HealthLawProf Blog

Hobby Lobby Fall Out

For those who feared that the Supreme Court’s Hobby Lobby decision would open the door for employers to block contraceptive access for women in the workplace, welcome reassurance has come this week from the U.S. Court of Appeals for the Fifth Circuit. According to the Fifth Circuit, when the Affordable Care Act requires that contraception coverage be available for workers at religiously-affiliated institutions, the Act also accommodates the scruples of employers who have religiously-based objections to contraceptive use.

As the Fifth Circuit observed, employers with religious objections to contraception can shift the responsibility for coverage to their insurers or the federal government. Hence, there is no unlawful burden on those employers from the mandate that health care plans cover the costs of contraception.

Of course, the decision was rendered by a panel of three judges rather than the full court, and the panel included two judges appointed by Democratic presidents. But the third judge, Jerry Smith, who wrote the opinion and was appointed by President Reagan, is a staunch conservative who has not been sympathetic to reproductive rights in other cases.

If this case is an accurate guide, it may well turn out that the Hobby Lobby Court was correct when it observed that its decision recognized the interests of both employers and employees.

[cross-posted Bill of Health, orentlicher.tumblr.com]

Reading Hobby Lobby narrowly

I write this post with more than a little trepidation; I’m as unhappy as anyone about what the Court made of the Religious Freedom Restoration Act last week.  Nonetheless, given the current state of play, I’ve tried to see whether there are any ways to try to limit the damage. 

This Supreme Court term has featured a striking number of unanimous decisions.  What has drawn unanimity in these cases has been the narrow basis on which they were decided.  Commentators have praised Justice Roberts for his political skills in bringing the Court together—demonstrating that at least one branch of government remains functional and shoring up claims to judicial legitimacy.  Other observers note, however, that the unanimity is only skin deep—and point to the cases in which the Court divided 5-4 as symptomatic.  So suppose we perform a thought experiment on one of the most divisive decisions of this term, Hobby Lobby.  How could the decision have been narrowed?  How should it have been narrowed?  Such an examination is invited by Justice Alito’s statement that the Court’s holding is “very specific.”  It is also invited by Justice Kennedy’s concurrence, which opens with the assertion that the Court’s opinion “does not have the breadth and sweep ascribed to it by the respectful and powerful dissent.  Finally and disturbingly, it is also invited by the observation that the Court has quite quickly, in the case involving Wheaton College, opened wide one of the apparently narrow doors. 

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Why Sen. Elizabeth Warren's Memoir is of Special Interest to Health Profs

I'm a guest over at prawfsblog this month--come visit-and my posting today was about why law professors should be interested in Sen. Elizabeth Warren's new memoir.  You can read the whole pitch below--it includes that it's a funny, warm, well-written and interesting account of a remarkably successful career.  I also noted how important her efforts at fixing student loan debt are as a platform on which to build needed change in higher education.  Finally, she has very interesting things to say about balancing work and family as well as going beyond the classroom to help the individuals affected by the law she studied.   At a recent executive board meeting of the AALS Section on Law, Medicine and Health Care, current chair Dr. Ani Satz noted that there are not many mechanisms for recognizing that kind of service.  (side note--consider yourself warmly invited to the terrific panels our chair elect, Dr. Thad Pope, has organized for us to present and co-sponsor, more information to come).

But for a health prof audience, I'd also point out that she discusses her empirical work (with a team of top social scientists--she didn't do the math herself) that finally demonstrated the major flaw in our employer based health insurance system.  Medical bills turned out to be the leading cause of bankruptcy--and very often among families already insured.  Either their insurance was inadequate (maybe we should get these folks together with the people who are upset they can't keep their "old" plans) or, worse, their illness meant they could no longer work.  Whether the debt came directly from medical bills or from using credit cards and home equity loans to pay the bills--the results were equally catastrophic.

That this actually happens--that medical bills are a leading cause of bankruptcy--is as far as I know not currently disputed.  But I'd be remiss in this context not to point out that as part of the opposition research arising from her running to Senate-the Breitbart blog has made available a series of angry accusations from the 1990's of misconduct about that study.

 It will be a while before we see if the Affordble Care Act is going to do much to fix this problem--and predictions are mixed.  See this as opposed to this.   There's a federal study finding bankruptcies down in Massachusetts following Romneycare.   Common sense suggests that changes like no exclusions for pre-existing conditions and the lift of lifetime caps will make things better (for people with plans bound by those provisions).

But although certainly not usually described as such, Sen. Warren is, if not a Health Law Prof, certainly one whose work is very important to us. 

 

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.

 

 

 

 

The AOL Babies: Our Healthcare Crisis in a Nut

Where does one start with AOL CEO Armstrong's ridiculous and unfeeling justifications for changes in his company’s 401(k) plan. Cable TV and Twitter came out of the blocks fast with the obvious critiques. And the outrage only increased after novelist Deanna Fei took to Slate to identify her daughter as one of the subjects of Armstrong’s implied criticism. Armstrong has now apologized and reversed his earlier decision.

As the corporate spin doctors contain the damage, Armstrong’s statements likely will recede from memory, although I am still hoping The Onion will memorialize Armstrong’s entry into the healthcare debate (suggested headline, "CEO Discovers Nation's Healthcare Crisis Caused by 25 Ounce Baby”). But supposing (just supposing) your health law students ask about the story in class this week. What sort of journey can you take them on?

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Another ACA Delay--and a Proposed Solution

This past week, the New York Times published a story about yet another delay in the implementation of the Affordable Care Act.  Earlier this summer, NPR also reported the delay, which concerns total limits on out of pocket costs that consumers can be required to pay.  Under ACA, beginning in 2014 consumers were supposed to have to meet only one out of pocket limit--$6,350 for an individual and $12,700 for a family--including all deductibles and co-payments.  But the Times story reports that insurers have been granted a year's grace in implementing this requirement and quotes an administration official as attributing this decision to the inability of insurance plans to communicate with each other in determining out of pocket costs. 

Both stories emphasize the plight of patients who are covered under separate medical and pharmacy benefit plans.  Pharmacy plans in particular may have very high copayments, without annual limits.  Patients with expensive drug needs for diseases such as multiple sclerosis are especially hard hit by these benefit structures.

As I ruminated on this delay, it occurred to me that the problem of the plans' inability to communicate with one another is the plan's problem, not the patient's.  To say the least, it does seem rather unfair to have patients bear all of the costs of the delay. 

Moreover, there is a model that could have been used to implement the single limit:  submission of claims for out-of-network care.  Patients do this all the time and receive reimbursement to the extent covered by their plans.  The payer has a record of the claim and can credit it against the patient's deductible.  Why couldn't this model have been applied to the problem of multiple plans for patients?  It would be simple.  These are primarily patients with employer-provided plans.  All that would be needed would be to stipulate which plan is primary for the purpose of maintaining the single out of pocket total.  Medical plans are used to maintaining such totals. If the medical plan were stipulated to be the primary plan, all the patient would need to do would be to submit records of out of pocket payments under their pharmacy plans.  When patients meet the out of pocket total for the year, they would no longer be responsible for copays or deductibles from the primary plan.  How would other plans know about this?  Patients will receive records from their primary plans that they have met their deductible for the year.  They would then be responsible for submitting these records to their other plans--after which the other plans would no longer be able to charge copays or deductibles.

This approach, to be sure, puts the burden on patients to solve the communication problem.  But I'm surprised notbody seems to have entertained this suggestion, in a health care climate that heralds patient responsibility.  Perhaps the difficulty instead is that the multiple-plan structure emerged as a way to limit health care costs for payers by shifting costs to consumers.

[LPF]

Our Not-So-Exceptional System of Employer-Sponsored Health Insurance

In yesterday's New York Times, Ross Douthat joined the chorus that criticizes employer-sponsored health care insurance. According to Douthat, this "unsustainable relic" is a "burden on businesses, a source of perverse incentives for the health care market and an obstacle to more efficient, affordable and universal coverage."

In fact, the United States is not unusual in the extent to which it relies on companies to fund health care coverage. Indeed, employers in France, Germany and Japan shoulder a higher percentage of their countries' national health spending than do U.S. employers. Government-run systems must find sources of funding for their programs, and employers are an obvious place to look.

To be sure, there are problems with employer-sponsored coverage, but the Affordable Care Act (ACA) takes care of a very important one. Employer-sponsored coverage has promoted "job lock" in the United States. Many would-be entrepreneurs have been reluctant to start their own companies because they would lose their employer-sponsored coverage and have to pay for insurance out of their own pocket. For people with pre-existing medical conditions, insurance might not be available. Under ACA, the new entrepreneur will be able to find an affordable health care plan on an insurance exchange.

The abandonment of employer-sponsored coverage would reduce the burden on businesses only if health care costs overall were lower under the replacement system. Many health care policy experts observe that costs are lower in government-run systems overseas because the governments can exercise greater negotiating leverage with doctors and hospitals than can insurance companies in the United States. In short, the high cost of U.S. health care and its burden on business seems to be not so much a problem of relying on employers rather than individuals to purchase coverage but a problem of relying on private insurers rather than government to operate the system.

[DO]