HealthLawProf Blog

Hot off the press!

In this article, published today at the Illinois Law Review online, Jessica Roberts and I argue why the Medicaid expansion is a matter of social justice that must be taken seriously in the upcoming gubernatorial elections.  Here's the blurb from the journal:

On the doorstep of its fiftieth anniversary, Medicaid at last could achieve the ambitious goals President Lyndon B. Johnson enunciated for the Great Society upon signing Medicare and Medicaid into law in 1965. Although the spotlight shone on Medicare at the time, Medicaid was the “sleeper program” that caught America’s neediest in its safety net—but only some of them. Medicaid’s exclusion of childless adults and other “undeserving poor” loaned an air of “otherness” to enrollees, contributing to its stigma and seeming political fragility. Now, Medicaid touches every American life. One in five Americans benefits from Medicaid’s healthcare coverage, and that number soon will increase to one in four due to the Patient Protection and Affordable Care Act. Medicaid’s universalization reveals that the program can now be best understood as a vehicle for civil rights. ...

The Debate over Laura's Law: The Challenge of Providing Appropriate Care to Individuals with a Mental Disability

One of the cruelest features of some mental disabilities is that they create a level of fear and suspicion that can make it difficult for individuals to seek or accept treatment.    The situation is even worse when there is no infra-structure of community mental health clinics that could help  build relationships of trust with healthcare providers.    The result is  our current situation where county jails are often the largest mental health providers in their communities. (not this phenomena is all that recent--I and many others have been writing about it for over ten years).

California's Laura Laws that provide mechanisms for mandatory outpatient treatment are one way of keeping people are a way of keeping people whose only crime is having an illness out of jail.   But as the current debate over their use shows, any kind of compelled treatment raises important concerns about respect for civil liberties.  Yet some advocates for the mentally ill are supporting the law's implementation because it provides funds for outpatient treatment that would otherwise be unavailable.

News of efforts to provide increased services to those with severe mental disabilities is always of interest--but this policy debate in California is especially so because the arguments on both sides--for providing treatment to those not seeking it--are compelling and thoughtful.

 

 

 

Continued Skepticism re "Wellness Programs"

A big part of the job of being a Health Law Prof is to help students understand the intersection of the many legal specialties that comprise the big tent of "Health Law."  Wellness Programs are a good way of doing that because one of the key features of the Affordable Care Act is the flexibility it provides employers to link the cost their employees pay for health insurance with the individual employee's participation in a company sponsored "welleness program."  Here's an article I wrote explaining how PPACA went about doing that.  Here's a link to the Department of Labor's summary of the current rules and a good overview by the law firm Nixon-Peabody.  This report from Rand is an overview of what these programs are and how companies have increasingly fallen in love with them.   At this point just about every insurance company is offering to create one--here's some information from Aetna.  

The problem is, there's very little evidence that these programs do anything to demonstrably improve health (whatever that may mean).  And quite a bit that they may promote many different kinds of social injustice.

 This article in the Harvard Business Review does a great job describing the kinds of programs that are now descending on employees and how they are creating disatsifaction without any scientifically supportable improvement in "health."

There is also a growing literature suggesting that these programs may disproportionately discourage workers who employers aren't that unhappy to see go--but might not legally be able to actually fire.  Here is some very interesting testimony by Jennifer Mathis Director of Programs, Bazelon Center for Mental Health Law
On Behalf of the Consortium of Citizens with Disabilities.

Michelle Mello at Harvard has coined the term "life-style discrimination" to describe the ways Wellness Programs may target individuals employers may perceive as undesirable because they are obese, smoke or have other non-job related characteristics.

Studying Wellness Programs--and the issues they raise--can be an accessible entry point for students who can easily be intimated by the regulatory complexity of health law and can also be a bridge to understanding how fundamentally the Affordable Care Act has affected the way health care will be paid for and delivered as our students begin their careers in advising those struggling to implement these new regulations.

 

 

 

 

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]