Category: HealthLawProf Blog

New “What Ifs”: Election Questions; Ongoing ACA Litigation

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By Nicole Huberfeld

Two vaguely related thoughts on the future of the ACA.

First, when I present my co-authored Medicaid post-mortem paper forthcoming in B.U. L. Rev., I find I am frequently asked “what could a President Romney do to dismantle the ACA if he can’t repeal it?”  An incisive answer to this question was posted recently by Tim Jost over at the Health Affairs Blog.  While I generally agree with Tim that it is very hard for the President to change the law without some kind of joint action by Congress (because, of course, that’s our grand design), I feel less confident that the President can’t undermine a law by method of non-enforcement.  The President guides the priorities of the agencies responsible for enforcement of the various aspects of the law, and it would be possible to have atrophy by non-enforcement, especially for the federal spending program changes (Medicare, Medicaid expansion, funding of federally qualified health centers, family planning, etc.).  So, while I would be genuinely surprised if the law were repealed, that does not mean it could not be at least partially neutralized by other means.

Second, the big news in ongoing ACA litigation was the Court’s request for the opinion of the Solicitor General as to whether Liberty University’s challenge should be rendered moot by NFIB.  Lyle Denniston at SCOTUSblog summarized the questions thus:

The Supreme Court opened its new Term on Monday by asking the federal government to offer its views on whether the way should be cleared for new constitutional challenges to the federal health care law — including a new protest against the individual mandate that the Court had upheld last June.  The request for the government’s views came in response to a rehearing request by a religious-oriented institution, Liberty University in Lynchburg, Va.  The university’s earlier petition was simply denied in June, so it asked the Court to reconsider and wipe out a lower court ruling in order to revive the university’s religious challenges to both the individual mandate and the separate insurance coverage mandate for employers. Read More

Position Announcement: University of Georgia Law School – Medical-Legal Partnership Clinic

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The University of Georgia School of Law seeks a tenure-track assistant professor to serve as the director of a to-be-created Medical-Legal Partnership (MLP) Clinic, beginning the 2013 – 2014 academic year. Job expectations include both clinical work and the production of academic scholarship.

On the scholarship side, the director must be able to satisfy all the standards applicable to other members of the tenure-track faculty, including the production of first-rate scholarship published in major law reviews.

On the clinical side, the successful applicant will be responsible for establishing partnership(s) with medical providers in the community to house the new MLP Clinic.  The goal of the MLP Clinic is to provide legal services to underserved individuals receiving treatment from the medical provider.  Responsibilities include managing the partnership relationship, teaching the classroom component of the Clinic, and supervising student legal work in the Clinic.

Finally, the director will teach a related doctrinal course.

Applicants must possess a J.D. or equivalent law degree and must be a member of the Georgia Bar or willing to become a member as soon as practical following appointment.  Applications should include a cover letter, resume or CV, description of scholarly research agenda, existing scholarship and references.  The University of Georgia is an equal opportunity employer and strongly encourages candidates from diverse backgrounds to apply.

Contact:  Professor Erica Hashimoto, University of Georgia, School of Law, Herty Drive, Athens, GA 30602. (706) 542-5098, hashimo@uga.edu.

Medicaid Denials of Coverage for Prosthetic Devices: A Successful (for now) Challenge

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By Leslie P. Francis

A recent Utah Court of Appeals decision is very much worth calling to the attention of those interested in access to health care and in disability rights. As financial pressures on Medicaid increase, and as Medicaid plays a increasingly important role in health reform, states are likely to consider ways of restricting services in order to manage costs. Alexander v. Choate, 469 U.S. 287 (1985), has long stood for the assumption that cutbacks in Medicaid funding are very difficult to challenge as disability discrimination.  In the near future, it will be critical for advocates on behalf of people with disabilities both to challenge this assumption and to consider other ways of arguing that funding cutbacks under the Medicaid program are legally problematic.

Conley v. Department of Health, Division of Medicaid and Health Financing, 2012 Ut. App. 274 (Sept. 27, 2012), is a challenge to the denial of benefits for “speech augmentative communication devices (SACDs)” for non-pregnant Medicaid recipients over the age of 21. These are electronic speech aids used by people with conditions such as cerebral palsy who cannot make themselves heard due to motor difficulties. The ALJ hearing the case had concluded that it was reasonable for the Utah Medicaid Program to provide these devices to persons under the age of 21 and to pregnant women, but not to others qualifying for Medicaid.  The ALJ’s reasoning was that federal regulations and case law allow state Medicaid to use a “utilization control procedure” in deciding what benefits to provide. Read More

New Scholars in Residence Program – A New Pilot Program for Public Health Lawyers

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With funding from the Robert Wood Johnson Foundation, the Network for Public Health Law and the Foundation are establishing Scholars in Residence – a new pilot program for public health lawyers. The flyer for the Program is here.

Scholars in Residence is an exciting new opportunity for six public health law scholars who want to bring their expertise to the front lines of public health practice. The scholars will be affiliated with a host site such as a state, local or tribal health department for six months, including a minimum of one month on-site that may be completed during a sabbatical, a non-teaching semester or during the summer. Working with a mentor, Scholars in Residence participants will be able to shape their experience and develop a project that brings their unique expertise to a problem or issue confronting the host site. A full description of this program is available here.

Each scholar will receive a stipend of $34,000. The stipend will cover the fellowship award and all related expenses, including travel to and lodging at the host site, travel to and lodging at two required meetings – an orientation session in June 2013 and a graduation celebration in December 2013 – plus any additional direct costs incurred related to this program.

Professor Fran Miller of Boston University School of Law serves as the Faculty Lead for the Scholars in Residence program.

This pilot project will start recruiting in fall 2012 with the residency beginning in June 2013. Please contact Judy Schector for more information.

[Cross-posted from HealthLawProf Blog]

Quality Control on the Back-End via the ACA and on the Front-End via Tort Litigation

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By Vickie J. Williams

I am back after a brief hiatus for the Jewish holidays. L’Shanah Tova to all my readers who have just celebrated the Jewish New Year.

The first Monday in October is, of course, a special day for all of us legal eagles–the Supreme Court is back in session. The other significant thing about October 1 for those interested in health law is that hospitals will now be fined if too many of their Medicare patients are readmitted within 30 days of discharge due to complications. As reported by the Associated Press, this is part of the Affordable Care Act’s push to incentivize quality improvement while trying to save taxpayers money. Right now, admissions for only three medical conditions are subject to the penalty: heart attacks, heart failure and pneumonia. Penalties are held to a maximum of 1% of the hospital’s Medicare payments for now, but will rise to a maximum of 3% of Medicare payments over several years. This attempt to control quality of care on the back-end constitutes a marked contrast with the way reimbursement policy has worked over the last several decades to discourage hospitals from keeping patients in beds for “social” reasons, such as having nobody to care for them at home if they are discharged. Many Medicare hospital readmissions are due to non-compliant behavior by fragile patients with few resources to help them once they leave the hospital, something that is not really subject to the hospital’s control, and says nothing about the hospital’s quality of care for the patient. For decades, Medicare payment policy, which generally pays hospitals the same amount for caring for a patient regardless of how long he or she is in the hospital, has encouraged speedy discharges. This is touted as a way to save costs. Apparently, the new policy on payments for readmission is an acknowledgement that there is both a financial and a human cost to treating medically and socially fragile people in the express lanes of health care. It remains to be seen whether the penalties result in better quality care, or significant savings, but surely they will result in increased work for hospital social workers and discharge planners. Read More

Reporting Information about Clinical Trial Data: Passing the Torch from HHS to the FDA

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By Leslie Francis

In 2007, motivated by concerns that pharmaceutical companies were not sharing negative data about what had been learned in clinical trials, Congress established enhanced reporting requirements.

A series of articles published in January 2012 in the British Medical Journal demonstrates that data reporting remains deeply problematic, especially for industry-sponsored trials. (The articles can be found here and are very much worth reading).

A posting Sept. 26 in the Federal Register indicates that the Secretary of HHS has delegated authority to to oversee the reporting process to the FDA.  Whether this signals improved monitoring of clinical trial data submissions remains to be seen.  One can only hope.

Filing a Complaint with HHS About a HIPAA Violation: A Warning About “How (Not) To”

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By Leslie Francis

I posted in June about the fact that my social security number (and possibly other personal information) had been downloaded to an unknown site in Eastern Europe as part of a large security breach from the Utah state health department.  In connection with that breach, I have filed a complaint with the Office for Civil Rights at HHS (OCR).
I thought readers might like to know, however, that the process of complaining about a HIPAA violation to OCR is cumbersome indeed.  There are forms available on line, here.  You can open them, and fill in information, but you can’t save them.  If you close the form, you lose all the data. You also can’t file them online–you have to print them out and fax them off.  (You are helpfully told, however, to “print out a copy for your records.”)  I finally figured out that if you save the form to notepad before you fill it out, you can then email it to HHS–but this required a telephone call to the appropriate regional office of HHS.

When I pointed out to OCR that this process is not exactly user-friendly, they indicated that they are “working on it.” Imagine someone without a home computer, or a home fax machine, or a home printer, using public library computers in the effort to reach OCR about what they regard as a significant problem with their health information. Surely in a world of blue buttons and digital Medicare strategies, see Responsive Design and the New Medicare.gov, the ability to file a complaint about possible violations of health information security or confidentality should be an easier online process.

More Bad News on Electronic Health Records

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By David Orentlicher

During the debate over the Affordable Care Act, the Obama administration and other proponents of electronic health records (EHRs) cited a RAND study projecting cost-savings of $80 billion a year from EHRs. More recent data have cast doubt on those estimates. In March, for example, a study in Health Affairs found that physicians with access to electronic records were more likely to order MRI scans and other diagnostic tests. Last week, the New York Times reported that EHRs apparently lead hospitals and physicians to bill more aggressively for their services, using higher billing codes than justified by the services they provide. (For an earlier post on the disappointing impact of EHR, see here.)

[Cross-posted from HealthLawProf Blog]

Will ACA Create a Doctor Shortage–And If So, What Should We Do About It?

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By Jennifer S. Bard

Being in my native land of Connecticut reminds me that Mark Twain is famously, if inaccurately, quoted as saying that everyone talks about the weather but no one ever does anything about it.  Nowhere is this concept more true today than in the handwringing over the coming shortage of physicians following the passage of Affordable Care Act.  We hear dire predictions that the patients who now have access to health care will flood the system resulting in poor care not just for them, but for those among us who were lucky enough to already have health insurance.  The American Academy of Family Physicians has recently expressed its concern that the shortage will be made up by nurse practitioners rather than physicians.

This is a situation where the shortage, if it exists, has nothing to do with fear of law suits.  Applications to U.S. medical schools have been steadily increasing.  Moreover, the shortage isn’t of doctors in general, it is of primary care physicians.  There are still a fair number of dermatologists and plastic surgeons, but not so many physicians who provide the kind of primary and preventive care that actually improve the public’s health.

Uwe Reinhardt, the Princeton health care economist, has been following this issue closely and in a series of posts for the New York Times’ Econmix Blog has been aggressively skeptical about the existence of the shortage as well as the actions taken so far by the Federal Government to address it.  He also questions the need both for the residency system as currently structured and for the benefit to the public of subsidizing it through Medicare given what a poor job it does in producing the primary care doctors the public really needs.  Last week, he undertook an extensive analysis of medical school debt which showed that by charging students intending to be high paid specialists the same as those who might go into primary care has created a loan burden that makes it difficult for any but the most dedicated to turn away from training for the most lucrative specialty for which they can qualify. Read More

ACA Litigation – Oklahoma’s “Federalism Unit” Piles On

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By Nicole Huberfeld

We Who Follow ACA Litigation will continue to be in business.  [On September 19], Oklahoma’s Attorney General sought leave to amend the state’s original complaint regarding the individual mandate.  Now the state claims that the tax subsidies offered to those qualifying for financial assistance to obtain insurance through the exchanges are impermissible.  This amended complaint builds on an existing thread of new challenges that was promoted before NFIB was decided.  (The amended complaint also asks the court to consider the state’s nullification law, which should be struck down based on the Supremacy Clause.)  The ACA challengers that never advanced beyond district court have been seeking leave to amend their complaints with regularity.  Last week I posted about the Pacific Legal Foundation’s new strategy, which is rooted in the Orgination Clause.  (The case was also noted over at Balkinization.)

Oklahoma’s amended complaint is grounded in theories advanced by Jonathan Adler and the Cato Institute.  The argument is that tax credits to support the purchase of health insurance through qualified health plans in the exchanges are only available when the exchanges are created by the states, not the federal government.  They claim that section 1311 of the ACA only contemplated providing tax subsidies in state-run exchanges to incentivize states to create the exchanges and that the federally-established exchanges cannot offer the same tax benefit.  In testimony to Congress, they argued the problem is that the proposed IRS regulation implementing the subsidies for people from 100-400% of the FPL in the exchanges applies to both state and federally-run exchanges, not just state exchanges.  Thus, they claim that the IRS has exceeded its statutory authority.  As Tim Jost noted here, the ACA did intend to permit tax credits in federal exchanges.  I agree with Tim’s analysis and would add that the Anti-Injunction Act probably would apply to this provision; unlike the “penalty” of the individual mandate, this is actually described as a “tax.”  Also, the states are not the appropriate parties to raise this issue; individuals benefit from tax credits, individuals would need to pursue the alleged problem.

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