Photograph of a Medicare for All rally

Medicare-for-All Wouldn’t be Medicare if it Eliminated Private Insurance

By Robert Field

Should Medicare-for-All replace private insurance? That question, although central to many current health reform debates, presents a fundamental contradiction. If Medicare-for-All were to eliminate private coverage, it wouldn’t be Medicare, which has made room for private insurers from the start.

Medicare could have been designed as a pure single payer with comprehensive coverage for all health care needs. However, that approach would have risked alienating several important constituencies, including the insurance industry, and provoking their opposition. Before the program was enacted, private Insurers enjoyed a sizeable market through which they sold coverage of some sort to about half the nation’s elderly. Medicare eliminated that market but created an attractive new one to replace it. It did this by enabling insurers to sell Medigap policies that filled some of the program’s most significant coverage gaps, such as coverage for vision and dental care, and that reduced or eliminated its sizeable copayments and deductibles. When the program launched, more than 80 percent of beneficiaries who had previously maintained private coverage purchased these new supplemental policies. Medicare also gave some insurers the chance to earn additional revenue by administering claims as carriers and intermediaries.

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Fazal Khan on ‘The Week in Health Law’ Podcast

By Nicolas Terry

This episode was recorded at the annual meeting of the Southeastern Association of Law Schools during a panel reviewing the year in healthcare financing. This episode features a talk by Professor Fazal Khan who teaches Health Law & Policy, Bioethics, Public Health Law and International Products Liability at the University of Georgia School of Law. His current research focuses on several major themes: reform of the American health care system, the effect of globalization on health care, and the challenge of regulating emerging biotechnologies. His talk was on the financing of telemedicine and the slow alignment of the technologies with health care value and other models.

The Week in Health Law Podcast from Nicolas Terry is a commuting-length discussion about some of the more thorny issues in health law and policy. Subscribe at Apple Podcasts or Google Play, listen at Stitcher Radio, Spotify, Tunein or Podbean.

Show notes and more are at TWIHL.com. If you have comments, an idea for a show or a topic to discuss you can find me on Twitter @nicolasterry and @WeekInHealthLaw.

Subscribe to TWIHL here!

Photograph of commercial fishing vessels

How Thailand’s Fishing Industry and Your Tuna Melt Are Linked to Human Trafficking

By Stephen Wood

I used to be averse to mayonnaise and I am still am for its use a a condiment or in dishes like coleslaw or potato salad. My grandmother made our potato salad with oil and vinegar and lots of garlic and our coleslaw was vinegar-based too. I would tell friends that I was allergic to mayonnaise so that they wouldn’t slather it on my bologna sandwich or make me eat chicken salad. I’m not sure why this is the case; mayonnaise is made form stuff I like — eggs, salt, and vinegar — and when homemade can be really delicious. It’s just weird. But something changed that. I wanted to eat tuna. Not the blue or yellow-fin tuna that you grill as a steak or to enjoy as sushi, but canned tuna. This transition happened when I moved out of my families home and into an apartment. I was working and living on my own and soon realized I needed to eat on the cheap. I wasn’t used to eating on the cheap. I like lobster, escargot, flank steaks, and good wine. But I was broke and on a budget so I decided that I was going to brave it and eat canned tuna. With mayonnaise. I perfected a recipe. It has tuna, mayo, celery, onion, cumin seeds, and salt. It’s topped with shredded cheese and toasted and it is delicious. I’ve overcome my aversion to mayonnaise for this one thing, and also occasionally deviled eggs. But there is a problem.

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Illustration of a pill with a sensor embedded

Ethical and legal issues of ingestible electronic sensors

This post originally appeared in Device and Materials Engineering. You can read it here.

By Sara Gerke & I. Glenn Cohen

In our new paper, we discuss the ethical challenges of ingestible electronics sensors (IESs; also called “smart pills”) and examine the legal regulation of such sensors in the United States and Europe.

IESs are increasingly being developed for improving health outcomes. One such use could facilitate monitoring and promoting medication adherence. Once swallowed, an IES connects with a wearable sensor that can detect and record valuable data, including behavioral and physiological metrics or the time of drug intake. The wearable sensor subsequently sends the collected data to a computing device (e.g., a smartphone) that processes and displays the information. There is also the option to link the display function with a cloud database for data sharing with the patient’s doctor or family.

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John Cogan on ‘The Week in Health Law’ Podcast

By Nicolas Terry

Recorded at the 2019 annual meeting of the Southeastern Association of Law Schools during a panel reviewing the year in health care financing, this episode features a talk by Professor John Cogan from the University of Connecticut School of Law. Professor Cogan focuses his research and teaching on health care organizations and finance, health law and policy, federal health programs, health care fraud and abuse, and health insurance law. He is the co-author of a treatise on Medicare and Medicaid bankruptcy issues, as well as the author of numerous scholarly articles on a range of health insurance topics, including the Affordable Care Act and HIPAA. In this talk Professor Cogan discussed first, Medicaid: including expansion, work requirements, and the latest court decisions; second, Section 1557 and the proposed civil rights regulations; and third, the DeOtte v. Azar case and the resultant contraceptive mandate mess.

The Week in Health Law Podcast from Nicolas Terry is a commuting-length discussion about some of the more thorny issues in health law and policy. Subscribe at Apple Podcasts or Google Play, listen at Stitcher Radio, Spotify, Tunein or Podbean.

Show notes and more are at TWIHL.com. If you have comments, an idea for a show or a topic to discuss you can find me on Twitter @nicolasterry and @WeekInHealthLaw.

Subscribe to TWIHL here!

Nurse holding a patient's hand

Toward a Just and Learning Culture in the NHS

By John Tingle

NHS Resolution has several functions in the NHS (National Health Service) in England which include managing legal claims brought against NHS hospitals and other health organisations, as well as important patient safety responsibilities. They have recently published guidance on supporting a just and learning culture for staff, patients, and caregivers following incidents in the NHS.

The guidance is wide ranging and includes examples of just and learning culture development practices. Example one is a just and learning charter that NHS hospitals and other health organisations can adapt or adopt. The NHS charter provides in the first paragraph a sample introductory pledge:

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The End of Dramatic Legal Saga: French Patient Vincent Lambert has Died

By Audrey Lebret

There are few cases as publicized in France as the story of Vincent Lambert, a patient in a vegetative state whose fate deeply divided his family. On June 28, 2019, the Cour de Cassation signed the last substantial decision of the Vincent Lambert case, after six years of proceedings. The patient died on July 11, 2019.

The facts

In 2008, Vincent Lambert was involved in a traffic accident that left him in a quadriplegic state and suffering from massive brain trauma. In 2011, a medical evaluation described his state as minimally conscious. Doctors tried to establish a code of communication to which he was never responsive. Nonetheless, doctors tracked some behaviors that they interpreted as an opposition to treatments and a refusal to live (Conseil d’Etat judgement, at 20). In 2013, his doctor initiated a procedure with the agreement of Mr. Lambert’s wife in order to interrupt the treatments. That initiated a lengthy court battle.

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Monthly Round-Up: What to Read on Pharma Law and Policy

By Ameet Sarpatwari, Frazer Tessema, and Aaron S. Kesselheim

Each month, members of the Program On Regulation, Therapeutics, And Law (PORTAL) review the peer-reviewed medical literature to identify interesting empirical studies, policy analyses, and editorials on health law and policy issues relevant to current or potential future work in the Division.

Below are the abstracts/summaries for papers identified from the month of June. The selections feature topics ranging from premarket development times for biologics versus small-molecule drugs, to the characteristics of trials and regulatory pathways leading to U.S. approval of innovative vs. non-innovative drugs, to generic and brand-name thyroid hormone drug use among commercially insured and Medicaid beneficiaries. A full posting of abstracts/summaries of these articles may be found on our website.

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The NHS in England Launches a New Patient Safety Strategy

On July 2, 2019 a new National Health Service (NHS) patient safety strategy was launched in England. The strategy promises many things and lays out the future trajectory of NHS patient safety policy making.

Aidan Fowler, the NHS National Director of Patient Safety highlights the scale of the NHS patient safety problem in the foreword to the strategy:

 Too often in healthcare we have sought to blame individuals, and individuals have not felt safe to admit errors and learn from them or act to prevent recurrence…The opportunity is huge. Hogan et al’s research from 2015 suggests we may fail to save around 11,000 lives a year due to safety concerns, with older patients the most affected. The extra treatment needed following incidents may cost at least £1 billion (p3).

 

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Professor: The Law Has No Straight Answer for Our High-Tech Baby Boom

This is an excerpt of an article by Alaina Lancaster that originally appeared on Law.com. Read the full interview here. 

After thousands of dollars of in vitro fertilization treatments and nine months of pregnancy, a New York couple was forced to give up the twins they birthed. It turns out CHA Fertility Center, the Los Angeles clinic where the couple sought IVF treatment, mixed up the embryos of three patients, resulting in two of the couples having to give up children to their genetic parents. Now, those parents are suing.

Dov Fox, professor of law at the University of San Diego and the director of the school’s Center for Health Law Policy & Bioethics, said the law has not caught up with reproductive technology and victims of this type of medical malpractice aren’t left with many legal options. Yet, legal frameworks are out there, Fox said. Judges and lawmakers just might need to look outside the U.S.

Read the full interview here.