Broken, frayed net, representing a broken social safety net

Are Work Requirements Sinking as Arizona and Indiana Abandon Ship?

By Nicolas Terry

There’s an old saying, credited to Will Rogers, “If you find yourself in a hole, stop digging!” When it comes to Medicaid work requirements there has been mounting evidence that excavation cessation would be good advice for states considering this misguided attempt at social engineering. After all, work requirement waivers face unrelenting legal challenges, an obdurate CMS apparently unable to fashion a lawful waiver, mountains of bad data, and increasingly poor optics. Two weeks ago Arizona, which had yet to implement its program, jumped ship notifying CMS that it was postponing implementation. This week Indiana, which began implementation at the beginning of the year, announced a similar postponement.

According to the KFF Medicaid Waiver Tracker, CMS has approved applications from nine states for Section 1115 work requirement (or “community engagement”) waivers. Nine more are pending. Of the nine states with approvals, three (Arkansas, Kentucky, and New Hampshire) have had them overturned by D.C. Circuit Judge Boasberg. Work requirement poster state Kentucky even had a second, revised waiver overturned. Of the six other approved states, five (Arizona, Michigan, Ohio, Utah, and Wisconsin) have yet to implement their work requirements. Until this week, the sixth, Indiana, had been performing a slow and litigation-free roll out. However, with its work requirement sanctions about to get serious, a few weeks ago Indiana also found itself on Judge Boasberg’s docket.

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U.S. Supreme Court building

Health Law Cases in the Upcoming Supreme Court Term

By Alexa Richardson

The next Supreme Court term is shaping up to include a number of critical cases that will impact health law. From insurance, the Affordable Care Act, abortion access, and mental health, the decisions made this term could have significant impacts on public health moving forward. Here are some of the key health law cases upcoming this term to keep an eye on:

June Medical Services, LLC v. Gee

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Matthew Cortland on “The Week in Health Law” Podcast

By Nicolas Terry

This week’s guest is Matthew Cortland, a patient and health care rights advocate from Massachusetts. He received his graduate training in public health from Boston University and earned a J.D. from George Mason University School of Law. He is disabled and chronically ill, a superbly effective lawyer, writer, and speaker as well as a well-known health care and disability rights activist.

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Diverse crowd of adults on a bus, all using smartphones

ACCESS Act Points the Way to a Post-HIPAA World

By Adrian Gropper

The October 22 announcement starts with: “U.S. Sens. Mark R. Warner (D-VA), Josh Hawley (R-MO) and Richard Blumenthal (D-CT) will introduce the Augmenting Compatibility and Competition by Enabling Service Switching (ACCESS) Act, bipartisan legislation that will encourage market-based competition to dominant social media platforms by requiring the largest companies to make user data portable – and their services interoperable – with other platforms, and to allow users to designate a trusted third-party service to manage their privacy and account settings, if they so choose.”

Although the scope of this bill is limited to the largest of the data brokers (messaging, multimedia sharing, and social networking) that currently mediate between us as individuals, it contains groundbreaking provisions for delegation by users that is a road map to privacy regulations in general for the 21st century.

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CHICAGO, ILLINOIS, USA - JUNE 8, 2019: First ever Medicare for All rally led by Bernie Sanders held in The Loop of Chicago. Crowd holds up a sign that says "Medicare for All Saves Lives".

Sustaining the Promise of Universal Access

By David Orentlicher

Should the United States achieve universal access to health care by adopting a single-payer, Medicare-for-All kind of system? Or should we build on the Affordable Care Act (ACA) and not disrupt the health care coverage of the 160 million Americans who have private health insurance?

Both reforms rely on important arguments about affordability, feasibility, and consumer choice. But there is one key reason to favor a single-payer system over an expansion of our current system. Experience with public benefit programs in the United States tells us that such programs thrive only when they serve all Americans.

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Hand placing wood toy block on top of a tower. The blocks all have images of medical-related items on them, like pills, stethoscope, syringe

Lost in the Jungle of Patient Safety Reports, Publications and Initiatives?

By John Tingle

In terms of the progress of developing a patient safety culture in the National Health Service (NHS) in England, the Daily Telegraph reports comments made by Professor Ted Baker, the Chief Inspector of Hospitals at the Care Quality Commission (CQC) at a recent conference in London. He held the view that “little progress” has been made improving patient safety in the NHS in 20 years, and that never events such as wrong site surgery were still happening because the overall culture is one of defensiveness. The Telegraph reported, “He told The Patient Safety Learning conference that hospital managers routinely hide evidence from the CQC, because they regard the organisation as out to blame them.”

The Telegraph also mentions an NHS estimate in July that 11,000 patients a year may be dying as a result of blunders, partly as a result of a “blame game” culture between staff.

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Blurred image of a patient in critical condition in the ICU ward.

“An Act Improving Medical Decision Making:” An Argument in Favor of MA House Bill 3388 and Senate Bill 843

By Beatrice Brown

On September 10, 2019, the Joint Committee on Judiciary at the Massachusetts State House heard testimony regarding House Bill 3388 and Senate Bill 843, “An Act Improving Medical Decision Making.” The Massachusetts Medical Society (MMS) was among those testifying in favor of the act. As noted by MMS, Massachusetts is one of only five states in the U.S. that does not have a default surrogate consent statute for incapacitated patients without a health care proxy. The intent of a default surrogate consent statute is “to provide legal authority for health care decision-making through a non-judicial rule of law where no guardian or agent had been appointed.”

Without such a statute in place, this means that a patient who is incapacitated and has not declared a health care proxy must await treatment while a guardian is appointed by the courts. This may be a lengthy, time-consuming process that physically drains hospitals’ resources and emotionally drains families. By contrast, these default surrogate consent statutes establish a list of surrogates that can be appointed by physicians to make decisions in lieu of the incapacitated patient. For example, in the Massachusetts bills, the following persons are listed as candidates who may be appointed as surrogates: the person’s spouse, unless legally separated; the person’s adult child; the person’s parent; the person’s adult sibling; and any other adult who satisfies the requirement of subdivision seven of the bill which states, “The person’s surrogate shall be an adult who has exhibited special care and concern for the person, who is familiar with the person’s personal values, who is reasonably available, and who is willing to serve.” Read More

Photograph of a doctor in scrubs holding a stethoscope sitting on a hospital bed holding a patient's hand.

World Patient Safety Day

By John Tingle

The first “World Patient Safety Day” took place on September 17, 2019. It is an annual event and one of  the World Health Organization’s (WHO) officially mandated global public health days. The aim is to create awareness of patient safety and to urge people to show their commitment to making health care safer. The publicity generated by the event has worked to focus global attention on patient safety issues and is a call for action in the area.

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Nudges or Shoves in the Secondary Use of Health Data: What is the More Desirable Approach? (Part I)

By Marcelo Corrales Compagnucci, Janos Meszaros & Timo Minssen

Empirical studies in behavioral economics have demonstrated how people are biased and often make poor decisions against their best interests. This has led policy makers to promote choice-preserving approaches, a.k.a. nudges. However, there has also been an increasingly vocal group of legal scholars who are interest in asking whether mandates and bans can be more effective than nudges. As pointed out by Cass R. Sunstein and others, the rationale behind this question is very simple: If we know that people make mistakes, why should we insist on adopting approaches that preserve freedom of choice?

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New TWIHL; Too Much Information About State Health Insurance Law

By Nicolas Terry

This episode was recorded at the 2019 meeting of the Southeastern Association of Law Schools during a panel reviewing the year in healthcare financing. In this episode I take a look at state regulation of health insurance, first, from the perspective of states playing defense and shoring up their own laws in case the ACA is “disappeared” and, second, how some are playing post-ACA offense, actually seeking to improve upon the ACA baseline. The slides accompanying this talk are here.

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