Holland & Hart Healthcare Law Blog

VIRGINIA HEALTHCARE REFORM DECISION: TAX OR PENALTY, INDIVIDUAL RIGHTS OR COLLECTIVE RESPONSIBILITY?

      One of the interesting components of the evisceration of the the “Minimum Essential Coverage” provision in the health care reform bill, (“ACA”) by Virginia Federal District Court Judge Henry E. Hudson, recently is his rejection of the government’s assertion that the “penalty” contained in Section 1501 of the ACA for the failure to purchase health insurance was not a viable “excise tax” under the Constitution.  The Taxation Power of the Congress is as broad as any of its enumerated powers.  Article I, Section 8, Cause 1 gives the Congress the power to lay and collect taxes and judicial review of the Congressional power to lay and collect taxes is narrow and limited.

 

VIRGINIA HEALTHCARE LAW DECISION: CAN CONGRESS REGULATE ECONOMIC INACTION?

      Judge Hudson’s decision invalidating Sec. 1501 of the recent health reform bill, the “Accountable Care Act” or “ACA” in Commonwealth of Virginia v. Sebelius, in the U.S. District Court for the Eastern District of Virginia, addresses the key question as to whether Congress can regulate “economic inactivity” under the provisions of the Commerce Clause of the Constitution. The inactivity is of course the action by individuals in not obtaining mandated health insurance under the ACA and the regulation is the imposition of excise taxes upon those who fail to obtain the required insurance. There are no specific precedents that directly address this issue although logical arguments can be made on both sides.

 

OKLAHOMA FEDERAL JUDGE AUTHORIZES SUBSTITUTE USE OF NEMBUTOL TO AID IN EXECUTIONS.

 

There has been a shortage of thiopetal sodium recently, the anesthetic of choice in executions by lethal injections, which has temporarily halted executions in a number of jurisdictions that unlike, Texas,  have not stocked up on the drug. The manufacturer of the drug Hospira, Inc. of Illinois has indicated that it has had manufacturing issues with the drug and replacement supplies would not be available until early 2011.  Hospira, which markets its drugs, under the tag line of “Advancing Wellness” has indicated that it does not favor the “off-label” use of its drug in state sponsored executions. Death penalty opponents have been objecting to the substitution of other drugs because of the potential for pain and suffering by the prisoner in potential violation of the Eighth Amendment prohibition against cruel and unusual punishment.

 

UNION LIABILITY FOR LAUNDERING HOSPITAL DIRTY LINEN IN PUBLIC?

    A California Court of Appeals struck down a $17 million dollar defamation judgment in favor of Sutter Health against a union, Unite Here, which was engaged in a labor dispute with a nationwide laundry company, Angelica Textile Services, Inc. Unite Here engaged in a type of secondary picketing, attempting to apply pressure on Sutter Health to pressure Angelica to submit to union demands.  Unite Here directed its fire on the lucrative birthing services of the Sutter Hospitals. It developed what was identified as the Sutter Escalation Plan,” mailing postcards to prospective clients of the Sutter birthing centers or “wealthier women between 25 and 40 who are registered to vote.” The postcards warned that the laundry service (Angelica) used by Sutter did not ensure its lines were free from harmful pathogens and urged potential Sutter Health patients to protect their newborns because Sutter may not be taking adequate precautions against potential infections. One side of the postcard stated: “EXPECTING? You may be bringing home more than your baby if you deliver at a Sutter birthing center.”

    

Is the “Slaughter Solution” for Health Care Reform Constitutional?

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Let the games begin!  The Democrats are going to use the “self execution” rule, also known as the “Slaughter solution” by the Right and the “Gingrich” rule by the left, depending on whose ox is being gored, to pass and deliver a health care reform bill to the President. This is a “cram down” use of House rules to defeat the “cram down” defeat of majority rule in the Senate by filibuster.  Is it Constitutional?  Some, including a conservative former 10th Circuit Court of Appeals Judge, Michael McConnell say no, citing a violation of the “presentation clause” and the case of Clinton v. State of New York, 524 U. S. 417 (1998) (line item veto permits the President to unilaterally amend or repeal parts of acts of Congress and all such acts must be first approved by both houses and Congress and the presented to the President for signature to create new law).

Filibuster v. “Slaughter solution” or Obamascare v. Obamacare.

The anti-Obamacare crowd blogs are up on the ramparts today decrying and vilifying the sneaky move Democrats are proposing to use a House of Representatives rule to push through health care reform.  The opponents entitle the maneuver the “Slaughter solution” after the House Rules Committee Chairman, Louise Slaughter, ( D. NY). It was also previously called the "Gephardt Rule" and the "Gingrich Rule."  It is unconstitutional they say because it deprives the public of a vote by its representatives and it fails to comply with the “presentation” clause of the Constitution, Article I, Section 7, Clause 2 which requires a bill to be passed by both houses of Congress and presented to the President for his signature before becoming law.

ILLINOIS SUPREME COURT CLOBBERS (TORT REFORM) CAPS.

    Bucking a trend in other states, the Illinois Supreme Court held this week that state liability caps imposed on non-economic damages in medical malpractice cases violated the Illinois constitution’s separation of powers clause.  It found that the legislatively imposed caps was too bold an intrusion on the powers of the judicial  branch. A number of states have already passed similar statutes that have been upheld by the highest courts in those states. See Garhart v. Columbia/Health One, LLC, 95 P 3d 571, 581-82 (Colo. 2004); Judd v. Drezga, 103 P 3rd 135 (UT 2004) and Kirkland v. Blaine County Medical Center, 49 P 3rd 115, 121-22 (ID 2000).

JUSTICE KENNEDY, THE “COMMERCE CLAUSE” AND THE CONSTITUTIONALITY OF HEALTH REFORM.

There is a lot of “buzz” in the media and on capital hill these days with Sen.Orrin Hatch and a number of allies aligned to challenge the constitutionality of the Obama Administration's Health Care Reform bill pending reconciliation in the Congress. The principal focus of the attacks seem to be the assertion that the federal government lacks the power under the “commerce clause” to regulate purely intrastate activity that have little or no impact on commerce among the states and the assertion that  the federal government cannot legally force and individual to purchase health insurance.  Justice Kennedy as usual is likely to be the swinging gate that decides this issue in the Supreme Court.

MONTANA AFFIRMS RIGHT TO PHYSICIAN ASSISTED SUICIDE-THROUGH STATUTORY, NOT CONSTITUTIONAL, ANALYSIS.

In a decision filed on the last day of 2009, the Montana Supreme Court affirmed a lower court decision concerning the right of a dying patient to a physician assisted suicide though it based its decision on an analysis of Montana statutes and public policy rather than the state Constitutional analysis adopted by the trial court below. In Baker et al v. The State of Montana et al., 2009 MT 449 (MT, December 31, 2009), the court followed the maxim of Viscount Falkland that when it is not necessary to make a decision, it is necessary not to make a decision and side stepped addressing whether there exists a constitutional right to die with dignity in the State constitution as requested by the principal plaintiff, Robert Baxter. Mr. Baxter, a retired truck driver, suffered from lymphocytic leukemia with diffuse lymphadenopathy.  Mr. Baxter, now deceased, contended that the State Constitution gave him the right to choose the timing and circumstances of his impending death, rather than suffer the indignities that he perceived in palliative care and the imposition that a drawn out departure would have upon his family.  He wanted the right to obtain a prescription of life terminating drugs from his physician without fear that his physician would be prosecuted for violation of state law.

RETURNING VETS - OUTRAGEOUS DELAYS IN VA CARE AND BENEFIT APPEALS.

 Pending before the U.S. Ninth Circuit Court of Appeals now is the case of Veterans For Common Sense v. Eric K Shinseki, et al, captioned in the District Court below as Veterans For Common Sense v. James B. Peace, M.D., 563 F. Supp. Ed 1049 (N.D. Cal. 2008) . The case raises the issue of the power of the federal courts to enter declaratory and injunctive relief to force the Veterans Administration to timely provide mental health benefits and to timely resolve administrative disability appeals for veterans. The trial court below abdicated all responsibility. It asserted that the sole remedy was up to the VA itself and Congress because of statutory limitations on judicial oversight of the VA.  It said further that to solve the problem it would have to overhaul the entire system, which it was inadequately prepared to do.The facts are shocking and would not be accepted by the general populace without rioting in the streets (or at least at congressional town meetings). The trial court mentioned the following facts in its opinion.

There are approximately 25 million veterans in the U.S. 5 to 8 million veterans are enrolled in the VA. 154,000 Veterans are homeless. One out of three veterans returning from Iraq is seen at the VA for mental health visits within a year of their return stateside. According to Rand Corporation study, 18.5% of U.S. Service Members have Post Traumatic Stress Disorder (“PTSD”). Half of those who need it get it. Slightly more than half who get it, bet slightly more than minimally adequate care. 300 thousand service members now deployed in Iraq and Afghanistan currently suffer from PTSD or severe depression. The suicide rate for returning G.I.s is 3.2 times higher than that of the general population. The VA experiences 4.5 suicides per day from its current patient population.

The VA Office of Inspector General reported in May, 2007 that 61.8% of VA facilities had not then implemented suicide prevention strategies for returning G.I.s. In April, 2008 there were 85450 veterans on VA waiting lists for mental health services. One veteran seeking help committed suicide after being told that he was number 26 on a waiting list to obtain mental health care. The fact that these soldiers come largely from lower economic and educational classes of people not skilled in understanding or maneuvering through the complex VA assistance system may be one of the reasons for lack of attention to the problem. 82% of the Army and 89% of the Marine Corps are composed of men and women with a high school education or less.

There is an appeal system within the VA for resolving benefit and disability claims disputes. Its record for efficiency and timeliness is appalling. Determinations are first made in the VA Regional Offices (“RO”s). It frequently takes a year for the RO to make a decision on an appeal. If denied a veteran can file a Notice of Disagreement (“NOD”) which commences an appeal to the Board of Veterans Appeals (“BVA”).  It generally takes on average 4.4 years for the case to move from the RO to the BVA determination.
The BVA affirms the RO decision only 20% of the time. It finds for the veteran 20% of the time. In the remaining 40% of cases it remands the case to the RO for further proceedings. Many if not most of these remands could have been avoided by the RO’s through competent documentation and policies. On remand, even though there is specific statute that requires “expeditious” action on remand, there is an average delay of another 499.1 days before the matter is returned to the BV.

The question is whether the Ninth Circuit will wash its hands of the matter as well and leave this matter to the Congress which passes directives without remedies or the cultural lassitude of the VA for business as usual. This may be another of those intractable problems that are too big to resolve. Semper Fi.