WSJ: Health policy caps mean catastrophic coverage may not be there when needed

Yesterday's WSJ ran a story that highlights the plight of the insured middle-class in this country: It's possible to max out a health policy with a $1.5 million cap in the metaphorical blink of an eye. The story is here (though it may require a paid subscription to read it).

When hospice patients don't die quickly enough, Medicare comes knocking

Some years ago, the Medicare program proposed to recoup hospice payments if a patient didn't die within 6 months, which was the probable life-expectancy that a physician had to certify for a patient to receive the Medicare hospice benefit. As I recall, that proposal was met with howls of protest and dropped.

What Medicare couldn't do directly, however, it is now doing indirectly, as described in an article in today's New York Times. With an annual cap on total hospice payments ($21,470 [slightly less than six months of daily payments of $135] x the total number of hospice patients served in a year), Medicare can recoup "excess" payments from any hospice that received reimbursement from the program above the annual cap. In some cases, the amount of recoupment is in the high six figures. The hardship on hospice programs is palpable -- most don't have the kind of profit margins that allow them to pay back to Medicare a year or more after the money has been spent on salaries, supplies, and other overhead.

Part of the problem for some hospices may be bad patient mix (i.e., not enough terminal cancer patients with more predictably short life expectancies), and there may be management issues, as well. But shouldn't there be a better solution to this problem than penalizing hospices whose patients don't die fast enough to satisfy federal regulations? As one physician is quoted in the article, "Doing this for 40-something years, every time I think somebody is going to die tomorrow, damned if they don’t live for a year and a half." Do we really want to have a federal policy that regards that result as a failure?

Krugman: Health Care Excuses

Okay, I know he's a liberal (Exh. 1: "The Conscience of a Liberal"), and so am I, so there are times when I suppose Paul Krugman's arguments seem irresistible when they're not. But today's column strikes me as just plain common-sensical.

Krugman offers up four common excuses often used to argue against health reform and then refutes them. It is worth a read. Here are the excuses:

• Excuse No. 1: No insurance, no problem.


• Excuse No. 2: It’s the cheeseburgers.


• Excuse No. 3: 2007 is better than 1950.


• Excuse No. 4: Socialized medicine! Socialized medicine!

And, by the way, a big shout out to the managers at The New York Times who have stopped putting the good stuff where only subscribers could get to it. I don't know what their new business plan is, or how they can afford it, but I am grateful for total Web access (i.e., the same as The Washington Post). As a subscriber, I've always had it, but as a blogger it was frustrating not being able to share so much as a link. Those days are now blissfully over!

Insurer misconduct alleged in California

From today's Modern Healthcare:

Calif. insurance chief probes report of cancellations

California’s insurance commissioner is investigating a report that Health Net rewarded an analyst more than $20,000 in bonuses tied to canceling individual health insurance policies, thereby saving the company millions in medical expenses.

“We certainly view this as a serious breach,” said Byron Tucker, spokesman for state Insurance Commissioner Steve Poizner.

The Los Angeles Times reported that Health Net revoked 1,600 policies between 2000 and 2005, saving the Woodland Hills, Calif.-based insurer $35.5 million in medical payments. The company set policy rescission targets, which the senior analyst in charge of cancellations regularly exceeded, earning her praise and monetary rewards, according to the newspaper.

Tying compensation of claims reviewers to their actions is illegal under state law.

“The characterization of our compensation programs is inaccurate and misleading,” Health Net said in a written statement.

The bonuses were disclosed during an arbitration hearing on a $6 million lawsuit brought by a 51-year-old hairdresser from the Los Angeles area whose Health Net policy was revoked during her chemotherapy treatments for breast cancer. The Times’ lawyers intervened to have the documents unsealed, according to the newspaper.

Here's a link to the LA Times article that broke the story. The picture quality is pretty bad, but you can see from copies of the insurance analyst's performance review (above) that she was being evaluated, at least in part, on the basis of the number of rescissions she produced and the corresponding contribution she made to the company's bottom line.

Deputies seize baby to test blood against parents' will

Deputies seize baby to test blood against parents' will - Associated Press -- Here's a nicely framed conflict between public health laws designed to protect newborns vs. parental religious beliefs, in state (Neb.) that doesn't provide a religious exemption for newborn testing. Absent a First Amendment claim (which would fail), the only constitutional argument would be a claimed infringement of the parent's liberty interest in violation of the due process clause . . . rational basis review . . . slam dunk for the county. This falls into the same class of cases involving Jehovah's Witness minors in need of a blood transfusion.

Iglehart on the House's failure to override Bush's SCHIP veto

John Iglehart, the founding editor of Health Affairs and national corespondent for the New England Journal of Medicine, posted his instant analysis [may require paid subscription] of the House's failure on Thursday to override the President's veto of the SCHIP reauthorization bill, HR 976. Iglehart's provides an excellent overview of the controversy and connects this contretemps to "the larger issue of what level of public support uninsured people deserve as our employer-based insurance system continues to erode." Excellent read.

Federeal employees' health plan not much of a model for reform

There's a good analysis of the Federal Employees Health Benefits Plan (FEHBP) by Reed Abelson in The New York Times today. Various presidential candidates are talking about the FEHBP in their stump speeches, suggesting that this country's 47 million uninsured could be covered by the same plan that covers their elected representatives. Bottom line: There's really nothing about the FEHBP that would either materially improve the uninsureds' access to health insurance or help to rein in costs. It's a private-insurance system with insurers competing for business. Underwriting, including favorable selection, and generous benefits largely replicate the problems the rest of us experience in our own private, employment-based system, and expanding FEHBP to 8 times more individuals than it currently covers would require changes in the program that would render it "FEHBP" in name only.

Major-party presidential candidates on health reform

This summary is not available. Please click here to view the post.

SCHIP

Here's a news post courtesy of FDLI's SmartBrief:

White House to face state SCHIP lawsuits -- New Jersey was the first of several states expected to file lawsuits against the Bush administration over rules set in August that limit state coverage of children's health insurance to exclude children in middle-income families. Arizona, California, Illinois, Maryland, New Hampshire, New York and Washington also say they plan to file or support lawsuits challenging the rules, claiming that the income limits set by the administration breach federal government authority on SCHIP and make it more difficult for them to provide coverage for children. "Our chief goal with SCHIP is to ensure that the poorest kids and those with no health insurance are placed at the front of the line," a CMS spokesman countered. Courier-Post (Camden-Cherry Hill, N.J.) (10/2), The Washington Post (10/2), Forbes/Associated Press (10/1).

Interesting development, this. This issue of whether higher eligibility cutoffs for SCHIP will put on the federal dole middle-class kids who would otherwise be covered by private insurance is at the heart of the White House's veto of the new SCHIP authorization bill (H.R. 976), too. Terence Hunt is reporting (AP/Washington Post) this afternoon that Pres. Bush has announced his intention to veto the SCHIP reauthorization bill on Wednesday, and that there will be no ceremony for the television cameras. Too bad: I was hoping to be able to post the YouTube video of the veto ceremony. Guess I'll have to go with something else . . . .

Sen. Susan Collins (R-Me.)

FDA's oversight of human-subject research: slim to none

That's the bottom line of a report from the Inspector General of DHHS, according to an article in the New York Times. The IG's report (pdf), and a news release (pdf) about its conclusions, were released today. In his typically media-friendly way, Art Caplan colorfully summarized the report's conclusions this way: "In many ways, rats and mice get greater protection as research subjects in the United States than do humans."

Health Lawyers Weekly, September 14

Crowell & Moring partner Art Lerner and counsel Michael Paddock have an analysis of the FTC's recent Evanston Northwestern Healthcare Corp. decision in this week's Health Lawyers Weekly from the AHLA. The decision, in which the Commission held that Evanston's acquisition of Highland Park Hospital violated Section 7 of the Clayton Act but declined to order divestiture, was a rare if not unprecedented response for the FTC.

Other items of note from this week's issue:

Top Stories

• CMS Denies New York’s Plan For Expanding SCHIP, Opposition To New Policy Mounts
• Aventis Pays Over $190 Million To Settle FCA Claims Alleging Fraudulent Drug Pricing And Marketing Practices

Current Topics include Antitrust, Business Transactions, Fraud and Abuse, Healthcare Access, Healthcare Spending, Hospitals and Health Systems, Insurance, Managed Care, Medical Malpractice, Medicare, Physicians, and Tax.

Vatican reaffirms stance on obligatory nature of ANH

"The administration of food and water even by artificial means is, in principle, an ordinary and proportionate means of preserving life. It is therefore obligatory to the extent to which, and for as long as, it is shown to accomplish its proper finality, which is the hydration and nourishment of the patient. In this way suffering and death by starvation and dehydration are prevented." And ANH is just as ordinary and proportionate, and therefore just as mandatory, when the patient is in a permanent vegetative state.

This is from the recently posted "Responses to Certain Questions of the United States Confernce of Catholic Bishops Concerning Artificial Nutrition and Hydration," issues by the Congregation for the Doctrine of the Faith and, as if it needed to be said, "The Supreme Pontiff Benedict XVI, at the Audience granted to the undersigned Cardinal Prefect of the Congregation for the Doctrine of the Faith, approved these Responses, adopted in the Ordinary Session of the Congregation, and ordered their publication." The English translation is here, and the official commentary is here.

The big questions now are what will be the effect of these statements on health care decisions by Catholics and on the policies of Catholic healthcare institutions.

Insuring the uninsured: the right thing to do, but what's in it for me?

Today's New York Times has an article on the new round of health-care reform proposals that are being advanced by various presidential candidates. On the dim prospects for any of the proposals to extend coverage to the uninsured and improve coverage for the underinsured, the article makes the following point:

In short, altruism has its limits, as does the public’s appetite for trade-offs in their own lives for the sake of the uninsured, said Bill McInturff, a Republican pollster who worked for the insurance industry in 1993 and 1994. “Never, in my years of work, have I found someone who said, ‘I will reduce the quality of the health care I get so that all Americans can get something,’ ” he said. “Every time the debate reaches that point, it collapses.”

This time, candidates are emphasizing the benefits for people who already have insurance — lower costs for coverage, new programs to improve the quality of health care. “Everyone has to feel, at the end of the day, that they will get something,” said one Clinton adviser.

By coincidence, the September/October issue of Health Affairs offers an answer:

Expanding coverage to the forty-seven million Americans who now lack health insurance could greatly improve care for people who already are protected. Economists Mark Pauly of Wharton and José Pagán of the University of Texas-Pan American found that insured adults who live in communities with high uninsurance rates are more likely to face problems with access to care and quality than those who live in communities where more people are covered.

The link to the abstract of the Pauly-Pagan article ("Spillovers And Vulnerability: The Case Of Community Uninsurance") is here.

Drake Law School looking for health law/insurance law teacher

Faculty opening at Drake:

DRAKE LAW SCHOOL seeks applications for a tenure-track position in the area of health law, insurance law and related fields commencing in the 2008-09 academic year. We are interested in both entry-level and experienced candidates with a J.D. degree and strong academic credentials who exhibit the ability to produce excellent scholarship and become outstanding teachers. Applicants who will contribute to the diversity of the faculty are particularly encouraged to apply. Drake University is an equal opportunity employer and actively seeks applicants who reflect the diversity of the nation. No applicant shall be discriminated against on the basis of race, color, national origin, creed, religion, age, disability, sex, gender identity, sexual orientation or veteran status.

Contact: Professor Cathy Lesser Mansfield, Chair, Faculty Recruitment Committee, Drake Law School, 2507 University Ave., Des Moines, IA 50311 or e-mail: cathy.mansfield@drake.edu.

Medicare beneficiaries lag in taking advantage of covered screenings and preventive care

From the Wall Street Journal (via AHLA's Health Law Daily [link should be good for about a week]):

CMS says Medicare is spending more on prevention efforts. The Wall Street Journal (8/26, McQueen) reported, "Medicare, the federal health-insurance program for older Americans, increasingly is paying for screening tests and immunizations that previously were not covered. But the vast majority of recipients are failing to take advantage, officials say." Less than 10 percent of Medicare recipients are "getting all the screenings and immunizations recommended by public health groups," according to the CMS. And, just over "a third of recipients didn't get a free flu shot in 2005, for example, even though elderly and immune-system-compromised patients are at high risk of death from the disease." In order to reverse this trend, "Medicare officials launched a bus tour of 48 states and more than 120 cities this summer, in conjunction with local officials, hospitals and elder-care groups. The tour is expected to wrap up this week." The Journal noted, "Until now, just five percent of Medicare spending has been for preventive services, officials say. But in recent years, as medical evidence has mounted about the cost-effectiveness of preventing diseases such as flu, diabetes and heart disease instead of treating them later, the U.S. has authorized more spending on screening tests and immunization."

This caught my eye for a couple of reasons. First, it is scandalous that Medicare beneficiaries aren't getting the preventive services they need to fend off really serious and expensive health problems. Of course, the reason might be that the elderly haven't gotten the word about changes in Medicare coverage for such items. But it might also be because of other impediments such as limited transportation, the extra burden from multiplying trips to providers of different kinds to get the screenings done, etc. But at least CMS is focusing on the easiest-to-solve part of the problem by trying to do a better job of getting the word out.

Second is the statement that "medical evidence has mounted about the cost-effectiveness of preventing diseases such as flu, diabetes and heart disease instead of treating them later." This is certainly conventional wisdom, and this argument has an undeniable, intuitive appeal. But is it true?

There is evidence to support the proposition, at least within a limited time frame and for certain medical conditions and certainly for the individual who, as a result of the screening or the flu shot, didn't get sick. For example, as the New York Times reported [TimesSelect article: no link available] on January 11, 2006, in an article about diabetes prevention:

Insurers, for example, will often refuse to pay $150 for a diabetic to see a podiatrist, who can help prevent foot ailments associated with the disease. Nearly all of them, though, cover amputations, which typically cost more than $30,000.

Patients have trouble securing a reimbursement for a $75 visit to the nutritionist who counsels them on controlling their diabetes. Insurers do not balk, however, at paying $315 for a single session of dialysis, which treats one of the disease's serious complications.

But what if avoiding the life-threatening acute medical condition simply permitted a large percentage of patients to survive for a life-time of care for their chronic conditions. Isn't it at least possible that the cost savings would eventually be exceeded by the costs associated with a longer life-time of care? That seems to have been the thrust of a March 16, 1997, article in the Times [also TimesSelect (no link)]:

While studies have shown that preventive care is generally good for your health, they have also shown that it often does not save money.

The central problem is that the early detection of many diseases, like high cholesterol and H.I.V. infection, is often followed by a lifetime of costly treatments and drugs. Expensive hospitalizations may only be forestalled. So in many cases, total medical costs actually rise.

''An awful lot of preventive care has no payoff economically -- it actually costs money,'' said Uwe Reinhardt, a health economist at Princeton University. ''If the [managed care] plans are doing it, they're doing it because they think it gives them a good image. A lot of this stuff is overhyped.''

That's the message, again, from the recent essay by David Leonhardt, "Free Lunch on Health? Think Again" (NY Times, Aug. 6, 2007; TimesSelect [no link]). Leonhardt notes that Rudy Giuliani and the three leading Democratic presidential candidates (Clinton, Edwards, Obama) are all promoting the idea that

[b]y practicing preventive medicine, doctors can keep many people from getting sick in the first place. Those who do end up with a chronic illness will be closely tracked so that fewer of them develop complications. These steps will result in less illness, which in turn will require less health care. With the savings, the country can then lower its medical bills or provide health insurance for the 40-odd million people who lack it -- or maybe even both.

As Hillary Clinton recently told The Atlantic, it's possible to ''save money
and improve quality and cover everybody.''

The hitch, according to Leonhardt, is that

[n]o one really knows whether preventive medicine will save money in the long run, let alone free up the billions of dollars a year needed to help pay for universal health insurance. In fact, studies have shown that preventive care -- be it cancer screening, smoking cessation or plain old checkups -- usually ends up costing money. It makes people healthier, but it's not free.

''It's a nice thing to think, and it seems like it should be true, but I don't know of any evidence that preventive care actually saves money,'' said Jonathan Gruber, an M.I.T. economist who helped design the universal-coverage plan in Massachusetts.

This is a tough idea to swallow because better health really does seem as if it should lead to lower medical bills. Indeed, if it were somehow possible to wave a wand and turn people into thin nonsmokers who remembered to take their statins, this country's health care expenses would fall.

But any effort to promote health has its own costs. Doctors and nurses need to spend time with patients to persuade them to change their behavior. (Ever tried to get someone to stop smoking or drinking?) For a new program to work, it has to reach people who are not being helped by whatever exists now -- and who thus will be among the most difficult and expensive patients to treat. The program would also have to treat a whole lot of people who never would have gotten sick.

Jay Bhattacharya, a doctor and economist at Stanford's School of Medicine, estimates that to prevent one new case of diabetes, an antiobesity program must treat five people -- ''not cheaply,'' he says. Along the same lines, Mr. Gruber found that when retirees in California began visiting their doctor less often and filling fewer prescriptions, overall medical spending fell. People did get sick more often, but treating their illnesses was still less costly than widespread basic care -- in the form of doctors visits and drugs. Louise Russell, an economist at Rutgers, points out that programs that focus on at-risk patients cost the least, but even they are rarely free.

As Dr. Mark R. Chassin, a former New York state health commissioner, says, preventive care ''reduces costs, yes, for the individual who didn't get sick.''

"But that savings is overwhelmed by the cost of continuously treating everybody else.''

The actual savings are also not as large as might at first seem. Even if you don't develop diabetes, your lifetime medical costs won't drop to zero. You might live longer and better and yet still ultimately run up almost as big a lifetime medical bill, because you'll eventually have other problems. That would be an undeniably better outcome, but it wouldn't produce a financial windfall for society.

Certainly, there are examples of preventive care that can save money. As Mrs. Clinton has noted, Safeway and a handful of other companies have held down health costs by emphasizing prevention. (This, of course, is only over the short term.) Perhaps the best examples fall under the category of what Dr. Brent C. James calls 'do it right the first time.''

Dr. James is an executive at Intermountain Healthcare, a network of hospitals in Utah and Idaho that has saved money in recent years by reducing hospital infections and drug errors. Intermountain hospitals have also largely stopped inducing child labor for the sake of doctors' or parents' convenience. The hospital induces birth only for medical reasons -- and the number of babies that spend time in the neonatal intensive care unit has fallen.

It's this last example that holds the real key to cutting medical costs. I realize many
people will react to the notion that preventive care usually costs money by saying, ''So what? We should do it anyway.'' And we should.

But by describing it as an easy win-win solution, the presidential candidates are gliding over an important part of the issue. Preventive care saves real money only when it replaces existing care that is expensive and doesn't do much, if any, good. There are plenty of examples of such care -- from induced labor to many lumbar surgeries and cardiac stent procedures.

The problem is that the people getting this care typically don't consider it wasteful. We all like to believe that other people are the ones getting the unnecessary care. We, on the other hand, are probably not getting enough treatment.

Persuading people otherwise -- persuading them that basic care is sometimes cheaper and better -- will be difficult. Sometimes insurance plans will simply have to say no to questionable care, over the opposition of doctors' groups with a financial interest in the status quo. But it's the only way to ''save money and improve quality and cover everybody,'' as Mrs. Clinton says.

This is one of the best articles I've seen in the popular press that explores some of the variables in the "pay for increased coverage by increasing cost-effective primary and preventive care" argument. The problem is -- should we be surprised? -- much subtler and more difficult than our political candidates are making it sound.

Tax-exempt hospitals and "community benefit"

This is a bit tardy but well worth noting here and reading the underlying documents as time permits. In July the IRS issued an interim report on community benefit in the hospital industry (news release), based upon responses to its 2006 questionnaire to 500 hospitals. The Service's main finding: "The report contains preliminary findings on how hospitals, one of the largest components of the tax-exempt sector, responded to questions about how they provide community benefit and meet required standards. The IRS continues to analyze the data and work continues on assessing executive compensation paid by non-profit hospitals." As noted by Leigh Griffith, Don Stuart, and Terri Cammarano, (of Waller Lansden Dortch & Davis, LLP, Nashville, TN) in an email alert to members of the AHLA Tax and Finance Practice Group, the IRS interim report came out "shortly after the Minority Staff of the Senate Finance Committee released its discussion paper on its concerns with nonprofit hospitals." The Minority Staff discussion paper is here.

Health Lawyers Weekly, August 10

The AHLA's Health Lawyers Weekly features two articles by lawyers from Hall, Render, Killian, Heath & Lyman, P.S.C., on the IRS' publication in the July 26 Federal Register of its final rule for 403(b) plans (a/k/a tax-deferred annuity plans) and DOL's simultaneous publication of Field Assistance Bulletin 2007-02 containing guidance on how 403(b) plans can avoid compliance with ERISA.

This week's issue also has a good piece on the DC Circuit's en banc decision in the Abigail Alliance case (previously discussed here).

Top Stories

• D.C. Circuit Says Terminally Ill Do Not Have Constitutional Right To Experimental Drugs
  Terminally ill patients do not have a constitutionally protected right to assume the risk of taking experimental drugs that have passed early safety trials but have not yet been cleared by the Food and Drug Administration (FDA) as safe and effective, the D.C. Circuit held August 7 in an 8-2 ruling. Full Story
• FTC Rules Evanston-Highland Merger Anticompetitive But Declines To Order Divestiture
  In a unanimous ruling released August 6, the Federal Trade Commission (FTC) found the 2000 merger of Evanston Northwestern Healthcare Corp. (ENH) and Highland Park Hospital violated federal antitrust laws. But significantly, the Commission’s ruling, written by Chairman Deborah Platt Majoras, does not require ENH to divest its Highland Park acquisition as ordered by an agency Administrative Law Judge (ALJ) in 2005. Full Story

Articles & Analyses

• IRS Finalizes 403(b) Regulations, By Jay P. Turner, Hall, Render, Killian, Heath & Lyman, P.S.C.
• Labor Department Clarifies Application Of ERISA To 403(b) Plans, By William D. Roberts, Hall, Render, Killian, Heath & Lyman, P.S.C.

Current Topics

• Arbitration/Mediation
  Mississippi High Court Finds Family Of Deceased Nursing Home Resident Not Bound By Arbitration Provision Signed By Relative
• Criminal Law
  Tenth Circuit Affirms Prison Sentence For Physician Who Committed Healthcare Fraud
• Food and Drug Law
  1. Federal Circuit Finds Federal Patent Law Preempts D.C. Law Regulating Drug Pricing
  2. Dingell Introduces Bill Imposing User Fees On Food And Drug Imports
  3. Lawmakers Pledge Work On FDA User Fee Reauthorization Legislation Will Continue In August
  4. Grassley Questions FDA About Oversight Of Drugs Manufactured Abroad
• Fraud and Abuse
  1. Seventh Circuit Upholds Dismissal Of FCA Qui Tam Action Against Caremark Rx For Failure To Plead With Particularity
  2. Update
  3. OIG Approves Nevada, New York False Claims Acts
• Health Information
  Technology
  DHHS Releases White Paper On Creating Public-Private AHIC Successor
• Healthcare Access
  Report Recommends Policy Changes To Further Expand Health Insurance Coverage To Young Adults
• Insurance
  Regence Blue Shield Settles Lawsuit Over High Performance Network
• Long Term Care
  Equitable Abstention Doctrine Supports Dismissal Of Consumer Lawsuit Against Healthcare Facilities For Alleged Violations Of Minimum Nurse Staffing Law
• Managed Care
  New York Governor Spitzer Signs Managed Care Reform Law
• Medicaid
  Eighth Circuit Upholds Denial Of State Request For Increase In Medicaid Payments
  OIG Says New York Paid Over $17 Million In Improper SCHIP Payments
• Medicare
  1. Baucus, Grassley Introduce Bill Revamping QIO Program
  2. U.S. Court In District Of Columbia Finds Pharmacy Associations Lacked Standing To Bring Lawsuit On Behalf Of Its Member Pharmacies
• Physicians
  New York Appeals Court Upholds Physician’s License Suspension Following Conviction For Violating Anti-Kickback Statute
• PRRB
  CMS Administrator Update
• Tax
  Wisconsin High Court Finds Nonprofit Medical Center Not Entitled To Property Tax Exemption On Its Day Care Facility

© 2007 AHLA. Reprinted with permission.

NY Times editorial on why the U.S. doesn't have the world's best health system

The Times' editorial looks at the Commonwealth Fund's recent international report card that compared the U.S. with Australia, Canada, Germany, New Zealand, and the U.K. In the words of the Commonwealth Fund:

the U.S. health care system ranks last or next-to-last on five dimensions of a high performance health system: quality, access, efficiency, equity, and healthy lives. The U.S. is the only country in the study without universal health insurance coverage, partly accounting for its poor performance on access, equity, and health outcomes. The inclusion of physician survey data also shows the U.S. lagging in adoption of information technology and use of nurses to improve care coordination for the chronically ill.

Bottom line for the New York Times editorialist:

With health care emerging as a major issue in the presidential campaign and in Congress, it will be important to get beyond empty boasts that this country has “the best health care system in the world” and turn instead to fixing its very real defects. The main goal should be to reduce the huge number of uninsured, who are a major reason for our poor standing globally. But there is also plenty of room to improve our coordination of care, our use of computerized records, communications between doctors and patients, and dozens of other factors that impair the quality of care. The world’s most powerful economy should be able to provide a health care system that really is the best.

The Commonwealth Fund's report card on U.S. states (previously mentioned here) is also worth a close look.

DC Circuit (en banc) reverses panel decision in Abigail Alliance case

The much-anticipated en banc decision of the D.C. Circuit came down today. The court ruled, 8-2, that dying patients do not have a fundamental right of access to drugs that have either just completed Phase I testing or are in Phase II. The big surprise to me was that no-one on the court joined the two judges -- Chief Judge Ginsburg and Judge Rogers -- who comprised the majority in the original panel. The idea of a new fundamental right seemed far-fetched and unlikely to go anywhere, but not one of the other eight judges on the court saw the issue the same way as the dissenters? This will be a good case for my fall Health Law class -- useful overview of the drug-approval process, good discussion of fundamental-rights law, and an example (if they didn't get this in Con Law II) of how the framing of the claimed right (narrow and specific vs. broad and general) will usually dictate the outcome of the case.

Next stop: Supreme Court. What are the chances four justices will vote to grant cert.? I'll venture a guess: 5% (never say never, but this case comes very close to a zero-percenter).

• AP story
• today's en banc ruling (including Judge Rogers' dissent)
• original 3-judge panel ruling
• Lyle Denniston's same-day analysis at SCOTUSBlog

Security issues for hospitals

Scary words: "Hospital = Target"

In this week's Health Lawyers Weekly, Mark Rogers analyzes hospital-security issues in a post-9/11 world. The risk is anything but speculative, as this list demonstrates:

Several incidents since the attacks of 9/11 have highlighted this risk. Consider
the following:

• November 2002: The Federal Bureau of Investigation (FBI) issued an alert to hospitals in San Francisco, Houston, Chicago, and Washington, D.C., warning of a vague, uncorroborated terrorist threat.


• August 2004: The FBI and U.S Department of Homeland Security (DHS) issued a nationwide terrorism bulletin that al-Qaeda may attempt to attack Veterans Affairs Hospitals as an alternative to more heavily guarded U.S. military institutions. The bulletin indicated that there had been persistent reports of suspicious activity at medical facilities throughout the United States.


• November 2005: Police in London, England arrest two suspected terrorists accused of plotting a bomb attack. One of the suspected terrorists was found to have a piece of paper with the words in Arabic, “Hospital = Target.”


• April 2005: FBI and DHS investigated incidents of imposters posing as hospital accreditation surveyors. The Joint Commission sent security alerts to the 5,000 medical institutions it accredits and warned them to be on the lookout for suspicious activity.


• July 2007: Eight individuals, all of them either physicians or other medical professionals associated with Britain’s National Health Service, were taken into custody in relation to attempted car-bomb attacks in London and a car-bomb attack at Glasgow Airport in Scotland. The FBI reported that two of the suspects contacted the Philadelphia-based Educational Commission for Foreign Medical Graduates to inquire about working in the United States as physicians.

Worth reading (as is the rest of this news-filled issue) . . . .