Holland & Hart Healthcare Law Blog

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).

GERMAN HEALTH CARE COST CONTROLS: A GLOBAL COMPETITIVE ADVANTAGE.

There is an interesting article in the February, 2010 issue of the McKinsey Quarterly, the on-line journal of McKinsey & Company.  The article entitled “How Germany is reining in health care costs: An Interview with Franz Knieps” provides an interesting comparison to our own struggle to control rising health care costs.  Mr.Knieps is the director general for public health care, health insurance and long term care in the German Federal Ministry of Health. 

DSM –V: THE NEXT FRONTIER OF MENTAL ILLNESS (IF IT IS ILLNESS).

There is much anticipation over the soon to be released new edition of the Diagnostic and Statistical Manuel of Mental Disorders  (DSM –V) by the American Psychiatric Association (“APA.)  It is due in 2012. There are many interests involved in the development and recognition of categories of mental disorders. (There is still controversy over whether there is mental “illness,” but there is more congruence over the existence of “disorders.”  The late poet, Theodore Roethke, once wrote, “What is mental illness, but nobility of soul at odds with circumstance?”  The APA, the psychiatric profession, the pharmaceutical industry and other groups have a much bigger and more complex investment in the definition of categories of mental illness.

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).

Transplant Follies: Live Liver Lie Leads To Surgeon Indictment

It is a felony to lie to a federal government official concerning an administrative matter or process within his or her jurisdiction. Dr. Richard R.Lopez, M.D., 54, the former head of the liver transplant program at St. Vincent’s Medical Center in Los Angeles, CA was the recipient of a grand jury indictment this month for lying about and falsifying records concerning a liver transplant to federal transplant officials.  The lie was essentially to deceive the identity of the actual recipient of the liver. 

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.

E-PATIENTS AND ELECTRONIC PERSONAL HEALTH RECORDS (“EPHR”)

 The cost of health care is an enormous drag on the productivity of American business. When the cost of health care for employers rises to 20% of the cost of doing business in some industries, the structural handcuffs of health care costs can make the difference in economic survival or not.  The advent of electronic medical records (“EMR”) has been received in some quarters as a panacea for the achievement of improved quality of health care delivery and reduction of the crushing runaway costs of the system.

ABORTION RIGHTS: SOPHIE’S CHOICE FOR PROCHOICE WOMEN IN HEALTHCARE REFORM?

ABORTION RIGHTS: SOPHIE’S CHOICE FOR PROCHOICE WOMEN IN HEALTHCARE REFORM?

 The House of Representatives passed its healthcare reform bill on November 7, including an amendment proposed by Representative Bart Stupak (D) Michigan and Rep. Joe Pitts (R) Pennsylvania excluding any coverage for abortion in the government run plan or in government subsidized access to insurance. Instead, women would be required to purchase separate coverage for abortion. The other side of the equation is that the bill removes a number of “gender rating” inequities and certain preexisting condition exclusions such as prior C-Sections or experience with domestic violence. The bill will also provide basic coverage for a much larger number of women.

 

THE REPUBLICAN HEALTH CARE LIABILITY REFORM PACKAGE

 Deep in the Republican Alternative Healthcare reform proposal unveiled by Rep. John Boehner (R) Ohio on November third, (The “Common sense Health Care Reform and Affordability Act,” can be found “Division C- Enacting Real Medical Liability Reform.” This section purports to nationalize state medical malpractice and medical product liability law and procedure into a uniform federal code which provides greater protection for doctors, pharmaceutical companies and medical device manufacturers.

HEALTHCARE REFORM PART III:-THERE WILL BE PAIN!

 One of the unfortunate realities about Health Care Reform is that there will be pain.   The current trajectory of health insurance costs is unsustainable.  We are pushing 18% of the Gross National Product, more than double other industrialized countries and severely depressing our competitive edge in the world economy. Left unattended health care will continue to eat into American productivity, lifestyle, competitiveness and influence.   The solutions are not difficult to understand. The question is how to equitably distribute the pain. The strategy of “just saying no “ will just momentarily and ineffectively defer the pain. There are three ways, or combinations there of  to do it. The menu please!