Mar 23 2010

Can the Federal Government Make You Buy Health Insurance?

Published by under Healthcare Reform

A version of this post was published in the Delaware News Journal on Sunday, March 21, 2010.           

Certainly states can make you buy car insurance. But states and the federal government are treated differently under our Constitution. The Constitution enumerates certain powers for the federal government, and then reserves the rest for the states and the people. Since the Constitution does not expressly allocate to the federal government the power to regulate insurance, it has always been the states that have done so. States have also always regulated contract and tort law, public health and safety, the practice of medicine, and most other matters that might have any bearing on the health insurance market.

There is a difference, moreover, between making you buy car insurance and mandating health insurance. We are only required to have car insurance if we choose to drive. The health care bill currently under consideration in Congress, the Patient Protection and Affordable Care Act (the Senate Bill), would make us all buy health insurance just for being alive. And by making us buy insurance it would do something the federal government has not done before: it would effectively mandate a transfer of our personal property (our money) to a private party (the insurance company).

            To be fair, the Senate Bill would not exactly force you to buy health insurance. It would simply fine you for not having it, at the rate of $95 in 2014, going up to $750 in 2016 (half those amounts for children; all amounts indexed to income; exemptions and subsidies for those who cannot afford it). The Obama proposal would reduce the maximum penalty to $695.

            But of course the size of the penalty is not the issue. The question is whether the Constitution permits the federal government to legislate in an area that has generally been left to the states. A further question is whether the federal government can require you to buy a particular insurance product from a private company.

            The answer to those questions is almost certainly yes. And by the same token, the federal government can also make your employer provide you with health insurance, as Congress also proposes.

            Although the federal government has only certain enumerated powers under the Constitution, some of those powers are quite broad. The three broadest powers given to the federal government are the powers to tax, to spend, and to regulate interstate commerce. Any one of these powers would be sufficient to support the Senate’s proposal regarding the purchase of health insurance. In addition, the so-called Supremacy Clause in Article VI of the Constitution requires state courts to uphold federal laws, even if they conflict with state laws.

            Using its taxing authority, Congress could implement the Senate Bill’s insurance mandate by making you pay a tax for not buying insurance, or by taxing everyone and then exempting those with insurance. The only limitation on Congress’s taxing authority is that a tax cannot excessively burden an individual’s fundamental rights; but there is no fundamental right to be uninsured. (On the other hand, if you could somehow assert that your religion prohibits health insurance you might prevail against a federal insurance mandate; so Congress may need to provide a religious exemption from the mandate.)

            Using its spending authority, Congress could make it a condition to federal funding of state programs that states enact laws requiring individuals to buy health insurance, as they do with car insurance. What Congress may not wish to attempt directly, that is, could be achieved indirectly by making the states pass insurance mandates as a condition to receiving funding for Medicaid or other federally supported programs. And Congress can always rely on the Supremacy Clause to pre-empt any state law conflicting with a federal one.

            To find a Commerce Clause justification for an insurance mandate, all Congress has to do is show that the health of the nation’s workforce affects interstate commerce, or that doctors and patients sometimes cross state lines to give or receive health care. Given the other things that have been held to affect interstate commerce enough to support federal legislation – crime, education, the environment – health insurance regulation does not seem a stretch.

               If you step back and look beyond all the twists and turns of Constitutional logic, the idea that health insurance should be regulated at the federal level makes sense. After all, almost nothing about our basic health care needs depends on what state we live in. Reasonable minds may disagree as to how it should be done, but Congress can – and should – legislate broadly regarding health insurance.

Opinions posted on this blog do not necessarily reflect those of Widener University or its School of Law.

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Mar 09 2010

Catching Up to Reality On Blood Donations By Gay Men

Posted by: John Culhane on Sunday, March 7th, 2010

When Obama was seeking the Presidency, the GLBT community had a well-defined punch list of action items, and he promised big things on all of them: repeal of DADT; repeal of DOMA (although he doesn’t support marriage equality); passing ENDA; passing inclusive hate crimes law (the only hole punched so far). A few others, notably the administrative implementation of the-then recent repeal of the insane prohibition against HIV-positive immigrants, were perhaps further down on the list, but also up for discussion. Conspicuously absent from the mainstream agenda has been an item of interest to the public health community: lifting of the ban on gay blood donors.

So I was buoyed to see that just a few days ago, a group of sixteen U.S. Senators sent a letter to FDA Commissioner Margaret Hamburg, urging the agency to reconsider its twenty-seven-year-old lifetime ban (”deferral” is the quaint term used, but it’s politely Orwellian in this case) on blood donations for men who have had even one sexual encounter with another man.

The policy is long overdue for an overhaul. As the letter notes, the policy is inconsistent with various other exclusions, and is an artifact of a time when all that was really known of HIV infection — and we weren’t even calling it that, in 1983 — is that it disproportionately struck gay men. Even today, MSM (”men who have sex with men,” which is the term used by the CDC because it focuses on sexual behavior, rather than on orientation) are prohibited, forever, from donating blood if they have had sex, even once, with another man, at any time since 1977. The Senators’ letter points out the many inconsistencies in the policy, including the fact that there’s no exclusion of those who have had high-risk, unprotected heterosexual sex, no matter how recently. Even more absurdly, those who have had heterosexual sex with those known to have HIV are only deferred for one year; not for 33! And “sex” isn’t defined when it comes to MSM: the safest kind of protected sexual acts are, in theory, treated the same as the riskiest.

It should go without saying that none of this can be justified from a public health perspective.

These inconsistencies should be enough to sink the policy which, as the letter notes, has lately been repudiated by the major blood banking organizations, most significantly including the Red Cross. But the problems are much deeper and more serious than even the letter recognizes. A few years ago, I discussed the issue in detail in this law review article. Here, I’ll summarize the arguments I made there that weren’t explicitly raised in the letter.

First, while the CDC is careful to distinguish behavior — men having sex with men — from identity, the FDA policy undermines this sound epidemiological distinction by effectively collapsing the two. By excluding any man who’s had any kind of “sex” (not defined!) with even one other man during the past thirty-plus years, the FDA has created a policy that isn’t about relevant behavior, but about some weirdly expansive view of (gay) sexual orientation. Because if it were about behavior, the line would have been drawn in an entirely different place; say, for a year after specifically identified, high-risk behavior.

Second, the policy undermines trust in public health in a few related ways. Obviously, as a practical matter the policy isn’t enforceable, and the sheer breadth of it has doubtless caused many to ignore it. People aren’t stupid: Gay men who know they have an HIV-negative serostatus might give blood, understanding that they pose no threat. (According to this very unscientific poll over at, almost 200 of 800 respondents admitted to having lied about their sexual practices on the questionnaire.) But by attempting to fence them out, the FDA has sent gay men an unwelcome message that could undermine the community’s trust in other ways. One important public health principle is that it recognizes the long-term value of respecting the dignity of all populations.

Why has the policy persisted for so  long? One argument seems sensible, at first blush: If the exclusion were changed to, say, one year, there would be some infinitesimal increase in the number of HIV-positive blood transfusions (well less than one in a million, it’s estimated), so why do anything to increase the risk? But the “let’s not do anything if there’s a tiny risk of harm” canard — which, by the way, is also prevalent in arguments against marriage equality — wouldn’t be, and hasn’t been, applied to any other category of people, or of conduct. Of course there will be some tiny uptick, not  because of the three-week window period between infection and ability to identify it, which any contemplated new rule would  easily accommodate, but because of the irreducible human error associated with the process: If you add more people, some will get through who should not. But this could be said of any proposal to add donors; it’s just that “MSM” have had such a draconian policy applied to them for so long that the donor baseline is essentially zero for this group.

It seems that uprooting this policy is fairly far down on the priority list for the LGBT community. Indeed, this story seems to have attracted but little attention. But messages matter. The radical, embarrassingly outdated FDA policy sends a terrible signal that ought to concern us. It’s good to see that someone is finally suggesting action. Will Obama back them up?

Posts on this blog are not necessarily the opinions of Widener University or its School of Law.

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Mar 01 2010

How Does Congress Do It?

Published by under Healthcare Reform

By Alan E. Garfield

As President Obama tries to jump start health care reform this week, it is worth revisiting an issue that has been looming in the background: Where does Congress get the power to require individuals to obtain health insurance?

Most of us learned in grade school that the federal government is a government of limited, enumerated powers.  The framers, we were told, were fearful of a large, overbearing central government.  So they provided that Congress could only act pursuant to one of the powers given to it in the Constitution.  Any powers not delegated to Congress were reserved by the 10th Amendment to the states and the people.

This sounds simple.  But it’s not.  If you read the Constitution’s list of Congressional powers, you quickly realize that it is remarkably short.  Many powers are tied to supporting the military.  Some are narrowly defined, such as the power to establish the post office or to enact copyright and patent laws.  The three broadest powers are the power to tax, spend, and regulate interstate commerce.

What you won’t find are powers for much of what Congress actually does.  There is no power to enact environmental, minimum wage, or controlled substances laws.  Even though Washington is crowded with massive federal agencies, there is no power to create these agencies.  And, as many commentators have recently pointed out, there is no power to force individuals to buy health insurance.

So how does Congress do it?  How does it do so many things that are seemingly beyond its constitutional authority?

The answer lies in the Supreme Court’s broad interpretations of Congressional power.   The justices, quite simply, have refused to confine Congress to a short list of powers compiled when the country was a small, lightly populated, agrarian state.

Chief Justice John Marshall set the tone back in 1819 when he held that Congress had the power to create a national bank even though the Constitution nowhere mentions this power.  Marshall said that the Constitution’s list of express powers reflects only the “great outlines” of Congressional power.  The framers instead intended that these powers to be supplemented by a vast array of implied powers to ensure that Congress had “ample means” to discharge its responsibilities.  Thus, Congress’ powers to tax and spend could readily imply a power to create a national bank to help exercise these powers.

For most of the 20th century, the Supreme Court followed Marshall’s lead to extreme lengths.  In fact, the Court interpreted Congress’ powers so broadly as to effectively place no limits on what Congress could do.

Most of this occurred in cases concerning Congress’s power to regulate interstate commerce.  The Court said that this power allows Congress to regulate not only commerce between the states, but also any intrastate activities that “substantially affect” interstate commerce.  Yet virtually everything – crime, healthcare, education, the environment – affects the national economy.  And even the most local of actions — the work of an employee at a neighborhood diner – “substantially” affect interstate commerce when you combine the actions of all comparable actors throughout the country (i.e., all restaurant employees).

The Court construed Congress’ commerce power so broadly that for nearly sixty years (from 1937 to 1995) the Court never struck down a single law as beyond Congress’ power.  And while the Court’s conservative majority has more recently placed some limits on Congress’s commerce power, the power is still expansive.

Of course, the Supreme Court still strikes down Congressional laws that violate individual rights, such as laws that abridge speech or discriminate against minority racial groups.  But for laws regulating economic activities – such as requiring health insurance – the sky is usually the limit.

You might be aghast at the Supreme Court’s failure to enforce constitutional limits on federal power.  But would you really want nine unelected justices deciding what Congress could do?  Isn’t it better to leave this decision to members of Congress who are accountable to the people through elections?

After all, if Americans don’t like a large federal government, they can elect politicians who promise to shrink the government.  Indeed, isn’t that precisely what they did when they voted for Ronald Reagan?   And wasn’t a fear of federal overreaching part of the reason why Massachusetts voters elected a Republican to fill Ted Kennedy’s Senate seat?

So the next time a pundit says Congress does not have the power to create mandatory health insurance, consider this: Who should decide whether Congress has this power?  Should it be nine unelected judges?  Or should it be Congressional representatives who are accountable to the people in reelections?

Alan E. Garfield is a professor at Widener University School of Law.

Opinions expressed on this blog are not necessarily those of Widener University or its Law School.

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Feb 09 2010

Religion, Assimilation, Vaccination

Posted by: John Culhane on Tuesday, February 9th, 2010

According to this story, an outbreak of mumps has occurred in counties just north of New York City, mostly in Orthodox (or Hasidic) Jewish communities, where parents routinely seek religious exemptions to vaccination requirements for their children. In total, about 1,000 kids (mostly adolescents) have been afflicted.

When I was a kid, we all came down with mumps, and more: measles, chicken pox, and so-called “German measles” (rubella) were the most common. Mostly, these were cause for missing a week or so of school, but nothing more. Yet all of these diseases are properly seen as deadly threats to the public’s health. Measles, which is particularly likely to spike in a population where a significant number go unvaccinated, routinely killed many hundreds of kids each year in the U.S. alone, caused about double that number of permanent brain injuries, and cost the health insurance system dearly through the many thousands of hospitalizations. Mumps, in addition to the quasi-endearing chipmunk cheeks we all had, was most often associated with deafness as a complication.

The outbreak sits at the confluence of two infuriating obstacles to vaccination: bad science and over-deference to religion. Apparently, the outbreak in the U.S. was an unwanted import from the U.K., where a mumps outbreak had spread to some 4,000 people. Vaccination exemptions are frighteningly common there, mostly because of a thoroughly refuted study that purported to show a link between vaccinations and autism. Indeed, the prominent British medical journal that had published the study, the Lancet, last week retracted it after a British medical panel concluded that the lead author had been unethical and had conflicts of interest. And a flood of other studies since that one had already disproven its autism-vaccination link.

Once mumps made its way into the U.S., the congregation Orthodox and Hasidic Jews proved fertile ground for its spread. One locus was an area within Rockland County, New York, where a large, insular community of Hasidic Jews lives. I grew up in Rockland (in a nearby town), and know the community. On a Saturday, we’d drive past the synagogue-going residents — all on foot, the men in simple black garb with a defining hairstyle, the women in long dresses with head covering. Quite an insular community, and one in which, (credible) rumor had it, the families didn’t pay property taxes on their homes (each being considered a holy place). So there’s one exception from general laws that they enjoyed.

I didn’t know until recently of this other exemption for vaccinations, and I don’t support either carve-out. (In my view, no church should be exempt from paying property tax in the first place. There’s another whole post there, but I digress.) Respecting religion doesn’t require subjecting the public to needless risk. Quite the contrary: Religion is honored when we find and protect a proper, separate space for it. But personal or congregational religious expressions should end where the interest of the general public — a secular interest — is imperilled. Thus, it’s hard to justify a ban on the burka in public spaces (compare, say, driving, if evidence showed that the compromise to peripheral vision was significant), but equally hard to justify allowing the adherents of any religious group to forego vaccination. It’s easy to forget the public health success story of vaccinations. This recent story on those confronting new challenges from polio, many decades after they were first afflicted, should be reminder enough — but probably won’t be.

What’s the public health threat if everyone else is vaccinated? First, there’s the threat to the unvaccinated children themselves. The state has an interest in them, too, and at least one state supreme court has held that this interest makes unconstitutional any non-medical exemption. Beyond that, the vaccinations are themselves not completely effective. Thus, even the vaccinated kids can come down with the illness in question; and some of them will if a sufficient number in the population is not vaccinated. So it’s not “just” a question of getting to decide what to do about your own child’s health, an issue that the state has an interest in anyway.

When they first enacted religious exemptions to vaccination requirements decades ago, states did do under duress: Congress tied recognition of such exemptions to federal funding. It’s time to wake up and repeal these laws before we undo this great public health accomplishment.


Opinions expressed in this blog are not necessarily those of Widener University or its School of Law.

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Jan 05 2010

Ringing In 2010: Thoughts on the Right to Die!

Published by under Bioethics

Posted by: John Culhane on Friday, January 1st, 2010; also available at

Sorry to bring your “Happy New Year” to a screeching halt, but yesterday’s decision by the Montana Supreme Court in a physician-assisted suicide case (Baxter v. State)  is too rich a source to ignore. And too personal.

In a case that focused on a nice question of statutory interpretation, the court ruled that a terminally ill patient’s consent to die formed a valid defense to a homicide charge, where the doctor supplied the lethal drug.

In general, one may consent to what would otherwise be a criminal act unless such consent would violate public policy. The court found that, while consent to violent breaches of the peace (such as in an earlier case involving aggravated assault) is against public policy, physician-assisted suicide is not. As one judge stated in a concurring opinion, the logic of the court’s opinion isn’t limited to doctors. A friend might be able to hand the dying patient the instruments of death, as long as there was valid consent. (Of course, the court might rule that such an informal arrangement, as opposed to a prescription for drugs that cause death, does violate public policy.)

The court wisely avoided deciding the case on constitutional grounds, thereby throwing the issue back to the legislature, which can now decide whether to allow the practice to continue.

Predictably, right-to-life groups denounced the decision. They have a point, but not for the reasons they advance. One  wants the “right to die” to be clearly set forth in a law that spells out what’s permissible, and what isn’t. Otherwise, it’s fair to worry that the law will be used too broadly in cases involving the poorest and most powerless citizens.

The deeper philosophical objection, though, is to allowing anyone to actively bring about, or even facilitate, the death of another. For some moral philosophers, there’s a great difference between doing nothing (as by acceding to a patient’s wishes to refuse nutrition and hydration) and doing something (as is the case with doctor-assisted suicide). If it’s hard to see the distinction in this case, consider another: We might feel quite differently about using extraordinary means to keep a fetus alive, for example, than we would about actively aborting it (especially where doing so wouldn’t pose a grave danger to the mother). Whether this intuitive distinction should be translated into law is an understandably debated question.

And the gulf between law and practice in this area is well-known, but perhaps insufficiently aired. The common case that the court didn’t discuss is the one that many a care-giver to a dying family member could relate, even though it stands outside the formal law. When my grandmother was dying of a stroke a few years ago, everyone understood and respected her living will, and my mother’s power of attorney:  Only comfort measures were to be taken. Yet death in these cases can take longer than you’d imagine. Even a woman in her 90’s, as she was, can survive for well over a week in a condition that is painful to call to mind, even today.

So when I returned to the nursing home on about the tenth day of my parents’ relentless, loving, and exhausting vigil, I knew something had to be done to bring matters to a merciful conclusion. I phoned a doctor friend, who gave me some magic words to utter in order to get the morphine cranked up to the level that would finally get her the peace, and final rest, that she — and my parents — deserved. Once that happened, death followed quickly.

This isn’t the case that the Montana Supreme Court had in mind; the one where  a mentally competent patient asks for a prescription that the patient then self-administers. But it’s the case that’s familiar to many, and it’s time we had a transparent conversation about it.

Opinions expressed in posts on this blog are not necessarily those of Widener University or its Law School.

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Dec 30 2009

China Hand

Prof. Michele Forzley recently represented Widener at a healthcare symposium in China.  She posts:

Forzley China Blog post

December 15, 2009

China is in the midst of a massive health reform with a proposed budget of some 124 billion dollars.  As with many countries including the US low rates of access, the high cost of drugs, poor health statistics and the effects of these on the economy have made health reform a high priority.   All countries in health reform do so without the benefit of a successful model.    There is however substantial evidence from the field of public health about what health systems must do to function optimally. We know how to measure their performance and their failure but we have less certainty on how to fix or reform them.  Historically health systems have been viewed as the domain of the medical field and to their credit; great advances have been achieved in clinical interventions.  We know how to cure disease but this knowledge does not apply to the operation of the health systems in which these clinical interventions occur.

In the last five years the social determinants of health have received attention.  The WHO issued a report on the Social Determinants of Health naming cultural, political, economic and other sectors as important as clinical interventions.  Even with this broader view of what it takes to achieve health the law has yet to be understood as an explicit determinant of health.

There is no peer reviewed literature assessing the association between law and desired health system functions or reform outcomes.   With regards to the health sector among public health and development professionals, the consensus is that good governance is effective, equitable, anticipatory, accountable, transparent, responsive, and inclusive and follows the rule of law. Exactly how the rule law is involved in health sector functioning let alone its reform is as yet to be studied.

Thus there is what could be described as a gap and thus a new field of legal epidemiology or the study of the association between law and an outcome.   While preparing this talk I noted that rule of law had been made a key national goal and basis of development in the 1999 amendments of the constitution of China and its 11th National 5 Year Plan.  It seemed a wonderful opportunity to explore how rule of law concepts might guide China and other developing countries in achieving health reform goals. To that goal, this lecture presents the early version of a methodology to apply rule of law and to the development of a comprehensive body of law and regulation of health systems.

After professor Pope and I presented we listened to professors from SWUPL present several topics such as organ donation, public health emergencies and the law including the IHR and on whether health law is public or private law or a new category of oblique law. Oblique law was likened to equity in the common law system as the form  of law that solved what the professor saw as a conflicts in emerging concepts in Chinese health law.   This for me was the most intriguing talk as it reflected the difficulties in the nascent Chinese legal system.

I was impressed with the level of sophistication and worldliness of the staff and students. Perhaps China is regarded as a developing country but with everything I saw and experienced, it is on a fast run that will leapfrog much of the learning curve before we know it.  There is good reason to enhance the relationship with SWUPL, a school with excellent reputation, high bar pass rates, by student and professor exchanges and a continuation of  a symposium series on health law and the education of health lawyers.

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Dec 19 2009

Coverage Limits Redux

Published by under Healthcare Reform

So the fix provided by the proposed new Senate Amendment to its Patient Protection and Affordable Care Act (“Act”) with respect to annual insurance coverage limits (see my December 13 blog entry) is to retain the notion of allowing annual limits, but only “restricted annual limits” where “essential health benefits” (as defined in the Act and as determined by the Secretary of HHS) are involved, at least until 2014. Let’s parce that out just a bit.  Health insurance policies can contain annual limits, but until 2014 restrictions on those limits will be imposed. Those restrictions will apply only to “essential health benefits”. Gone is the open-ended reference to “unreasonable” limits, and the curious reference to provisions in the tax code relating to health savings accounts. In their place the Act clarifies that the Secretary (not state insurance commissioners or others) will have some discretion to determine which are essential health benefits, but any such discretion will be rooted in the definition of that term in 1302(b) of the Act.

Section 1302(b) of the Act defers to the Secretary again, except that the following must be included among “essential health benefits”: Ambulatory, emergency and hospital care; maternal and newborn care; mental health and substance abuse; prescription drugs; rehab; lab; prevention and wellness and chronic disease management; and pediatric care, including oral and vision care. (What’s missing?) One more mandate: the Secretary must certify that the scope of “essential health benefits” is equal to that of a typical employer plan, as determined by survey. (Is it getting a little self-referential here?)

This would seem to address the concerns of those who may have feared the prior version was an invitation to insurers to beat up on their insureds with annual limits. There is a standard to which annual coverage limits will be held, and the Secretary, not individual insureds, will be doing the negotiating with insurers to establish any permissible limits – at least until 2014.

Views expressed in posts on this blog are not necessarily those of Widener University or its School of Law.

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Dec 13 2009

Reasonable Coverage Limits

Published by under Healthcare Reform

CNN, Associated Press and others are now focusing on language in the Senate’s Patient Protection and Affordable Care Act to the effect that the vaunted provisions of the House bill prohibiting lifetime and annual caps on health insurance coverage have been revised in the Senate version with respect to annual caps: The Senate bill would prohibit only unreasonable limits. The Act goes on to cross-reference IRC § 223 for the definition of unreasonable annual coverage limits.

The objectors, for the moment, are those who suspect a deal has been made with insurance companies further to gut the Act. First the public plan goes, and now the prohibition on annual coverage limits. Some of the news coverage of this revelation implies that the “reasonableness” modifier was sneaked into the Senate bill, but in fairness, it has been there since the bill was first introduced, and it is in the first sentence of the first section of the bill.

When I first read the applicable language I thought the reasonableness limitation may have been inserted to clarify that policies not purporting to offer “essential health benefits” (§ 1302(b) of the Act) or “minimal essential coverage” (IRC 5000A(f)) could still have appropriate limits. The Act is intended to apply to basic health insurance, after all, and not specialty policies intended from the outset for limited purposes. Coverage for a dancer’s legs, to go to an extreme case to make the point, could still have limitations under the Act. But that clarification was already present in the next following subsection of the Act, so my initial reading was probably wrong.

But then other questions began to flow. Why allow a reasonableness limit on annual but not lifetime benefits? From the insurer’s vantage point, given sufficient actuarial data and a large enough risk pool, would an annual limit not become the economic equivalent of a lifetime limit anyway? And from the patient’s vantage point, a similar result:  Anyone unable to finish an expensive battle against cancer in year 1 may not live long enough for a lifetime cap to become relevant.  And how is the “reasonable” amount to be determined? Did the Act intend to leave it to the Secretary of HHS – or Treasury or state insurance commissioners – to set an amount? If so, why cross-reference IRC § 223 for a definition of reasonableness instead of expressly delegating the matter to a regulatory authority?

And what are we to make of that curious reference to IRC § 223? I’m still looking for anything in that section that addresses the reasonableness of insurance coverage limits, annual or otherwise, so I would be grateful for any clues readers may offer. As I read it, § 223 deals with the permitted limitations on the deductions allowable for amounts paid into health savings accounts, and such amounts – $2,600 for individual and $5,150 for family coverage – are certainly not reasonable as coverage limits.

So at this point, unless a reader can enlighten me, I am falling back on my experience as a contract negotiator, which tells me that the apparently innocuous and inherently reasonable word “reasonable” is inserted when the parties concerned want to leave the matter open to later contest, including litigation. You put the word “reasonable” into a document when you are willing to let a court decide what it means. At that point, “reasonable” is only reasonable if the contesting parties are reasonably matched. If the future contest as to what is a reasonable coverage limit is to play out between the Secretary of HHS or state insurance commissioners on one hand and insurers on the other, that is one thing, though not a pretty thing. Politics will probably be involved. But if the contest will be between insurers and the insured, heaven will have to help the insureds.

My experience also tells me that the insertion of the word “reasonable” in the Senate bill was probably not casual or accidental. There is probably a backstory. Based on comments Sen. Tom Harkin has made, he probably knows the story, and it probably had something to do with limiting the cost of the bill. Compromise with insurers is a likely scenario, but other possibilities exist. I wonder, for instance, if the CBO was encouraged by advocates of the bill to take the language into account when estimating the bill’s cost.

There is another possibility, which I mention for the sake of provoking more thought and not because I know any backstory. (After all, if we’ve learned one thing about statutory construction since someone first discovered death panels in a healthcare reform bill, it is that first reactions are not always the best.) Allowing for reasonableness in annual but not lifetime coverage limits would be consistent with a position long advocated by ethicist Daniel Callahan, co-founder of The Hastings Center. The position is generally that that expensive medical care could be rationed based on a patient’s age. I won’t go any further, both because I am likely to misrepresent Mr. Callahan’s argument and because I think you can see where it goes for present purposes. Given a “reasonable” annual cap, a policy could limit the kinds of care given in the last stages of life and remain in compliance with the Act. Conversely, without the reasonableness limitation, any such rationing would not be possible. Under the Senate’s bill as now written, the Secretary could promulgate regulations allowing limits on the dollar value of particular kinds of benefits for particular age groups.

It always comes down to this, doesn’t it? A truly limitless financial obligation to health is not affordable, no matter how far and wide we spread the risk. Something’s gotta give. But in the meantime, let’s check our first impulses at the door as we work through this document.

Views expressed in posts on this blog are not necessarily those of Widener University or its School of Law.

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Dec 13 2009

City Council Investigates E.R. Death

Published by under Patient Safety

Our good friend Catherine Reynolds calls our attention to this story, and follows with these comments:

No doubt a tragedy but is City Council really the forum or knowledgeable body to investigate such a case?  I doubt Patient Safety experts would agree.  What are the drivers for bringing this situation to this  level, the fact that it happened to prominent community leader?  Generally in like situations the Joint Commission or the State Dept of Health would address sentinel safety events.

What effect will this have on transparency and/or defensive clinical practice?

I remember working as a nurse in the ED in a hospital, and sometimes doing triage, when the story broke (2006 Illinois) about a woman who died in an ED waiting room from a heart attack after being directed to wait after evaluation by the triage nurse.  There was talk of homicide charges against the individual triage nurse based on the coroner’s ruling of homicide citing that a reasonable person would have acted differently in like situations.  The immediate ripple effect throughout ED nursing staffs alone was quite worrisome and may have provoked a non-transparent and very defensive mindset – the opposite of where we want professional conduct to go.  Some of my fellow nurses stated then that “they are just gonna bring everybody right back (from wait room to treatment area but not necessarily prioritizing for acuity and maintaining a safe flow of patients through the door) as long as they wanna charge nurses with homicide”.  I guess the tightrope can be accountability vs culture killer.

Catherine Reynolds RN, BSN, MJ, DL

Views expressed in posts on this blog are not necessarily those of Widener University or its School of Law.

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Dec 07 2009

Climate Change

Here is a (timely) link to some recent pieces in the Lancet linking climate and health, and another to the publications my colleague Dave Hodas, who can really open the subject.

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