Research Fellow & Lecturer in Law Kate Greenwood published a Featured Op-ed in Pharmalot on the U.S. Supreme Court and the prospect of liability for personal injury from defects in generic drugs. In “Betting on Liability for Generic Defects,” Ms. Greenwood writes:
As reported on Pharmalot, the US Supreme Court has agreed to review the First Circuit Court of Appeals’ decision in Mutual Pharmaceutical Company v. Bartlett that federal law did not preempt a New Hampshire jury’s determination that the generic drug sulindac had a “design defect” and so should have been recalled (back story with briefs).
It is highly likely that the Supreme Court will reverse the First Circuit’s decision, and, in so doing, confirm that manufacturers cannot be held liable for failing to re-design or recall unsafe generic drugs, just as they cannot be held liable for failing to update the labeling of such drugs. The ball will then be in Congress’ court to fill the resulting postmarketing safety gap.
As the First Circuit explained in the Bartlett decision, New Hampshire law provides that a drug has a design defect “‘if the magnitude of the danger outweighs the utility of the product.’” At trial, plaintiff Karen Bartlett’s expert testified that sulindac met this standard and the jury agreed, finding Mutual Pharmaceutical liable for selling a product with a defective design and awarding Bartlett over $21 million for the horrific SJS/TEN-related injuries she suffered after taking sulindac.
Read more in the feature Op-ed, “Betting on Liability for Generic Defects.”
The degree of effort put into selecting health care professionals varies among consumers. For instance, many relatively young users of health care may only go through the motions of selecting a primary care physician, whom they may seldom visit, and never investigate specialists that provide more particularized care. A recurring question, however, amongst more frequent health care consumers is “who provides the best care?” As consumers become older, mature, develop ailments more frequently, and raise families, this question becomes asked more and more frequently. Where is such a consumer to look for reliable information? Yes, rating systems of health care professionals are available. But the objectivity of such systems is often questioned because of the agenda of those developing the rating systems. For instance, Andrew Cuomo, the former New York Attorney General, injected New York State into the practices through which an insurance company rated the health care providers in its network. The concern identified by the Attorney General’s office was that insurance companies would rate health care providers based upon their ability to provide care cheaply, rather than on their ability to provide quality care. This concern stemmed from the undeniable profit self-interest of the insurance company. However, was such a stance by the now Governor necessary or appropriate? I think not.
Determining the quality of care delivered by a health care provider is an inherently subjective task. The outcomes of individual patients will depend upon a multitude of factors, many of which are out of the control of the provider. Different patients will react differently to different treatments because of their unique physiology. The same ailment will have indiscernibly progressed to varying degrees in different patients. A doctor could follow all the proper protocols, provide the care called for (i.e., satisfy the standard of care), yet a poor outcome could nonetheless result. The outcome in these instances is largely the result of the “luck of the draw” with respect to a patient pool. Thus, trying to determine which doctors provide the best care is inevitably a limited, if not fruitless, endeavor.
Additionally, a mechanism is already in place to ensure that substandard doctors are not practicing. The training to become a doctor and the required certifications to practice serves as the screening mechanism to ensure that health care providers have the requisite skill to perform their trade. So long as doctors are meeting this minimum established by their field, patients should be led to believe in the ability of those doctors to provide adequate care. Ranking doctors based on outcomes naturally leads consumers to believe that entry level standards are watered down such that doctors “at the bottom” are not competent to perform; which is simply not the case.
Finally, ranking doctors based upon efficiency or cost factors serves a valid societal purpose. Firstly, putting utility aside, such metrics are readily quantifiable, accurate, and objective. And with respect to utility, many patients want efficiency. An efficient doctor is, it would seem, much less likely to engage in “defensive medicine.” For a time pressed patient, as many of us are, reassurance that our time will not be wasted with unnecessary tests and precautions holds real value. And on a societal level, it is obvious that health care costs are out of control. I have recently been put in a position where I must acquire a policy for my family on the open market (I am leaving a secure government position with subsidized health benefits for a position as a law clerk with a small law firm, which does not extend health benefits to its clerks). My monthly contribution is currently $330 for a health plan with no deductible and $20 co-pays. It appears as though my best option on the open market is a $1200/month plan, with a $1,000 deductible. My family is young and healthy. Our annual doctor visits consist of well visits, totaling approximately $1,000 in total costs. With this in mind, if insurance companies can encourage the use of efficient providers (who have been vetted by their profession as proficient at what they do), then this practice should be encouraged. A “high efficiency” network at a reasonable cost would certainly perform well on the open market, particularly among us consumers that don’t actually anticipate using their policies. Health care is or will be a significant factor in everyone’s life at some point. However, if we can prevent it from becoming the driving financial concern among the middle class, that would appear to be a worthy cause.
Adam Peterson is a third-year evening student at Seton Hall University School of Law. He received his B.S. in Conservation Biology from the State University of New York College at Cortland in 2007. Since that time he has worked for the New York State Department of Environmental Conservation as an Environmental Analyst, reviewing development projects for compliance with New York State environmental regulations.
Image by Ludraman.
We are pleased to introduce and welcome Professor Zack Buck to Health Reform Watch. He is a Visiting Assistant Professor here at Seton Hall Law and specializes in various health law topics, focused primarily on issues surrounding mental health law and public health law. Professor Buck teaches health law courses, including mental health law and healthcare fraud and abuse. He holds a J.D. from the University Pennsylvania Law School (2009), a Masters of Bioethics from the University of Pennsylvania (2009), and a B.A. with highest distinction, in Political Science and Journalism, from Miami University (2006). Prior to joining Seton Hall, Professor Buck was a litigation associate at Sidley Austin LLP in Chicago. He is a member of the bar of Illinois (2009) and is a former legal writing instructor at Penn Law (2008-09).
His first post, ACA Litigation, Implications for Medicaid and Mental Health Care, may be found below.
Thomas Greaney, Chester A. Myers Professor of Law and Director, Center for Health Law Studies, Saint Louis University School of Law
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 Thomas Greaney, Chester A. Myers Professor of Law and Director, Center for Health Law Studies, Saint Louis University School of Law, who has been a frequent contributor to HRW, will take part in the panel on “ACOs in Practice: Research on Current Implementation of ACOs,” and will be presenting Accountable Care Organizations: A New New Thing with Some Old Problems.
A nationally recognized expert on health care and antitrust law, Professor Thomas (Tim) Greaney has spent the last two decades examining the evolution of the health care industry and is a vocal advocate for reforming the health care system and protecting consumers. He also has a strong interest in comparative antitrust law, having been a Fulbright Scholar in Brussels and a visiting lecturer at several European law schools.
After graduating from Harvard Law School, Greaney began his career as a legislative assistant on Capitol Hill and as a law clerk with the Federal Communications Commission. He then moved on to the Antitrust Division of the U.S. Department of Justice where he was a trial attorney and became the assistant chief in charge of antitrust matters in health care. His career at Justice spanned ten years and involved him in civil and criminal antitrust litigation in health care, banking, communications and other regulated industries as well as policy formulation and legislative matters.
Greaney came to SLU LAW in 1987 after completing two fellowships and a visiting professorship at Yale Law School. Professor Greaney became Chester A. Myers Professor of Law in 2004 and was named Health Law Teacher of the Year by the American Society of Law, Medicine and Ethics in 2007. His academic writing has been recognized six times by the Thompson Coburn Award for SLU Faculty scholarship.
Professor Greaney’s extensive body of scholarly writing on health care and antitrust laws encompasses articles published in some of the country’s most prestigious legal and health policy journals. Professor Greaney has authored or co-authored several books, including the leading health care casebook, Health Law. A frequent speaker in academia and the media, Professor Greaney has also offered expert testimony at hearings sponsored by the Federal Trade Commission on the issues of applying competition law and policy to health care, and submitted invited testimony to the U.S. Senate on competition policy and health care reform.
I just wanted to introduce a new feature on Health Reform Watch: Recommended Reading. We will be posting short descriptions and recommendations of selected health law scholarship. Our aim is to give readers article abstracts and a brief account of why we thought the article was interesting and useful. Inspired by Larry Solum’s Legal Theory Blog and Michael Froomkin’s Jotwell initiative, our goal is to help readers find particularly insightful pieces in an era of information overload. My colleague Kathleen Boozang’s post on recommended nonprofit and tax law scholarship is the first in the series; we’ll be adding categories in health care finance & regulation and bioethics soon. If you have any recommendations for the Recommended Reading series, feel free to email me or comment below.
Photo by David Monniaux
- Getting Up to Speed: Kaiser Health News breaks down where reform currently stands now that the Senate has passed their version of the Bill.
- Multimedia Perspective: A thorough and well-done interactive timeline of U.S. Health Care Reform helps to provide some much-needed context. Clicking on the event gives a synopsis as well as a link to an NEJM piece on the event from that era.
- No Snow(e) in Sight: Sam Stein notes how Olympia Snowe–a Senator who not long ago garnered the attention of all health reform followers–rationalized her “Nay” by questioning the Bill’s constitutionality.
- Speaking of the constitutionality of the Senate’s bill: As we have noted on this site earlier, questions of constitutionality pervade the dialogue. For those whose interest has been piqued, bloggers at the Volokh Conspiracy have penned a number of pieces on the issue, here, here, and here.
- Senate Bill’s impact on health insurance companies: Bob Laszewski discusses the Bill’s impact on insurance company–channeling the skepticism of non-profit Harvard Pilgrim’s CEO Bruce Bullen.
- Impending Car Crash?: Michael Goozner reiterates his view that the tax on “Cadillac” plans is the biggest issue facing health reform.
- In case you missed it (an oldie but goodie): A Health Reform Watch article on the impact of lobbyists included in the Wikepedia entries for “Health Care Reform, United States” and “Health Insurance.” Which, now that a bill has passed in the Senate, begs the question: do you think those lobbyists might be in line for a bonus?
Taking a break from law, this post is about whether the Veterans Health Administration provides care more efficiently than the private sector. Paul Krugman and others have held the VA out as a shining example of the government’s ability to provide high quality care efficiently, as well as the private sector’s need to lower costs and improve quality through electronic medical records, comparative effectiveness research, reduced overhead, salaried physicians, and integrated delivery systems — all issues that are central to current health reform debates. It would be a huge blow if it turns out none of this is true — but that’s precisely what’s suggested by an article published by VA researchers earlier this year.
Wm. Weeks, MD (at Dartmouth and the VA’s regional center) reported that, from 2001-2006, the VA cost 33% more than equivalent care in the private sector, and its quality was not notably better. Here, I focus on the cost findings, since they diverge dramatically from the prior, state-of-the-art, study by Nugent, Hendricks et al (also from the VA), which found that, in 1999, the VA cost about 20% less than Medicare. Since Medicare itself costs 25-30% less than the private sector, Dr. Weeks reports the VA costs about twice what Dr. Nugent and other VA colleagues previously reported. What makes this discrepancy even more remarkable is that Weeks did not even cite this prior work of VA colleagues, published in multiple articles in leading journals.
What gives? I’m not expert, but its clear their methods differed sharply. Nugent et al. took all care delivered at 6 VA centers and valued the services at actual Medicare fee-for-service rates, comparing the total with costs borne by the 6 VA centers. Thus, the measures and comparison are direct, apples-to-apples. Weeks, on the other hand, compared total VA medical costs (excluding nursing homes) per user with per person costs reported by VA users in the Medical Expenditure Panel Survey (MEPS), which values those services at private sector rates. MEPS is a national survey that contains only a small subsample of 500 VA users, about 1 of every 50,000 VA user. Extrapolating from such a small sample is a much more indirect comparison, so merits closer scrutiny, which reveals many potential flaws:
- The 500 VA users in MEPS are probably not an accurate reflection of 5 million total users. MEPS surveys people living at home who respond to surveys. This entirely excludes people who are homeless, institutionalized, or have died earlier in the year, and it under-represents mentally ill or substance abusers. All of these categories have worse health, and regrettably are prevalent among vets, so MEPS almost certainly omits vets who reflect the highest burden of illness.
- This sample may lacks much statistical validity, even for the vets it does include. MEPS weights responses to make them nationally representative for demographic characteristics, but not for veteran status. Without this weighting, the chance of random error is much greater. This is suggested, for instance, by the fact that the value of VA care reported over this six-year study ranged two-fold from year to year, with no discernible pattern (the sixth year was twice the fifth year, which was half the third year, etc.)
- Even for those whom MEPS does represent, it underreports actual health care costs. Exactly how much and why is somewhat unsettled, but what seem to be the most recent studies conclude that MEPS underreports by 14% – 19%, in large part because reports of both utilization and costs are understated. Weeks acknowledges these possible flaws, but asserts that studies he and others have done show MEPS is reasonably accurate — again without citing any of the leading studies to the contrary.
Moreover, even Weeks’ self-selected cites do not fully support his accuracy claim. For instance, he says a RAND study reports that “MEPS expenditure estimates ‘agree quite well’ with estimates from other databases.” But, the RAND study (p. 34) spoke in that phrase only to utilization, not to expenditures, and even for utilization it said MEPS underreports by 85% for outpatient hospital use. For expenditures (use X price), RAND (on the very next page) said that MEPS underreports hospital costs by 21% and physician costs by 54%.
What is this Journal of Health Care Finance that would publish a flawed use of MEPS? It is hardly a leading health research journal. According to its website, it is
devoted solely to helping you meet your facility’s financial goals. . . . Make easier, better decisions, with advice from industry experts. . . . Experts in the field share their experiences on successful programs, proven strategies, practical management tools, and innovative alternatives, . . . including hospital/physician contracts, alternative delivery systems, generating maximum margins under PPS, improving productivity, taxation management, health care insurance, employee benefit cost-containment, joint ventures, mergers and acquisitions, employee incentive systems, and more.
An e-mail from its editor states that most articles are reviewed only internally, by its editorial board whose members are drawn primarily from industry.
It appears the Weeks article did not receive peer academic scrutiny, but what about scrutiny from the study’s own coauthors, who are affiliated with Dartmouth and Washington & Lee? The second author happens to be Weeks’ wife, and the third appears to be their son. As for Weeks himself, he is deeply embroiled in two serious legal controversies with the VA.
On balance, the Nugent, Hendricks et al. study remains unrebutted. In my view, the Weeks study suffers from too many serious flaws, and is too lacking in objective critique, to hold much or any credence in this important debate.
Originally posted at the O’Neill Institute for National Global Health.
News of the Senate “deal” on the public option is trickling out. It appears to comprise a swap, in which the public option will be dropped in favor of the creation of a nationwide program mimicking the Federal Employees Health Benefits Plan (FEHBP) (along with a Medicare buy-in for people 55 years of age or older). Will the FEHBP model (for those under 55) accomplish what the public option would have done? Tim Greaney’s post here yesterday raises well-founded concerns that it will be less likely to increase competition in concentrated markets. But we had additional hopes for the public option. I’ve previously argued that the public option could help assure adequate coverage of people with chronic conditions. They’re the most vulnerable and increasingly the most costly; sound coordination of their care is necessary to serve their complex needs and to contain costs. Whether this nascent deal will do that work depends on how the FEHBP model translates to an open exchange model, and in particular on benefits design and process rights components. The new enrollees are likely to be more vulnerable than the FEHBP’s membership, and sound consumer protections are necessary to assure that their needs are met. Two components of the program will be critical here: benefits design and process rights.
The FEHBP is mostly a mechanism for contracting with and managing private health insurers. This deal would, therefore, likely create a form of private health insurance exchange, piggy-backing on private plans’ benefits design. Congress should be aware of private insurers’ history with coverage of chronic care services. It is widely documented, for example, that children with special health care needs have more sharply restricted access to necessary therapies through private than public coverage. Ruth Benedict, of the University of Wisconsin, described access problems for children with functional limitations in 2006:
Public health insurance predicted greater use of supportive services and therapeutic services outside the school setting, a finding that may be attributable to the commitment of public programs to serve vulnerable populations such as children with special needs. * * * In contrast to public insurance, private insurance provided children no advantage in accessing therapeutic and supportive services relative to their uninsured counterparts.
The Office of Personnel Management (OPM) has historically addressed benefits design with a broad brush, negotiating and contracting directly with insurers, and balancing premium level against benefits richness. Unless the bill directs OPM to incorporate the needs of people with chronic illness — physical and speech therapy, home care services, and case management, for example — the sickest of the newly covered will find only coverage that poorly matches their needs. And state law that would otherwise benefit the private insurers’ benefits design is specifically preempted in the FEHBP statute:
The terms of any contract under this chapter which relate to the nature, provision, or extent of coverage or benefits (including payments with respect to benefits) shall supersede and preempt any State or local law, or any regulation issued thereunder, which relates to health insurance or plans.
Unless the bill mandates that the OPM protect vulnerable populations in its benefits design contracting, people with chronic illness will likely be left without coverage for vital services that they might have obtained through a public option.
What of process rights under the FEHBP? Suppose a plan participating in the new national exchange were to deny coverage for a service with the benefits design on, say, medical necessity grounds. As Nan Hunter described in her 2006 article, Managed Process, Due Care: Structures of Accountability in Health Care, the process by which covered persons may vindicate their rights of access to covered health care is fractured and often frustrating to participants. Two features of the FEHBP bear note in this regard. First, it allows participants “an independent system of external review,” which Nan Hunter argues can assist individuals and society by improving plans’ accountability and enhancing the deliberative process by which coverage decisions are made. She also identifies, however, the pervasive lack of effective member notice of review options. Second, judicial appeal from the administrative and independent review process is quite limited. It is available only after exhaustion of internal plan review, external review independent review, and OPM review, and the scope of the judicial review itself is quite limited:
A covered individual may seek judicial review of OPM’s final action on the denial of a health benefits claim. A legal action to review final action by OPM involving such denial of health benefits must be brought against OPM and not against the Carrier or the Carrier’s subcontractors. The recovery in such a suit shall be limited to a court order directing OPM to require the Carrier to pay the amount of benefits in dispute.
The adequacy and accuracy of the administrative process, then, must be protected by thoughtful and specific statutory and regulatory language.
Insurance coverage does not equate to access to care. Necessary benefits must be contractually covered, and the insurer must follow through where required. The benefits design and due process provisions in the FEHBP in many ways mirror those of large, self-funded employers. The population newly covered by this bill will, however, not be employees of large firms and federal agencies, and instead will be a more economically and medically marginal population with a higher percentage of people with disabilities and chronic illness. The bill should, then, anticipate the issue directing OPM to set benefits design and review standards serving all, including those with chronic conditions. If Congress hopes to contract out the responsibility of serving a vulnerable population, it needs to ensure that its contracting partners are charged clearly on the nature of their responsibilities.
The American Society of Law, Medicine & Ethics (ASLME) and Seton Hall University School of Law
will co-sponsor the Third Annual Student Health Law Conference on Friday, October 16, 2009 in Newark, New Jersey, from 8:30AM to 5:00PM.
This conference, which is attended by law students from law schools throughout the country, seeks to expose law students to the myriad career paths for attorneys in health and life sciences. The conference provides an introductory session on health law, panels on a variety of employment opportunities in health law, and a networking reception with the conference speakers. Career paths that will be represented include academia, compliance, private firms, government agencies, nonprofit organizations, drug and device companies, health insurers, and hospitals. Speakers for this year’s conference have been chosen for their health law expertise and background.
The format of the conference is a series of panels focused around a particular kind of health law career. Each panel is approximately one hour long and comprised of two to four panelists. Students will have the opportunity to explore nontraditional employment opportunities across the health law spectrum, receive support and guidance from professionals familiar with the experience needed for various careers as well as recruitment and hiring processes, and network with health law attorneys.
for more information.
Photo by David Monniaux
1. The HITECH Act’s Breach Notification rules are now in effect. As is noted in the article, many are questioning some of the limitations in the act– which may reduce the Act’s impact on protecting privacy.
2. Eugene Volokh’s blog discusses the constitutionality of an individual mandate.
3. A persuasive article from Fortune Magazine describing how Baucus’ Finance Committee bill will raise taxes on the middle class, and in dong so violate the core tenets of the Obama administration.
4. A nicely compiled listing of the amendments that have been put forward during the Finance Bill’s mark up.
5. A FiveThirtyEight post questions those who presume that health reform is inevitable, raising some sobering thoughts.
6. Under the Obama administration, The FDA has provided a black box warning for the anti-nausea drug Phenergan, presumably in light of the Supreme Court’s recent rejection of the drug manufacturer’s claim that federal regulations preempt state court’s from suing drug manufacturers for defective warnings.
7. In case you missed it: A post from Health Reform Watch by Professor Timothy S. Jost on Health Care Cooperatives was cited by Jacob S. Hacker in an article over at the New England Journal of Medicine’s web site. Hacker’s article, “Poor Substitutes–Why Cooperatives and Triggers Can’t Achieve the Goals of a Public Option,” is well written and well read.
From MoveOn.org. Because it’s funny
Click through to the video here.
Take a look at Health Insurance CEO Total Compensation figures here.
1. On Obama’s Speech Next Week:
Kaiser Health News rounds up a variety of expectations regarding next week’s address to Congress by the President on health reform.
2. On Paying for Health Reform:
The New England Journal of Medicine has a fantastic post on paying for health care reform–discussing the economic and political obstacles to funding reform.
3. On EHRs and Medical Students:
The Health Care Blog has begun an interesting series of posts discussing how medical school curricula should be influenced by our drive for a fully EHR-based health care system.
4. On the costs of hospice care:
With the debate still raging about the government’s role in end-of-life issues, the Healthcare Economist has a pertinent post about Medicare’s experience with the increasing utilization of hospice care, and the effect of that utilization on cost.
5. On Taxing Health Benefits:
A much shorter NEJM post further expounds on the regressivity of taxing employer-paid health benefits.
6. In case you missed it:
Professor Frank Pasquale and Health Reform Watch Managing Editor, Michael Ricciardelli featured in Maggie Mahar’s “The CBO’s Dubious Health Care Cost Estimates,” on Taking Note.
The New York Times discusses the controversial–and industry enraging–advertisements being run by New York City’s public health officials in their effort to fight obesity.
Photo by David Monniaux
1. On the Public Option Developments:
The New Republic has an optimistic assessment of the recent developments which are said to have forced the Obama administration to adopt a more centrist strategy.
2. On Exercise:
An interesting article in Time Magazine describing the counter-intuitive results that exercise–particularly strenuous exercise–may have on weight gain. However, see this article in the New York Times, describing a Finnish study which found that strenuous physical activity–and not moderate physical activity–reduced the risk of a suffering from a number of different types of cancer.
3. On Treatment Guidelines:
The New York Times also has an interesting discussion of the difficulties of implementing national treatment guidelines that aim to help health care providers utilize best practices. (Note: The article may require a free New York Times account).
4. On Payment Reform:
A recent piece in the New England Journal of Medicine explores the implementation of alternatives to the fee-for-service model.
5. On Taxing Health Benefits:
Merill Goozner frames the taxing of health benefits, arguing as others have, that taxing health benefits may in fact be regressive.
6. On the Best Health Care In the World:
Ezra Klein has a nice discussion of (and link to) an interesting post by the Urban Institute where they explore the (un)truthfulness of claiming that the U.S. has the best health care in the world.
7. In Case You Missed it:
Professor Tim Greaney in The Health Care Blog: “Market Entry by Health Care Cooperatives: Neither Quick Nor Easy” (Originally posted here on Health Reform Watch, then picked up by THCB).
8. In Case You Missed it:
Professor Timothy S. Jost in The Health Care Blog ,”Are Cooperatives a Reasonable Alternative to a Public Plan?” (Originally posted here on Health Reform Watch, then picked up by THCB).
9. Wild card Pick: If you haven’t heard about the astounding medical applications of a pooch’s powerful snout, this short video (with an accompanying transcript) from National Geographic is definitely worth watching.
Viejos Comiendo Sopa, Francisco de Goya, 1819-1823
[Ed. note: Today's post comes from Danielle Y. Alvarez. She is a Seton Hall Law student and a graduate of NYU, where she majored in Political Science. Ms. Alvarez is a research assistant to Dean Kathleen M. Boozang, and a former legal assistant to the Augulius Law firm.]
State and federal legislatures won’t fix the health care system by themselves, which is why a recent Third Circuit decision is a welcome tool to fight substandard long-term residential care. A few enforcement officials have been aggressively creative in using false claims act theories to pursue providers of substandard health care (See here and here). In short, the government claims that the submission of a bill to Medicare for services that were so bad they were the equivalent of no care at all is a false claim for which the government should be reimbursed and recover penalties. And now the Third Circuit has recognized that the provision of such substandard care violates an individual’s civil rights.
In Grammer v. Kane, a nursing home resident’s child sued the nursing home, operated by Allegheny County in Pittsburgh, Pennsylvania, alleging the home’s failure to provide adequate care caused her mother to develop ulcers, become malnourished and develop sepsis, from which she died. Plaintiff invoked 42 U.S.C. §1983 to argue that the nursing home had violated decedent’s civil rights by breaching a duty to provide the standards of care delineated by the Federal Nursing Home Reform Amendments (FNRA), contained in the Omnibus Budget Reconciliation Act of 1987 (OBRA). The district court granted the nursing home’s motion to dismiss, finding that FNRA merely sets forth requirements for nursing homes to comply with but does not grant the deceased rights that are enforceable under §1983. The United States Court of Appeals for the Third Circuit reversed and remanded, concluding that FNRA grants Medicaid recipients like the deceased rights whose violation can be remedied under §1983.
Congress passed FNRA in 1987 to address the substandard conditions in nursing homes that participated in the Medicare and Medicaid programs. FNRA sets forth various quality and residents’ rights standards to which the nursing homes must adhere in order to be paid by the federal government. And yet, as everyone knows, the problems persist. And so it should be a welcome outcome that the Third Circuit held that FNRA unambiguously confers federal rights upon Medicaid recipients in nursing homes, which gives rise to an action under §1983 which imposes liability on every person who, under color of state law, deprives another of “rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. §1983 (2009).
To determine that FNRA affords protection under §1983, the court applied a three factor test set forth by the Supreme Court in Blessing: first, the court determined that Congress intended FNRA to protect personal rights of Medicaid beneficiaries and nursing home residents rather than the nursing homes themselves; second, the court found that the rights asserted are not so “vague or amorphous” that their enforcement would strain judicial resources; third, the court concluded that the statutory language is sufficiently mandatory in nature with its repeated use of “must” such as “a nursing facility must provide services and activities to attain or maintain the highest practicable physical, mental and psychosocial well-being of each resident.” See Blessing v. Freestone, 520 U.S. 329 (1997); 42 U.S.C. §1396r(b)(2)(A) (emphasis added). Furthermore, the court found Congressional intent to create a right of action through rights-creating language, legislative history, statutory structure and Congress’ failure to set forth a more comprehensive remedial scheme. Thus, the Third Circuit recognized individual rights conferred by FNRA that are presumably enforceable under §1983.
District Judge Stafford, sitting by designation, wrote a dissenting opinion finding that FNRA is Spending Clause legislation which does not confer upon funding beneficiaries individual rights to sue funding recipients. The dissent highlighted specific statutory language to conclude that FNRA focuses on what nursing homes must do in order to receive federal funds rather than focusing on the individuals who benefit from the federal funds. Absent unambiguous Congressional intent to the contrary, FNRA does not grant nursing home residents individual rights to sue nursing homes under §1983 for alleged violations of FNRA. As such, the dissent argued that the District Court properly granted Appellee’s motion to dismiss.
“House Democrats Announce $825B Economic Stimulus Package With $157B for Health Care”
That is the title of a well written and informative article from Kaiser (1/16). The title is, for the most part, self explanatory– and the funding breakdown, especially as it regards health care, is explained well enough within the article itself–at least for today. It is a two year $825 billion “stimulus package.”
The breakdown alone could be the subject of at least ten posts, and will ultimately amount to what I’m sure will be countless discussions and debates in the months to come. As well it should. For the moment, however, it may be sufficient to merely read the article. And maybe attempt some perspective.
I hate to admit this, but I really don’t know how much a billion is. I can grasp millions (I can just multiply the value of my house–though the multiplier has grown considerably over the last few years) but billions escape me (considering TARP, that last phrase may be more apt than I am comfortable with). But…
A billion is a thousand million. It is written 1,000,000,000.
I do not find that particularly helpful, but it’s a start.
Years ago, the United States produced $1000 bills; Grover Cleveland graces the front of them and there are said to be a number of them still in existence. It is also said that if you tightly stacked 1 billion dollars in clean crisp thousand dollar bills and piled them–they would rise 63 miles into the air. If you did the same for $825 billion the stack would rise 51,975 miles into the air. Commercial jets generally fly at around 7.7 miles in the air. The circumference of the earth at the equator is roughly 24,901 miles-that’s twice around and then some. And remember, these are thousand dollar bills.
It is estimated that to count from one to a billion would take you 95 years. To count to 825 billion would take you at least 78,375 years. It will not take us nearly as long to spend it.
And by the way, 825 billion is just 175 billion short of a trillion. A trillion is a thousand billion, or a million million, and is written 1,000,000,000,000.
And yes, I find this even less helpful. But my guess is, before the two years are up, we’ll have to figure out what “a trillion” is as well.
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