Transplants and the Dilemma of Increased Suicide Risk

April 29, 2013 by · Leave a Comment
Filed under: Health Law 

Skull_and_crossbones_gatepost_at_Kirkleatham2Bone marrow transplant recipients have been found to commit suicide at more than twice the rate of the general population, according to a recent European study. With a sample of almost 300,000 bone marrow transplant recipients, the rate of suicide was 21 per 100,000 people, as compared with 9 per 100,000 in the general population.[1] While the signs of depression that often coincide with the diseases that create the need for transplants may be a cause, this increased rate in suicide may also be attributable to the physical and mental toll of the transplant process. Irrespective of the precise cause, serious implications may result in the transplant allocation process if this study is given weight.

The scarcity of organs that we continue to struggle with in the United States and abroad justifies the goal of allocating organs to individuals who will best take care of them. In doing so, we create requirements for individuals who, for example, are in need of a liver transplant due to their alcohol abuse. It would be counterintuitive to give a liver to someone who, by his or her own volition, will abuse the anatomical gift. Among these requirements, alcoholic candidates are given their position on priority lists only after they can establish that they have abstained from alcohol for a given period of time. There are countless additional measures employed to attempt to ensure that the limited available organs are not wasted. This goal of distributing organs intelligently to avoid waste is critical to the United States’ system of allocation.

The moral principles behind the various methods of organ allocation create this intention of maximum preservation. This goal of saving the most lives creates an immediate dilemma when taking this study into consideration.

Depression has been found in greater rates among those in need of transplants when compared with the general population, and this fact is entirely unsurprising. But should an individual’s psychological reaction to his or her medical misfortune be a factor for consideration when allocating organs? It would seem to be in direct contrast to other allocation principles and criteria to ignore this fact when the goal is to save the most people—especially when the potential deaths after receipt are entirely caused by the individual. In terms of saving the most lives, taking into account the risk of suicide after receipt of an incredibly scarce resource may be a mandatory consideration.

However, this then demands that antidiscrimination be taken into account in organ allocation. While California has included antidiscrimination provisions in their Uniform Anatomical Gift Act,[2] New Jersey has proposed similar provisions that prohibit discrimination against potential organ transplant recipients on the basis of physical or mental disability. Depression appears to be the cause of this increased rate of suicide, and what is depression if not mental disability? The Americans With Disabilities Act (ADA) covers individuals who have a physical or mental impairment that substantially limits one or more major life activities. Therefore, candidates with depression that suffer from substantial limitations in their lives may be entitled to an ADA claim if they are discriminated against on the basis of their depression.



[1] Andrew M. Seaman, Suicide, accidents linked to bone marrow transplant, Reuters, (Apr. 12, 2013), http://www.reuters.com/article/2013/04/12/us-suicide-accidents-linked-to-bone-marr-idUSBRE93B14F20130412?feedType=RSS&feedName=healthNews.

[2] Cal. Health & Safety Code § 7151.35 (West 2013).

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John Denver v. Cynicism

February 18, 2013 by · 1 Comment
Filed under: Uncategorized 

John Denver Best Buy TheaterWe live longer now but I don’t know that we live demonstrably better. Perhaps as a testament to my devotion, I bought tickets and brought my girlfriend to see John Denver w/band at the Best Buy theater in Manhattan. She’s a fan; I could not be described as such. The band was live, John Denver decidedly not– he having died in a plane crash back in 1997. But a video screen brought Mr. Denver back for the evening, and the band played wonderfully along in the foreground as video John Denver talked and sang– never once coming close to a dissonant note while  looking and sounding like something that could only be described as the long lost innocence of a culture past.

Maybe his act was nothing but hokhum even back then, the unabashed optimism of his Country Roads, Sunny Shoulders and Rocky Mountain Highs just something we wanted to believe about ourselves: unbridled, essentially good and not particularly complicated. But in the 70s and into the 80s until his death, John Denver sold millions of records, hosted the Grammys five times, and an annual Christmas show on television which is said to have been viewed by over 60 million people; today he would be laughed away in a maelstrom of derision.

Maybe this is just the plaint of someone whose beard has gone gray and has answered one too many emails during dinner; maybe there is nothing essentially different in this lament than what I heard as a kid when old people pined for Glenn Miller and Benny Goodman: lost youth. But it seems like something more was lost in these last few decades. Face to face with John Denver’s stark exuberance, profoundly, I was driven to tears.

And yes, I sang along.

I’m not quite ready to give up a life in the law and what I learned from Voltaire, but will note that there appears to be a correlation between cynicism, pessimism and adverse health– and a good case is made for an inverse correlation between cynicism and success. Maybe take a minute or two and click and have a listen– think about it as a moment’s analog vacation from the drivers of modernity, from data mining dossiers, writ of attainder drones and thousand page statutes. Or, for the more adventurous, an evening with the posthumous Mr. Denver is still available– but be careful, if you’re of a certain age you may find yourself , inexplicably, crying over something you hadn’t even realized you lost.

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Mental Health Update: Expanding Services, But Limiting Access

February 6, 2013 by · 3 Comments
Filed under: Medicaid, Mental Health 

zack-buck_4As I mentioned here last month, government leaders are turning their attention to mental health issues — focusing on diagnosis and access to treatment, in particular — in the wake of the horrific shootings at Sandy Hook Elementary School in Newtown, Connecticut in December.  Even though it remains unclear whether or not the shooter suffered from any form of mental disorder, many leaders have argued that expanding treatment access for those suffering from mental disorders will prevent future tragedies.

As President Obama pledges to define the new mental health essential benefits under the Affordable Care Act (“ACA”), state leadership is also beginning to react.  Perhaps somewhat surprisingly, South Carolina Governor Nikki Haley (R) — the leader of the state that had cut mental health funding by nearly 40 percent from 2009 to 2012 (mentioned here) — is now leading the call to increase funding and services for those diagnosed with mental illness.

In addition to her proposal to increase funding for mental health services by $16 million in the summer of 2012, Haley has now called for an additional $11.3 million in funding for the South Carolina Department of Mental Health (“SCDMH”); in fact, her total proposed budget for the SCDMH in the 2013 budget is $17 million.  Haley has been particularly outspoken on the issue, noting that “[t]here is nothing wrong with someone who has a mental health issue….  There is something very wrong when that person doesn’t get treatment….  These are good productive citizens that deserve to live good, healthy life [sic].  And if given treatment they can be incredibly successful.  If not given treatment, we as a state have failed.”

She has argued that increasing funding for mental health treatment can prevent another tragedy like the one seen at Newtown.  Treating an increase in mental health funding as an alternative to implementing additional gun control or gun safety measures, Haley mentioned that “[n]o amount of gun control can stop someone from getting a gun when they want to get it.  What we can do is control mental health in a way that we treat people.”

Undoubtedly, the increase in funding is an abrupt policy change from South Carolina’s recent history.  From 2008 to 2012, the state was cutting funding to the South Carolina Department of Mental Health by an average of $70 million per year.

Ironically, however, Governor Haley is speaking during the exact same time that all states are deciding whether or not to expand their Medicaid programs under the ACA — which would affect many individuals’ access to mental health services.  Just earlier this week, Ohio Governor John Kasich (R) agreed to expand his state’s Medicaid program, while Pennsylvania Governor Tom Corbett (R) has decided to opt-out of the expansion.  Corbett’s refusal made Pennsylvania the eleventh state to decline to expand its Medicaid program.  And who else is staunchly opposed to expanding her state’s Medicaid program?

South Carolina Governor Nikki Haley.

This past summer, Governor Haley announced “via Facebook that South Carolina ‘will NOT expand Medicaid, or participate in any health exchanges’” (emphasis in original).  According to the Health Affairs Blog, South Carolina’s refusal to expand its Medicaid program would prevent more than 500,000 South Carolinians from being granted healthcare coverage.  In other words, if Haley had decided to expand her state’s Medicaid enrollment pursuant to the ACA, South Carolina’s Medicaid enrollment would increase from about 951,000 currently (which is nearly one in every five South Carolinians) to nearly 1.5 million in FY 2014.

Governor Haley’s recent positions create a situation in which the state is increasing funding for mental health service offerings in the state, but is refusing to expand coverage (paid for in whole by the federal government for three years) to many individuals who currently lack access to the services. Needless to say, positions taken on health policy issues cannot be examined in isolation.

Indeed, according to the Congressional Budget Office, if all states agreed to opt-in to the Medicaid expansion under the ACA, 13 million more Americans would have their mental health treatments covered by Medicaid.  However, given the policy positions like those of Governor Haley, this — unfortunately — remains highly unlikely.   Treatment offerings can increase, but if individuals do not have insurance coverage to pay for those services, access and receipt of those services is likely to remain largely elusive.

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Newtown’s Impact on Mental Health Coverage Under the Affordable Care Act

January 23, 2013 by · Leave a Comment
Filed under: Health Law, Mental Health 

Health Law, anti-fraudIn response to the jarring and horrific shooting at Sandy Hook Elementary School in Newtown, Conn. on Dec. 14, Pres. Obama signed a number of executive orders last week, flanked by schoolchildren and Vice Pres. Biden.  The official investigation into the contributing factors and details surrounding the mass shooting continues, but much of the public discourse on the policy response has already begun in earnest.  Most solutions seem to be focused on addressing two identifiable “causes” of the shooting:  first, the availability of guns (and especially, semiautomatic weapons), and second, the lack of mental health care services available to Americans who struggle with mental disorder.

Although it is clear that a high-capacity gun was used to perpetrate the assault, there has been no clear evidence that the shooter had been diagnosed with any mental disorder.  In fact, assuming a link between mental disorder and the Newtown shooting continues to reinforce destructive stereotypes and stigma about mental illness, according to many experts.  As many who study the subject area know, mental disorder does not equal violence.  Instead, those with mental disorder are no more likely to be dangerous than those without a diagnosis.  Further, at this point, no one could say with confidence that mental illness was a contributing cause or even a factor that led to the magnitude or occurrence of the shooting – opposite, of course, from the individual’s ability to get a high-capacity semiautomatic weapon.

Ironically, however, given President Obama’s response last week, this may be a vital inflection point in the fight to extend healthcare coverage for those diagnosed with mental illness.  As I have noted in the past here, states are trimming back their mental health budgets – even while up to 20 percent of Americans are diagnosed with some form of mental illness each year.  In a confounding policy response, a handful of states have cut funding by more than 30 percent since 2009.

In such a climate, many advocates hailed the Affordable Care Act (“ACA”) as an opportunity to improve mental health parity and coverage throughout the country.  Finally, many argued, individuals diagnosed with mental disorder would have their treatments covered by plans established within state-run exchange plans and the Medicaid expansion.  But, through last year, this seemed to be likely an unrealized hope, as the Department of Health and Human Services (“HHS”) loosened the regulations governing the scope of essential health benefit coverage under the ACA.

Assumedly in an effort to increase the likelihood of state buy-in to the ACA, two recent publications by HHS gave states extremely wide latitude in determining what each state’s benchmark plans were required to cover for mental health services.  In addition to giving states the ability to substitute coverage for certain services each state saw fit, HHS did not explicitly tell the states which mental health services they must cover.  In other words, HHS guidance did not set a “federal floor” for the states’ plans.  Further, other guidance seemed to conflict with a liberal reading of mental health essential health benefits.  In defining an essential health benefit under the ACA, a 2011 Institute of Medicine report noted that states were required to only cover services that were “medically necessary,” without sufficient guidance.  Indeed, holistic mental health treatment does not always meet this limiting requirement.  Thus, it seemed – to the dismay of many mental health advocates – that insurance coverage may not be substantially changed or expanded under the celebrated ACA.

That is, until last week.  As part of President Obama’s response to the shootings, he said he would address that gap in the ACA.  He specifically noted that he would contact state officials to clarify both Medicaid requirements and new exchange plan requirements.  In effect, the President may be establishing a specific “federal floor” – a minimum of mental health services that states must cover.  Importantly, President Obama also mentioned that regulations that require equal coverage for mental health services (parity requirements) would be finalized.

Thus, even as advocates cringe to hear the public’s further stigmatizing and (at least to this point) unfounded linkage between mental disorder and the horror seen at Sandy Hook, mental health coverage under the ACA may actually be expanded after all.  This reversal in policy is undoubtedly stunning, but how much coverage for individuals diagnosed with mental disorder actually changes – and how and if this expansion actually prevents future incomprehensible massacres like Newtown – remains to be seen.

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Drug and Alcohol Addiction, Costs and Lack of Care

October 22, 2012 by · 2 Comments
Filed under: Uncategorized 

Interesting article in the Washington Post/ Kaiser Health News I stumbled across in our sidebar; it discusses both the cost of addiction, with emphasis given to drugs and alcohol, and the absolute dearth of doctors trained in addiction medicine.

The article states that

“Of the 985,375 practicing physicians in the United States, only about 1,200 are trained in addiction medicine….”

And notes that

A recent comprehensive report by the National Center on Addiction and Substance Abuse (CASA) at Columbia University found that most doctors fail to identify or diagnose substance abuse ‘or know what to do with patients who present with treatable symptoms.’

Which is problematic, given that the report is said to have found that “Only about 10 percent of the 22 million Americans with a drug or alcohol problem receive treatment,” “addiction [including nicotine] is linked to more than 70 diseases or conditions and accounts for a third of inpatient hospital costs. The press release from the report, “Closing the Gap between Science and Practice,” also notes that “Costs to federal, state and local governments amount to 11 percent of total spending; 95 cents of every dollar pay for the consequences and only 2 cents go to prevention and treatment.”

And rather ominously, the WaPo/Kaiser Health News article reports that “The federal Substance Abuse and Mental Health Services Administration estimates that up to a third of the 30 million Americans who may gain health insurance under the Affordable Care Act have a substance abuse or mental health problem.”

There’s some math to be done here regarding costs, and I won’t suggest that I know what percentage the total spending should be for prevention- but I’ll guess that 2% for prevention and treatment is not ideal. And the thought that “most doctors fail to identify or diagnose substance abuse ‘or know what to do with patients who present with treatable symptoms,'” is less than comforting.

But, as someone with a rather large personal stake in all this- in recovery for nearly two decades- what is somewhat comforting is that if, as the report suggests, there is a gap between the science and practice (actually, the more you look, “chasm” seems more fitting a description), a closer look at the science shows some remarkable advances in medical science’s understanding of addiction-especially as it regards the  neurobiological processes, focus on the brain’s “reward circuitry,”  neuroadaptations maintained by former drug users long after drug use has stopped, with particular attention on the mesolimbic dopamine system, and, more generally, addiction as a disease of bio-psycho-social etiology.

Armed with this knowledge and the prospect of the newly insured and afflicted making their way to emergency rooms and court houses all across America, perhaps this next decade can be about implementation- always difficult, but surely the fruit of hard won knowledge. And if you have any doubts about the actual costs of drug and alcohol addiction- tallied in lives and families ruined- or to get a sense of just how important implementation is-I would highly recommend you find your way to an Al-Anon or Nar-Anon meeting, and just listen.

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