HealthLawProf Blog

Published This Week

Mark A. Rothstein, Ethical Research and Minorities, 103 Am. J. Pub. Health 2118 (2013).

Christina Davik, We Know Who You Are and What You're Made Of: The Illusion of Internet Anonymity and its Impact on Genetic Discrimination. 64 Case W. Res. L. Rev. 17 (2013).

[KVT]

Predictions for 2014: ACA, Combined with Social Media, will Improve Healthcare Quality, Cost and Access

A 2012 Consumer Reports investigation concluded that “[m]ore than 2.25 million Americans will probably die from medical harm this decade . . . . That’s like wiping out the entire populations of North Dakota, Rhode Island, and Vermont. It’s a manmade disaster."

The long-time practice of custom-based medicine in the United States may be partly to blame. National initiatives started by the Patient Protection and Affordable Care Act (ACA or Obama care) are designed deal with this problem by moving the US to a contemporary, evidence-based model of medical practice. The evidence-based model of medical practice is grounded in empirical data created by clinical outcomes and effectiveness research. This empirical data can recommend the best treatment for a steadily increasing number of clinical disorders.

I predict that, in 2014, the US will see improvements in the quality of care and reductions in its cost as a result of ACA's push for evidence-based medical practice.

And consumers will flock to providers who offer better care at lower costs by relying on a rapidly growing number of new mobile apps for data-sharing and healthcare decision assistance. I predict that all major insurance companies will offer these smartphone-based tools.

Consumers are demanding transparency in all their transactions, they want it in health care now and they will be tweeting about where they are finding it and where they are not. 

Thus, ACA, combined with new technologies and social media, will incentivize major changes in healthcare quality, cost and access starting in 2014.

[KVT] 

ACA: The Miracle Policy?

As health care cost inflation has slowed markedly, some observers have cited the Affordable Care Act (ACA) as a major factor—even though the moderation in health care spending began before ACA’s enactment. To be sure, some of ACA’s important cost containment provisions may be playing a role, such as its push for accountable care organizations and its emphasis on paying for quality of care rather than just quantity of care.

Or maybe cost containment is simply the result of a recession that has reduced the spending power of Americans, with a significant contribution from an important pre-ACA trend (about 20 percent of the cost slowdown according to one study). For some time, employers and insurers have been increasing the public’s “skin in the game” by increasing the individual’s share of health care costs through premiums, deductibles and copayments. We’ve known for a long time that making health care more expensive for patients can discourage them from seeking care, so it isn’t surprising that higher patient costs would help contain health care spending. But we also know that patients don’t always distinguish between unnecessary care that can be forgone and necessary care that should be sought.

Time will help us sort out the causes of health care cost containment—if indeed it persists. In the meantime, we should be careful to distinguish between what we would like to be true and what we know to be true.

[cross-posted at orentlicher.tumblr.com]

Republicans and Democrats on Health Care Reform: Not That Far Apart After All

Today’s New York Times describes the Republican Party’s search for an alternative to the Affordable Care Act (ACA). With millions of Americans about to receive their health care through ACA health insurance exchanges, GOP members of Congress recognize that reform rather than repeal is the more sensible strategy.

Interestingly, proposals by leading Republicans look very much like ACA and especially like the favored reform proposal of former Obama senior staffer, Ezekiel Emanuel. While Emanuel has embraced ACA’s individual mandate, his preferred approach to reform is a universal voucher for health care coverage (also discussed here). According to the Times, U.S. Representative Paul Ryan soon will release a revised version of a universal voucher that he and U.S. Senator Tom Coburn proposed in the past. The main difference between Emanuel’s voucher and the Ryan-Coburn voucher is in the amount of coverage. Emanuel would cover the full cost of an insurance plan with standard benefits (akin to the essential benefits requirement of ACA), while Ryan and Coburn pegged the value of a voucher at a fixed dollar amount, about 50-60 percent of the cost of a standard insurance policy. As with ACA, Ryan and Coburn would have established health insurance exchanges, required insurers to meet minimum standards and protected persons with pre-existing conditions from discrimination (though perhaps not to the degree that ACA protects them).

There are good reasons to prefer universal vouchers to ACA. When all Americans, rich and poor, are in the same program, the program works much better. Consider in this regard the differences between Medicare and Medicaid. ACA may promise nearly universal coverage, but persons at higher incomes still will receive their health care mostly through their employers rather than through ACA’s health insurance exchanges or the Medicaid expansion. That gives the political influential a much smaller stake in the success of ACA than they would have in a universal voucher program.

It’s not surprising that there is more agreement than disagreement on the specifics of health care reform. As many observers noted during the health care reform debate, the individual mandate for health care coverage began as a conservative alternative to Clinton health care, and Mitt Romney championed an individual mandate as governor of Massachusetts. As with immigration reform and other policy initiatives, the chief stumbling block to progress is not the lack of common ground but the strong political incentives for elected officials to pursue a policy of conflict.

[cross-posted at orentlicher.tumblr.com]

Get to Know the 9 ACA Exemptions-Health Care Sharing Ministries

Stacey Tovino, a rock-star health law professor and Lincy Professor of Law at the UNLV William S. Boyd School of Law and I were nearly knocked off our chairs at a presentation by Wellesley College Professor Charlene Galarneau, PhD on The ACA Exemption of Health Care Sharing Ministries at the ASBH- American Association of Bioethics and the Humanity’s annual Meeting last month.  If you are a health law professor (or hobbyist) and do not yet know what a Health Care Sharing Ministry is, prepare to be surprised.  It is NOT insurance but rather a non-binding agreement among people of faith to share their health care costs.  As the Alliance of Health Care Sharing Ministries explains, “A health care sharing ministry (HCSM) provides a health care cost sharing arrangement among persons of similar and sincerely held beliefs. HCSMs are not-for-profit religious organizations acting as a clearinghouse for those who have medical expenses and those who desire to share the burden of those medical expenses.”  It specifically does not provide the essential services of an ACA qualified plan.  Yet those without health insurance who are participating in one of these ministries are exempt from the obligation to purchase insurance or pay a penalty—even though it is highly likely that the cost of their care will fall on the community where they become sick and seek treatment.  Read more about it here and here.  Health Care Sharing Ministries are among the 9 exemptions in the Affordable Care Act, yet have not attracted significant attention.  Given their important role in exempting large numbers of people from the obligation of obtaining health insurance, they deserve a place, or at least a shout-out, in all of our classes.

 

Gluck on the tax-credit challenge

Recommended reading: Abbe Gluck on the many reasons that federal tax credits for insurance purchased in the Exchanges apply to both federal and state exchanges.  I have posted on this issue before, and I continue to believe the challengers' arguments are specious.   Professor Gluck brings a unique perspective to the argument given the empirical work she has performed (with Lisa Bressman) on federal legislative processes.  Her excellent blog post on Balkinization is available here.

Disability Accommodation and Board Certification

Accommodations for people with disabilities in professions remains controversial.  In medicine as in law, courts defer to the judgments of professional organizations regarding appropriate qualifications.  An illustration is a recent district court ruling in Pennsylvania that it is not a reasonable accommodation to alter the multiple choice format for the examination for Board certification in pediatrics. Rawdin v. American Bd. of Pediatrics, 2013 WL 5948074 (E.D.Pa).  This decision is troubling both for its understanding of disability and for its deference to the board certification process.

According to the district court, Rawdin was "by all accounts, an excellent pediatrician."  Yet Rawdin had a cognitive disability resulting from earlier surgeries for a brain tumor--a disability that affected his ability to process remembered information out of context in a manner that would enable him to succeed on tests in the multiple choice format.  Despite several tries, Rawdin could not pass the board certification exam given by the American Board of Pediatrics (ABP).  Because of his failure to obtain Board certification, Rawdin was dismissed from his positions in the Neonatology Department of the Children's Hospital of Philadelphia (CHOP), where he had served for 5 years and become the Assistant Director of CHOP's nursery, held a faculty post, and was part of the Academic Clinician Track at the University of Pennsylvania School of Medicine.  Rawdin brought suit against the ABP under Title III of the ADA seeking alternative testing as an accommodation.  The district court held that Rawdin was not a person with a disability under the ADA (as amended by the ADAAA) and that, even if he qualified for statutory protection, the accommodation he sought was not reasonable because it would be a fundamental alteration of the ABP testing procedure.

The court's ruling against Rawdin rested primarily on the determination that his disability did not bring him within the statutory protection of the ADA.  As the case arose after the effective date of the ADAAA, the court applied the amendments' more expansive standard for determining disability.   The court agreed that Rawdin's memory processing difficulties are a mental impairment and that test taking is a major life activity. However, the court still concluded that Rawdin was insufficiently affected to meet the statutory standard, reasoning that his cognitive processing abilities were at least average for the general population and so his limitation was not substantial.  This comparison--between Rawdin's abilities and the general population, not between Rawdin's abilities had he not had the brain tumor and Rawdin's abilities as affected by the tumor and its treatment--was not changed by the EEOC in light of the ADAAA.   Interpretations such as this illustrate the irony of the ADA, even as amended by the ADAAA:  there are many who could work successfully or meaningfully access accommodations but who remain unprotected by the ADA even in its amended form.

Although the Rawdin court's determination that Rawdin did not warrant statutory protection was sufficient for its decision, the court also reached out to state that Rawdin's request to that the Board certification exam in essay form was not a reasonable accommodation.  In thus concluding, the court judged that the ABP was an academic institution and thus deferred to the ABP's claim that a multiple choice examination was the best way to assess competence in the field.  The court also concluded that developing a different exam would impose an undue hardship on the ABP.

The Rawdin court also chose to reach the issue of whether altering the format of the exam was a reasonable accommodation, even though it was unnecessary to its resolution of the case.  Deferential to the ABP as to an academic institution, the court concluded that its determination that changes in the exam format would lower standards should be respected.  The court also judged that the requested accommodation would be a fundamental alteration of the Board certification process. 

The decision's deference to professional determinations is not surprising.  However, if the court's description of Rawdin's excellence as a neonatologist is accurate, it illustrates the problematic costs of the ABP's approach.

[LPF] 

 

More Exposure for Hospitals' Opaque Pricing

There is another not-very-flattering article about hospital pricing in today's New York Times.   When I started working in health care law over 20 years ago, virtually nobody outside of those of us who actually worked with hospital billing offices knew anything about how hospitals set their prices for various services.  Now, anybody who reads a national newspaper or major periodical should have some knowledge of it.  Will this level of exposure force change?  Clearly, market competition doesn't work to control costs in this context.  Will this knowledge lead to a push for regional or national price controls?   

Published This Week

Seema Mohapatra, Using Egg Freezing for Non-Medical Reasons: Fertility Insurance or False Hope? - Legal, Ethical, and Policy Considerations, SSRN.

Mohammad Rubaiyat Rahman, Bimanual Test (Two Finger Test) of Rape Victims: South Asia Case Study, SSRN.

Nir Eyal, Denial of Treatment to Obese Patients - The Wrong Policy on Personal Responsibility for Health, 1 Int'l J. of Health Pol'y & Mgmt. 107 (2013).

Jason Block, Walter C. Willett, Taxing Sugar-Sweetened Beverages: Not a 'Holy Grail' But a Cup at Least Half; Comment on 'Food Taxes: A New Holy Grail?', 1 Int'l J. of Health Pol'y & Mgmt. 183 (2013).

Charles E. MacLean, Creating a Wanted Poster from a Drop of Blood: Using DNA Phenotyping to Generate an Artist's Rendering of an Offender Based Only on DNA Shed at the Crime Scene, 36 Hamline L. Rev. 357 (2013).

[KVT]