Professor John Jacobi In NJ BIZ & NJ Spotlight on New Jersey Health Reform

Professor John Jacobi took part in the Council on State Public Affairs’ “New Jersey State of Health” symposium, covered by NJ BIZ and NJ Spotlight. The symposium brought together the state’s leading health policy experts to discuss and formulate responses to the challenges wrought by the implementation of the ACA.

NJ Spotlight reports that:

The discussion on the future of long-term future of healthcare followed panel discussions on the implementation of the health benefit exchange and Medicaid eligibility expansion, key features of the 2010 Affordable Care Act that are both scheduled to beginning covering more New Jersey residents on January 1, 2014.

Seton Hall health law professor John V. Jacobi noted the challenge involved in informing uninsured residents about the new options. The exchange will be an online marketplace in which uninsured people can buy coverage and learn whether they are eligible for federal subsidies.

NJ Biz notes that:

Seton Hall Law School Professor John V. Jacobi said that between Medicaid expansion and the subsidized health plans to be sold on the exchange, “there will certainly be hundreds of thousands of people covered,” among New Jersey’s nearly 1 million uninsured.

“There are several barriers to getting those people covered, and one is the information deficit,” Jacobi said. “People who are uninsured are typically very busy people who struggle to make their rent and put food on the table, and they are not engaged in the rollout of the ACA. So getting navigators and health educators and information to those people is going to be very important.”

The federal Department of Health and Human Services has allocated $1.5 million to fund navigators in New Jersey, which health care experts have said won’t be adequate.

[Assemblyman Herb Conaway Jr. (D-Delran), chair of the Assembly health committee] said outreach to the public will be crucial. The state Department of Banking and Insurance still has an unspent federal grant of nearly $7.6 million it received to help plan a state-run exchange; the state opted instead for HHS to build the exchange for New Jersey. DOBI is talking to HHS about how that money can be used, and Conaway said it’s key that navigators get that money.

“It’s really going to be those community-based organizations that know how to reach and communicate with (the uninsured) that are going to be so important for reaching the people who need to be in the exchange,” he said. “That certainly would be an appropriate use for that money.”

Jacobi said the uninsured in New Jersey, “are mostly people associated with the workplace. Most are in families with workers, full-time or part-time workers, and dependents of workers,” who either can’t afford to buy insurance at their workplace, or their employer doesn’t offer it.

Read the NJ BIZ article, “Health panel reveals concerns about Obamacare rollout, future”

Read the NJ Spotlight article, “Healthcare Leaders Envision a Shared Future”

Professor O. Carter Snead on Bioethics and Responsible Discussion

“Embryos are living members of the human species,” declared Professor O. Carter Snead of Notre Dame Law School during a presentation to Professor Jordan Paradise’s Law and Genetics class at Seton Hall Law School. Professor Snead, former General Counsel to The President’s Council on Bioethics under President George W. Bush, lectured and met with students  during his residence as Visiting Health Law Scholar  at Seton Hall Law School. Professor Snead presented a lecture to the Law and Genetics class that compared embryonic stem cell patenting in the United States and Europe.

In an interview with Health Reform Watch before his presentation, Professor Snead reflected on his career in bioethics, the role bioethics plays in politics, and the current need for bioethical input.

Regarding what informs his beliefs as a lawyer practicing in bioethics, Professor Snead said before serving as General Council member he “didn’t have settled opinions” and decided his opinions by “listening to debates” and following the teachings of bioethicists such as Michael Sandel, Robert George, Leon Kass, and George Annas. However, he noted that he has always had one main concern: self-governance.  As such, he disapproves of an “enclave of elite thinkers telling everybody what to do and think.”  In order to better democratize bioethical issues, Professor Snead emphasized the importance of recognizing “We all have standing to debate and discuss.  There’s no special expertise necessary to reflect on normative questions.”

In promoting the need for debate on bioethical issues, Professor Snead used physician-assisted suicide as an example to explain the shortfallings of a purely normative approach.  In setting-up a situation where physician-assisted suicide may seem reasonable to many, or “in a vacuum” as Professor Snead referred to it, moral dispute may be limited.  However, he stressed looking at the issue and its “collateral” effects— including “exploitation of the poor, abuse of the disabled, and fraud and abuse.” Professor Snead contended that in order to avoid the collateral consequences, “We have to sacrifice [the] liberty of the small sliver of people who might be able to autonomously choose to end their own lives free from coercion, fraud, and abuse.” Which is to say that those most vulnerable— the poor, the disabled and those most readily susceptible to fraud and abuse—are not necessarily best situated to advocate for themselves. If these most vulnerable are to be properly considered, “the vacuum,” and those who construct it, must be left behind and the actuality—in its broader sense—considered.

This example led Professor Snead to advocate for responsible discussion on bioethical issues and criticism for politicians who inappropriately use the issue on their campaign platform.  ”Politicians I.D. wedge issues and try to spin the issues.  We end-up with a dishonest discussion,” stated Professor Snead.

In answering a question on what role American bioethical principles play in the global community, Professor Snead said he disfavors “exporting our bioethical approach,” noting that bioethics and moral anthropology closely coincide.  He stated, “Who you think human beings are, what are our relations to each other” is what informs a nation’s bioethical beliefs and that there is “no formulaic way.” However, Professor Snead did note, “Bioethics is an application of deeper human principles across a variety of factual and cultural contexts.”  As a law professor, he uses this philosophy and teaches “by exposing students to competing views in a neutral fashion, exploring the strengths and weaknesses of the various approaches.”

On the topic he presented to the Law and Genetics class, Professor Snead’s bioethical standpoint is that embryos are human subjects entitled to “A baseline of inalienable rights,” and further noted that, “Embryonic stem cells are not yet capable of producing therapies.”  He pointed to the potential therapeutic value of induced pluripotent stem (iPS) cells, a type of adult stem cell, and described the cells: “easier to work with, less ethically contentious, and seems to be doing the same as embryos.”  Addressing concerns of other nations conducting research with embryonic stem cells, Professor Snead stated: “The best researchers are in the US.  I’m not worried about falling behind in any area of scientific inquiry.”

Giving Patients a Piece of the Action: Appealing Proposals from Richard Frank and Christopher Robertson

In a recent edition of the New England Journal of Medicine, Richard Frank discussed recent efforts on the part of federal and state governments to enroll so-called “dual eligibles,” that is, individuals who qualify for both Medicare and Medicaid, into health plans that use “a strong care-management system under a unified budget.”  Many believe that such plans have the potential to both save the government money and provide better coordinated, higher quality health care.  (I discussed the need to better coordinate care for dually-eligible people here.)  Individual beneficiaries are not necessarily convinced, however.  Frank reports that it has been “very difficult to lure” them into “state-designed care coordination entities.”  Beneficiaries may be hesitant to leave their fee-for-service doctors and other providers; they may also be afraid of the incentive to restrict services that a capitated global payment creates.

To get beneficiaries to make the switch from fee-for-service to coordinated care, states are taking a page from Nudge and making enrollment in a coordinated care plan automatic.  The burden is then placed on the beneficiary to opt out if he or she so chooses.  The use of “passive enrollment” will no doubt “work” to increase the rolls of coordinated care plans, but Frank wants states to aim higher, to strive to “promote self-determination for vulnerable populations and offer them a reason to engage with a new care delivery system with coordinated-care arrangements[.]”

As Frank explains, “[c]oordinated care for dually eligible people is built on a financial structure known as shared savings, in which three of the parties involved –- the federal government and state governments and the [coordinated care plan] –- share any financial gains from coordinating care.”  Frank proposes that beneficiaries, too, be given a share of the expected savings– a share that they would be permitted to use to pay for “supplemental services and supports such as transportation, home modifications, and personal assistance with activities of daily living.”  The prospect of (limited) control over a share of the expected savings would serve as an incentive to beneficiaries to engage in care coordination, while also “promot[ing] self-determination and the exercise of real options.”

Frank’s very appealing idea brought to mind the proposal Christopher Robertson makes in The Split Benefit: The Painless Way to put Skin Back in the Healthcare Game, which is forthcoming in the Cornell Law Review.  While Frank would give beneficiaries an incentive to opt in to coordinated care, Robertson would give them an incentive to opt out of inefficient, high-cost care.  Specifically, Robertson proposes that when a physician “prescribes a high-cost treatment that the insurer reasonably believes is inefficient[,]” the insurer would “[p]ay a small but substantial part of the insurance benefit”—-what he terms the “split benefit”—-in cash directly to the patient beneficiary.  Then, “[i]f the patient chooses to proceed with the treatment, the patient takes the cash payment to the provider (along with any required cost share obligation), and the insurer matches it with the balance of the insurance benefit[.]”  Patients who choose not to proceed with treatment, however, could spend the cash differently, on a “treatment that is not covered by the insurer (whether it is acupuncture, an alternative diet regimen, a concierge doctor, or visiting nursing services), paying money to a member of the family to stay home and provide care to the dying patient, or purchasing disability insurance to help cope with the symptoms of the illness.”  They could even use the money to pay for non-health-related expenses.  As Robertson explains, the split benefit would save insurers (and, down the line, purchasers of insurance) money by giving beneficiaries a financial incentive to turn down high-cost, low-value treatments.  In Robertson’s words, the patient autonomy movement has been “cramped” by the fact that patients have been offered only “a walled garden of medical choices.”  His split benefit, by contrast, “embraces a value-pluralism, respecting the patient’s weighing of medical and non-medical values.”

I highly recommend both Frank’s and Robertson’s pieces to anyone who—-like me—-is interested in ways to give patients a piece of the action when it comes to the multiplicity of current efforts to coordinate and rationalize their care.

The ACA, Medicaid, Politics and a Tone of Civility from the Court?

Two things strike me at the outset:

First, the Medicaid “coercion” decision should initiate an interesting political debate.  Should those states calling most loudly for repeal/overrule of  the ACA now be true to their convictions and walk away from Medicaid expansion?  To do so would be a remarkable triumph of ideology over their constituents’ public interest and economic interest. They would be abandoning a large segment of their most needy citizens AND leaving a lot of money on the table (the Federal government will pick up 90% of the cost of the newly enrolled and give other benefits to the states).

The States standing to benefit the most from Medicaid expansion  are by and large red states, so the political dynamic will be interesting. As an aside, I’d note the willingness of the Congressional representatives from many of the poorest states to ignore a generous federal subsidy for their indigent citizens by voting against the ACA is a tribute to the gerrymandering that distorts congressional districts and to the influence of our distorted campaign financing laws. Federal subsidies aside, there may be considerable savings to State employee insurance and  private insurance as the cost shifting from care to the poor is reduced. (Zeke Emanuel says that California is expected to save $2 billion as a result of Medicaid expansion).  All in all its a nice way of putting the ball in the court of the critics and framing the issue pretty starkly:  do you want to participate in the shared national responsibility to take care of the less fortunate or is your State willing to leave a sizable segment of its citizens exposed to the dire consequences of being uninsured?

Second, the tone of the opinions was surprisingly moderate.  One wonders whether the remarkably vituperative talk about the ACA in the Presidential primaries and on the Hill caused the dissenters to temper the language of their opinions.  Perhaps the biggest surprise to me over the last two years has been the ability of opponents to generate enormous anger over the ACA.  Removing the “rights” element from the debate might at least calm the waters a bit.

U.S. Supreme Court Health Reform Litigation, the Individual Mandate, Anti-Injunction Act, Commerce Clause and Even The Militia Act

We are literally only days away from the Supreme Court oral arguments in the ACA litigation (or the Health Reform case as it is popularly known) and as such, we thought it would be of some help to publish again some of our past posts on aspects of the law now being challenged. In addition to being published here at HRW, many of the pieces below found further life elsewhere, the Washington Post, NY Times, The Record, The Health Care Blog, Health Law Prof Blog, Concurring Opinions, the aca litigation blog, to name a few. Some originated elsewhere and found a home here. Either way, they’re here in one place for your enjoyment as we all hold our breaths and get ready to attempt to count robed votes by virtue of questions posed in the arguments to come.

Professor Mark Hall, Wake Forest University School of Law

Constitutional Mortality: Precedential Effects of Striking the Individual Mandate

Why the 11th Circuit’s Opinion on Health Care Reform Self-Destructs

Judge Vinson’s Tea Party Manifesto

Commerce Clause Challenges to Health Care Reform

From Justice Story: A Postal Power Parable on Mandating Health Insurance

What’s Surprising about the Virginia Ruling Striking the Individual Mandate?

Are The Attorneys General’s Constitutional Claims Bogus?

Is it Unconstitutional to Mandate Health Insurance?

Professor Frank Pasquale, Seton Hall Law

Professor Frank Pasquale featured in The Record on ‘A Constitutional Right to Health Care’

A Constitutional Right Not to be Bankrupted by Health Care Costs

Huq on Constitutional Challenges to HCR

Parsing “Populism” in Resistance to Reform

Professor Brad Joondeph, Santa Clara University School of Law

aca litigation blog (All the briefs, docs, lawyers, helpful updates, analysis, etc. in one easy place. Prof Joondeph and Brandon Douglass are to be commended for this splendid effort — yeomen’s work and finely done. The aca litigation blog is automatically fed into our sidebar and we were pleased to offer a few of Professor Joondeph’s posts in full here at HRW, and very much look forward to posting more. If you haven’t checked it out yet, you absolutely should.)

Clarifying the AIA question

The Anti-Injunction Act Complications

Professor Tim Greaney, St. Louis University School of Law

Health Reform, a Class Act

Bradley Latino, J.D.

The Individual Mandate, a Brief History – Part I, Conservative Origins

The Individual Mandate, a Brief History – Part II, The Republican Alternative (1993-1994)

The Original Individual Mandate, Circa 1792

Kate Greenwood, Research Fellow & Lecturer in Law, Seton Hall Law

Recommended Reading: Interesting Takes on the Individual Mandate

Michael Ricciardelli, J.D.

Judge Hudson, Bartleby the Scrivener and the “Tribeless, Lawless, Hearthless One”

Election Fallout and Why State Initiatives to Exempt Residents from Health Care Law are Not Just Symbolic

Missouri Votes Against Individual Mandate, May Impact Standing Argument in Federal Court

Judge Rules, Virginia Moves Forward Against Individual Mandate

Is a For-Profit Structure a Viable Alternative for Catholic Health Care Ministry?

On March 26-27, Seton Hall Law will be home to a two day Symposium entitled “Is a For-Profit Structure a Viable Alternative for Catholic Health Care Ministry?” Funded through the generosity of a number of contributors, the Symposium is being hosted by Seton Hall Law’s Center for Religiously Affiliated Nonprofit Corporations and its Center for Health & Pharmaceutical Law & Policy, in collaboration with the University of St. Thomas, John A. Ryan Institute for Catholic Social Thought, the Terrence J. Murphy Institute for Catholic Thought, Law and Public Policy and the Veritas Institute.

In an April 2010 article, a reporter for The Boston Globe pondered whether “… for-profit Catholic health care is an oxymoron, or whether profitability and religious mission can be integrated.” This Symposium will examine whether a for-profit structure is a viable alternative for Catholic health care ministry.

The Program will provide a unique forum for dialogue among practitioners, academics and scholars in law, finance, theology and Catholic social teaching to “drill down” to specific legal, financial and operational issues relevant to an objective examination of the relationship of the for-profit legal and financial structure to the Catholic tradition of health care ministry. The Symposium will consist of a sequence of presentations intended to provide an objective overview of the relevant issues with opportunity for audience interaction. The first day, presenters will provide foundational descriptions of changes in law and finance that may occur when converting from a nonprofit legal structure to a for-profit structure. The second day, theologians, canonists and scholars in applied Catholic Social Thought will respond to the legal and financial descriptive presentations. The panelists will frame the conversation, in part, by referencing examples of for-profit models in Catholic health care.

In asking the Symposium’s question, “Is a For-Profit Structure a Viable Alternative for Catholic Health Care Ministry?” the proceedings are designed to engage scholars and practitioners from multiple disciplines to develop an objective framework for analyzing the following questions:

1. Is the delivery of health care as a ministry compatible with providing that care through an investor-owned company publicly identified as Catholic?
2. If not, why not?
3. If yes, are there any management, governance or other structures or processes that may need to be developed to accommodate Catholic health care as a ministry?

The Symposium will not take a position on whether such conversions, in any of its forms, should or should not occur. The Symposium will provide the audience participants with the range of issues that may impact their specific decision.

An Examination of the Key Issues

The legal and financial differences between a non-profit and for-profit corporation will be analyzed from the perspective of Roman Catholic canon law, ethics and Catholic social teaching. The Symposium, focusing on these disciplines, will address questions such as the following:

1. What is the relationship between the theological understanding of health care as a ministry and the legal definition of health care as a public good or a private commodity?
2. Is Catholic identity in the legal purpose clause of a corporation subject to treatment as a trade or a service mark?
3. Is Catholic identity an intangible asset subject to valuation?
4. If the charter of the corporation is a contract between the investor and the corporation, what is the shareholder purchasing in terms of Catholic identity?
5. If a corporate culture is rooted in values, is it necessary to use religious language to describe values rooted in the Catholic tradition to create a culture consistent with Catholic ministry? Or is it sufficient to describe Catholic identity in terms of objectively discernable proscriptions and prescriptions?
6. If professional managers tend to be beyond effective shareholder control  and shareholders cannot instruct the board of directors, each of whom cannot be removed without cause, by whom and how is Catholic identity determined or monitored?
7. What is the relationship between corporate law and Catholic Social Thought on private property, labor and capital, subsidiary, the distribution of goods and services, and human rights to social goods such as health care?
8. In states adopting corporate constituency statutes instructing directors that they either may, or must, take into account the interests of constituencies other than shareholders in exercising their powers, does Catholic identity create new, discreet constituents other than shareholders or those identified in statutes?
9. Are new benchmarks necessary to determine Catholic corporate success? If so, do these new benchmarks differ or align with benchmarks for success for any corporation having no religious affiliation?

Making Health and Disability Law More Responsive to Lived Experience

Featuring Visiting Scholar, Ani Satz, Associate Professor, Emory University School of Law, Rollins School of Public Health, and Center for Ethics, this lecture will address how courts and legislatures respond to universal vulnerability to illness and disability. Currently, the law fragments–or breaks apart–the experience of the legal subject, by offering sporadic protections that fall short of what is needed for an individual’s well-being.

1 NY/NJ CLE credit available. Please contact Simone Handler-Hutchinson for more information at simone.handler-hutchinson@shu.edu.

Tuesday, March 20, 2012, 6:00 – 7:00p.m., Room 372, Seton Hall Law School, 1 NY/NJ CLE Credit
R.S.V.P. by March 18, Register Here.

The New York Times Hasn’t Scratched the Surface: For-Profit Catholic Healthcare

President Obama has begun the process for healthcare reform by improving access through insurance reform, but achievement of his aspirations will require reform of our healthcare delivery system as well.  Changing where and how healthcare is delivered and paid for is of particular importance given the emerging and generally non-acute needs of the aging baby-boomers, and the lack of sufficient primary care to serve the many who will become insured as health insurance reforms are implemented.  Healthcare providers realize this, and the market is indeed adjusting as we speak.

Three examples of these changes to the delivery system include, first, moving much of the delivery of services out of hospitals and into the community.  Healthcare systems are rapidly affiliating with or employing physicians to facilitate this change, in the hopes of enabling the various parts of the health care system to work more collaboratively, efficiently and cost-effectively.  In many parts of the country, hospitals have been too cash-strapped to invest in necessary updating to their hospital facilities. Now that we are thinking differently about how to use the physical plant that hospitals occupy, and investing in new technology, these investments need to happen.  As a third example, President Obama is infusing money into hospitals and physician offices to enable the United States to catch up to other developed nations in the digitizing of its medical records.  The benefits of this change are numerous, but it is a very expensive transformation.

In order to provide quality service and compete in the fast-changing healthcare market, hospitals and the systems of which they are a part, need money to pay for these changes.  A February 21, 2012 New York Times article on the expansion of Catholic hospitals provides a glimpse of this phenomenon of market reform.  Cash-poor hospitals unable to access capital to invest in the new initiatives necessary to keep them competitive are looking for financially stronger partners with this investment ability.  There are currently 56 Catholic healthcare systems in the country, ranging from the financially successful to the distressed.  Thus it is unsurprising that a potential partner for some hospitals might be found among Catholic systems.

But there are some Catholic providers who are struggling and require an affiliation to survive; other Catholic providers are simply considering alternative business models which might provide more market flexibility as well as increased options for access to capital.  The former Catholic Healthcare West is an example of the latter situation.  CHW was sponsored by six religious orders and operated 25 Catholic and 15 non-Catholic hospitals; just weeks ago, it announced changes to its name — it is now Dignity Health — and its corporate and governance structures.  The parent holding company for Dignity Health is no longer Catholic, and is no longer sponsored by the religious orders — those orders now sponsor directly the Catholic hospitals that are part of Dignity Health.  These Catholic hospitals adhere to the Ethical and Religious Directives for Catholic Health Services, of which each hospital’s local bishop is the ultimate arbiter.  The non-Catholic hospitals adhere to a Statement of Common Values, which preclude assisted suicide and euthanasia, as well as pregnancy terminations and assisted reproductive procedures that deviate from Catholic teaching; the Statement of Common Values does allow the performance of direct sterilizations, which is something precluded at Catholic hospitals.  I would venture to say that many, whether Catholic or not, likely embrace the content of this Statement of Common Values.  I would also suggest that many secular hospitals operate according to similar policies, but it just doesn’t get talked about.

The religious orders hope to perpetuate their evangelical influence on the culture of Dignity Health and its constituent non-Catholic hospitals — if successful, I would suggest that this will be an important and significant contribution to those providers who are the beneficiaries of the Catholic ethos of healthcare delivery, because it can be transformational.  The change from CHW to Dignity also sought to clarify the confusion among patients about which hospitals are Catholic, and provide market flexibility with respect to future affiliations with service providers.    A statement by San Francisco Archbishop Niederauer provides a helpful description of the reasons for Catholic Health West’s transformation to Dignity Health, and the process by which deliberations occurred.

Other Catholic hospitals are engaging in even more “radical” transformations in order to put themselves in a position to survive and/or thrive in the emerging healthcare market.  After years of unsuccessful attempts to prop up the six Boston-area hospitals that comprised Caritas Christi Health Care, Cardinal Sean O’Malley surprised many when he agreed to sell the system to Cerberus Capital Management, which is a private equity firm.  The system was burdened with debt, its pension was underfunded, and its physical plant was in desperate need of significant upgrades. The sale to Cerberus transformed this Catholic health care system, now named Steward Health Care System, to a for-profit Catholic health care system. Cerberus agreed to ensure that the Steward hospitals adhere to the Ethical and Religious Directives, subject to the authority of the Cardinal who has the power to strip a hospital of its Catholic status, as happened to a Phoenix Catholic Healthcare West hospital, St. Joseph’s, in 2010, over a disagreement regarding an interpretation of the Ethical and Religious Directives regarding abortion.

Cardinal O’Malley was not the first person to find salvation for financially distressed hospitals in the private equity world.  St. Vincent’s Hospital in Worcester, Massachusetts is owned by for-profit Vanguard Health Systems of Nashville, which owns both Catholic and Baptist hospitals, primarily in the south and west.  And Ascension Health, the nation’s third largest health system with a 2010 net income of $1.2 billion has teamed up with Oak Hill Capital Partners to build a new for-profit enterprise with an eye towards “offer[ing] a lifeline to capital-starved Catholic hospitals.”

Myriad questions arise from this new mechanism for infusing capital into Catholic healthcare.  No precedent exists for a Catholic for-profit healthcare ministry.  In terms of the issue about access to services raised by the February 21 New York Times article, “Catholic Hospitals Expand, Religious Strings Attached,”  it is likely that the public will become even more confused about what rules govern hospitals as for-profit systems include both Catholic and non-Catholic entities.  While the interpretation and application of Catholic teaching will vary by diocese and the deal reached by the parties, it is certainly possible that, as was the case with Catholic Healthcare West (now Dignity Health), some or all of the Ethical and Religious Directives will be extended to the secular hospitals which are part of any system that includes Catholic facilities.  This makes sense, as Catholic teaching encourages Catholics to distance themselves from acts which are deemed immoral.  Sometimes, the act in question, such as abortion or euthanasia, is held to be so fundamentally immoral that Catholics can have no association with the situation, which would be the case if a Catholic hospital belonged to a healthcare system in which affiliates offered these services.  As such, even though a hospital may itself be non-Catholic, if it participates in a system which includes Catholic hospitals, its services may necessarily be circumscribed.  Again, most of these proscriptions are ones with which many Americans likely agree.  Transparency should prevail nonetheless. As I discussed in my February 22, 2012 blog post, there are significant benefits from affiliating with a Catholic entity, including commitment to the care of all segments of society and an ethos of care that attends not only to the physical, but to the mental and spiritual as well.  Catholic healthcare is also an important voice in public debates about reforming our healthcare system and the dignity of every person.  These attributes of Catholic healthcare should be given significant weight in assessing collaborative arrangements.

While I believe that there is much that is wonderful about the culture, ethics and ethos of Catholic health care, there may be some other consequences of affiliation that some would fine unappealing. The United States Conference of Catholic Bishops opposes the health care reform mandate that would require employers to offer health insurance to employees that includes contraception as a covered benefit. In addition, some bishops have refused to comply with laws requiring equal treatment of spouses and gay partners with regard to eligibility for employer-sponsored health insurance. While it is unclear to what extent Catholic hospitals have followed these policy positions (the Catholic Health Association has announced that it is pleased with President Obama’s contraception compromise), the obvious question is whether they will be extended to secular affiliates as well.

Most of the questions that arise from the transition to for-profit status must obviously be resolved by the religious congregations and others that sponsor Catholic healthcare.  What makes a service or entity essentially Catholic, and whether that can be preserved in a for-profit context is likely unanswerable without experimentation.  For-profit providers ultimately exist to make money for investors.  Non-profit providers must operate in fidelity to their mission.  If a hospital is truly unable to survive, which was apparently the case with the six Boston hospitals that comprised Caritas, then for-profit conversion was the only means to continue its mission.   Even less dire situations may call for serious consideration of this alternative: a provider unable to access the resources to provide quality care irrespective of patients’ ability to pay is not in a position to actualize its mission.

The biggest question for stakeholders, presumably, is how long the private equity firms that are acquiring Catholic hospitals will hold on to them, especially if they are losing money.  The co-head of Cerberus was quoted in the Boston Globe as saying that Cerberus would own the Steward hospitals for at least three years; the article also suggested that it would not close any hospital for the first three years of its ownership, and would extend that time for an additional two years unless a hospital operated at a loss for two consecutive years.  So, one risk of these arrangements might be that they are simply stop-gap measures.  What happens if the private equity firms and their shareholders aren’t making enough money?

Another question is whether the for-profit model will result in the discontinuation of unprofitable yet essential services, which some empirical evidence suggests occurs more frequently with for-profit as opposed to not-for-profit providers, although it is important not to generalize.

This conversation will continue for some years, as we assess the on-going experiment that is for-profit Catholic healthcare.  This month, Seton Hall Law School is looking at some of the issues raised from the Catholic sponsors’ perspective, at a Symposium entitled Is a For-Profit Structure a Viable Alternative for Catholic Health Care Ministry? Return to Health Reform Watch for future discussion of this fascinating issue.

A Broader Perspective on Catholic Healthcare

A February 21, 2012 New York Times article entitled “Catholic Hospitals Expand, Religious Strings Attached” addresses the challenges that arise when Catholic healthcare systems acquire healthcare providers and extend religious proscriptions to the newly acquired facilities and practitioners.  Specifically, the article raises concerns about women’s access to reproductive health services, particularly in communities where Catholic ownership of hospitals and other providers dominates.  Much of this same kind of market activity occurred in the early 90′s in anticipation of market reforms associated with Clinton healthcare reform.  So, while these are not new issues, they are no less difficult to resolve, perhaps in part because we have all become more politicized in our approach to problem solving, which almost seems impossible to imagine, but there it is.  In a 1995 Houston Law Review article entitled DECIDING THE FATE OF RELIGIOUS HOSPITALS IN THE EMERGING HEALTH CARE MARKET I attempted to propose a middle ground of accommodation that would facilitate access to care while providing Catholic healthcare providers with the space required to continue to be true to their religious beliefs.  I believe that the prescription remains as valid today as it was when written over a decade ago.

Catholic healthcare comprises a ministry, whereby the sisters or diocese that provide the health services are committed to ensure that they act in way that is true to the teachings of the Catholic Church.  Catholic healthcare providers are living the gospel, which is replete with instances of Jesus ministering to the sick — he attended to healing the mind, body and spirit. This holistic healing mission began when various religious orders first established their hospitals, and continues today, albeit with fewer religious and more laypersons continuing the legacy of the Catholic healthcare mission.  Catholic healthcare has served an essential role in the United States since the nation’s inception, frequently being the only provider of care to the poor in numerous communities.  That dedication to the vulnerable segments of society continues today. Catholic healthcare providers were the first in many communities to treat compassionately, without judgment and without discriminating, those with HIV/AIDS.  Mission statements for Catholic providers focus on ensuring care to the homeless, to immigrants, whether documented or not, and to the underserved and uninsured. According to statistics available on the Catholic Health Association web page, Catholic healthcare is a national leader in its provision of birthing rooms and breast cancer treatment, geriatric services, nutrition programs, social work services and pain management programs. The disappearance of Catholic hospitals would decimate access to care in rural communities. Catholic hospitals have long been on the forefront of the call for healthcare reform that provides access to all, and support President Obama’s health reform efforts.

Catholic hospitals’ delivery of healthcare is informed by Catholic Social Teaching broadly and specifically by what are called The Ethical and Religious Directives for Catholic Health Care Services, which are promulgated by the United States Conference of Catholic Bishops.  Catholic Social Teaching rests on centuries of philosophical and theological learning to guide not only the Church but society in general on such questions as the relationship between labor and capital, the respectful treatment of employees and the importance of unions to workers, distribution of goods and services, and human rights to social goods such as health care.  The Ethical and Religious Directives, which are informed by Catholic teaching, are moral guidelines specific to healthcare, to aid in resolving such ethical issues as pregnancy termination, contraception, and euthanasia.  Obviously, the clinical situations in which these guidelines are implicated can be extremely complex, and sometimes require nuanced analysis by those with a deep understanding of Catholic moral theology and medicine.  Like any intellectual discipline, theologians, bishops, and healthcare providers sometimes disagree among themselves as to the appropriate application of these guidelines to a specific situation.  So, yes, it is true that Catholic healthcare providers are committed by their religious beliefs to operate in ways that may be different than secular providers, but these differences extend far beyond the moral limitations on the kinds of reproductive and end-of-life care they provide. This moral framework serves to unleash the kind of compassionate care that has been a hallmark of Catholic healthcare since its inception. Even in the face of severe budget cuts, Catholic hospitals continue to provide pastoral care to their patients, caregivers, and families; engage in constant assessment of fidelity to mission; and have been leaders of all hospitals with regard to measuring tax-exempt facilities’ provision of community benefits.

My ultimate point is two-fold.  First, Catholic healthcare is too important to the country’s healthcare system to be reduced in our assessment of its value to religious proscriptions that may interfere with access to a limited universe of services, albeit what are sometimes characterized as essential healthcare services. While some may dissent from application of Catholic teaching in particular instances, the continued and pervasive presence of health providers committed to the dignity of every person whom they treat is an ultimate societal good.  Where disagreement persists, it is important that the Church engage in sincere dialogue with all segments of society, with a willingness to be informed from medical, ethical, and sociological perspectives.

As Catholic providers partner, merge or otherwise collaborate with secular healthcare providers, community stakeholders, including licensing agencies, should demand and receive a clear understanding of the implications for healthcare access of the proposed alliance.  Each bishop acts as the ultimate arbiter of the Ethical and Religious Directives, which means that interpretations can vary by diocese.  For example, a minority of bishops have raised questions about the kind of emergency care administered by hospital emergency departments to rape survivors, out of an over-abundance of medical and moral caution, in my view, that the treatment might interfere with a pregnancy.  Thus, it is essential that regulators understand the implications of Catholic teachings for healthcare access, so that patients clearly understand the limitations of Catholic providers and, where appropriate, have alternatives to access services.  Our healthcare system has and will likely always be extremely pluralistic.  We have, and should continue to make every effort, to accommodate the religious beliefs of providers, while ensuring access to care to which patients are legally entitled.

Further, the public debate about what kind of care should be legally available should take seriously the perspective of those whose viewpoints are informed by moral concerns, whether those concerns arise from religious or philosophical principles.  Finally, both The United States Catholic Conference and individual bishops should ensure that they receive a robust analysis of ethical issues related to healthcare from the Church’s best theologians with relevant expertise before promulgating guidance to those engaged in healthcare ministry.  Importantly, bishops should also hear from those who are involved daily in caring for and ministering to patients.

The ultimate goal of reform is one upon which both Catholic healthcare providers and proponents of women’s health agree — increased access to healthcare for all.  Collaboration on the pursuit of this unified goal should enable us to identify means by which the plural interests of the stakeholders can be accomplished.  Transparency and conversation are key to achieving these ends.  In my conversations with those concerned about changes in the healthcare delivery system, I have always found them to be very respectful of religious freedom, appreciative of the role religious providers play in society, and desirous of finding a common way forward.  While the number of religious sisters is shrinking in the United States, women remain a significant presence in the leadership of Catholic healthcare.  A cursory review of the areas where Catholic healthcare predominates reveals a strong commitment to women’s health and wellness.  For these reasons, I feel confident that common ground exists to ensure access to health care for all, while carving out space for Catholic fidelity to the demands of their religion.

HRW Welcomes Amy Catapano, Esq.

We are pleased to welcome Amy Catapano, Esq., to HRW. She is a health care attorney who recently completed her Masters of Law (LL.M.) in Health Law at Seton Hall Law. She received her Juris Doctor degree, graduating cum laude, from Seton Hall Law in 2007 and thereafter completed a clerkship in the Superior Court of New Jersey with the Honorable Barbara A. Curran in Hudson County. During law school, she was a member of the Journal of Sports & Entertainment Law, the St. Thomas More Society, and held an externship with the U.S. Securities and Exchange Commission. She is a graduate of the University of Michigan where she received a Bachelor of Arts in Spanish.

Ms. Catapano wrote her LL.M. thesis on the HITECH Act and data breach insurance. She is interested in health information technology, HIPAA and privacy law, and health care reform. She is licensed to practice in New Jersey and New York, and is a member of the NJSBA Health and Hospital Law Section and the NYSBA Health Law Section.  She has significant experience in medical malpractice litigation, as well as insurance defense and health law matters, having worked at a boutique defense firm in Milburn, New Jersey and in New York, New York.  She can be reached at amycatapano@gmail.com.

Reorganization of UMDNJ to be Implemented this Year

On January 25, 2012, after nearly a decade of deliberations and strategic planning, the University of Medicine and Dentistry of New Jersey Advisory Committee issued its Final Report pursuant to a directive from Governor Chris Christie. The Report calls for and explains a proposed reorganization and “complete overhaul” of the University of Medicine and Dentistry, which will most likely be known as the New Jersey Health Sciences University once the Committee’s recommended changes commence. The implementation of these changes are said to be of a high priority for the Christie  administration. UMDNJ is one of the largest public entities in the state, operating at an annual budget of $1.7 billion.

The Committee made the following recommendations, which have been endorsed by Governor  Christie:

• A revamped and recast health sciences university based in Newark, which they suggest be named the New Jersey Health Sciences University (NJHSU). This powerful academic institution, with significantly increased autonomy for three units — University Behavioral Health Care, the School of Osteopathic Medicine and the Public Health Research Institute — will establish the foundation for a new era of medical education and patient care in our State.

• An affirmative and strong endorsement of support for the critical mission and role of University Hospital for the Newark community and for the State. The Committee recognized the hospital’s vital role while also noting that its precarious fiscal position must be addressed. To that end they are recommending a public/private partnership that would provide for the improved operations and long-term sustainability of University Hospital.

• A broader, expanded research university in southern New Jersey comprised of the assets of Rowan University and Rutgers University in Camden and encompassing, as well, the Cooper Medical School of Rowan University.

• Reaffirms Committee’s interim recommendation for institutional realignment of UMDNJ’s Robert Wood Johnson Medical School, the School of Public Health and the Cancer Institute of New Jersey into Rutgers University.

The Report stresses the urgency of the action proposed, emphasizing, “The time is now.”

Medical education and health care delivery are– particularly as they relate to UMDNJ– enormously complicated, but not so complicated that decisive action on behalf of the State and for the State’s benefit should be put off any longer.

Pointedly, as U.S. attorney, Chris Christie “led a two-year federal takeover of the institution in 2005, after Medicaid fraud was discovered.” Governor Christie is reported as saying that mismanagement and the magnitude of  UMDNJ problems that have accumulated over the years have led him to believe that the structure and scope of UMDNJ, as is, can no longer be managed effectively.   As such, under the proposed plan the university will be broken down into component parts. Thinking that time is of the essence, Governor Christie has announced that the reorganization will take place this year.

Governor Christie has said that he recognizes that the University Hospital is indispensable to the well being of the people within the region. The Report proposes to place the management of the hospital under a long-term public-private partnership, with the hope that this will “[enable] continued high quality medical programs, increase efficiency in operations and investment in capital improvements in the future.”

Some Newark residents, however, are said to oppose the plan, citing fears that privatization and the splitting off of UMDNJ units will take away jobs and resources. In contrast, Governor Christie is said to believe that the initiatives will aid the state’s efforts to attract health care and biomedical companies, and avail the University of more funding opportunities. Further rationales for the Commission’s recommendations include the ability to quickly implement the institution’s research at the medical school to benefit patients and that the changes will add substantially to the infrastructure for pharmaceutical and biomedical research.

Newark Mayor Cory Booker, who is still reviewing the reorganization report, stated that he “welcome[s] sensible reform but I would stand shoulder to shoulder with other leaders to ensure our residents don’t suffer a decline in the quality and scope of available healthcare and that we maintain abundant medical education opportunities in North Jersey.”

ACO Symposium: Profesor Priscilla D. Keith to Present:The Impact of Accountable Care Organizations on Public Health

In conjunction with the Center for Health & Pharmaceutical Law & Policy, this year’s Seton Hall Law Review Symposium on October 28, 2011, will explore recent changes in the structure of health care delivery, in particular the rising popularity of Accountable Care Organizations (ACOs). For more information or to register, click here.

The keynote speaker will be Dr. Jeffrey Brenner, founder of the Camden Coalition of Healthcare Providers, and legal scholars and practitioners from around the country will present panel discussions on structural development, public health implications and lessons learned from state ACO programs. One such distinguished presenter is Priscilla Keith, Adjunct Professor and Director of Research and Projects, Hall Center for Law and Health, Indiana University School of Law — Indianapolis.

Professor Keith will take part in the panel concerned with “ACOs in Theory: Issues Raised by Integrated Delivery,” and will be presenting The Impact of Accountable Care Organizations on Public Health.

Priscilla D. Keith serves as Director of Research and Projects, as well as Adjunct Professor, at Indiana University Law School’s Hall Center for Law and Health. As Director, she manages the legal and policy research projects of the Center. She is also responsible for the development of the curriculum and other arrangements for the graduate law degree program (L.L.M.) in health law, policy and bioethics. Before returning to work for her alma mater, Keith served as the General Counsel of the Health & Hospital Corporation of Marion County, in Indianapolis, including Wishard Health Services, the Marion County Health Department, and Environmental Services. Her primary focus was litigation, corporate transactions, and risk management, and serving as the counsel for the Marion County Health Department’s Ryan White HIV AIDS Legal Project. Prior to her appointment as General Counsel, she served as Assistant Counsel to former Indiana Governor, Frank O’Bannon. She also served as an executive assistant to the Department of Insurance, State Board of Accounts, Utilities and Telecommunications, and the Women’s Commission. Additionally, Keith was Chief Counsel of the Advisory Section under Attorneys General Jeff Modisett and Karen Freeman-Wilson. Prior to her legal career, Keith worked for Eli Lilly and Company in discovery research, environmental and medical plans. She is a member of the American Bar Association’s Health Law Section, and serves on its Council, and is the Interest Group Leader. She also serves on the Board of Directors of the Providence Cristo Rey High School in Indianapolis, Visiting Nurses Service, the State of Indiana Ethics Commission and St. Mary’s Child Center. In addition to earning her J.D. from our law school, she holds an M.S. in Anatomy from Atlanta University, and a B.S. from Spelman College. She is admitted to the Indiana Bar.

Congratulations Jordan Cohen ’11 and Katherine Freed Matos ’11

Tonight just a fond farewell and congratulations to two of our finest student bloggers: Jordan Cohen and Katherine Freed Matos, both of whom have graduated from Seton Hall Law, with each receiving  the much vaunted  Health Law Award. They are both now hard at work studying for that fiendish quiz they offer each year at the end of July to see if would be lawyers were paying attention (it is a horrible exercise, I assure you, and if someone you know is studying for the Bar– bring them some food, and leave them alone– they’ll reemerge into the land of the living soon enough). As such, it will be awhile until we hear from them (at least on this blog) again.

After the Bar Exam, Jordan Cohen will be off to employ in the law offices of Brach Eichler, LLC., a preeminent law firm in the New Jersey metro area and a recognized leader in the field of healthcare law.

Katherine Matos has been named to the Office of the Inspector General at the U.S. Department of Health and Human Services, where she will work in the Office of Counsel to the Inspector General, Administrative and Civil Remedies Branch.

You will both be missed. It was a pleasure to work with you, and this blog is better for your having been here. Can’t thank you enough, or wish you enough luck– I expect great things– as it is simply the usual for you both.

Center News: Greater Newark Healthcare Coalition, Improving Care Through Collaboration

The Greater Newark Healthcare Coalition is now in its second year and continues to pursue cooperative projects to improve health care for the most vulnerable in the Greater Newark area. Professor John Jacobi serves as the Coalition’s board chair. Other members include a range of health providers, consumer groups, and government agencies. The projects include:

Case management of frequent utilizers of hospital emergency departments. These very fragile patients will benefit from a sophisticated evaluation of their needs and referral to appropriate community placements. Professor Jacobi and Research Fellow and Lecturer in Law Kate Greenwood are working with clinicians on this project, and will produce analysis supporting a reconfiguration of health care funding to both improve care and reduce costs.

Improved prenatal care. The Newark area has a disproportionate number of mothers with poor access to prenatal care.The Coalition is working to bring together various organizations to improve prenatal care.

Preparing physicians for new practice models. Accountable care organizations and patient- centered medical homes require the increased adoption of technology and physician practice patterns that mesh with demands for quality and efficiency. The Coalition will conduct training sessions for area physicians.

The Center’s faculty and students are engaged and committed to lending expert support to the Coalition through legislative and regulatory advocacy and policy development, believing that the fruits of health reform will reach the most vulnerable only if providers, advocates, and regulators work together in cities like Newark.

And the Winners Are…

Two promising health law students were recently awarded scholarships to attend Seton Hall Law’s Healthcare Compliance Certification Program this June. The program immerses attendees in the laws, regulations, industry codes and compliance standards applicable to the life sciences industry. This year, the scholarships, which are given annually, were awarded to Jenna Smith, a 2L at Loyola University Chicago School of Law, and Abraham Gitterman, a 2L at the University of Maryland School of Law.

For more information on the scholarships and on how students may apply for next year, click here (and scroll down past “Government Scholarships”).

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