HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Thursday, March 28, 2013

More on the Cola Wars

Two weeks ago, I wrote about the court decision striking down New York City's ban on certain sugary drinks sold in large containers.  It seems that Mississippi has taken quite a different course than that recommended by Mayor Bloomberg of New York.

On March 21st, Mississippi Gov. Phil Bryant signed a law preventing counties, districts, and towns from enacting rules that limit portion sizes. This bill has been dubbed by the state as the “Anti-Bloomberg” bill. The Governor opined that the bill was intended to limit the role of government, and that it “is not the role of the government to microregulate citizens’ dietary decisions.” The Governor added that “[t]he responsibility for one’s personal health depends on individual choices about a proper diet and appropriate exercise.”

Interestingly enough, according to the Centers for Disease Control and Prevention, in 2011 approximately 34.9% of Mississippi’s adult population was obese, which was the highest rate of obesity in the nation.  Gov. Bryant countered with studies that show Mississippi’s obesity rate among children has dropped by 13.3% from 2005 to 2011. What the Governor failed to mention was that despite this drop, Mississippi still ranks among the top six states in the nation for obesity among high-school students, with approximately 16% being obese.

Mike Cashon, executive director of the Mississippi Hospitality and Restaurant Association, which lobbied for the Mississippi bill, reportedly opined that  “It doesn’t prevent local government from promoting health foods. What it does do is prevent them from creating policy mandates for the sake of consistency and uniformity.”  Arguably, this bill also keeps one of the largest profit sources in play for the restaurant and hospitality industry.  Non-alcoholic beverages cost restaurants between $0.05 and $0.20 per serving, while reaping charges of $2.00 or more. In fact, the paper cup used to serve a soft drink costs more than the soda itself.

I am grateful to Jeffrey Enquist, U of Utah 3L and Biolaw Center fellow, for providing me with this post.


March 28, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 26, 2013

Just When I Thought I Had Seen Everything, Dialing for Coverage

Just when I thought I had seen everything when it comes to deciding who gets health insurance and who does not, comes a report in Sunday's New York Times about how Tennessee administers its Medicaid program for "medically needy" residents.  These are people who have very high medical bills, but would normally not qualify for Medicaid because their income is too high.  If their medical debt is high enough that their income falls below a certain threshold after the medical debt is taken into account, they may be eligible for Medicaid.  Qualifying for Medicaid may mean the difference between having access to needed health care and being unable to get treatment for a high-cost illness.  Keep in mind that to qualify for the program, in addition to having high medical bills such that they are impoverished after the bills are paid, people must be  elderly, blind, disabled, or be the caretaker of a child who qualifies for Medicaid.  These traditional Medicaid populations are considered by society to be "the neediest among us," according to Justice Roberts' opinion on the Affordable Care Act's Medicaid expansion.

Apparently, Tennessee limits enrollment in this program to the first 2,500 eligible callers who get through on the phone to the Tennessee Department of Human Services starting at 6:00 p.m. on a particular day once every six months.  So if you are one of "the neediest among us," and happen to be able to continually hit "re-dial" on your phone at that time, or can use multiple phone lines to call, you might get lucky enough to get health insurance.  According to the executive director of the Tennessee Justice Center, this system leaves "huge numbers of desperately ill people . . . out in the cold."  As lawmakers in many states (including Tennessee) debate about whether to expand Medicaid under the Affordable Care Act, they should consider whether or not the richest country in the world should require some of its most vulnerable residents to play the equivalent of a game of roulette in order to get access to health care.

March 26, 2013 | Permalink | Comments (0) | TrackBack (0)

Friday, March 15, 2013

Adventures in Health Care Cost Cutting

Expect to keep hearing more talk about health care cost cutting, despite charts like this. It's an idee fixe of the Wall Street/Washington corridor, and will only be implemented more vigorously over time.  So perhaps we should take stock of a few cost cutting initiatives. Medicare Part D, it seems, is coming way under its projected budget.  But maybe that's because of "a sharp fall in the number of breakthrough drugs," a sign that innovation in pharma is stalling.  Cost cutting triumph, or logical outgrowth of a system that fails to reward actual contributions to health?

There's also been a lot of pressure on skilled nursing facilities to hold the line on costs.  What are we getting in return? Here's a summary from OIG

Skilled nursing facilities (SNF) are required to develop a care plan for each beneficiary and provide services in accordance with the care plan, as well as to plan for each beneficiary’s discharge. . . For 37 percent of stays, SNFs did not develop care plans that met requirements or did not provide services in accordance with care plans. For 31 percent of stays, SNFs did not meet discharge planning requirements. . . . [R]eviewers found examples of poor quality care related to wound care, medication management, and therapy. These findings raise concerns about what Medicare is paying for. They also demonstrate that SNF oversight needs to be strengthened to ensure that SNFs perform appropriate care planning and discharge planning.

I'm sure the health care cost cutters will use this evidence to demand the SNFs be paid even less---rather than, say, investing real funding in proper training and pay in this vital service sector.  At some point, though, costs get cut so much that Medicaid will become little more than a meaningless plastic card, and "SNF" will stand for "Scarce Nursing Forever." 


March 15, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 13, 2013

Symposium Announcement - Speech, Symbols, and Substantial Obstacles: The Doing and “Undue”ing of Abortion Law since Casey,

Dear Colleagues,  

Please mark your calendars and consider attending Speech, Symbols, and Substantial Obstacles:  The Doing and “Undue”ing of Abortion Law since Casey, a daylong symposium to be held at Berkeley Law on October 4, 2013. The event is co-sponsored by the Center on Reproductive Rights and Justice at Berkeley Law, the Center for Reproductive Rights, and the Berkeley Journal of Gender, Law & Justice

Thought leaders from diverse disciplines will examine the constitutive power and widespread impact of current laws related to abortion in the United States. Discussion will focus on Planned Parenthood v. Casey’s undue burden standard; the way this “standardless standard” is playing out in courts across the country, altering people’s access to and experience of abortion care. Among the day’s many queries will be: 

  • How have legal frames influenced the public’s understanding of abortion and its perceptions of those who seek abortions?
  • How do abortion regulations interact with other areas of law, including freedom of speech?
  • How do abortion restrictions harm individuals, families, and communities, threatening access to services, compelling parenthood, and compounding other forms of marginalization?

We encourage you to visit the Speech, Symbols, and Substantial Obstacles website, to find more information, including panel descriptions and a list of confirmed speakers.  MCLE credits will be available, and registration will open in August. 


Kristin Luker, Faculty Director, Center on Reproductive Rights and Justice, Elizabeth Josselyn, Boalt Professor of Law and Professor of Sociology, UC Berkeley School of Law

Jill E. Adams, Executive Director, Center on Reproductive Rights and Justice, UC Berkeley School of Law

Diana Hortsch, Senior Director of the Law School Initiative, Center for Reproductive Rights

Louisa Irving, Editor, Berkeley Journal of Gender, Law & Justice

Allison Lauterbach, Symposium Editor, Berkeley Journal of Gender, Law & Justice


March 13, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 12, 2013

The Decision on Soft Drinks in New York City

The papers have been full of handwringing and delight concerning the decision of the New York Supreme Court, Civil Division, New York County, enjoining New York City's prohibition of the sale of sugary soft drinks in containers larger than 16 ounces.  I thought readers of this blog might find direct access to the decision helpful--along with a few observations that I haven't seen in the press discussions.

    --In addition to the American Beverage Association, petitioners challenging the prohibition included the New York Statewide Coalition of Hispanic Chambers of Commerce (representing nearly 200,000 Hispanic businesses), the New York Korean-American Grocers Association (representing nearly 4,000 grocers), the local of the Soft Drink and Brewery Workers Union, the National Association of Theater Owners of New York State, and the National Restaurant Association.

    --For purposes of the prohibition "sugary" drinks are drinks that have more than 25 calories/8 ounces, are sweetened by the manufacturer with sugar or another caloric sweetener, are non-alcoholic, and do not contain at least 50% milk or milk substitute (e.g. soy).  So a 20 oz venti Frappucino is not within the ban, even though it has 570 calories, because it is made with more than half milk.  Neither is a very large margherita . . .  and the prohibition applies only to food service establishments, not to grocery stores (so 7-11 Big Gulps do not come within it).

    --One major (and most successful) contention of the petitioners was that the prohibition violated New York State's separation of powers doctrine, because in enacting it the N.Y. Department of Health & Mental Hygiene had overstepped its authority as legislatively granted.  Under New York law, according to the court, four factors are relevant to this determination:  (1) was the regulation based on policy concerns not related to its stated purpose?  (2) was the regulation enacted on a clean slate without the benefit of legislative guidance, including the guidance of the City Council, the legislative body for the City under the City Charter? (3) did the regulation intrude on ongoing legislative debate?  and (4) did the regulation require technical expertise exercised on behalf of the enacting body?  The court found problems on the first three of these. 

    --One of the more interesting aspects of the opinion is the court's extensive historical analysis of the powers of the Department of Health & Mental Hygiene under the New York City Charter.  The upshot of the analysis--sure to be controversial--is that the Department's powers have been understood by the City Council largely in terms of the control of communicable disease.  (No obesity "epidemic" here.)

    --The court thought that there was considerable ongoing debate both in the NY state legislature and in the NY City Council about various ways of approaching the health issues of obesity.  Both bodies had rejected related issues such as the imposition of a tax on sugary beverages.  The respondents said no one had considered restricting portion size--but the court was unpersuaded by this distinction.  Instead, it thought that the Department was treading on legislative territory.

    --On the fourth factor, the petitioners' argument was that the Mayor's office had drafted the regulation and so bypassed the expertise of the Department.  The court found, however, that the Department had subjected the ordinance to public discussion and to its technical evaluation before enactment.

    --The second major challenge to the regulation was that it was arbitrary and capricious.  Here, the court rejected the argument that the Department didn't have sufficient reason for concern about obesity.  Instead, what the court concluded was arbitrary was that the regulation had so many loopholes that it is bound to fail to have any impact on the problem.

So perhaps the solution is an ordinance that extends to refills, 570 calorie Frappucinos, 600 calorie 50 oz. Double Gulps, and, yes, that 540 calorie 12 oz. margherita . . .



March 12, 2013 | Permalink | Comments (0) | TrackBack (0)

Friday, March 8, 2013

Are We Willing to Trust Patients? Models of Responsibility, Consumerism and Blame

Indiana Health Law Review Symposium March 8, 2013 

Are We Willing to Trust Patients? Models of Responsibility, Consumerism and Blame 

Keynote Speaker: George Loewenstein, Herbert A. Simon Professor of Economics and Psychology, Dept. of Social and Decision Sciences, Carnegie Mellon University 
Location: Wynne Courtroom and Atrium, Inlow Hall, 530 W. New York Street, Indianapolis, IN 

8:45 am-9:00 am	Welcome
Nicolas Terry, Hall Render Professor of Law & Co-Director, Hall Center for Law and Health, Indiana University Robert H. McKinney School of Law

9:00 am-10:00 am Keynote
“Are We Willing to Trust Patients? Models of Responsibility, Consumerism and Blame”, George Loewenstein, Herbert A. Simon Professor of Economics and Psychology, Department of Social and Decision Sciences, Carnegie Mellon University 
David Orentlicher, Samuel R. Rosen Professor of Law & Co-Director, Hall Center for Law and Health, Indiana University Robert H. McKinney School of Law

10:15 am-11:30 am Responsibility for Health Care Costs
Chair, Robert A. Katz, Professor of Law, Indiana University Robert H. McKinney School of Law
Gregg Bloche, Professor of Law, Georgetown Law & Co-Director, Georgetown-Johns Hopkins Joint Program in Law and Public Health
Christopher Robertson, Associate Professor of Law, University of Arizona James E. Rogers College of Law

12:15 pm-1:30 pm Consumerism, Self-Diagnosis and Self-Treatment
Chair, Emily Morris, Associate Professor of Law, Indiana University Robert H. McKinney School of Law
Jessica Berg, Professor of Law and Biomedical Ethics; Associate Director of the Law-Medicine Center, Case Western Reserve University School of Law
Tracy Gunter, Associate Professor of Clinical Psychiatry, Indiana University School of Medicine; Adjunct Professor of Law, Indiana University Robert H. McKinney School of Law

1:45 pm-3:00 pm	Personal Responsibility for Wellness
Chair, Diana Winters, Associate Professor of Law, Indiana University Robert H. McKinney School of Law
Leonard M. Fleck, Professor, Michigan State University, Center for Ethics
Lindsay F. Wiley, Assistant Professor of Law, American University Washington College of Law

March 8, 2013 | Permalink | Comments (0) | TrackBack (0)

Thursday, March 7, 2013

Position Announcement: Chair of the Department of Medical Humanities, Southern Illinois University (SIU)

The SIU Department of Medical Humanities offers a curriculum designed to provide medical students with core knowledge in the humanities, emphasizing application of the content and methodologies of humanities disciplines to the practice of medicine. These humanities disciplines include: ethics, health policy, medical history, medical jurisprudence, psychosocial care, and religious studies. Located in the capital of Illinois, this multi-disciplinary Department is part of an established medical school with a dynamic and collaborative learning and research environment that is internationally known for its medical education innovations and dedication to problem-based learning. Department faculty, through their teaching, research and service, draw upon expertise in such areas as health policy, law and medicine, ethics, psychosocial care, religious studies, and medical history and literature to foster dialog on health, health care, and the human condition. In addition to contributing to the education of medical students, residents and physicians, the Department is a key contributor to the school’s new M.D.-M.P.H. concurrent degree program and serves as the medical school home for one of the oldest and most robust M.D./J.D. dual-degree programs in the country.  

Highlights of the positionand the area include:

  • 12-month faculty appointment (established as a tenure-tracking position; however, candidates seeking a non-tenure faculty position will also be considered).
  • A highly competitive salary and excellent benefits package.
  • Great work/life balance in a “Top Places to Live” community.
  • Family-oriented communities, excellent schools, and affordable housing.
  • Easy access to metropolitan amenities in Chicago and St. Louis. 

Qualifications: M.D.,Ph.D., J.D., or an equivalent terminal degree is required. The successful candidate must have experience that demonstrates readiness for leadership in the medical school setting. Ideally candidates will have demonstrated experience teaching medical students, health professions students, or small group teaching in other higher education settings and whose research focuses on health inequities and social determinants of health in rural and underserved U.S.  communities.  

For full consideration: All interested persons should apply to this position and submit a letter of interest, current curriculum vitae or resume’, and current list of professional references online at

Review of applications willcontinue until the position is filled. Southern Illinois University is an Affirmative Action, Equal Opportunity Employer.



March 7, 2013 | Permalink | Comments (0) | TrackBack (0)

Position Opening: Duquesne University School of Law

Duquesne University School of Law invites application for a faculty position for the 2013-2014 academic year, which will be, depending upon the candidate, an entry-level tenure-track, a visitor, or look-see visitor position.  We anticipate making an appointment that focuses on teaching and scholarship in the areas of Health Care (e.g., Health Law, Health Care Organization & Finance, Health Care Fraud & Abuse), primarily, and Professional Responsibility with other aspects of the teaching package subject to negotiation.  (For instance, a course on Remedies may be an area of need.)  Applicants should have superior academic credentials, previous teaching experience, and a record, or the promise, of excellence in teaching and legal scholarship, preferably in the area for which the appointment is sought.  Entry-level applicants may demonstrate scholarly promise by publications in scholarly journals or scholarly works in progress.  In the case of any applicant with tenure, a distinguished record of teaching and scholarship is required.  We especially encourage applications from racial minorities, women, and others who would enrich the diversity of our academic community.  Interested applicants should send a résumé and list of references, along with a letter of interest, to Professor Martha Jordan, Chair, Faculty Recruitment Committee at [email protected].  Electronic submissions only, please.  Candidates are strongly discouraged from submitting an application by mail or from mailing other materials to the Faculty Recruitment Committee, although a list of published works may be appended to an application.   The application period will close no later than March 30, 2013.

March 7, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 6, 2013

Retirees and Healthcare Costs

In a first rate article published recently on ssrn, Alison Hoffman and Howell Jackson present detailed empirical findings about the expectations people have about likely spending on healthcare in retirement.  The issue is critically important, as Medicare pays for only about 60% of beneficiaries' healthcare coses, and this percentage is continuing to decline.  Hoffman and Jackson had expected to discover that Americans as a general rule underestimated likely health care costs.  Instead what they found was far more nuanced.

Women, for example, are much more likely than men to underestimate likely average expenditures in comparison to experts' assessments--yet women are likely to face expenditures that are significantly higher than those of men.  Younger people are more likely to underestimate expenditures--despite rising healthcare costs that may portend higher expenditures for them than for current retirees.  Moreover, people in general are quite likely to underestimate the degree of uncertainty there is about estimates of future expenditures and to distinguish among sources of uncertainty such as individual needs, changes in overall healthcare costs, or changes in Medicare and Medicaid policy. Another concern raised by the data is that some people may be significantly overestimating expenditures as a lump sum (in comparison to monthly outlays) and as a result becoming discouraged about their likely ability to achieve sufficient savings.

Based on these findings, Hoffman and Jackson suggest increasing efforts to foster financial literacy, particularly for women.  They also suggest regulatory interventions to increase premium transparency and the availablity of low-risk insurance options as a way to buffer uncertainty.  The article is a very nice example of how empirical research can question received assumptions--such as tha underestimations are uniform--in ways that might helpfully inform public policy.





March 6, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 5, 2013

Rewarding Healthy Lifestyles May Not Save Health Care Costs

In one of the first rigorous looks at the effects of employee wellness programs, researchers at the University of Arizona at Tucson and elsewhere concluded that the major effect of the programs on health care costs was to shift them from the inpatient setting to the outpatient settings.  Costs for hospitalizations dropped, but costs for drugs and outpatient visits increased.  The wellness program studied, at BJC Healthcare, a large St. Louis hospital system, targeted life-style influenced conditions:  high blood pressure, diabetes, heart disease, chronic lung problems, serious respiratory infections, and stroke.

The ACA contains provisions designed to encourage the growth of employee wellness programs, including discounting up to 30% of the cost of employee coverage, and financial rewards for participating in healthy behaviors.  If the thought was that participation in employee wellness programs would help lower direct health care costs, this study at least raises a serious question as to whether that is the case. 

The study notes that it is possible that employers reap other benefits from wellness programs, such as reduced absenteeism and higher productivity.  There is also the possibility that employees who participate in an employer-sponsored wellness program feel increased loyalty to their employer, and that is undoubtedly worth something.  But it appears that we may have to look elsewhere to reap real savings in the direct costs of health care.


Cross-posted on Healthy Interests

March 5, 2013 | Permalink | Comments (0) | TrackBack (0)

Sunday, March 3, 2013

Medicaid, Managed Care, and ACOs

Last week, Florida Governor Rick Scott announced that Florida had been granted a waiver to allow greater flexibility in its Medicaid program.  Florida sought waivers for its medical assistance program demonstration project and for its long-term care program. Low income families, children in foster care, and Medicare/Medicaid dual eligibles, anong other groups, will be required to enroll in selected managed care plans. After receiving the waivers, Governor Scott supported Florida's participation in the Medicaid expansion of ACA, at least for a three year period. The support came as a surprise to some, and it remains unclear whether Republicans in the Florida legislature will regard the expansion favorably.

Florida's section 1915 long term care waiver has been fully approved by CMS and the waiver to allow a managed care demonstration project in Florida's medical assistance program has been approved in principle.  The Florida legislation requiring the state to pursue managed care contains elaborate provisions to support access and care quality.  These issues were specifically addressed in the letter from CMS expressing agreement in principle to Florida's waiver for its managed care demonstration project.  Florida's demonstration project must also include selection of at least one provider group in every area where a group meeting standards applies.

Not surprisingly given rising Medicaid costs, Florida is not the only state pursuing managed care for Medicaid.  In 2011, Utah also passed a Medicaid managed care statute (SB 180), but one with far less detail about quality measures than Florida's.  Utah's waiver request was specific that the state sought to understand accountable care organizations in general terms as organizations that were willing to accept capitated payments and could meet quality standards. This understanding of accountable care organizations is very different from the federal sense of "groups of doctors, hospitals, and other health care providers, who come together voluntarily to give coordinated high quality care to the Medicare patients they serve. Coordinated care helps ensure that patients, especially the chronically ill, get the right care at the right time, with the goal of avoiding unnecessary duplication of services and preventing medical errors. When an ACO succeeds in both delivering high-quality care and spending health care dollars more wisely, it will share in the savings it achieves for the Medicare program."  The federal ACO goals are coordination by providers to improve care quality and thereby reduce costs through better patient management; ACO receive financial incentives, but only if they achieve quality goals along with cost savings. Unlike Florida, Utah does not include the requirement to offer provider groups among the managed care options for patients. The concerns of critics are that together with the capitation reimbursement structure, Utah's quality measures such as CAHPS and HEDIS are insufficient to prevent reversion to managed care of the more purely cost-saving variety. Utah has not yet decided whether to accept the ACA Medicaid expansion.


March 3, 2013 | Permalink | Comments (0) | TrackBack (0)