HealthLawProf Blog

More states are expanding Medicaid than you might think

Big news in the world of ACA implementation: CMS approved Arkansas' proposed waiver for an alternative mechanism for Medicaid expansion, which is to be called the Arkansas Health Care Independence Program.  Arkansas proposed a premium assistance program, wherein newly eligible Medicaid beneficiaries will obtain insurance through the Arkansas health insurance exchange by receiving financial assistance for premium costs.  This will place the new Medicaid population in qualified health insurance plans, i.e. private health insurance, which is administratively more expensive than government-sponsored insurance, but it may help to deal with the problem of "churn" between Medicaid and Marketplace-based private insurance.

CMS's approval of Arkansas' Medicaid demonstration program is significant for a number of reasons, but here I'd like to focus on what I think is one of the biggest: this waiver approval will pave the way for other states that are "undecided" to finally declare their intent to expand their Medicaid programs.  I believe this will happen relatively quickly, because most states are already working on expansion.  You would not think this is true from the national media's reporting on the Medicaid expansion.  If you have been following any of the many color-coded maps depicting the five possible categories of expansion (expanding, not expanding, leaning toward expanding, leaning toward not expanding, and alternative model), you would think that just over half of the states are participating in the Medicaid expansion.  The national media has gotten this story wrong, because they do not pick up on the negotiations, investigations, committees, special commissions, and other ways in which the "leanging toward not participating" states are actually exploring how they can expand their Medicaid programs.  To understand how dynamic the state decision making is, you have to track the local newspapers that follow every move of the state legislatures and their conversations with their governors (which I have been doing all summer).

After NFIB v. Sebelius was decided, I wrote that most states would still expand their Medicaid programs.  It appears that most states are now working toward Medicaid expansion in some form.  In future posts, I will explain this dynamic federalism story in more detail.  For today, I will emphasize that CMS has opened the door to more state waivers, which will lead to more states expanding their Medicaid programs.  Though I am not necessarily on board with federalism by waiver, espcially given states' history of waiver mistakes and failures, I do think that in this instance, alternative expansion is better than no expansion.  Otherwise, many of our poorest citizens will be left out of the attempt at national insurance coverage, not paying a penalty, but not having access to much-needed healthcare either.    

ACA and the Perils of Federal-State Partnerships

When it comes to public benefit programs, federal-state partnerships often disappoint. States once determined eligibility for food stamps, and access to the program was not available in many counties across the country. And because states have set the income thresholds for adults to qualify for Medicaid, access to health care coverage has varied considerably from state-to-state for the indigent.

Unfortunately, both because of ACA’s design and the Supreme Court’s decision on the Medicaid expansion, ACA’s implementation relies quite a bit on federal-state partnerships. We are now seeing substantial differences from state to state in the roll out of the statute. As the Wall Street Journal reported earlier this week and the New York Times earlier this month, poor people are much more likely to obtain Medicaid coverage in New Mexico than next door in Texas, and customers for insurance on an ACA exchange will find much more guidance from state officials in Colorado than in Missouri.

The Medicare model of a federal-only program works much more effectively at delivering its benefits than does the Medicaid/ACA model of a federal-state partnership.  

PPACA & Data Collection on LGBTQ Health Disparities

ThinkProgress reports on the following aspect of PPACA: 

According to Section 4302 of the Affordable Care Act, the secretary of health and human services may collect any demographic data that she or he believes to be important for understanding and addressing health disparities. In June 2011 Secretary Sebelius announced a plan for including sexual orientation and gender identity in national data collection efforts starting in 2013, in addition to the law’s required categories of race, ethnicity, primary language, sex, and disability status.

I am supervising a paper on this process, and would greatly appreciate any information about the process for this inclusion (who was consulted, administrative processes, etc.), and the anticipated challenges for implementation.  The HHS website on the topic is good, but there is always room for more analysis. Please feel free to make a note in the comments, or email me directly.

Chilling Thoughts from Chilmark about Data Analytics and Patients

Chilmark Research produces evidence-based reports of health IT and market trends in the health IT industry.

A recently issued Chilmark report, 2013 Clinical Analytics for Population Health Market Trends Report, which I have not read because it costs $4500, details the conflicting interests of clinicians and payers with respect to insights gleaned from data analytics.  The hope of EHRs in combination with data analytics is better patient health, for example through alerts about needed preventive measures or care management strategies.  But different payment may reimburse categories of care differently--so a diabetic covered by one type of payment structure might get reminders when her counterpart with different coverage might not.  Even worse, patients whose prognosis is seen as "hopeless" through the predictive lens of analytics might get very different treatment recommendations under cost-conscious reimbursement structures.

Cora Sharma's post on the Chilmark blog details these likely conflicts with chilling precision.

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Call for Papers - Michigan State University Journal of Medicine and Law

The Michigan State University Journal of Medicine and Law invites you to submit an article or manuscript to be considered for publication in our upcoming fall or spring issues. The Journal strives to blend both legal and health care issues and selects articles spanning a wide range of subjects, including but not limited to: e-prescriptions, mental health, healthcare legislation, and battered woman syndrome.

In addition, there are several benefits to publishing with the Michigan State University Journal of Medicine and Law. First, we allow all authors to retain copyright ownership over their articles. Second, as one of very few legal journals in the United States that deal exclusively with medical-legal issues, we are confident that articles published in the Journal have the capability of influencing not only the academic field, but policy-making decisions in courts and legislatures as well.

For submissions, please contact Emily Berris, Chief Editor of Articles for the Journal at [email protected].

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Published This Week

Christopher T. Robertson, When Truth Cannot Be Presumed: The Regulation of Drug Promotion Under an Expanding First Amendment, 94 Bos. U. L. Rev. __ (2014).

 

Nicolas  Terry, Big Data Proxies and Health Privacy Exceptionalism, SSRN.

 

Lisa  Heinzerling, The FDA's Plan B Fiasco: Lessons for Administrative Law, 102 Georgetown L. J. (Forthcoming).

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Obamacare as Heritage Foundation Initiative

Ever the trimmer, President Obama recently tried to calm Obamacare opponents by noting that his signature health initiative is a deeply Republican (c. 2005) policy:

[W]hen you actually look at the bill itself, it incorporates all sorts of Republican ideas. I mean, a lot of commentators have said . . . "this is sort of similar to the bill that Mitt Romney, the Republican governor and now presidential candidate, passed in Massachusetts." A lot of the ideas in terms of the exchange, just being able to pool and improve the purchasing power of individuals in the insurance market. That originated from the Heritage Foundation. 

Heritage immediately cried foul, but its response wasn't terribly convincing. As the Obamacare rollout continues, the Administration is developing a record of rebuffing liberal groups and catering to employers.  It's turned a deaf ear to union complaints. Costs in the exchanges may be controlled, but in return for restricted networks.  Employers are announcing plans to dump employees onto those exchanges.  

The Obama/Heritage disagreement suggests far more about political style than it does policy substance.  The President tries to prove how moderate he is; the right responds with a renewed emphasis on its purity and principle.  But elites on both side of the ideological divide agree that health care costs must be cut.  The Affordable (not necessarily Quality, or Accessible) Care Act does that, reflecting the balance of power in the Washington that generated it. 

 

 

 

Criminal Charges Sustained Against Chemistry Professor for Death of Assistant in Lab Accident Requires New Focus on Lab Safety Laws

Many of us who teach and write in the area of "research law" area are far more familiar with the regulations protecting human subjects of research than the more general safety of those who conduct research.   We, and our students, need to become familiar with the patchwork of laws and agencies regulating safety in labs and other research settings.   For example, until we had an accident on our own campus, I had never heard of the U.S. Chemical Safety Board which is “an independent federal agency charged with investigating industrial chemical accidents” but whose jurisdiction also extends to colleges and universities.  It's like the NTSB for labs.

We all need to be following the criminal trial of Dr. patrick G. Harran, a professor of chemistry at the University of California, Los Angeles.  The case involves the horrific and tragic death in 2008 of Sheharbano (Sheri) Sangji, a 21 year old college graduate working in Dr. Harran's lab while applying to law school.  In other words, she was not a UCLA student.

Following her death, the University, its Board of Regents and Dr. Harran all faced criminal charges based on violations of the California state labor code.   The charges against the University and the Regents were dropped based on a lab safety agreement between the University and the Los Angeles County District Attorney’s Office, but a California court has rejected Dr. Harran’s motion to dismiss the charges and scheduled a pre-trial hearing for October 3^rd. 

The defendant moved to dismiss, but the court denied his motion.  This case also provides an important link between health law and employment law since it is theCalifornia Labor Code that is the source of the criminal charges against Dr. Harran.  Against his strong protests, the case is going forward on an interpretation of the law finding him, not the university, the employer of his lab assistant.

 Several websites including this one and this one are tracking the case very closely.

This is a video account of the events suitable for use in class.  This is a slightly longer one.  This is a 24 minute version that is also good.

 

For anyone not yet using "Google Alerts" this is a great way to keep track of a story that is not well covered by the national press.

Published This Week

Jorge L. Contreras, Data Release and Access, Bioinformatics Law: Legal Issues for Computational Biology in the Post-Genome Era 147 (A. James Cuticchia & Jorge L. Contreras eds., ABA Publ'g 2013).

Lucinda Vandervort, HIV, Fraud, Non-Disclosure, Consent and a Stark Choice: Mabior or Sexual Autonomy?, 59  Crim. L. Q. (Forthcoming).

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The Case for Public Health Law: A Q&A with Professor Jennifer Bard

It is always a pleasure to showcase one of our co-bloggers!

Professor Jennifer Bard was featured recently by Public Health Newswire in a piece that explains the effects of public health law, the intersection between public health law and public health agencies, her exciting new research and the future of health law.

APHA member Jennifer Bard, JD, PhD, MPH, was recently selected for the Scholars in Residence Program, an initiative funded by the Robert Wood Johnson Foundation and administered by the Network for Public Health Law to advance RWJF’s over-all mission of improving both the health of everyone in America and their health care—how it’s delivered, how it’s paid for, and how well it does for patients and their families. It is designed specifically for law professors to apply their expertise by assisting state, local or national public health agencies in tackling critical issues. One of six scholars chosen for the distinguished fellowship, Bard will work with local health officials in Lubbock, Texas, to explore legal options to address bed bugs. Learn more about her work and the opportunities that exist for the law to improve public health. 

How has law improved public health over the past decade?

A number of new federal laws over the past decade are starting to contribute enormously to improving the public’s health.  One example is the new food safety laws.  Another is finally extending the FDA’s jurisdiction to include tobacco.  As another example, some of the most dramatic improvements in public health have come from changes in laws regarding waste disposal.

What are some pressing public health concerns where the law can play a significant role?

Continue reading

Call for Papers - Feminist Legal Theory CRN

The Feminist Legal Theory Collaborative Research Network is sponosoring panels at the Law and Society Annual Meeting in 2014.

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Within Law & Society, the Feminist Legal Theory CRN seeks to bring together scholars across a range of fields who are interested in feminist legal theory. There is no pre-set theme to which papers must conform. We would be especially happy to see proposals that fit in with the LSA conference theme, which is the role of law and legal institutions in sustaining, creating, interrogating, and ameliorating inequalities.  We welcome proposals that would permit us to collaborate with other CRNs, such as the Critical Research on Race and the Law CRN or the Gender, Sexuality and the Law CRN. Also, because the LSA meeting attracts scholars from other disciplines, we welcome multidisciplinary proposals.

 If you would like to present a paper as part of a CRN panel, please submit a 400-500 word abstract, with your name and a title, on the Feminist Legal Theory CRN TWEN page (details provided below). If you would like to serve as a chair or a commentator for one of our panels, or if you are already planning a LSA session with four panelists (and papers) that you would like to see included in the Feminist Legal Theory CRN, please let Rachel Rebouche know ([email protected]). In addition to these panels, we may try to use some of the other formats that the LSA provides: the “author meets readers” format, salon, or the roundtable discussion.  If you have an idea that you think would work well in one of these formats, please let us know.

Proposals for paper presentations are due Wednesday, Sep. 18, 2013.Or, sign onto Westlaw, hit the tab on the top for “TWEN,” then click “Add Course,” and choose the “Feminist Legal Theory” CRN from the drop-down list of  National TWEN Courses. If you do not have a Westlaw password, please email Seema Mohapatra at [email protected] and ask to be enrolled directly.

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Published Last Week

Liezl van Zyl, Ruth Walker, Beyond Altruistic and Commercial Contract Motherhood: The Professional Model, 27 Bioethics 373 (2013).

Tal Bergman Levy, Shlomi Azar, Ronen Huberfeld, Andrew M. Siegel, Rael D. Strous, Attitudes Towards Euthanasia and Assisted Suicide: A Comparison between Psychiatrists and Other Physicians, 27 Bioethics 402 (2013).

Vickie J. Williams, Life-Sciences Dual Use Research of Concern, Public Health, and the Doctrine of Unconstitutional Conditions, 7 St. Louis U. J. Health L. & Pol'y (Forthcoming 2014).

Jenni Millbank, Resolving the Dilemma of Legal Parentage for Australians Engaged in International Surrogacy, 27 Australian J. of Fam. L.  (Forthcoming 2013).

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The Journal of Legal Medicine Invites Article Submissions

The Journal of Legal Medicine invites submissions of articles addressing issues at the nexus of law and medicine.  The Journal also welcomes substantive reviews of new books that intersect legal and medical topics.  

The Journal of Legal Medicine, the flagship publication of the American College of Legal Medicine, is a peer-reviewed, professionally edited, academic journal, published and marketed by Taylor & Francis.  The Journal, which is published quarterly, has a national and international circulation. 

Author information for manuscript preparation and submission can be found at:  http://www.tandfonline.com/action/authorSubmission?journalCode=ulgm20&page=instructions#.Uicvtj8WmOg  

Manuscript submissions are accepted for consideration on an ongoing basis.  Submissions should be made electronically through ScholarOne, as described at the link above.

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California Governor Jerry Brown's Veto of Payment for Oocytes for Research

As reported  by the Huffington Post, California will remain one of only three states prohibiting payment to women for providing oocytes for research.  (The other two states are Massachusetts and South Dakota) The California ban on the sale of oocytes for use in research was enacted in 2006 in reaction to the state's 2004 commitment to funding for stem cell research.  The California legislature sought to end the ban, but was rebuffed by Governor Jerry Brown's veto this past Tuesday.  Women's groups such as NOW, reproductive rights groups such as Planned Parenthood, and fertility experts such as ASRM supported permitting payment for oocytes.  The California Catholic Conference, the Center for Genetics and Society, and the California Right to Life Committee supported continuing the ban. 

Governor Brown's veto message sounded several themes.  He began with "not everything in life is for sale, nor should it be." He continued by noting that the questions raised "are not simple; they touch issues that are both philosophical and personal."  And he concluded that true informed consent would not be possible because the long term risks of oocyte harvesting are unknown and because payment "compounds" the problem.

Although there is something to these themes, they seem to me to be at best half truths--and deeply problematic ones at that. Oocytes are used in stem cell research, but they are also used extensively in fertility research.  Governor Brown's veto relegates this kind of research to reliance on altruism.  An argument could be made that all research where the risks to participants are unknown should rely on altruism, but we are far from accepting that position in current research practice; placing women participants and fertility and stem cell research in that position singles them out for restrictions not imposed on others.  An an argument could be made that informed consent is at least very difficult when risks are unknown--but this is not an argument that applies to women alone.  Nor should women be treated as though they were more likely to be susceptible to the blandishments of monetary compensation than men might be and more in need of protection from choosing the benefits such compensation might have for them.  While correct that the choice to provide oocytes is personal and may reach deep very deep questions about ethics and metaphysics, Governor Brown by imposing the veto is in effect making the choice for many others.  The Governor's veto in the current context is paternalizing and unjust.

We might of course want to think far more generally about the role of payment in fertility care and in health care more generally.  Governor Brown's remark that not everything should be for sale is indeed worth pondering--many blogs worth!--but in far different directions from the one taken in his veto.

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What is Affordable Health Care?

Can the Affordable Care Act succeed? Many current discussions presume that's entirely a function of how well it's administered.  But given the importance of premium subsidies and their linkage to the poverty line, perhaps the biggest challenges to making care "affordable" are larger trends in the economy.  As Marco Ferreira has noted, "One of the main approaches to defining affordability considers other (non-health related) necessary budgetary requirements on families. Necessary budgetary requirements include childcare, food, housing, taxes and transportation."  As those other costs go up, the chance of health care being affordable goes down.

With that in mind, consider the percentage of householders under age 30 with the following problems in 2011:

Unpaid essential needs: 20.2% 
Unpaid rent or mortgage: 10.7% 
Evicted for non-payment: 0.7% 
Unpaid utility bills: 14.5% 
Disconnected utility: 2.8% 
Disconnected phone: 6.3% 
Unmet need for doctor: 9.8%
Unmet need for dentist: 12.5%
Not enough wanted food: 22.8%
Food insecure household: 16.1%

Some foundations may dispute those figures. But the larger picture is clear.  As in many other areas of the economy, the problem lies as much (or more) in improving the job outlook and wages as it does in cutting prices.  You can't squeeze blood from a stone. Nor can you make a vital service like health care "affordable" when oligopolies in finance, communications, and energy squeeze more and more from families with less and less.

Poverty and Cognitive Function

Don't miss a fascinating article in the August 30th issue of Science, "Poverty Impedes Cognitive Function."  The article contends that there is a causal explanation for the correlation between poverty and disfunctional behavior, such as the failure to keep medical appointments or to employ healthy behaviors. Put crudely, the connection is that people in poverty have to think about so much just to keep going that they don't have the cognitive bandwidth to make carefully reasoned decisions.

The authors of the article, Anandi Mani, Sendhil Mullainanthan, Eldar Shafir, and Jiaying Zhao, present two studies in support of their claim.  The first study involved four experiments in which shoppers at a New Jersey mall were paid participants.  The income level of the shoppers varied, from the bottom quartile of US income to over $70,000.  In the first experiment, participants were asked to think about a decision about how to pay for car repairs, and were randomized to inexpensive ($150) or expensive ($1500) costs of the repair.  They were then asked to perform simple cognitive tests on a computer.  Among those asked to think about the inexpensive repair, there were no significant differences by income level in performance of the cognitive task.  By contrast, there were significant differences in performance by income among those confronted with the more expensive repair.  Variations on this experiment involved problems where sums of money were not involved (to control for math anxiety), incentives in the form of getting paid for getting the right answers on the cognitive tests, and situations in which participants came to a decision about the financial problem, engaged in intervening activities, and then were asked to perform the cognitive tests.  Each of these variations produced results similar to the initial experiment:  the performance of people in poverty on the cognitive tests was significantly associated with the expensive repair, but the performance of those in higher income groups was not.

In the authors' second study, participants were a random sample of sugar cane farmers in Tamil Nadu in southern India.  They were interviewed before and after the cane harvest.  Pre-harvest the farmers faced more significant financial pressures (as measured by criteria such as numbers of pawned items, numbers of loans, and the like) than post-harvest.  Performance on cognitive function tests was significantly higher post-harvest than pre-harvest.  Because the cane harvest extends over a considerable time period, the authors were able to control for calendar effects; the difference was similar early or later in the 5 month period of the harvest.  The authors conclude that poverty has about the same cognitive consequences as the loss of a night's sleep.

To be sure, other variables might explain the authors' findings.  They are careful to discuss many of these such as physical exertion, stress, nutrition, or training effects.  If the authors are right, however, their findings have some impressive implications for health policy.  One, which they note, is that it may just be more difficult for people who are poor to perform complex tasks needed to apply for eligibility for programs such as Medicaid (why are we surprised that so many who are eligible don't sign up?).  Another is that programs designed to incentivize healthy behaviors may just not work very well if they ignore cognitive loads.

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Faculty Fellowships in Public Health Law - Call for Applications

Faculty Fellowships in Public Health Law - Call for Applications

Applications are invited for 10 faculty fellowships in public health law education.

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Georgia State University College of Law and its Center for Law, Health & Society are leading an initiative funded by the Robert Wood Johnson Foundation for a faculty fellowship program to promote public health law education. Ten faculty members from law schools or schools/programs of public health will be selected to participate in a yearlong fellowship program designed to foster innovations in educational programming (including clinical, externship, and other experiential learning) and to build a strong learning community among faculty who teach in the public health law field.  

All fellows, with their deans’ support, will design and implement a project for curricular change in public health law education at their home institutions. Each fellow will be paired with a faculty mentor in public health law. The fellows will begin their fellowship year by attending an intensive 10-day educational Summer Institute on July 16-26, 2014 in Park City,  Utah. Over the course of the academic 2014-2015 fellowship year, the fellows and their mentors will regularly share ideas, experiences and models for public health law teaching, providing opportunities for professional growth and leadership development. 

ELIGIBILITY

• Applicants must have a J.D. degree and be employed in a full-time faculty position at a law school or school/program of public health, or be a full-time faculty member affiliated with a law school or school/program of public health, with a tenure-track, tenured, clinical-track, joint, or comparable faculty appointment;

• Applicants must have at least three years of full-time teaching experience at a graduate- or professional-school level by July 2014; previous background in health care law, public health law, or related subjects is preferred;

• A dean’s transmittal letter of support for the proposal is required, as well as
two letters of reference. 

For the complete list of eligibility and selection criteria and to review the full Call for Applications, visit www.law.gsu.edu/PHLFellowship.  

HOW TO APPLY

•   The application period opens Tuesday, Sept. 3, 2013. The deadline for applications is Friday, Dec. 13, 2013. Letters of reference are due Friday, Dec. 6, 2013.

•   For instructions on how to apply and complete information about the program, download the full Call for Applications at www.law.gsu.edu/PHLFellowship.

 Questions? Contact Stacie Kershner, associate director for the Center for Law, Health & Society, at [email protected] or 404-413-9088.