Recommended Reading: Recent Special Education Law Scholarship

January 8, 2014 by · Leave a Comment
Filed under: Recommended Reading 

kate-greenwood_high-res-2011-compI put Karen Syma Czapanskiy’s article Special Kids, Special Parents, Special Education, which is forthcoming early this year in the Michigan Journal of Law Reform, on my To Read list when she  blogged about it (here and here) back in August.  This week, I finally read it, and I am glad I did.  In the article, Professor Czapanskiy sets forth her belief that the special education system should be made more “more parent-friendly or parent-oriented, particularly in terms of supporting parental competence and conserving parental resources.”  To that end, she suggests three reforms, one of which struck me as particularly thought-provoking.

As Professor Czapinskiy explains, despite the Individuals with Disabilities Education Act’s (IDEA’s) requirement that students with disabilities receive individualized education programs, school systems “have standardized approaches to educational plans for children with particular issues[,]” approaches that are “well-known to school employees with special education responsibilities and to other repeat players[,]” but not to parents.  Professor Czapinskiy argues that standardization itself is not necessarily problematic and in fact has much to recommend it.  Done right–that is, democratically and transparently–standardization would reduce the burden the current system imposes on parents and have a number of other salutary effects.  The most compelling potential effect, I think, is that standardization could reduce inequality, because “[t]he only way to achieve the gold standard for one child would be to successfully advocate for a gold-standard for all children with similar conditions.”

Moving from the current individualized, private process to a standardized, transparent one would have myriad potential implications for school districts, including, potentially, affecting their exposure to liability.  In his interesting article, IDEA Class Actions After Wal-Mart v. Dukes, which is forthcoming in the University of Toledo Law Review, Mark C. Weber predicts that, in response to Wal-Mart v. Dukes, in which the Supreme Court overturned the certification of a class of female employees alleging sex discrimination in employment, special education litigants will, among other things, “fram[e] classes around specific system-wide policies[.]”  Professor Weber writes:

“One can easily imagine that plaintiffs in a case alleging violations of IDEA child-find will try to find an email or other directive telling teachers not to refer children for evaluation, or not to refer them after a certain point in the school year.  Similarly, they may look for evidence of a quota system for referrals, or a system by which an administrator in no position to make informed, individualized determinations has to approve referrals.  Or plaintiffs might seek evidence that teachers receive bad evaluations or are penalized in some other way if they make too many requests that children be evaluated for special education.”

Of course, none of this digging would be necessary if the plaintiffs were up against a school district that adopted a standardized program in a formal and transparent manner, as recommended by Professor Czapanskiy.  Such a district could, therefore, be more vulnerable to a class action suit.  This would be mitigated to the extent that standardization reduced the large number of individual suits that are currently brought challenging students’ education programs.  As Professor Weber notes, the IDEA is “no small source of business for the federal and state courts.”

Those interested in the issues Professor Czapanskiy and Weber discuss will likely also be interested in Joanna Birenbaum and Kelly Gallagher-Mackay’s article From Equal Access to Individual Exit: The Invisibility of Systemic Discrimination in Moore, which came out last year in the Journal of Law & Equality.  In their article, Birenbaum and Gallagher-Mackay analyze a 2012 decision of the Supreme Court of Canada upholding an award of monetary damages to parents who were told by their son’s principal and by representatives of the school district that “if they wanted [their son] to read and write at a level necessary for functional literacy, the only option was to enroll [him] in private school[.]”  The parents did as recommended, and paid for private school out-of-pocket “from grade four until graduation in grade twelve[.]”  While the Supreme Court upheld the parents’ damages claim against the school district, it rejected their claim against the province of British Columbia for “fail[ing] to properly fund, support and monitor special education[.]”  The Court also overturned “all the systemic remedies ordered by the Tribunal against the Province and the District.”  Birenbaum and Gallagher-Mackay find this aspect of the Court’s decision dismaying, arguing that “systemic discrimination calls for systemic remedies, consistent with the substantive equality purposes of human rights legislation.”  They acknowledge that the prospect of individual damages awards can in some circumstances motivate systemic change, but argue that “it is unclear how the individual remedy of compensation for private school tuition will achieve the systemic equality result of meaningful access to public school education for children with learning disabilities.”  In addition to being “unlikely to foster comprehensive change”, they contend, the Court’s limited remedy “may undermine substantive equality if school boards decide it is cheaper to pay damages to the squeaky wheels than to fix the system.” 

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Monday Morning Recap: The Week in Drug & Device Law & Policy

December 23, 2013 by · Leave a Comment
Filed under: Monday Morning Recap 

Picture3What follows is a weekly feature here at Health Reform Watch.  Each Monday morning, we provide a recap of the drug and device law and policy developments over the previous week that caught our eye and made us think.  Credit for the format goes to Seton Hall Law alum Jordan T. Cohen, who used it to great effect in his series of Reform Rodeo posts.

1. Last week brought the big news that GlaxoSmithKline will stop paying doctors to promote its drugs, stop paying for doctors to attend medical conferences, and stop paying sales reps on a per prescription basis.  Ed Silverman at Pharmalot characterizes the changes as GSK’s “latest bid to restore its damaged reputation”; Christopher Robertson at Bill of Health calls the company’s announcement “cause for hope”, noting  that the “needle does move.”

2. In JAMA, Harold Sox measures the new guidelines on managing high blood pressure against standards promulgated by the Institute of Medicine in 2011.  As Sox notes, “[a] rigorous, transparent process for developing and reviewing guidelines matters a great deal because guidelines are increasingly driving the practice of medicine.”

3. In the latest article in ProPublica’s series “The Prescribers”, Tracy Weber and Charles Ornstein address Medicare Part D fraud.  Weber and Ornstein write: “When criminals plunder Part D, justice is rarely swift. Investigators from so many agencies are involved that chasing down fraud often seems like a relay race in which someone fumbles the baton—or stops well short of the finish line.”

4. Also on the topic of enforcement, I highly recommend Judge Jed Rakoff’s essay in the New York Review of Books entitled “The Financial Crisis: Why Have No High-Level Executives Been Prosecuted?”, the implications of which extend beyond the financial crisis, including to the prosecution of healthcare fraud.  Judge Rakoff writes that the recent trend of prosecuting companies in favor of the people who work at companies is “technically and morally suspect. It is technically suspect because, under the law, you should not indict or threaten to indict a company unless you can prove beyond a reasonable doubt that some managerial agent of the company committed the alleged crime; and if you can prove that, why not indict the manager? And from a moral standpoint, punishing a company and its many innocent employees and shareholders for the crimes committed by some unprosecuted individuals seems contrary to elementary notions of moral responsibility.”

5. Finally, at The Atlantic, Mark Micheli comments on the effect of the budget deal on the National Institutes of Health, noting that the agency “lost $1.71 billion during sequestration and has seen a 25 percent reduction in overall funding since 2003. … The budget calls for an increase in discretionary spending to $1.012 trillion in FY14 and $1.014 trillion in FY15. At the NIH, that’s equivalent to potentially reducing the sequester cuts for 2014 by half and the cuts for 2015 by a quarter, according to Science magazine. But for now, the precise effect on NIH awaits the decision of the Appropriations committees, which are to decide specific funding allocations by January 15.  It’s a step in the right direction, research advocates say, but still far from enough.”

This will be our only post this holiday week.  See you next Monday!

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Hobby Lobby: Are Employers Unfaithful Agents?

jacobi_johnThe Affordable Care Act created a distinctly American health finance system, largely built on the foundation of employment-based insurance.  The list of controversies the statute has created is a long one; most recently, the Supreme Court has granted cert. in two cases challenging the “contraception mandate” on religious exercise/RFRA grounds.  There has been a lot of interesting writing on the RFRA issue, which is sure to be central in arguments before the Court.   Eugene Volokh has voluminously and thoughtfully posted on the RFRA issue, and Marty Lederman has also tackled these interesting issues.  As I’m an insurance and not a Con Law/First Amendment guy, the recent post that grabbed my attention was one  by Joey Fishkin.

Fishkin argues that the ACA in effect converts Hobby Lobby (and other private firms contesting the “contraception mandate”) into a “federal agent” for purposes of providing access to health insurance.  He describes the effect of a Hobby Lobby victory on a lower or middle income Hobby Lobby employee.  He points out that the employee would be unable to obtain a subsidy in an exchange for insurance covering contraception, because Hobby Lobby would (presumably) be providing ACA-compliant, affordable coverage.  And the employee would be unable to afford unsubsidized coverage unless she earned a relatively high income.  So, the employee would be obliged to purchase coverage, but functionally be left with only the coverage without contraception coverage, because Hobby Lobby (the “agent” of the federal government for the provision of coverage) has religious beliefs that have received an official imprimatur.   This, Fishkin argues, raises Establishment Clause problems to rival the Free Exercise Clause problems advanced by Hobby Lobby.

The constitutional/RFRA issues aside, Fiskin nicely frames a health policy/health insurance issue: are employers such as Hobby Lobby unfaithful agents to their employees for health insurance purposes?   The ACA is a compromise in many ways.  Most relevant to the issue at hand, it reflected a compromise by which most Americans continued to receive their coverage through employment – and not through a single payer system or a disintermediated individual marketplace.  The compromise was not built on entirely solid ground, however, and Hobby Lobby adds additional cracks to that foundation.

Does a Hobby Lobby victory threaten our continued reliance on employers as central players in the American health finance system?  Maybe not; but the problem Fishkin points out at least calls into question the continued usefulness of the acceptance of the employer as fiscal agent for employees for health insurance purposes.

As many have noted, including David Hyman and Mark Hall, and Kathryn Moore, employers, while not qualifying as agents under common law agency principles, nevertheless perform many agency functions and are frequently regarded as agents in connection with their employees’ insurance coverage.  Employers do good things for their employees in this role.  Their selection of coverage reduces search and transaction costs, and they can provide expertise in resolving disputes and bargaining for more favorable prices.  Studies have reported that many employees are satisfied with their employers’ choices – although such surveys are always suspect as they may be skewed by the fact that only a small percentage of employees are likely to have serious illnesses such that they can test the appropriateness of the trade-offs their employers have made.

And, as Hyman & Hall have thoroughly described, the employment-based system is entitled to no more than “two cheers,” due in large part to the structural conflicts of interest between the employer’s and employees interests in the coverage selected.

The ACA’s mandate to cover preventive services with no cost-sharing, including  some contraceptive drugs and devices, serves  purposes similar to those in the ACA’s broader essential health benefits provision.  First, these coverage mandates give federal legal content to the term “health insurance,” providing some assurance that coverage will be meaningful.  Second, the uniformity of comprehensive coverage increases purchasers’ ability to compare “apples to apples” when selecting health insurance, driving improvements in quality and cost.  In short, the contraception mandate and the broader EHB mandate are pro-consumer and pro-competition provisions.

Religious employers, however, have significant arguments that the contraception mandate, as interpreted, is offensive to their religious observance, perhaps in violation of RFRA.  But to permit the religious exercise rights of employers to impair consumers’ access to coverage is inconsistent with the employer-as-agent metaphor so central to the American health finance system. As Marty Lederman has noted, Judge Rovner’s dissent in the 7th Circuit’s recent contraception mandate case demonstrates that allowing employers to pick and choose which services are permissible for their employees threatens to create a “crazy quilt” of coverage – some covered by employers and some offered, if at all, through some patched-together governmental wrap-around coverage.

How to escape this dilemma?  Hobby Lobby may mark the beginning of the end of a big part of our social and economic history.  It may be that respecting religious employers’ interests while advancing employees’ rights to equal access to federally supported and mandated coverage signals the need for a final parting of the ways between America and the sometimes convenient, never loved, employment-based insurance system.

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Monday Morning Recap: The Week in Drug & Device Law & Policy

December 16, 2013 by · Leave a Comment
Filed under: Monday Morning Recap 

Picture3What follows is a weekly feature here at Health Reform Watch.  Each Monday morning, we provide a recap of the drug and device law and policy developments over the previous week that caught our eye and made us think.  Credit for the format goes to Seton Hall Law alum Jordan T. Cohen, who used it to great effect in his series of Reform Rodeo posts.

1. At The New Yorker, Ian Parker tells a gripping story about the development and approval of a next generation insomnia drug.  Parker ends the article with the following question:  “How successfully can a pharmaceutical giant—through advertising and sales visits to doctors’ offices—sell a drug at a dose that has been repeatedly described as ineffective by the scientists who developed it?”

2. An article by Ariana Eunjung Cha in The Washington Post suggests that fears of risk classification by design in the new health insurance exchanges may be coming true.  Cha writes: “The nation’s new health-care law says insurers can’t turn anyone away, even people who are sick. But some companies, patient advocates say, have found a way to discourage the chronically ill from enrolling in their plans: offer drug coverage too skimpy for those with expensive conditions.”

3. At Fierce Pharma, Tracy Staton reports on a fine issued by the Swedish stock exchange against a drug company, Medivir, that failed to respond for three hours to a conversation on Twitter that sent the company’s shares soaring.

4. Also in the news last week was the FDA’s decision to “implement[] a voluntary plan with industry to phase out the use of certain antibiotics for enhanced food production. … Because all uses of antimicrobial drugs, in both humans and animals, contribute to the development of antimicrobial resistance, it is important to use these drugs only when medically necessary.”

5. Finally, at The Incidental Economist Aaron Carroll highlights a study in JAMA Pediatrics that found that the “vast, vast majority of drugs used in the care of neonates have not been studied in neonates.”  Carroll writes: “We need to work on fixing this. Legislation hasn’t done enough.”

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Seton Hall Law’s John Jacobi Testifies Before the New Jersey Legislature on the Obama Fix

December 13, 2013 by · Leave a Comment
Filed under: Health Reform 

Last week, John V. Jacobi, the Dorothea Dix Professor of Health Law & Policy at Seton Hall University School of Law—and a contributor to this blog—testified before the New Jersey legislature at a hearing on the New Jersey insurance commissioner’s decision to allow insurers to renew recently-cancelled plans for an additional year.

Professor Jacobi responded to a number of issues, including whether New Jersey, rather than simply permitting insurers to renew policies out of compliance with the Affordable Care Act (as President Obama requested) could instead mandate such renewals.  Jacobi explained that such a mandate would violate specific terms of the ACA, and therefore be unlawful.  The permissive renewals, in contrast, can be seen simply as an exercise of administrative discretion by both federal and New Jersey officials.

Jacobi also, however, suggested that insurers might not be fully protected were they to renew these technically noncompliant policies.  While administrative officials have agreed not to enforce the law, people covered by the insurance have entered into no such agreement.  They could, then, if the renewed policy failed to cover services mandated by the ACA, insist on the coverage as a matter of federal statutory law.

In an article at NJ Spotlight, Andrew Kitchenman writes the following:

Seton Hall University health law professor John V. Jacobi raised a separate point – the possibility of legal challenges over coverage being denied in plans that are extended but don’t comply with the ACA.

Jacobi put forward the hypothetical example of a child of a worker at a small business that offers an insurance plan that is extended but would otherwise have been cancelled because it didn’t comply with the ACA. Jacobi said that if that child were to become sick and be denied coverage that would be mandated by the ACA, the child’s family would be in a strong position to challenge that denial.

For example, pediatric dental care and treatment for some mental illnesses aren’t covered by current health plans, but must be covered under ACA-compliant plans.

“While the employer and maybe even the employee may have agreed to this lesser coverage, the statute still requires that those services be covered,” Jacobi said.

Read Kitchenman’s entire article, Insurers Face Tough Decisions on Whether to Extend Health Plans, here.

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