Post-Enrollment: Ensuring Successful Follow-Through for Health Reform


Cross-Posted at HealthLawProf Blog

Millions – including millions of the “young invincibles” – have been enrolled in the ACA’s private and public insurance programs.  And a recent study by Sommers, Long, and Baicker in the Annals of Internal Medicine, suggests that this enrollment will save lives.  That’s great news for all interested in progressive health reform.  But there is a lot of work to be done to ensure that care follows coverage.  In this and subsequent posts, I’ll point to key implementation issues that share two characteristics:  First, they go beyond the very important enrollment issues.  Second, although federal implementation and advocacy is vital, my issues can be addressed largely through state and local government or private parties.

But before that, let’s call it: 2014 enrollment in ACA-related care is a success.  The numbers are quite compelling.  Private plan enrollment totals a surprising 13 million.  This includes the 8 million signing up through federal or state exchanges, and the additional 5 million signing up outside the exchanges with plans that must meet Qualified Health Plan standards and share a common risk pool with in-exchange plans.  About 28% on-exchange, and 45% of off-exchange enrollees are in the important 18-34 age group.  More good news?  Insurers report   that at least 4 out of 5 have already paid their first month’s premium.  And an additional 4.8 million are newly enrolled in Medicaid and SCHIP.

Sustaining that success won’t be easy.  As Henry Aaron describes in the current issue of the New England Journal of Medicine, the success of the ACA in the short term will be subject to “brutal political war.”  Aaron also describes the legacy of the political war that led to crafting of the ACA as an incremental plan, rather than a comprehensive, coherent design.  The practical problem, in Aaron’s words, is that:

[R]eform had to be built on the most complex, kludgy, and costly system on planet Earth.  Multiple layers of health coverage – as a fringe benefit of private employment, as compensation for military service, as public charity for the poor, as public coverage for the elderly and disabled, and as a private commodity purchased by individuals in a remarkably dysfunctional market – overlap and intersect to pay for care through a bewildering variety of agents in a system that even experts seldom fully comprehend.

“Kludgy” is exactly the word for it (not as cool as Henry Aaron?  Here’s a definition).  But it is a big step forward from the pre-ACA system – tens of millions newly covered, an end to the worst features of American health insurance underwriting, meaningful financial support for those previously shut out of coverage, and a variety of new delivery design initiatives.

The reforms embodied in the ACA can be sustained and improved, but only through the efforts of those in and out of government dedicated to improving access for those historically shut out of care.  The case is not unlike that of Medicare, now a beloved social insurance system with almost 50 million beneficiaries, but in the 1960s a fragile program loved by few and reviled by many.  As Ted Marmor, Jonathan Oberlander and others remind us, Medicare was born in a political maelstrom, and has been sustained, changing over time, through the hard work and creative accommodations by many in and out of government.

As with Medicare, there will be tough political fights about the future of the ACA, and grindingly difficult administrative challenges for federal regulators.  But the states and private actors are critical to the ACA’s success.  The fact is that the ACA’s innovations largely lay over the construct of existing insurance law.  In addition, gaps in coverage and ambiguities in the protection of civil rights means that those outside of the federal political and administrative processes will have lots to do.  Those tasks include:

  • Affordability.  Many advocates are concerned that people newly enrolled in QHPs will have trouble affording care notwithstanding the ACA’s subsidy systems.  This concern goes beyond premium costs, and runs to patient cost-sharing through deductibles and copayments.  States should be considering the adoption of a Basic Health Plan option, and innovative “bridge” and “wrap-around” programs.
  • Coverage of immigrants.  In perhaps no other area of implementation are the political and the pragmatic so at odds.  The fragmented regulation of access to care for different cohorts of immigrants has caused confusion, limitations on access, and bad results – both intended and unintended.  States can take the lead here.
  • Protection of people with disabilities/chronic conditions.  The structure of the ACA’s underwriting reforms are good news for people with disabilities, as are its nondiscrimination mandates, as Sara Rosenbaum has described in detail.  But the reforms mix uncertainly with the financial incentives that remain in the insurance system, and state regulatory oversight and advocacy will be essential to fulfill the statute’s goals.
  • Denials and network adequacy.  The ACA embodies a paradox: it both federalizes the regulation of health insurance, and largely devolves that federal regulation back onto the states for supervision and enforcement.  That means that QHPs will continue to employ utilization management tools, including medical necessity review, to limit access to care – properly and improperly.  Perhaps more pressing is the problem of narrowing networks of providers in health plans.  Properly constructed networks can be a benefit to consumers; improperly constricted networks can deny access in covert and dangerous ways.  Vigilance by states and private actors will be crucial here.

The ACA’s goals are noble, and its somewhat clumsy (or kludgy) structure can succeed, but only through a lot of work from a lot of people.  I’ll return to these issues in upcoming posts.


Originally Denied by the EPA, the Federal Government Now Acknowledges the Link between Ground Zero Air and Cancer

September 23, 2012 by · 1 Comment
Filed under: Health Law 

asbestosTwo weeks ago, New York City held the 11th annual name-reading ceremony for the victims who died in the collapse of the towers on September 11, 2001. Missing from the ceremony, however, were the names of victims who died years after the attacks.  Since 9/11, a multitude of ground zero workers, first responders, and inhabitants of Lower Manhattan have been diagnosed with a variety of diseases, including cancer and mesothelioma, believed due, and now presumed to be due, to exposure to toxic dust. Some have died from their illness, some survived, and some are yet to be diagnosed.

On 9/11, people from all over the nation rushed to New York City to help with search and rescue.  After the search and rescue mission ended, workers were hired to clean up and dispose of the rubble. Since the twin towers were constructed during the 1970s, there was an obvious concern that asbestos used to insulate the buildings, not banned at the time of construction, would pose major health and air quality concerns.

Former New Jersey Governor Christine Todd Whitman and then administrative head of the EPA assured the public that there was no need for alarm.  After reviewing scientific data, Whitman issued a statement on September 18, 2001 declaring the area safe for workers and nearby inhabitants. In a press release, EPA Administrator Whitman stated,

“‘We are very encouraged that the results from our monitoring of air-quality and drinking-water conditions in both New York and near the Pentagon show that the public in these areas is not being exposed to excessive levels of asbestos or other harmful substances,’ [...] ‘Given the scope of the tragedy from last week, I am glad to reassure the people of New York . . . that their air is safe to breathe and the water is safe to drink.’”

The credibility of this data was later called into question. In 2006, senior EPA scientist Dr. Cate Jenkins addressed a letter to members of the New York Congressional delegation stating,

“[T]est reports in 2002 and 2003 distorted the alkalinity, or pH level, of the dust released when the twin towers collapsed, downplaying its danger. [...] The test results helped the E.P.A. avoid legal liability. [... and] had a costly health effect, contributing ‘to emergency personnel and citizens not taking adequate precautions to prevent exposures.’”

During a June 2007 Congressional hearing, former Governor Whitman received harsh criticism for her statements assuring ground zero workers and Lower Manhattan inhabitants of safe air quality.  When pressed to acknowledge that the toxic dust from the collapsed buildings contributed to illness, she declined. Whitman stated that a lack of conclusive evidence existed “linking the dust to disease.” She denied any presence of pressure placed on her to report the air safe in order to quickly reopen the financial district.  She also expressed no regret for her statements in 2001.

Victims of ground zero exposure brought multiple lawsuits against Christine Todd Whitman, however; the Second Circuit Court of Appeals found that Whitman could not be held liable.

In January 2011, President Barack Obama signed into law the Zadroga Act, which expanded the September 11th Victim’s Compensation Fund to include ground zero workers who died from cancer or respiratory diseases, “under the presumption that the cause was due to exposure during recovery efforts.” The act “sets aside money for medical care and $2.775 billion dollars to compensate claimants for lost wages and other damages related to the illnesses.”

Although initially excluded from the Act, the Act was amended to include cancer to the list of ground zero diseases, acknowledging a link between ground zero air and cancer. To date, 50 types of cancers will be covered.  Noah Kushlefsky, an attorney representing 3,800 ground zero victims, foresees that with the addition of cancer, the $2.775 billion will be exhausted before all the victims receive adequate compensation. The addition of numerous cancers to be covered by the Act comes on the heels of Congressional attempts to reduce the deficit. The Zadroga Act faces $300 million in cuts.

The FealGood Foundation, an organization dedicated to supporting the health and welfare of 9/11 first responders, compiled a list of known first responders with cancer and those who died from cancer on their website. Ground zero victims and their families are now seeking legal representation in order to access the victim’s fund.


Symposium: Implementing the Affordable Care Act: What Role for Accountable Care Organizations?

aco-seton-hall-law-3In conjunction with the Center for Health & Pharmaceutical Law & Policy, this year’s SETON HALL LAW REVIEW Symposium will explore recent changes in the structure of health care delivery, in particular the rising popularity of Accountable Care Organizations (ACOs).

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. Luncheon keynote speaker will be Dr. Jeffrey Brenner, founder of the Camden Coalition of Healthcare Providers.

Scheduled Panels & Panelists include

Introduction to Accountable Care Organizations

Jorge Lopez (Partner, Akin Gump Strauss Hauer & Feld LLP): Promise and Pitfalls: Health Reform’s Medicare ACO Shared Savings Program

Hal Teitelbaum (CEO and Managing Partner, Crystal Run Healthcare): The Prospect of Being Hanged: Focusing the Physician Mind on ACOs

Michael Kalison (Chairman of Applied Medical Software, Inc.; Of Counsel, McElroy, Deutsch, Mulvaney, & Carpenter): The Lessons of Gainsharing

ACOs in Theory: Issues Raised by Integrated Delivery

Jessica Mantel (Co-Director, Health Law & Policy Institute, University of Houston, Law Center): ACOs: Can we have our cake and eat it too?

Priscilla Keith (Adjunct Professor and Director of Research and Projects, Hall Center for Law and Health, Indiana University School of Law – Indianapolis): The Impact of Accountable Care Organizations on Public Health

Tara Ragone (Research Fellow, Seton Hall Law School): The Role of Competition in Integrated Delivery: ACOs, Federal and State Antitrust Law, and the State Action Doctrine


Jeffrey Brenner, M.D., Founder & Executive Director, Camden Coalition of Healthcare Providers

Jeffrey Brenner is a family physician and has practiced in Camden for eleven years as a front-line primary care provider for patients of all ages. Having owned a private practice in Camden, he has experience in implementing electronic health records and running a paperless office, open-access scheduling, as well as first-hand knowledge of the various challenges facing primary care in the current health system.

He currently serves full-time as the Coalition’s Executive Director, where he spends much of his time meeting with stakeholders and policymakers, advocating for the models of care the Coalition has developed and demonstrated through data centric results. Jeff is a faculty member of the Robert Wood Johnson Medical School in Camden and is also a former resident of Camden, having lived in the city for over 8 years. He is a graduate of Vassar College and the Robert Wood Johnson Medical School.

ACOs in Practice: Research on Current Implementation of ACOs

Louise Trubek (Clinical Professor, University of Wisconsin Law School), Barbara Zabawa (Whyte Hirschboeck Dudek, S.C); Felice Borisy-Rudin (University of Wisconsin Law School): Accountable care organizations in two states: A preliminary analysis

Sallie Sanford (Assistant Professor of Law, University of Washington – School of Law & School of Public Health): State-based ACO and Medical Home Pilots: Early Lessons from the Other Washington

John Jacobi (Faculty Director & Dorothea Dix Professor of Health Law & Policy, Seton Hall University School of Law), Lessons from ACO Implementation in New Jersey.

Thomas Greaney (Chester A. Myers Professor of Law and Director, Center for Health Law Studies, Saint Louis University School of Law), Accountable Care Organizations: A New New Thing with Some Old Problems.

law-review-header_31The event will take place at Seton Hall Law School with luncheon served at The Newark Club, One Newark Center, 22nd floor. There is no charge for Seton Hall Law alumni; cost for all others, $25.  Four NJ/NY CLE credits will be available. Visit to register. For more information regarding the Symposium, please contact Gianna Cricco-Lizza, Symposium Editor, at


Take Them Away: Has Severe Childhood Obesity Really Come to This?

Photo by Jon Erickson via flickr.

Photo by Jon Erickson via flickr.

As a follow up to my previous post on junk food marketing to children and my earlier post on MyPlate — and any other post that I’ve written about children and fast food or junk food — I would like to direct your attention to a commentary recently published in the Journal of the American Medical Association which has caused quite a stir.  In “State Intervention in Life-Threatening Childhood Obesity,” Dr. David Ludwig (Director of the Optimal Weight for Life Program at Children’s Hospital in Boston, Massachusetts) and lawyer Lindsey Murtagh (Research Associate for the Department of Health Policy and Management at Harvard School of Public Health) confront severe childhood obesity — which is “characterized by a body mass index (BMI) at or beyond the 99th percentile” — with what appears to be a wild and rash line of thought: remove severely obese children from their homes and place them into foster care.

In their commentary, Dr. Ludwig and Ms. Murtagh write that

[s]tate intervention may serve the best interests of many children with life-threatening obesity, comprising the only realistic way to control harmful behaviors. Child protective services typically provide intermediate options such as in-home social supports, parenting training, counseling, and financial assistance, that may address underlying problems without resorting to removal. These less burdensome forms of legal intervention may be sufficient and therefore preferable in many cases. In some instances, support services may be insufficient to prevent severe harm, leaving foster care or bariatric surgery as the only alternatives. Although removal of the child from the home can cause families great emotional pain, this option lacks the physical risks of bariatric surgery.

However, the authors also acknowledge that

removal from the home does not guarantee improved physical health, and substantial psychosocial morbidity may ensue. Thus, the decision to pursue this option must be guided by carefully defined criteria… with less intrusive methods used whenever possible.

Reading through the commentary, one senses an exasperated tone more than anything else.  After all, the authors cite a mind-numbing statistic: there are approximately 2 million severely obese children in the United States.  And how should we treat this epidemic?  With bariatric surgery you say?  And so the authors wonder aloud whether “removal from the home may be justifiable from a legal standpoint because of imminent health risks and the parents’ chronic failure to address medical problems.”

Let’s set aside the legal arguments for a minute and discuss the heart of the matter: America’s eating habits.  Specifically, America’s childrens’ eating habits.   In a response post on MSNBC, Arthur Caplan, Director of the Center for Bioethics at the University of Pennsylvania, criticized Dr. Ludwig and Ms. Murtagh by focusing on other obesity-causing factors, such as the unhealthy “food culture,” that pervades the United States.  Professor Caplan wrote

I am not letting parents off the hook. But, putting the blame for childhood obesity on the home and then arguing that moving kids out of homes where obesity reigns is the answer is short-sighted and doomed to fail. We need the nation to go on a diet together and the most important places to start are at the grocery store, schools and media.

On Booster Shots, the Los Angeles Times health blog, Chris Woolston wrote that removing children from their homes and placing them into foster care will not fix poor eating habits because

[c]hildhood obesity is complicated. Fast food, sodas, TV, video games — many staples of modern life are pushing kids in the wrong direction. While researching a book on this topic a few years ago, I spoke with several moms who were tackling their child’s weight troubles with varying levels of success. One considered putting locks on her cabinets to keep her son from sneaking food in the middle of the night.

Her son was definitely on the large side — beyond that, really — but it’s not because his mom didn’t care. And even if someone had placed him in a foster home it wouldn’t have solved his problems. As a rule, those places have food in their cupboards, too.

Hear, hear.  Wake up, folks.  We need a food culture revolution with healthier and affordable alternatives.  One which teaches our children to choose healthy foods and to eat in moderation.  Because what else must we do before everyone finally, in the words of Professor Caplan, “[d]emonize[s] the companies that sell and market food that is not nutritious” and “[p]ut[s] exercise back on the menu for all school kids”?  Institute state programs that remove severely obese children from their homes and place them into foster care?  Oh, wait….


The Demographics of Illness and Cost: or, An Old Story About Chronic Conditions

Italian physician and doctor Girolamo Mercuriali, portrayed by Lavinia Fontana (1552- 1614)

Italian physician and doctor Girolamo Mercuriali, portrayed by Lavinia Fontana (1552- 1614)

We’ve reported on the distribution of health care costs among populations on numerous occasions here at Health Reform Watch. Over the last decades, our own Professor John V. Jacobi has been espousing reform, at times as almost a voice in the wilderness, as a matter of dealing in caring and cost conscious ways with chronic conditions.

In January of 2009 I noted, quoting HHS reports:

Twenty-five percent of the U.S. community population were reported to have one or more of five major chronic conditions:

  • Mood disorders
  • Diabetes
  • Heart disease
  • Asthma
  • Hypertension

Spending to treat these five conditions alone amounted to $62.3 billion in 1996. Moreover, people with chronic conditions tend to have other conditions and illnesses. , according to 1996 MEPS data. On an individual level, treatment for the average patient with asthma was $663 per year in 1996, but when the full cost of care for asthma and other coexistent illnesses is taken into account, the average cost was $2,779.

When the other illnesses are added in, total expenses for people with these five major chronic conditions rise to $270 billion, or 49 percent of total health care costs.

Expenses for people with one chronic condition were twice as great as for those without any chronic conditions. Spending for those with five or more chronic conditions was about 14 times greater than spending for those without any chronic conditions. Persons with five or more conditions also have high hospital expenditures. In New York State during 2002, of the 1.3 million different persons admitted to the hospital, the 27 percent with five or more chronic conditions accounted for 47 percent of all inpatient costs.

I have also noted in July of 2009 that

…32% of Medicare costs are attributable to diabetes. It is no stretch to say that if we have a Medicare cost problem in this country (we do), what we really have is a diabetes problem (and, considering Halvorsen’s “we only get it right 8% of the time” figure, a diabetes treatment problem as well).

But first things first. 32% is a mere scooch (yes, that’s the technical term) away from ONE THIRD. That’s an enormous number. If one were to relate this portion of Medicare expense to houesehold expenditures, it occupies a place similar to a mortgage– but an expensive mortgage in a house that no one wants to live in.

And now a further health cost demographic from NPR’s Marketplace in conjunction with WHYY’s Health Desk, Gregory Warner. And yes, it’s about chronic conditions:

Tess Vigeland: Take everything this country spends on health care — the government, employers, patients — and it rounds out to a little over $8,000 per person on average.

But averages don’t really tell the whole story. A study by the National Institute for Healthcare Management found that in 2009, 15 percent of us had no health care costs at all. While at the other end, 5 percent accounted for almost half of all health care costs: $1.2 trillion.


Gregory Warner: Maybe you picture this high-cost patient as someone at the end of life, confined to a hospital bed and hooked up to expensive medical devices. But more likely, you’ll find this person at home or in a nursing home, living with five or more chronic conditions.


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