Liability protection for employers in a post-pandemic world

The Washington Post has a piece on the split between GOP and Dem leadership in the US Senate over a proposed blanket immunity for employers whose employees become infected with the novel coronavirus. I am sure Dallas isn't alone in having restaurants (and other businesses?) whose owners are prohibiting the wearing of protective masks by their employees. Are they counting on the exclusive remedy under workers' comp to protect them from civil liability? I wouldn't.

A Victory for the ACA in the Supreme Court

The government suffered a loss today in its on-going battle to undo the Affordable Care Act through its "death by a thousand cuts" strategy. The case is MAINE COMMUNITY HEALTH OPTIONS v. UNITED STATES. (N.B. There is something strange and sad to say that the ACA won in the on-going war this administration has been waging to gut a law -- not a perfect law but nonetheless a transformative one that made health insurance available to millions of individuals and families formerly priced out of the system.) The issue was a fairly technical one, but it was decided on a basis that most first-year law students would grasp immediately: "shall" means "shall" and implied statutory repeals are highly disfavored. Only Justice Alito dissented, and that was on a totally separate ground: Assuming the Court was right in its statutory-interpretation analysis, it was wrong to conclude that a private right of action exists to allow insurance companies who lost money through their participation in the ACA marketplaces to sue the United States for a "bailout."

Smart comments on responding to the coronavirus pandemic

Words to the wise from Greg Mankiw: http://gregmankiw.blogspot.com/2020/03/thoughts-on-pandemic.html.

Covid-19 and politics

The New Yorker has a good piece online (not sure the link works for non-subscribers). I'd forgotten that VP Pence told Anthony Fauci on Friday that he needed to withdraw from his scheduled appearances on all five of the Sunday t.v. news programs. Wouldn't want the science of the coronavirus to get out ahead of the political posturing, eh, Mike?

Our patchwork "system" of health care

Here are the first three headlines from today's Becker's CFO Report:

1. CHS to end inpatient care at 2 Florida hospitals Full story
2. Texas health system files for bankruptcy, owes BCBS $29M  Full story
3. Children's Hospital of Philadelphia pumps $3.4B into expansion  Full story

Good summary of the ACA case now officially before the Supreme Court

From The New York Times

SCOTUS to review 5th Circuit's bizarro-world decision in the ACA case

From SCOTUSBlog:

California v. Texas
Docket No. 19-840

Issues: (1) Whether the individual and state plaintiffs in this case have established Article III standing to challenge the minimum-coverage provision in Section 5000A(a) of the Patient Protection and Affordable Care Act (ACA); (2) whether reducing the amount specified in Section 5000A(c) to zero rendered the minimum-coverage provision unconstitutional; and (3) if so, whether the minimum-coverage provision is severable from the rest of the ACA.

WaPo: The health care industry is letting surgeons behave like muggers

And we patients are expected to negotiate with them? Read on.

It’s not only surgeons, of course, but this Washington Post story lays out the problem pretty clearly. Surprise billing can happen whenever a cross-covering physician is out-of-network. A colleague checked before scheduling spine surgery to make sure the scheduled anesthesiologist was in-network. Absolutely, the office manager replied. Not so much the day of surgery, when a different — out-of-network — anesthesiologist was substituted in at the last minute. That’s how a $1500 bill became a $15,000 one.

There is only word for a fractured health care “system” this unresponsive to the needs of patients and the requirements of contract law: broken.

20 Democratic-led states ask SCOTUS to review the 5th Circuit's ACA opinion

The Washington Post was one of the first on this story, but there will be dozens more before the day is over. I'll track the best of the opinion pieces in future posts.

There's every reason to think the Supreme Court will decline the request: the decision wasn't final (there was a remand back to Dist. J. Reed O'Connor to reconsider the severability issue), there's no circuit conflict, and it would be a huge partisan issue during a presidential election year. On the other hand, four justices can grant review, so the five conservatives can't stop four more moderate-to-liberal justices from accepting review. Even if that happens, there are a number of obstacles between the grant and an opinion on the merits, including a DIG (dismissal as improvidently granted). Stay tuned . . .

Link to Professor Bagley‘s commentary on Fifth Circuit ACA opinion

His NEJM argument is laid out in The Atlantic: https://www.theatlantic.com/ideas/archive/2019/12/affordable-care-acts-unconstitutional-flaw/603871/.

More on the Fifth Circuit’s partisan hatchet job in the ACA case

University of Michigan’s Nicholas Bagley does a fine job of shredding the logic of the court’s opinion in an article posted online today by the New England Journal of Medicine. Good luck getting a copy if you're not a subscriber and don't have access through an institutional library. Try Googling; you might find a version online.

2019 - Going, going, gone . . .

It's been a while since I posted to this blog, but 2019 shouldn't come and go without some recognition of a few developments of note, not only for the year just ending but for 2020 (and beyond?).

First, on Dec. 18 (revised Dec. 20) the Fifth Circuit decided that the ACA's individual mandate was unconstitutional because, once Congress repealed the tax/penalty the mandate lost its constitutional footing. It's a mechanistic (which is to say either naive or political, and "naive" isn't a word lightly to be applied to these judges) performance. The court's reason tracks that of District Judge Reed O'Connor in his December 2018 opinion (which was roundly and soundly criticized): The Supreme Court's 2012 decision upholding the ACA for the most part (with the major exception of the Medicaid expansion provision) held that the Taxing Clause provided the necessary constitutional hook for the individual mandate. Take away the tax/penalty and you take away that hook, as Congress did in 2017 (Pub. L. No. 115-97, § 11081, 131 Stat. 2054, 2092 (2017); see also 26 U.S.C. § 5000A(c)), eff. January 2019. In the view of the Fifth Circuit majority, once there's no tax involved, the mandate is an act of pure coercion, to which the court takes objection. As Nick Bagley at Michigan has argued (see my next post), it's hard to see how taking away the tax/penalty makes the mandate more coercive than it was with the mandate (which the Supreme Court upheld in 2012).

Second, the Fifth Circuit's opinion (above) is notable for what it didn't do: It didn't affirm Judge O'Connor's conclusion that, because the individual mandate no longer has a constitutional basis, the entire ACA must be thrown out as well. Judge O'Connor's sweeping decision was based upon what he deemed to be the inseverability of the individual mandate from the rest of the ACA. Unfortunately, the appellate court didn't reverse Judge O'Connor on this point, even though this part of Judge O'Connor's opinion is worse than his analysis of the mandate question; rather, it merely remanded the case back to the judge for reconsideration. Katie Keith has a nice summary of the implications of this decision in Health Affairs.

Third, on the Medicaid expansion front, four more states came aboard in 2019 (more or less -- political and legal prospects are not crystal clear). This leaves 14 states that haven't adopted the expansion, leaving billions of federal dollars on the table that could be paying for low-income health care.

Fourth, litigation and growing uncertainty surround the formerly settled concept of "brain death." Thad Pope does a good job of following the developments over on the Medical Futility Blog.

Fifth, the Supreme Court will hear oral argument on March 4, 2020, in two abortion cases. This is from SCOTUSBlog:

June Medical Services LLC v. Gee, No. 18-1323 [Arg: 3.4.2020] Issue(s): Whether the U.S. Court of Appeals for the 5th Circuit’s decision upholding Louisiana’s law requiring physicians who perform abortions to have admitting privileges at a local hospital conflicts with the Supreme Court’s binding precedent in Whole Woman’s Health v. Hellerstedt.

Gee v. June Medical Services, LLC, No. 18-1460 [Arg: 3.4.2020] Issue(s): (1) Whether abortion providers can be presumed to have third-party standing to challenge health and safety regulations on behalf of their patients absent a “close” relationship with their patients and a “hindrance” to their patients’ ability to sue on their own behalf; and (2) whether objections to prudential standing are waivable – per the U.S. Courts of Appeals for the 4th, 5th, 7th, 9th, 10th and Federal Circuits – or non-waivable per the U.S. Courts of Appeals for the D.C., 2nd, and 6th Circuits.

Physician-assisted suicide (or Aid-in-Dying) ain't easy

This is a powerful piece (reprinted with permission) from the Kaiser Family Foundation:

‘No One Is Ever Really Ready’: Aid-In-Dying Patient Chooses His Last Day

JoNel Aleccia, Kaiser Health News
In the end, it wasn’t easy for Aaron McQ to decide when to die.

The 50-year-old Seattle man — a former world traveler, triathlete and cyclist — learned he had leukemia five years ago, followed by an even grimmer diagnosis in 2016: a rare form of amyotrophic lateral sclerosis, or ALS.
An interior and urban designer who legally changed his given name, McQ had been in pain and physical decline for years. Then the disease threatened to shut down his ability to swallow and breathe.

“It’s like waking up every morning in quicksand,” McQ said. “It’s terrifying.”

Last fall, McQ decided to use Washington state’s 2009 Death With Dignity law to end his suffering. The practice, approved in seven states and the District of Columbia, allows people with a projected six months or less to live to obtain lethal drugs to end their lives.

Although the option was legal, actually carrying it out was difficult for McQ, who agreed to discuss his deliberations with Kaiser Health News. He said he hoped to shed light on an often secretive and misunderstood practice.

“How does anyone get their head around dying?” he said, sitting in a wheelchair in his Seattle apartment in late January.

More than 3,000 people in the U.S. have chosen such deaths since Oregon’s law was enacted in 1997, according to state reports. Even as similar statutes have expanded to more venues — including, this year, Hawaii — it has remained controversial.

California’s End of Life Option Act, which took effect in 2016, was suspended for three weeks this spring after a court challenge, leaving hundreds of dying patients briefly in limbo.

Supporters say the practice gives patients control over their own fate in the face of a terminal illness. Detractors — including religious groups, disability rights advocates and some doctors — argue that such laws could put pressure on vulnerable people and that proper palliative care can ease end-of-life suffering.

Thin and wan, with silver hair and piercing blue eyes, McQ still could have passed for the photographer’s model he once was. But McQ’s legs shook involuntarily beneath his dark jeans and his voice was hoarse with pain during a three-hour effort to tell his story.

Last November, doctors told McQ he had six months or less to live. The choice, he said, became not death over a healthy life, but a “certain outcome” now over a prolonged, painful — and “unknowable” — end.

“I’m not wanting to die,” he said. “I’m very much alive, yet I’m suffering. And I would rather have it not be a surprise.”

In late December, a friend picked up a prescription for 100 tablets of the powerful sedative secobarbital. For weeks, the bottle holding the lethal dose sat on a shelf in his kitchen.

“I was not relaxed or confident until I had it in my cupboard,” McQ said.

At the time, he intended to take the drug in late February. Or maybe mid-March. He had wanted to get past Christmas, so he didn’t ruin anyone’s holiday. Then his sister and her family came for a visit. Then there was a friend’s birthday and another friend’s wedding.

“No one is ever really ready to die,” McQ said. “There will always be a reason not to.”

Many people who opt for medical aid-in-dying are so sick that they take the drugs as soon as they can, impatiently enduring state-mandated waiting periods to obtain the prescriptions.

Data from Oregon show that the median time from first request to death is 48 days, or about seven weeks. But it has ranged from two weeks to more than 2.7 years, records show.

Neurodegenerative diseases like ALS are particularly difficult, said Dr. Lonny Shavelson, a Berkeley, Calif., physician who has supervised nearly 90 aid-in-dying deaths in that state and advised more than 600 patients since 2016.

“It’s a very complicated decision week to week,” he said. “How do you decide? When do you decide? We don’t let them make that decision alone.”

Philosophically, McQ had been a supporter of aid-in-dying for years. He was the final caregiver for his grandmother, Milly, who he said begged for death to end pain at the end of her life.

By late spring, McQ’s own struggle was worse, said Karen Robinson, McQ’s health care proxy and friend of two decades. He was admitted to home hospice care, but continued to decline. When a nurse recommended that McQ transfer to a hospice facility to control his growing pain, he decided he’d rather die at home.

“There was part of him that was hoping there were some other alternative,” Robinson said.
McQ considered several dates — and then changed his mind, partly because of the pressure that such a choice imposed.

“I don’t want to talk about it because I don’t want to feel like, now you gotta,” he said.
Along with the pain, the risk of losing the physical ability to administer the medication himself, a legal requirement, was growing.

“I talked with him about losing his window of opportunity,” said Gretchen DeRoche, a volunteer with the group End of Life Washington, who said she has supervised hundreds of aid-in-dying deaths.
Finally, McQ chose the day: April 10. Robinson came over early in the afternoon, as she had often done, to drink coffee and talk — but not about his impending death.

“There was a part of him that didn’t want it to be like this is the day,” she said.

DeRoche arrived exactly at 5:30 p.m., per McQ’s instructions. At 6 p.m., McQ took anti-nausea medication. Because the lethal drugs are so bitter, there is some chance patients won’t keep them down.

Four close friends gathered, along with Robinson. They sorted through McQ’s CDs, trying to find appropriate music.

“He put on Marianne Faithfull. She’s amazing, but, it was too much,” Robinson said. “Then he put on James Taylor for, like, 15 seconds. It was ‘You’ve Got a Friend.’ I vetoed that. I said, ‘Aaron, you cannot do that if you want us to hold it together.’”

DeRoche went into a bedroom to open the 100 capsules of 100-milligram secobarbital, one at a time, a tedious process. Then she mixed the drug with coconut water and some vodka.

Just then, McQ started to cry, DeRoche said. “I think he was just kind of mourning the loss of the life he had expected to live.”

After that, he said he was ready. McQ asked everyone but DeRoche to leave the room. She told him he could still change his mind.

“I said, as I do to everyone: ‘If you take this medication, you’re going to go to sleep and you are not going to wake up,’” she recalled.

McQ drank half the drug mixture, paused and drank water. Then he swallowed the rest.
His friends returned, but remained silent.

“They just all gathered around him, each one touching him,” DeRoche said.
Very quickly, just before 7:30 p.m., it was over.

“It was just like one fluid motion,” DeRoche said. “He drank the medication, he went to sleep and he died in six minutes. I think we were all a little surprised he was gone that fast.”

The friends stayed until a funeral home worker arrived.

“Once we got him into the vehicle, she asked, ‘What kind of music does he like?’” Robinson recalled. “It was just such a sweet, human thing for her to say. He was driving away, listening to jazz.”

McQ’s friends gathered June 30 in Seattle for a “happy memories celebration” of his life, Robinson said. She and a few others kayaked out into Lake Washington and left McQ’s ashes in the water, along with rose petals.

In the months since her friend’s death, Robinson has reflected on McQ’s decision to die. It was probably what he expected, she said, but not anything that he desired.

“It’s really tough to be alive and then not be alive because of your choice,” she said.

“If he had his wish, he would have died in his sleep.”

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.

Billion-dollar Medicare fraud case in Miami on the ropes

. . . for prosecutorial misconduct. However this case turns out, both sides have issues for the inevitable appeal.

https://www.miamiherald.com/news/local/article216589740.html

First: smoke and mirrors. Followed by: pure bunkum.

The Trump administrations recent rulemaking for "association health plans" -- which allow small businesses and others to band together and purchase health plans -- has scored a rare hat trick:

First, the rules disappointed even some of its most ardent supporters by imposing limits that will increase employers' costs for too little in return.

Second, despite the administration's claim that AHPs will provide drastically improved coverage for far less cost than "the failed Obamacare, the exact opposite is true and always has been. The Democrats correctly label the AHPs "junk" that workers will find offers skimpy-to-no coverage for premiums that have been poured down the drain. This is precisely the problem that the ACA's minimum health benefits were intended to cure.

Third, President Trump is now hailing the AHP rule a raging success. At an Iowa roundtable with his HHS secreatry, Alex Acosta, the president had this to say:

“Alex, I hear it’s like record business that they’re doing,” Trump said of the plans, which aren't available for another five weeks. “We just opened about two months ago and I’m hearing that the numbers are incredible -- the numbers of people getting really, really good healthcare instead of Obamacare, which is a disaster.”

Sounds good, eh? The only glitch is that the plans won't be available for purchase until September. If there are "incredible" numbers in July, imagine how huge the sales will be when the plans actually become available in September.

Why is this man smiling?

The U. S. House of Representatives has once again voted against the ACA's tax on medical device manufacturers, after two previous postponements in assessing and collecting the tax, which was an important source of funding for the various subsidies in the ACA that needed to be financed. Repeal of the tax, which would take passage in the Senate and a presidential signature -- both seemingly likely with GOP control -- would be one more nail in the coffin of the ACA. Making matters worse, repeal of the tax has bipartisan support, thanks in large part to the industry's massive lobbying efforts since 2010. What is it that motivates legislators -- usually Republicans, but occasionally Dems as well -- to despise a law that has made health insurance (and thus health care) available to millions of fellow citizens who previously had none?

Lots of us who supported the ACA nearly a decade ago knew no law would be perfect. We also knew that experience with the consequences -- intended and otherwise -- would require near-constant revision. When it comes to health reform, there's no such thing as "one and done." But what is it about the poorest 10+% of the population getting health care that drives lawmakers from "fix it" to "kill it"? From a cost-benefit perspective, which should appeal to business-oriented (and -financed) legislators, our health care system ranks behind that of every other developed country in the world. Our administrative costs are many multiples of those of other nations. "Private profit above public welfare" is an old story, but when the result is avoidable morbidity and premature death for neighbors, we need a new narrative. The ACA was a step in the right direction, but try telling that to the political right!

When futility itself is futile

Medical futility represents a judgment that further treatment would not provide a benefit to the patient. (Set aside for present purposes the definitional and epistemological difficulties that sentence embodies.) Does futility itself have a limit, beyond which the judgment ceases to provide a benefit to the patient, family, even care providers? The authors of a recent article in the Journal of Medical Ethics argue that the Charlie Gard case is an example of just such a limit. https://jme.bmj.com/content/44/7/438.info

Johnson & Johnson mega-verdict

From Bloomberg Legal News:
     "Johnson & Johnson should ready itself for a flood of new lawsuits after a jury ordered the company to pay $4.69 billion to 22 women who blamed their ovarian cancer on asbestos in its talc products, legal experts say.

     "There are already more than 9,000 suits claiming talc-based baby powder causes ovarian and asbestos-specific cancers. That number is likely to jump in the wake of the Missouri jury’s decision, said Elizabeth Chamblee Burch, a University of Georgia law professor who teaches about mass-tort law.

     “'The floodgates were already open on this issue, but this verdict breaks the dam,' Burch said. Bloomberg News has the story."

Brett Kavanaugh is, by all accounts, a splendid fellow, as well as a well-credentialed appellate judge who -- in addition to being quite conservative -- is widely admired by his peers.


Some Democrats, still seething at the shabby treatment Chief Judge Merrick Garland (Chief Judge, mind you, of the same court upon which Judge Kavanaugh sits), are apparently inclined to vote against confirming Judge Kavanaugh on a sort of sauce-for-the-goose theory. CJ Garland is, if anything, even more experienced in all manner of government lawyering than is Judge Kavanaugh, and Leader McConnell's justification for denying President Obama his appointment barely passed the smile test (and wasn't much better when, years earlier, it had been proposed by Sens. Schumer and Biden). If the Democrats vote against Kavanaugh on this basis, it would be for a primarily institutional reason, not necessarily on the merits of the nominee. (Although it would be hard to argue that misgivings about Kavanaugh as a Supreme Court Justice would be irrelevant to such a vote.)

On the merits, though, opponents have been kicking up all kinds of dust. Kavanaugh, Trump, and Trump's press office insist that Roe v. Wade wasn't discussed before the nomination. Cynics might say that it didn't need to be in order for the president to know what he was getting. Maybe. Kavanaugh was one of 13 authors of a massive tome entitled The Law of Judicial Precedent in 2016, and by most accounts in that treatise, standard principles of stare decisis seem to support retention of the Roe precedent (at least as modified by the Webster case).

The argument I don't quite get is that Kavanaugh should be denied a seat on the Court because he would probably be an enemy of the Affordable Care Act. This argument seems to be based on a serious misreading of his dissent in the case that upheld the ACA in his court while a similar case was on its way to the Supreme Court, which also upheld the ACA the next year.

Two things are worthy of note: (1) His dissent was based upon the Anti-Injunction Act, which denies the federal courts jurisdiction to issue an order enjoining the assessment or collection of a tax. Challenges to a tax,  as a result, can only be brought after the tax has been paid. And in the case of the ACA, nobody had been assessed a penalty by the IRS for violating the individual mandate. (2) In the same opinion, Kavanaugh pointed out that if the penalty (which the Obama administration tried to sell to Congress as "not a tax") were re-enacted as a tax, it would have fallen comfortably within Congress's taxing and spending powers. In fact, that is precisely how Chief Justice Roberts managed the next year to uphold the individual mandate. Without waiting for Congress to re-enact anything, Roberts characterized the "penalty" (the actual term in the ACA) as a "tax" and upheld the constitutionality of the individual mandate on that basis. Far from being a foe, it is possible that Kavanaugh was instead throwing out a lifeline to the Court to save one of the most contentious (and probably the most reviled) provision of the ACA. [Postscript: The Washington Post's Colby Itkowitz and others agree with me on this.)

We will hear much about Judge Kavanaugh's record in the months that follow his nomination. The emerging picture is of a judge who supports executive power and frequently opposes what he regards as administrative agencies' "overreach." Both of these strands of his judicial philosophy (and, more broadly, of his theory of government) might lead him to be skeptical of Obama-era healthcare regulations and to be more favorably inclined toward Executive Orders that seek to cut back on key aspects of that law's implementation. EOs have turned out to be one of President Trump's favorite actions (despite his criticism during the 2016 campaign of Pres. Obama's use of EOs). His ACA-limiting EOs include Nos. 13765 and 13813.

If this is what opposition to Judge Kavanaugh comes down to, he should be confirmed. He's conservative, yes. And yes, he probably wouldn't have voted with the Roe majority in 1973 (which is not the same as saying he would vote to overrule it in 2018 or later). But he's getting a bum rap on his ACA vote. He's also superbly qualified in terms of education and experience.

And elections have consequences. The Republicans have the White House and Congress. If they want to solidify a conservative majority on the Court, one judicial appointment at a time, they can do that.

Hoping to visit this blog more than once every four years!

Just checking in. I am thinking about reactivating this site, now that I am teaching Health Law, Public Health Law & Ethics, and Bioethics on a somewhat regular basis.