care, and food are a lot more meaningful than the right to be free of an insurance mandate.  We the people can locate these ideals in a Constitution and a Declaration of Independence rich with grand and sweeping language.  If those who hate health reform can use our nation’s founding texts to undermine the ACA, those who care about meeting basic human needs need to gear up to use them to do quite a bit more.

[FP]

Einer Elhauge on Medicare as Broccoli

Must-read op-ed closing the loop between the Individual Mandate and Medicare, here, noting:

Opponents of the new mandate complain that if Congress can force us to buy health insurance, it can force us to buy anything. They frequently raise the specter that Congress might require us to buy broccoli in order to make us healthier. However, that fear would remain even if you accepted their constitutional argument, because their argument would allow Congress to force us to buy broccoli as long as it was careful to phrase the law to say that “anyone who has ever engaged in any activity affecting commerce must buy broccoli.”

The only problem is that there may just be a majority of this SCOTUS prepared to say "you should have been more careful." [NPT]

Guest Blogger Kathy Cerminara: Coverage of Hospice Care as an Essential Health Benefit

Last week’s post was about the IOM’s focus on relative value in its report on crafting the essential benefits package under ACA.  In formulating its recommendations, the IOM considered the goals of ACA in interpreting Congress’s instruction that “the Secretary shall ensure that the scope of the essential health benefits . . . is equal to the scope of benefits provided under a typical employer plan.”  (Emphasis added.)  Balancing ACA’s desires to increase access to care and to ensure that benefits are affordable, the IOM recommended that HHS begin designing the essential benefits package by attempting to reflect the benefits packages covered by small employers before ACA.  Generally, as the IOM noted, differences between small and large employer plans tend to coalesce around design features (such as amount of patient cost-sharing) rather than around listed benefits.   Beginning with packages previously covered by small employers may not, however, result in the best relative value in end-of-life care because doing so may leave one essential end-of-life health care benefit by the wayside.

As discussed last week, determining relative value of benefits involves balancing cost-effectiveness and medical necessity.  Traditionally, society has shied away from discussions of cost-effectiveness of care at the end of life, but last week I argued, at the risk of sounding like former Governor Richard Lamm, that costs should be part of the conversation.  Now let’s think about medical necessity.

For patients near the end of life, there can be no dispute that good palliative care is medically necessary, regardless of how one defines that term.  Many patients facing a diagnosis of terminal illness wish, first and foremost, that they be spared physical pain, and palliative care physicians specialize in pain relief.  Advance directive statutes and other legislative and regulatory guidance of medical care near the end of life universally advocate the provision of “comfort care” or other, similarly titled palliative measures.  In Cruzan, the U.S. Supreme Court (or at least some of the justices) came close to stating that patients have a constitutional right to adequate palliative care.  Palliative measures are covered when part of a course of treatment that leads to a patient’s death.

But, medically necessary or not, some private insurers do not cover one tremendously important piece of palliative care.  Hospice care, or the provision of multi-disciplinary services through a team-based approach of caregivers and counselors, is primarily funded through Medicare in the United States.  Employer-provided plans certainly do not universally cover hospice care.  For example, the IOM included in its report a summary of WellPoint small employer benefits packages  that did not list hospice care as a covered benefit.  While some health insurers, such as Anthem Blue Cross Blue Shield, predicted that hospice care would be included on the list of essential benefits, such predictions occurred before the IOM recommended small employer health plan coverage packages as a starting point for design.  Data regarding whether there is a difference in this respect between large-employer benefits and small-employer benefits seems unclear, indicating a need for further study.

Hospice care provides patients with an opportunity to prepare for death in a low-intensity setting, foregoing treatments that merely postpone the moment of death,  Primarily provided at home, most of the insurers covering it, and Medicare and Medicaid, pay on a per diem rate.  Through hospice providers, in other words, patients and their families and caregivers receive multi-disciplinary counseling, assistance, nursing, doctoring, and therapy in the comfort of their own homes for relatively low per diem payments, providing for more peaceful journeys unto death.

As HHS convenes public meetings to discuss the contours of the essential benefits package, it should be wary of becoming too tied to the small-employer package starting point the IOM has recommended.  Whether part of the typical small employer package already or not, hospice care is high-value treatment for patients at the end-of-life, on a relative or an absolute scale.

- Kathy Cerminara

Framing the Supreme Court Case

Some of the reactions to yesterday's grant of cert.

Steven Schwinn over at Constitutional Law Prof, here, addresses the South Dakota v. Dole "basic principles of federalism" issue. In the L.A. Times, here, Erwin Chemerinsky looks at the individual mandate challenge and argues "Gonzales vs. Raich reaffirmed that Congress need only have a "rational basis" for believing that it is regulating economic activity that has a substantial effect on interstate commerce. It is inconceivable that it could be successfully argued that there is not a rational basis for believing that the individual mandate has a substantial effect on interstate commerce. Simply adding 50 million people to the rolls of those with healthcare coverage would have an enormous economic effect." 

In the N.Y. Times, here, Reed Abelson, Gardiner Harris and Robert Pear identify the parts of healthcare that will be forever changed whatever SCOTUS decides, noting "From Colorado to Maryland, hospitals are scrambling to buy hospitals. Doctors are leaving small private practices. Large insurance companies are becoming more dominant as smaller ones disappear because they cannot stay competitive. States are simplifying decades of Medicaid rules and planning new ways for poor and rich alike to buy policies more easily." At Politico, here, Joanne Kenen takes a similar approach and identifies "Five health reform fights SCOTUS won't settle" including the contents of the essential benefits package and the future of the Independent Payment Advisory Board. Also at Politico, here, Glenn Thrush assesses "Barack Obama's Supreme Court health care gamble." 

Finally, the aca litigation blog, here, continues to post useful updates on the case. [NPT]

Fallon on Scholars' Briefs

With SCOTUS ready to take on ACA, here, a timely essay by Richard Fallon on the quality of Scholars' Briefs, here.

Worth Reading This Week

Stuart Benjamin, Bootstrapping, SSRN/L & Contemp. Prob.

Sara Rosenbaum, Equal Access for Medicaid Beneficiaries — The Supreme Court and the Douglas Cases, NEJM

Jordan Paradise, Claiming Nanotechnology: Improving USPTO Efforts at Classification of Emerging Nano-Enabled Pharmaceutical Technologies, SSRN/Nw J Tech&IP

Glenn Cohen, Regulating Reproduction: The Problem with Best Interests, SSRN/Minn. L.Rev.

[NPT]

 

The National Practitioner Data Bank's "Public" File

HRSA has restored access to the NPDB public file, here. There are, however, strings attached that are designed to stop the kind of re-identification that led to a physician complaint and the database's temporary closure. That timeline is detailed at Pro Publica, here. Now, prior to gaining access to the public file, HRSA requires users to agree to its "Data Use Agreement," here, that prohibits using "the dataset alone or in combination with other data to identify any individual or entity or otherwise link information from this file with information in another dataset in a manner that includes the identity of an individual or entity."

Senator Grassley, here, is unimpressed by this new precondition and the Association of Health Care Journalists has written to Secretary Sibelius, here, noting "We believe these rules are ill-advised, unenforceable and probably unconstitutional. Restricting how reporters use public data is an attempt at prior restraint."

This one is unlikely to die down anytime soon! [NPT]

Cohen on Mississippi's Personhood Proposal

Those of you who saw Glenn Cohen's NYT opinion piece on the recent, failed Mississippi personhood proposal may be interested in this paper, titled "Regulating Reproduction: The Problem with Best Interests." From the abstract:

Should the state permit anonymous sperm donation? Should brother-sister incest between adults be made criminal? Should individuals over the age of fifty be allowed access to re-productive technologies? Should the state fund abstinence education?

One common form of justification that is offered to answer these and a myriad of other reproductive policy questions is concern for the best interests of the children that will result, absent state intervention, from these forms of reproduction. This focus on the Best Interests of the Resulting Child (BIRC) is, on the surface, quite understandable and stems from a transposition of a central organizing principle of family law justifying state intervention - the protection of the best interests of existing children - visible in areas such as adoption, child custody, and child removal. The Article demonstrates that while parallel reasoning is frequently offered (by legislatures, by courts, by commentators, by physicians) to justify state interventions that seek to influence whether, when, and with whom individuals reproduce, such justifications are problematic and misleading.

A very interesting philosophical take on the many thorny issues raised by new reproductive technologies.  

[FP]

Population and Avoiding Controversy in the Environmental Movement

The Center for Biological Diversity (CBD) is one of the few environmental organizations to launch an outreach campaign focusing on the environmental harm caused by the need to sustain increasing numbers of people on Earth. Traditionally, environmental groups have shied away from identifying population as a problem, instead focusing on human behavior. The underlying message has been that as long as activities are done safely and resources are used sustainably, there is no need to control populations. Environmental groups seem terrified to take on the value-laden, religiously charged issue of birth control, which is the obvious solution and only way to address overpopulation.

This was not true in the early years of the movement. Barry Commoner's 1972 book, The Closing Circle, Paul Ehrlich's The Population Bomb in 1968 and other writings exposed problems caused by overpopulation, and described the Earth's limited ability to provide raw materials for growing numbers of humans. But as environmental organizations sprang up, few took on the question of how to address that issue.

Last week, the world human population reportedly reached 7 billion. Articles about the milestone said the numbers exacerbated climate change and other environmental problems, as in pieces appearing in the Huffington Post and USA Today. An LA Times article included an excellent list of questions facing human society: "whether a growing population or growing consumption remains the biggest environmental challenge, how best to help lift a billion people out of poverty and misery, [and] whether governments should provide contraception for those who cannot afford it." Although some writers claim the "population bomb" has been diffused due to the "green revolution" and changing demographics (as in the article found here) the population continues to increase, and the issues remain. The question for environmental groups is whether they will take on the birth control issue, a direction the CBD may be leading them, or continue to let family planning groups and organizations addressing poverty fight those battles without them.

[MM]

DC Circuit Upholds Individual Mandate

The court's opinion is here.

No Supreme Court case has ever held or implied that Congress’s Commerce Clause authority is limited to individuals who are presently engaging in an activity involving, or substantially affecting, interstate commerce…

To be sure, a number of the Supreme Court’s Commerce Clause cases have used the word “activity” to describe behavior that was either regarded as within or without Congress’s authority. But those cases did not purport to limit Congress to reach only existing activities. They were merely identifying the relevant conduct in a descriptive way, because the facts of those cases did not raise the question–presented here–of whether “inactivity” can also be regulated…

Appellants [assert] that even if one could be obliged to buy insurance when one sought medical care, one cannot be obliged to keep it. Although that argument, as we have noted, avoids the facial challenge objection, it strikes us as rather unpersuasive on the merits. Congress, which would, in our minds, clearly have the power to impose insurance purchase conditions on persons who appeared at a hospital for medical services–as rather useless as that would be–is merely imposing the mandate in reasonable anticipation of virtually inevitable future transactions in interstate commerce…..

That a direct requirement for most Americans to purchase any product or service seems an intrusive exercise of legislative power surely explains why Congress has not used this authority before–but that seems to us a political judgment rather than a recognition of constitutional limitations. It certainly is an encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race, that gravely ill individuals cannot use a substance their doctors described as the only effective palliative for excruciating pain, or that a farmer cannot grow enough wheat to support his own family. The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local–or seemingly passive–their individual origins.

 [NPT]