Health Care Reform & Undocumented Aliens

kathleen m. boozangSeveral commentators have already observed the absence of any discussion of undocumented aliens in the discussion about health care reform.  And yet, the issue is huge, particularly for those ten or so states in which these individuals disproportionately live and work.  The June 2009 issue of American Journal of Kidney Disease includes an article on a survey of nephrologists[1] who report an increasing number of undocumented aliens with End Stage Renal Disease (ESRD).  Unsurprisingly, access to care for these individuals is inadequate and shrinking, with about one third of physicians reporting undocumented patients to be wholly reliant on emergency dialysis, which carries with it higher cost and morbidity; 67%, however, reported availability of long-term dialysis care.

A significant minority of physicians reported advising their undocumented patients to move to another state or country to access care, even though accessing appropriate renal care is difficult due to scarcity in Mexico, the native country of the majority of undocumented aliens in the United States.[2] On the other hand, undocumented aliens present much younger (40′s) with ESRD, which causes many nephrologists to argue that provision of kidney transplants would be a much less costly care approach, long-term.  Federal law prohibits use of Medicaid funds for transplants for this population.[3]

Many hospitals find themselves “stuck” with chronically ill patients who no longer require acute care, but require discharge to nursing homes or rehabilitation facilities because their debilitation is so severe.  These include victims of car accidents and crimes, for example.  These patients originally appear in hospital emergency rooms in acute distress, thereby requiring the hospital to treat and stabilize pursuant to their EMTALA obligations.  Medicaid has in the past made some monies available to reimburse hospitals for this episode of care (although it was never enough, according to the hospitals, and while the most recent authorization law expired in 2008, funds remained for distribution into 2009).  Further, hospitals are required by Medicare Conditions of Participation to prepare and implement an appropriate discharge plan.  This becomes impossible to accomplish if there is no hope of reimbursement for the subsequent care facility.

Assuming there are Medicaid monies to be had for the emergency care of this population, courts have been split over the question of whether the Medicaid emergency services coverage provision covers the long-term and chronic aftermath of an acute situation.  Specifically, the question is whether the reimbursement is limited to the treatment required to stabilize the patient with leukemia, ESRD, or brain injury, or whether it extends to the post-stabilization care required to prevent a future emergency condition.   Greenery Rehabilitation Group v. New York City Human Resources Administration, 150 F.3d 226 (1998), concluded that if the patients’ post-emergency injuries were properly classified as chronic rather than acute, they do not qualify for Medicaid coverage.  Scottsdale Healthcare Inc., v. Arizona Health Care Cost Containment Syst. Admin., 75 P.3d 91 (D.C. Ariz. 2003), rejected the Second Circuit’s focus on stabilization as too narrow, holding instead that the “focus must be on whether the patient’s current medical condition–whether it is the initial injury that led to admission, a condition directly resulting from that injury, or a wholly separate condition–is a non-chronic condition presently manifesting itself by acute symptoms of sufficient severity that the absence of immediate medical treatment could result” in an emergency condition. Id. at 98.  The issue has also been taken up in the last few years by the Connecticut and North Carolina Supreme Courts, in which both plaintiffs’ received emergency room diagnoses of leukemia and sought coverage of their subsequent chemotherapy treatments — these Courts also split on the issue.

These cases are merely a snapshot of a much larger issue.  A health care reform bill that doesn’t address the health care of both legal and illegal aliens will be inadequate, and adversely and disproportionately affect the several states where large numbers of immigrants live, work, and school their children.  The solution must address access to primary and emergency care as well as treatment for chronic conditions.  Those states whose workers compensation systems are inadequate in their coverage of immigrants disabled in the course of their employment might also ameliorate the crisis presented by this population by reform in this area as well.


[1] Hurley & Kemp, et al., Care of Undocumented Individuals with ESRD: A National Survey of U.S. Nephrologists, 53 Am. J. Kidney Disease 940 (2009).

[2] Id. at 947.

[3] CMS Uniform Policy Manual § 3000.01

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The Call for Medical Malpractice Reform as Health Care Reform: Sound and Fury?

“THE FIRST THING WE DO,  LET’S KILL ALL THE LAWYERS.”
–Wm. Shakespeare, King Henry VI, Part II, (Act IV), Scene 2

[Today's post comes from a Bloomberg.com article I found via Kevin Giordano at http://twitter.com/SHHealthcareLaw -- a great source for Health Law news.]

The familiar refrain of “medical malpractice reform” has once again begun to echo through the popular landscape. It is being proffered as a means of achieving health care reform. But recent studies seem to show, as Bloomberg reports, that we might be better served to look elsewhere:

Protecting doctors from lawsuits may do more to gain political cover for President Barack Obama‘s health-care overhaul than to rein in medical costs.

While Obama vowed to address physicians’ malpractice worries in a speech yesterday, annual jury awards and legal settlements involving doctors amounts to “a drop in the bucket” in a country that spends $2.3 trillion annually on health care, said Amitabh Chandra, a Harvard University economist. Chandra estimated the cost at $12 per person in the U.S., or about $3.6 billion, in a 2005 study. Insurer WellPoint Inc. said last month that liability wasn’t driving premiums….

“Medical malpractice dollars are a red herring,” Chandra said in a telephone interview. “No serious economist thinks that saving money in med mal is the way to improve productivity in the system. There’s so many other sources of inefficiency.”

The relative cost figures regarding the costs associated with malpractice are worth noting –as reported by Bloomberg:

About 10 percent of the cost of medical services is linked to malpractice lawsuits and more intensive diagnostic testing due to defensive medicine, according to a January 2006 report prepared by PricewaterhouseCoopers LLP for the insurers’ group America’s Health Insurance Plans.

2 Percent of Spending

The figures were taken from a March 2003 study by the U.S. Department of Health and Human Services that estimated the direct cost of medical malpractice was 2 percent of the nation’s health-care spending and said defensive medical practices accounted for 5 percent to 9 percent of the overall expense.

A 2004 report by the Congressional Budget Office also pegged medical malpractice costs at 2 percent of U.S. health spending and “even significant reductions” would do little to reduce the growth of health-care expenses.

Defensive Medicine

As is, I believe, readily apparent, defensive medicine comprises a great deal of that estimated expense associated with malpractice. It may benefit us to consider for a moment just what defensive medicine is. Seemingly, one would define “defensive medicine” as that which a doctor does, which he or she would not do, if solely exercising his or her discretion without the fear of being sued. Therefore, might I suggest that “defensive medicine” is only excessive if the doctor’s best estimation of the situation is correct.

Bloomberg reports that “The U.S. Institute of Medicine found a decade ago that medical errors kill 98,000 Americans a year” according to Les Weisbrod, president of the Washington-based trial lawyers’ group, the American Association of Justice.

According to Medical News Today, the medical error fatality figures above were supported by “Dr. Chunliu Zhan and Dr. Marlene R. Miller in a research study published in the Journal of the American Medical Association (JAMA) in October of 2003. The Zhan and Miller study supported the Institute of Medicine’s (IOM) 1999 report conclusion, which found that medical errors caused up to 98,000 deaths annually and should be considered a national epidemic.

A study by HealthGrades found more than twice that number in “potentially preventable deaths.”

In a post entitled Surgical Checklist Said to Save Lives & Money, we noted the following:

The use of a basic checklist was shown to be associated with a substantial decrease in surgical deaths and complications. In what the A.P. referred to as a “a large international study of how to avoid blatant operating room mistakes,” researchers found a 47 per cent decrease in death and a more than one third decrease in complications-from 11% to 7%- concomitant with the use of a 19 point checklist designed by the World Health Organization.

A.P reports that regarding the elements on the list (many of which concern matters such as verifying the patient’s identification, marking the area to be incised with a magic marker, discussing patient allergies and surgical team member responsibilities, and accounting for all needles, sponges and instruments after the surgery) U.S. hospitals have been required since 2004 to take some of these precautions. But the 19-item checklist used in the study was far more detailed than what is required or what many institutions do.

The researchers estimated that implementing the longer checklist in all U.S. operating rooms would save at least $15 billion a year. The study, which was conducted in both “wealthy” and “poor” nations in eight city hospitals across the world (including Seattle, Washington), was published in the New England Journal of Medicine; its results were said to have “startled the researchers.”

Finally, it should be noted that as someone with a J.D. after his name who has read more malpractice cases than I care to remember, I don’t claim to be unfettered by professional bias. And to make the case for fact-based reflection upon a subject is not to dismiss the underlying concerns of the subject as unwarranted– it is merely a call for appropriate perspective: given the number of yearly fatalities due to error (not to mention injuries due to the same), I am not prepared to categorize what doctors refer to as “defensive medicine” as a wholly unfounded expense.

As for the Shakespeare quote, “First thing we do, let’s kill all the lawyers,” I’ll leave that in the more than capable hands of Attorney Howard L. Nations:

Those who use this phrase pejoratively against lawyers are as miserably misguided about their Shakespeare as they are about the judicial system which they disdain so freely.

Even a cursory reading of the context in which the lawyer killing statement is made in King Henry VI, Part II, (Act IV), Scene 2, reveals that Shakespeare was paying great and deserved homage to our venerable profession as the front line defenders of democracy.

The accolade is spoken by Dick the Butcher, a follower of anarchist Jack Cade, whom Shakespeare depicts as “the head of an army of rabble and a demagogue pandering to the ignorant,” who sought to overthrow the government.  Shakespeare’s acknowledgment that the first thing any potential tyrant must do to eliminate freedom is to “kill all the lawyers” is, indeed, a classic and well-deserved compliment to our distinguished profession.

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Dr. Kuklo and the Larger Lesson: Transparency in Medical Research

June 18, 2009 by · 5 Comments
Filed under: Fraud & Abuse, Transparency 

[Ed. note: We are very pleased to welcome Valerie Gutmann, J.D. to the blog today. Valerie joined Seton Hall Law School in 2009 as a Faculty Researcher in the Center for Health & Pharmaceutical Law & Policy. She came to Seton Hall from Kirkland & Ellis LLP after having graduated from Harvard Law School, where she served as an author and Editor-in-Chief of the Recent Developments Section of the Journal on Law, Medicine, and Ethics. Prior to law school, Valerie worked at the National Academy of Sciences, the American Association for the Advancement of Science, and the ABA Coordinating Group on Bioethics & the Law. In 2001 she graduated from the Woodrow Wilson School of International Affairs and Public Policy at Princeton University, magna cum laude, where she was co-president of the Princeton Bioethics Forum.]

In a glaring example of the consequences of less-than full disclosure in research and publication, recent reports have shed light on Dr. Timothy R. Kuklo’s study of Infuse.  Dr. Kuklo’s article on the bone-growth protein manufactured by Medtronic Inc. was published by the British Journal of Bone & Joint Surgery in August 2008, and was retracted in March 2009, after an army investigation found that Dr. Kuklo’s study had misleadingly promoted Infuse as “strikingly” better and more efficacious than conventional bone grafts in repairing severely shattered shin bones of Americans injured in Iraq.  Kuklo has been accused of using “falsified information” that did not match with patient records and forging signatures of four doctors at Walter Reed Army Medical Center who he falsely claimed to be co-authors.  Dr. Kuklo also neglected to disclose his relationship with the company.

Dr. Kuklo, a former army surgeon at Walter Reed, is currently on leave from Washington University School of Medicine in St. Louis, where he was associate professor of orthopaedic surgery, specializing in cervical spine, spinal deformity, spinal tumors, and spine trauma.  From August 2006 through May 2009, Dr. Kuklo was a consultant to Medtronic, who recently announced that Dr. Kuklo’s consultancy contract was being suspended (some accounts controvert the alleged timeline, and Medtronic claims that it had no involvement in the study and did not depend on the study for government regulatory approval). While working for the army, Dr. Kuklo was also paid by Medtronic to speak on the company’s behalf at meetings and to train other doctors, and was a recipient of thousands of dollars worth of trips.  Military officials have stated that there are no records that Dr. Kuklo had sought or received permission to accept money to consult for medical product companies.

Last year, Senator Chuck Grassley (R, Iowa) called for an investigation into Dr. Kuklo’s study.  Senator Grassley requested information from Walter Reed, Washington University, Medtronic, and two medical journals.  He has also publically released a list provided by Medtronic of consultants for the Infuse product, on which Dr. Kuklo had suspiciously not been included.  Spokespeople for Medtronic noted that Dr. Kuklo was not on the list because he was a general consultant to the company, rather than specific to Infuse, although he has spoken on behalf of Infuse in the past.

The Kuklo case is further evidence of the implications of incomplete disclosure, which may lead physicians to make medical decisions without all the information that should be available to them.  As we have noted in the past, the Center for Health and Pharmaceutical Law & Policy has vigorously called for such reform in its 2009 whitepaper:

All those engaged in medical research and publication, including medical professionals and institutions, medical journals, and industry, should undertake reforms to ensure the integrity of the medical literature.  Transparency in the relationship of industry and physicians would be a critical tool in this effort.

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Study: 62% of All Bankruptcies are Medical Related

June 4, 2009 by · 4 Comments
Filed under: The Uninsured 

The Los Angeles Times and the Wall St. Journal Health Blog report that a new study by Harvard researchers shows that medical-related bankruptcies have increased. The researchers did a similar study for 2001 which found that medical bills, the loss of wages and cost of care attributed to illness contributed to 55% of bankruptcies. For 2007, the number is 62%.

Importantly, this rise in 2007 comes, as the study authors note, despite Congress having “tightened the bankruptcy laws” in 2005. In addition, the LA Times notes that “the latest study probably understates the current burden of medical expenses because it is based on bankruptcies filed before the recession hit.”

The WSJ Health Blog reports it thus:

Some 62% of all bankruptcies filed in 2007 were due in part to medical expenses, according to a new study. Even more striking: 78% of those individuals had insurance.

Most people hit by such bankruptcies were considered middle-class, college-educated and owned homes, according to the study published online by the American Journal of Medicine. By the time they filed bankruptcy, those without insurance reported average medical bills of $26,971 and those with insurance, expenses of $17,749.

The LA Times reports that

Hospital bills were the largest expense for about half the families that filed health-related bankruptcies.

It would be interesting to know what percentage of those hospital bills were claimed by nonprofit hospitals to be a “community benefit” under 501(c)(3).

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Nurse Practitioners and the Allocation of Resources

May 28, 2009 by · Leave a Comment
Filed under: Uncategorized 

In my last post, I made a rather conclusory (and parenthetical) statement regarding the utilization of nurse practitioners in retail health clinics. I wrote:

Retail health clinics have sprouted up across America as of late. They can be found in grocery stores and pharmacies, are open nights and weekends, often (wisely) utilize the services of nurse practitioners for minor ailments and feature a clearly listed schedule of fees.

Today I’ll clarify. The view espoused is largely based upon simple resource allocation theory: that one utilizes resources effectively by matching the need with the skill; that to underutilize is to engage in waste, and, given demand and a shortage of doctors, when a physician is attending to minor ailments, and charging physician rates to do so, society has experienced a net loss.

The trick of course is in a) making sure that there is a sufficient supply of well trained nurses (you may wish to take a look at this interesting RWJF blog from Susan Hasmiller, “projected shortage of 500,000 nurses by 2020,” despite the present difficulty of some nurses to find work ); and b) assuring that the need of the client is matched with the appropriate level of skill: that the service provider is capable.

According to the Mayo Clinic, “NPs are registered nurses (RNs) who are prepared, through advanced education and clinical training, to provide preventive and acute health-care services to individuals of all ages. Today, most NPs complete graduate-level education that leads to a master’s degree. They work independently and collaboratively on the health-care team.”

As to the capability of nurse practitioners, this quote (n. 14) from William M. Sage, Out of the Box: The Future of Retail Medical Clinics, Harvard Law And Policy Review Online (2009), is worth noting:

Debate over the relative merits of primary care from nurse practitioners and from physicians is purely rhetorical. A review of 11 trials and 23 observational studies in primary care settings concluded that “[q]uality of care was in some ways better for nurse practitioner consultations.” Sue Horrocks et al., Systematic Review of Whether Nurse Practitioners Working in Primary Care Can Provide Equivalent Care to Doctors, 324 BRIT. MED. J. 819, 819 (2002). See also Linda H. Aiken, Achieving an Interdisciplinary Workforce in Health Care, 348 NEW ENG. J. MED. 164 (2003) (editorial describing the quality of non-physician professionals); Mary O. Mundiger et al., Primary Care Outcomes in Patients Treated by Nurse Practitioners or Physicians: A Randomized Trial, 283 JAMA 59 (2000) (demonstrating equivalent outcomes).

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