Medical Malpractice, the Affordable Care Act and State Provider Shield Laws: More Myth than Necessity?

Posted on May 14, 2013 by kvantassel

Given the ambitions and reach of the Affordable Care Act, confusion about its intended and inadvertent impact is inevitable. Since its enactment in 2010, the ACA has raised legitimate and less grounded concerns among various stakeholders ranging from individuals and employers facing coverage mandates to States deciding whether and how to implement the Act’s Medicaid expansions. One item has received far less attention even though it weighs heavily on any provider engaged in the clinical practice of medicine: the ACA’s impact on medical malpractice liability. The Act does little to address medical malpractice head on. Nevertheless, physicians and other providers, the states and even some members of Congress have expressed concern that the Act will increase a provider’s exposure to medical malpractice liability.

In response, the American Medical Association has drafted model legislation to shield providers from newly created malpractice claims resulting from the ACA. It would prevent malpractice claimants from using federal or state practice guidelines, quality measures, reimbursement criteria and the like to establish or define the standard of care without expert testimony. In Congress, a version of this model, H.R. 1473, was introduced in the House of Representatives in 2012, and again in April of 2013 [link: http://beta.congress.gov/bill/113th-congress/house-bill/1473/cosponsors].

In April, the governor of Georgia signed H.B. 499 [link: http://www.legis.ga.gov/legislation/en-US/display/20132014/HB/499] into law, becoming the first state to pass legislation based on the AMA model act.

This came on the heels of a Medical Association of Georgia Advocacy Brief [link: http://www.mag.org/sites/default/files/downloads/issue-brief-provider-shield2-2013.pdf] stating that the ACA’s “guidelines” concerning health care quality measures; payment adjustments; hospital value-based purchasing; and value-based payment modifiers “will raise [the medical malpractice] standard to unreasonable levels by exposing physicians to a number of new liabilities….” [Emphasis added]

It is too early to tell whether states will follow Georgia’s lead and enact similar measures. What is clear is that such “standard of care protection” or “provider liability shield” legislation raises interesting questions about the ACA’s impact on state medical malpractice law.

Continue reading →

Life Cycle of the Fight to Label Innovative Ingredients Introduced Into Consumer Products – A Suggestion for Producers of Lab Grown Meat

Posted on February 11, 2013 by kvantassel

Manufacturers assert that they have no obligation to provide consumers with notice through labeling when ingredients created through innovative technologies are introduced into consumer products designed for human consumption. On the other hand, consumers take the position that they have the right to know what ingredients are in these products, especially when ingredients are novel and the risks associated with exposure to them are unknown. Recent events suggest that this problem may be developing a life cycle that savvy manufacturers should be watching. The first in what may be a series of examples of this life cycle is the conflict over the labeling of genetically modified plant ingredients in food.

From the outset, food manufacturers using GMO ingredients have declined to provide consumers notice of GMO content. The FDA has not mandated disclosure as it takes the position that the introduction of GMO ingredients into food is not material. This lack of transparency resulted in consumer rights groups testing products for GMO use and disclosing that use to consumers. As consumers have become aware of the extensive use of GMOs in their food, a rising number have expressed the desire that these ingredients be labeled. A recent ABC poll suggests that 93% of consumers now support mandatory disclosure of GMO content on labels.

When industry ignored this consumer preference, a market was created for products that are “GMO-free.” Thus, the practice of “GMO-free” labeling was born. The growing consumer labeling movement also triggered repeated attempts to pass labeling laws. While these efforts have been unsuccessful to date, they are gaining traction – for instance, it cost industry 40 million dollars to block California’s prop 37 calling for mandatory labeling last fall. With more legislative proposals cropping up (a ballot initiative in Washington State and legislative proposals in Connecticut, Vermont, New Mexico and Missouri), a growing consumer boycott of some organic or “natural” brands owned by major food companies and a recently introduced popular mobile app by Fooducate that allows consumers to check for GMO content in a growing number of products, industry may be seeing the writing on the wall. Just this year, Ben & Jerry’s Ice Cream has decided to remove GMO ingredients from its supply chain. And the Meridian Institute, which organizes discussion of major issues, convened a meeting in Washington last month that included executives from PepsiCo, ConAgra and about 20 other major food companies, as well as Wal-Mart and advocacy groups that favor labeling. See here. Many are predicting that voluntary labeling may be right around the corner.

It appears that this life cycle of manufacturers’ refusal to disclose innovative ingredients with unknown risks and consumers’ reactive self-help measures may be repeating itself in the context of the use of nanotechnology in consumer products.

Continue reading →

Tools for Teaching the Fungal Meningitis Outbreak

Posted on October 23, 2012 by kvantassel

By Jennifer S. Bard

I’m sure many of us are talking about the contaminated steroid injections which have spread a fungal form of meningitis Exserohilum rostratum across the country. The CDC, which as is usually the case is doing an excellent job of providing clear and current information, reports that as of “October 17, 2012, a total of 47 patients have laboratory-confirmed fungal meningitis.” They offer some reassuring information—that “this form of fungal meningitis is not contagious” and some scary information—that there are 257 cases and ten deaths in 15 states and that incubation periods last up to a month.

The most recent legal news is that the pharmacy was visited earlier this week by the FDA’s criminal investigative unit and that the first law suit has already been filed in Minnesota Federal District Court by a woman who received a vaccine from the pharmacy but who does not know yet if she has meningitis. Continue reading →

This Week’s Edition of ACA Challenges

Posted on October 22, 2012 by kvantassel

By Nicole Huberfeld

Earlier this week, Jonathan Adler wrote in the National Review Online that challenges to the individual mandate were just beginning.

And today, Oklahoma’s September challenge to the ACA is making headlines. As I have described before, one of the new theories by which Jonathan Adler and the Cato Institute are seeking to thwart the ACA is by challenging the IRS rule that permits tax subsidies in exchanges created by the federal government, which Cato claims is not supported by the text of the ACA. (State exchanges are supposedly the only avenue for obtaining tax subsidies for private insurance purchases.) Oklahoma has brought this challenge to life in federal district court, and Cato’s interest in this and other challenges was apparently reiterated by Professor Adler during a Cato-organized panel on Wednesday. Continue reading →

Marijuana Initiatives in the Upcoming Election

Posted on October 22, 2012 by kvantassel

By Leslie P. Francis

In a year of a presidential election, initiatives are likely to get lost in the shuffle unless they have implications for the race at the top–as did the state efforts to ban same-sex marriage did some years ago. This election season features a number of efforts to legalize marijuana.

Several of these would legalize possession of small amounts of marijuana, whether or not for medical use. Colorado Amendment 64 is a constitutional amendment to legalize possession of less than an ounce of marijuana by state residents over the age of 21. Oregon Measure 80, the Oregon Cannabis Tax Act, would legalize growing and selling marijuana. Washington I-502 would create exceptions to state law enforcement for adults possessing less than an ounce of marijuana. Growers and sellers would be required to obtain state licenses, and sales would be taxed–with revenue going to state drug prevention programs.It would also establish a 5 nano-gram/millileter of blood limit for adults driving and a zero tolerance policy for those under 21. Continue reading →

The DOMA Petition You Should Be Following

Posted on October 22, 2012 by kvantassel

By Nicole Huberfeld

You may be thinking “DOMA? Hello, this is HEALTH LAW.” Please stick with me for a moment. The Supreme Court appears to be collecting petitions for certiorari regarding the Defense of Marriage Act, likely to determine which circuit’s decision is the best vehicle for considering the constitutionality of this federal law. One such petition results from the First Circuit’s decision in Massachusetts v. Department of Health and Human Services/Hara v. Office of Personnel Management, which held that section 3 of DOMA violated the Fifth Amendment’s Equal Protection Clause. The court reasoned that promoting marriage is not rationally related to denying federal benefits to same-sex couples, thereby avoiding the creation of a new category of suspect class. The twist is that the state of Massachusetts also claims that section 3 of DOMA, which denies federal economic benefits to same-sex couples, exceeds Congress’s Spending Clause authority and infringes the state’s 10th Amendment rights. While the First Circuit did not agree with the state on these points, it did incorporate federalism concerns into its Equal Protection Clause analysis by noting that states traditionally have defined marriage, therefore the federal government cannot protect the state of Massachusetts from its own definition of marriage by promoting heterosexual marriage. Continue reading →

Congressmen are Concerned that Meaningful Use Stage 2 is Too Weak

Posted on October 21, 2012 by kvantassel

By Leslie P. Francis

On October 4, four Republican Congressman, all with powerful positions concerning health care, wrote Secretary Sebelius urging suspension of “meaningful use” Stage 2 payments until a stronger program is in place. The Congressmen, Dave Camp (Chair of the House Ways & Means Committee), Wally Herger (Chair of the Ways & Means Subcommittee on Health), Fred Upton (Chair of the House Committee on Energy and Commerce), and Joe Pitts (Chair of the Energy & Commerce Subcommittee on Health), expressed concern that the Stage 2 regulations are too weak to insure genuine interoperability of electronic medical records. As a result, the Congressmen contended, a great deal of taxpayer money will be wasted on payments for electronic records that do little to improve care or reduce costs.

The Congressmen have a point, despite the apparant partisanship of the letter. There is a history of apparent reluctance on the part of the Office of the National Coordinator for Health Information Technology, and with it HHS, to meet head-on industry complaints about the difficulty and costs of meeting standards or industry contentions that regulation will stifle innovation. Models of technology forcing that were employed in furtherance of environmental protection appear not to have been considered by ONC and HHS. The requirement to meet Meaningful Use Stage 2 was delayed by a year, from 2013 to 2014, to allow vendors more time to develop products. As I indicated in an earlier post, ONC has decided not to develop governance rules for health IT exchanges, out of industry concern for impact on innovation. The stage 2 meaningful use requirements are not very strong, either, as the Congressmen point out. For example, core requirements are only that 50% of prescriptions be electronic, that only 50% of care referrals must be accompanied by electronic care summaries, that only 50% of patients must have access to health information (with 5% using it), and the EHR be capable of generating only one list of patients by condition. (For a handy comparison of stage 1 and stage 2 certification criteria, see here). All of these–and other–requirements are important to anticipated improvements in care to be garnered from the introduction of EHRs. For example, generation of lists of patients with a specified condition (e.g. diabetes) may be an important way to ascertain the quality of patient management across a practice. Continue reading →

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

Posted on October 21, 2012 by kvantassel

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. Continue reading →

The Limits of Advance Directives

Posted on October 21, 2012 by kvantassel

By David Orentlicher

While it is important for people to express their wishes about end-of-life care in advance, a court case in Hawaii reminds us that advance directives do not always ensure that patient’s wishes will be followed. Karen Okada wrote a living will, which the hospital ethics committee found to express a desire not to have a feeding tube in her current condition. A family member has objected, on the basis that he is acting in accordance with his authority as an appointed surrogate. Unfortunately, patients’ preferences can be frustrated by their families or their health care providers.

[Cross-posted from HealthLawProf Blog]

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

Posted on October 21, 2012 by kvantassel

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

Posted on October 17, 2012 by kvantassel

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. Continue reading →

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

Posted on October 17, 2012 by kvantassel

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

Posted on October 16, 2012 by kvantassel

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. Continue reading →

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

Posted on October 14, 2012 by kvantassel

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”

Posted on October 14, 2012 by kvantassel

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

Posted on October 7, 2012 by kvantassel

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?

Posted on October 6, 2012 by kvantassel

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. Continue reading →

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

Posted on October 5, 2012 by kvantassel

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.

Continue reading →

ONC Backs Off Rule-making For Governance of Health Information Exchange

Posted on September 25, 2012 by kvantassel

By Leslie Francis

Establishment of the infrastructure needed for the efficient, accurate, and secure exchange of health information is a crucial piece of improving care in the US. Exchange fosters the ready availability of information, reducing redundancy and hopefully improving care quality. To this end, proposals for a National Health Information Network were highly touted during the Bush Administration and continue to be supported by the Obama Administration, the Office of the National Coordinator for Health Information Technology (ONC) was established in 2004, and several federal advisory committees (the ONC Policy Committee and the ONC Standards Committee) were established by Congress in the HITECH Act in 2009. Yet progress towards health information exchange remains halting at best–some hypothesize because of resistance within the private sector itself. Recent developments at ONC are not encouraging.

Continue reading →

A Slap-Down to Libertarian Thinking in Health Care

Posted on September 18, 2012 by kvantassel

By Vickie J. Williams

On Sept. 14, the United States District Court for the Eastern District of Virginia delivered a slap-down to a case challenging Virginia’s Certificate of Public Need (COPN) law, dismissing the case on all four of the constitutional theories raised in the case.

In Colon Health Centers of America v. Hazel (Subscription required), two health care providers who wanted to offer imaging services in Virginia challenged Virginia’s COPN law, claiming it violates the Privileges or Immunities, Due Process, and Equal Protection Clauses of the Fourteenth Amendment, as well as the Dormant Commerce Clause. The plaintiffs apparently sought to turn back the clock on judicial interpretations of these provisions at least 75 years, to the time when substantive due process reigned and the market was the unfettered king of commerce (think Lochner v. New York), and courts second-guessed legislatures on economic and social policy, The plaintiffs even acknowledged in their briefing on the motion to dismiss that their challenge under the Privileges or Immunities Clause was not in accordance with settled law, which has held since 1873 (in The Slaughter-House Cases) that the right to earn a living unburdened by state police power legislation is not one of the privileges or immunities guaranteed by the Fourteenth Amendment. They simply wanted to preserve the issue for appeal.

The court, predictably and in accordance with well-settled precedent, dismissed all of these claims. But one of the interesting things that appears in the decision is the reiteration of the standard justification for Certificate of Need (CON) programs, which currently exist in 36 states. The court states that CON programs “correct the market” for expensive health-care services. We generally acknowledge that there is a need to “correct the market” in health-care through the retention of CON laws in most states by the legislatures. Yet the majority of the United States Supreme Court looked upon this idea with great suspicion in the Affordable Care Act case; failing to buy the argument that the health-care and health-insurance markets were tied together (or were a single market) and that there were major distortions in the national market that could be corrected via economic legislation under the Commerce Clause. Why the difference? Are we heading for another era where the courts impose a particular economic view of the world on elected representatives?

Continue reading →

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