Kathleen Boozang on Death with Dignity Legislation Currently Pending in New Jersey

dean-kathleen-boozang-176x220There’s a fair chance the New Jersey Assembly will take up the Death with Dignity Act before the legislators head off to the Jersey Shore for the summer.  The topic is appropriate for this blog, entitled Health Reform Watch, because physician-assisted suicide (PAS) is a kind of desperate attempt at reforming end-of-life care.  The frustration with the limited extent to which we’ve been able to improve end-of-life care over the last three decades is understandable.  I suggest, however, that even with the enactment of practitioner orders for life sustaining treatment (POLST) legislation, New Jersey has not been sufficiently creative or aggressive in attempting to change end-of-life care practices in the state, and the legislature should be focused on other initiatives to achieve that end.  Based on the experiences of Oregon, Washington, and Vermont, there is no reason to expect that a Death with Dignity law would contribute meaningfully to an improvement in end-of-life care for New Jerseyans.

First, let’s get one matter out of the way:  I do not believe that the proponents of Death with Dignity legislation are motivated by a desire to reduce the cost of end-of-life care.  The patient suicide movement has been around for a very long time, and has always, in my view, been grounded in the philosophical belief in patient autonomy and an expansive view of a right to control the means and timing of one’s death.  Experience in those states where PAS is legal is that too few people take advantage of physician-assisted suicide for its availability to make a dent in health care costs.  If anything, reducing healthcare costs is more likely to be a reason supporting improvements to end-of-life care, although nationally, it’s not clear one way or the other whether reforming end-of-life care will actually reduce Medicare costs – the labor-intensive care required for several months of hospice is expensive.  New Jersey could be different.  Certain indicators suggest that patients dying in New Jersey receive more aggressive treatment than almost any other state in the country. Because that’s not how the majority of people want to die, it could be that in New Jersey, improving care of the terminally ill would save Medicare dollars.  If that’s a side benefit, all the better.  My primary point in this regard is that I don’t think it’s fair to accuse proponents of PAS of being motivated by potential cost savings; proponents of reforming the care of the chronically and terminally ill are more likely to cite costs as a factor in their search for reform.  Ultimately, I believe that both sides are motivated primarily by the desire to provide patients and their families with compassionate, holistic, and high-quality care in the last years and months of life.  That will not be accomplished by physician-assisted suicide. Read more

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Ensuring Successful ACA Follow-Through Part 3: Undocumented Immigrants

jacobi-176x220_1Cross-Posted at HealthLawProf Blog

An article on the front page of Memorial Day’s New York Times highlights an emerging health access concern for undocumented persons.  Hospitals – one of the few points of entry for undocumented persons to health care – are erecting barriers to care for the poor, on the grounds that the poor should be encouraged to take advantage of the programs and subsidies of the ACA.  That advice is hollow for the undocumented, shut out as they are from the ACA’s benefits.

The politics of immigration at the national level drove the exclusion of undocumented persons from coverage under the ACA.  As Bradford Gray and Ewout van Ginneken have noted, the United States is not the only country to restrict public funding for undocumented persons.  The reasons for European restrictions sound familiar: concerns that available health care is a “magnet” for immigration, and belief that adding new users will strain the health system’s capacity.  But they also point to familiar counterarguments: the human rights-based concern for the wellbeing of undocumented men, women, and children, and the pragmatic concern for sound public health measures.

In my first guest post I noted that there are many important tasks that can improve ACA implementation, and that can be accomplished by states and private actors, and without a change in federal law.  Improvement of health care access for undocumented persons may be a peculiarly non-federal issue for the foreseeable future.

As the UCLA Center for Health Policy Research described in detail, undocumented persons are excluded from most of the coverage available in the ACA.  The ACA left in place most exclusions from Medicaid and CHIP (except for emergency care), and excluded the undocumented from premium subsides for private coverage.  The mean-spirited topper is the prohibition against undocumented persons purchasing on an exchange – even at full price.

The anti-immigrant arguments for these policies are familiar.  Gray and van Ginneken point to countervailing humanitarian concerns:

According to this argument, society should treat the poor or those who are vulnerable for a variety of reasons (e.g., age, fear, war trauma, language barriers), particularly when workers in many immigrant households do soci­ety’s dirty work.

They add public health concerns:  to protect society from illness and our health care system from avoidable costs, we should cover “services such as vaccination and prenatal care, as well as to provide treatment for communicable diseases.”

The US health system has taken some baby steps in this regard.  As the Kaiser Family Foundation describes, states are permitted to waive the five-year exclusion from Medicaid/CHIP for children and pregnant women who are lawful immigrants, and to provide prenatal care for undocumented women by extending CHIP to the unborn child.  As of about a year ago, 25 states have adopted the former option, and 15 states the latter.

What more can be done to extend health care to undocumented persons without changes in federal immigration law or the ACA?  Two important things:

  • KFF reports that 15 states use state funds to provide full health coverage for documented immigrants subject to the five-year exclusion, and that 8 states have used state funds to pay for limited-service programs for persons regardless of immigration status.  Whether these programs are seen as humanitarian measures or as a “pay me now or pay me later” exercise in pragmatism, they are programs that can be replicated and expanded, where the will and the state or private funding is available.
  • Both Gray and van Ginneken, and the UCLA Center for Health Policy Research, point out an alternative route that seems particularly salient in light of the Times article on emerging barriers to hospital care.  It will be essential to increase direct funding to safety net providers – community health centers and safety net hospitals in particular.  As the Times article makes clear, hospitals are losing DSH funding as the ACA kicks in, and will therefore have fewer dollars to support programs for people shut out of the insurance systems.  Such direct funding will permit safety net providers to offer programs for the poor regardless of immigration status – while prudently and carefully encouraging those who are eligible for Medicaid or subsidized exchange coverage to gain insurance coverage.  The efforts need not be large, and they can be implemented with private funds and volunteer labor, as a Philadelphia clinic profiled in the New York Times demonstrates.

It is unlikely that immigration or federal health policy will change in the near future.  State-level and private actors can, however, piece together appropriate medical services for undocumented persons in the meantime, assuring compassionate service, protecting the public health, and removing a fiscal strain from safety net providers.

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Changing Landscape of New York Hospitals

Nina K. ShumanHospital mergers and other forms of transactions, such as joint ventures and affiliations, have been occurring more frequently in recent years. A report issued by the accounting firm Dixon Hughes Goodman noted the predominant reasons for hospitals to undergo these structural changes are: (1) to achieve economies of scale; (2) to benefit from a partner’s unique clinical or managerial strength; and (3) to expand geographically to better provide for patient and community needs. An economy of scale is the theory by which long-run average total costs decrease as output increases. When hospitals merge or undergo other forms of transactions, the result is increased efficiency, which ultimately reduces average costs. Often, a smaller hospital or a hospital that is not as nationally recognized will strategically merge with a larger hospital to attain the benefits of the larger hospital’s managerial or clinical strengths.

Recently, NYC hospitals have undergone significant organizational changes. Mount Sinai Medical Center has merged with Continuum Health Partners (CHP). Mount Sinai Medical Center is a 1,171-bed hospital nationally-ranked by U.S. News and World Report and internationally recognized for several specialties including: Cardiology & Heart Surgery, Diabetes & Endocrinology, Ear, Nose & Throat, Gastroenterology & GI Surgery, Geriatrics, Nephrology, Neurology & Neurosurgery, and Rehabilitation. While CHP’s hospitals are renowned and recognized in various clinical areas, these hospitals will now have a stronger force in the New York area under the Mount Sinai Health System umbrella. Another significant organizational change is the expansion of Manhattan’s Memorial Sloan-Kettering Cancer Center (MSKCC) to Connecticut. These changes will likely have positive impacts on quality of care and improved access for patients of these hospitals. Further, the proposed closure of Brooklyn’s Long Island College Hospital (LICH) has been postponed, allowing consideration of alternatives to closure, as closure would have a negative impact on area residents that rely on its services for primary care (see discussion here, here, and here). Accordingly, the changing landscape of NYC hospitals will have implications on patient care.

Mount Sinai and Continuum Health Partners: The Love Triangle

Once upon a time, in the late 1990s, Mount Sinai Medical Center and NYU Langone Medical Center wooed one another and eventually merged; the merger proved to be a failure three years later. Read more

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Seton Hall Law & NYLPI Release Report Documenting Hundreds of Cases of Coerced Medical Repatriation by U.S. Hospitals

December 17, 2012 by · Leave a Comment
Filed under: Health Law, Hospitals 

Medical repatriations of undocumented immigrants likely to rise as result of federal funding reductions to safety net hospitals under Affordable Care Act

New York, NY, and Newark, New Jersey, December 17, 2012 –Today, the Center for Social Justice (CSJ) at Seton Hall University School of Law and New York Lawyers for the Public Interest (NYLPI) released a report documenting an alarming number of cases in which U.S. hospitals have forcibly repatriated vulnerable undocumented patients, who are ineligible for public insurance as a result of their immigration status, in an effort to cut costs. This practice is inherently risky and often results in significant deterioration of a patient’s health, or even death. The report asserts that such actions are in violation of basic human rights, in particular the right to due process and the right to life.

According to the report, the U.S. is responsible for this situation by failing to appropriately reform immigration and health care laws and protect those within its borders from human rights abuses. The report argues that medical deportations will likely increase as safety net hospitals, which provide the majority of care to undocumented and un- or underinsured patients, encounter tremendous financial pressure resulting from dramatic funding cutbacks under the Affordable Care Act.

The report cites more than 800 cases of attempted or actual medical deportations across the country in recent years, including: a nineteen-year-old girl who died shortly after being wheeled out of a hospital back entrance typically used for garbage disposal and transferred to Mexico; a car accident victim who died shortly after being left on the tarmac at an airport in Guatemala; and a young man with catastrophic brain injury who remains bed-ridden and suffering from constant seizures after being forcibly deported to his elderly mother’s hilltop home in Guatemala.

According to Lori A. Nessel, a Professor at Seton Hall University School of Law and Director of the School’s Center for Social Justice, “When immigrants are in need of ongoing medical care, they find themselves at the crossroads of two systems that are in dire need of reform—health care and immigration law. Aside from emergency care, hospitals are not reimbursed by the government for providing ongoing treatment for uninsured immigrant patients. Therefore, many hospitals are engaging in de facto deportations of immigrant patients without any governmental oversight or accountability. This type of situation is ripe for abuse.”

“Any efforts at comprehensive immigration reform must take into account the reality that there are millions of immigrants with long-standing ties to this country who are not eligible for health insurance. Because health reform has excluded these immigrants from its reach, they remain uninsured and at a heightened risk of medical deportation,” added Shena Elrington, Director of the Health Justice Program at NYLPI. “Absent legislative or regulatory change, the number of forced or coerced medical repatriations is likely to grow as hospitals face mounting financial pressures and reduced Charity Care and federal contributions.”

Rachel Lopez, an Assistant Clinical Professor with CSJ stated, “The U.S. is bound to protect immigrants’ rights to due process under both international law and the U.S. Constitution. Hospitals are becoming immigration agents and taking matters into their own hands. It is incumbent on the government to stop the disturbing practice of medical deportation and to ensure that all persons within the country are treated with basic dignity.”

More information about this issue can be found at medicalrepatriation.wordpress.com, a NYLPI- and CSJ-run website that monitors news and advocacy developments on the topic of medical deportation.

About New York Lawyers for the Public Interest

New York Lawyers for the Public Interest (NYLPI) advances equality and civil rights, with a focus on health justice, disability rights and environmental justice, through the power of community lawyering and partnerships with the private bar. Through community lawyering, NYLPI puts its legal, policy and community organizing expertise at the service of New York City communities and individuals.

About the Center for Social Justice at Seton Hall University School of Law

The Center for Social Justice (CSJ) is one of the nation’s strongest pro bono and clinical programs, empowering students to gain critical, hands-on experience by providing pro bono legal services for economically disadvantaged residents in the region. The cases on which students work span the range from the local to global. Providing educational equity for urban students, litigating on behalf of the victims of real estate fraud, protecting the human rights of immigrants, and obtaining asylum for those fleeing persecution are just some of the issues that CSJ faculty and students team up to address.

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Exiling the Poor from the Insurance Market

July 22, 2012 by · 1 Comment
Filed under: Hospitals, Medicaid, Medicare 

pasquale_frank_lg1John Roberts’ jurisprudential wizardry in NFIB has been compared with the artistic genius of pro wrestlers and rappers. Poor Americans in states newly empowered to resist the ACA’s Medicaid expansion may need even more ingenuity to get themselves insured. Both Kevin Outterson and my colleague John Jacobi have observed the perplexing predicament imposed on the poor in states that keep Medicaid 1.0, and resist Medicaid 2.0. From Jacobi’s post:

The reform provides insurance subsidies through tax credits. The credits are calculated on a sliding scale, according to household level, for people with income up to 400% of FPL [the federal poverty line] — subsidizing more generously someone earning 200% of FPL, for example, than someone earning 350% of FPL. But, under 26 USC 36B(c)(1), credits will not be distributed to those with incomes below 100% of the FPL. Why? Because Congress assumed states would take up the Medicaid expansion, obviating the need for exchange-based subsidies for the very poor. . . .Bottom line: states rejecting Medicaid 2.0 will not only forego about 93% federal funding for the program between 2014 and 2022, but they could also be depriving the poorest of the uninsured from any shot at coverage — potentially affecting millions nation-wide.

Georgia hospitals are already worried about the “unexpected prospect of lower reimbursements without the expanded pool of patients” to be covered by the Medicaid expansion:

Last year, Georgia hospitals lost an estimated $1.5 billion caring for people without insurance. The promise of fewer uninsured is what led the national hospital industry to agree to the health law’s $155 billion in Medicare and Medicaid cuts over a 10 year period. The Medicaid curveball comes at a time when Georgia hospitals are already in the throes of a massive industry transformation to improve quality and efficiency driven by market forces as well as the new law. Hospitals face lower payments from insurers and pressures to consolidate. One in three Georgia hospitals lose money. All are busy preparing for new standards under the law that, if not met, could mean millions of dollars in penalties.

It’s hard to imagine how hospitals like Grady can continue to act as a safety net in that environment. The article notes that “Georgians already pay for the cost of care provided to people without insurance through higher hospital bills and inflated insurance premiums.” If that trend continues, all the states refusing Medicaid 2.0 may end up doing is shifting the cost of the Medicaid expansion population from national taxpayers to Georgians with insurance. The superwealthy Americans of Marin County and Manhattan ought to send Georgia Governor Nathan Deal a thank you note for keeping Georgians’ problems for Georgians themselves to solve.

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