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.

 

YELPING DENTIST BIT BY FEDERAL COMPUTER DECENCY LAW.

Glen Reit, D.D.S. a dentist practicing in Manhattan received a number of favorable reviews from the online consumer reviewing service, “Yelp.”  All was well until an anonymous post by a “Michael S.” described his office as “small,” “old,” and “smelly.”   Judging from the name of the web site, there was an expected short, sharp, painful cry by either the reviewer or perhaps the reviewed. The post described Dr. Reit’s office equipment as “old” and “dirty.”  Dr. Reit leaped to the courts to obtain an injunction requiring the removal by Yelp of the offending review.  He claimed a substantial reduction in patient appointments. Yelp appFarently removed the good reviews and kept the unfavorable review posted for a while. 

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.

 

Physician Rebates on Pharmaceuticals Inducements or Volume Discounts?

 

    Can physicians be swayed in the prescription of drugs by volume purchase discounts that return substantial rebates to them on highly expensive drugs?  In an article in the New York Times this week, (Pollock, “Secret Rebates Offered on Costly Eye Drug, November 3, 2010”) a Times Reporter explored the practice of pharmaceutical companies providing “rebates” to physicians who purchase and use the drugs they sell on their patients.  Oncologists have long engaged in the purchase and resale of toxic agents used in the treatment of cancer. Recently  opthamologists have been provided the opportunity as well. Genetech’s Lucentis is a case in point.

 

BRING ENOUGH “CHARITY” IN HUNT FOR HOSPITAL TAX EXEMPTION?

 

Robert Ruark, the novelist and big game hunter, used to encourage his fellow hunters to “use enough gun” when hunting dangerous animals.  If the reasoning of the Illinois Supreme Court recently in Provena Covenant Medical Center V. Department of Revenue 2010 WL966858 (2010) gains traction beyond the state court ruling on local property tax exemptions and spills over into the analysis of federal and state income tax exemptions, not-for-profit hospitals may be in for some rough sledding with the Internal Revenue Service and Sen. Charles Grassley (R) Iowa.  Senator Grassley who inserted the enhanced “community benefit” requirements into the Patient Protection and Affordable Care Act enacted last fall has been anxious to hold non-for profit hospitals accountable for the very lucrative tax exemptions that they receive under the Internal Revenue Code.

 

Can the Affordable Care Act Bend the Cost Curve and Can Physicians Survive It?

 

 

One of the great premises of the Patient Protection and Affordable Care Act (“PPACA”)enacted last March is that it can reach ahead and bend down the rising cost curve of health care in this country.  The necessity of doing so cannot be reasonably debated although the means can.  The cost of health care in the United States is running about 17% of GNP, while it is only 12% in Germany, which on average has a healthier population. This puts us at a major competitive disadvantage with every other major industrial nation. While there will be increased costs in the short term, there is a very considerable cost in doing nothing, the most prominent and likely of the alternatives available. The excision of the “public option” from the health reform bill was  a boon to insurance companies who successfully opposed its adoption, but it removed a major potential vise to bend the cost curve.

 

THE PROMISE AND PERIL OF EVIDENCE BASED CLINICAL STANDARDS.

 

A key component of the governments efforts to bend the cost curve for health care is the use of technology and new health delivery structures to introduce “evidence based” clinical standards for the treatment of patients.  Technology will be useful in determining the most clinical effective modalities of treatment and in monitoring the implementation of the guidelines across the spectrum of health car providers. It is an idea that on the surface makes a great deal of sense.  Providers should be held accountable to implement those methods of treatment that have shown themselves to be the most effective and cost efficient in the treatment of chronic disease disease syndromes.

 

THE GREAT NURSE ANESTHETIST “OPT OUT” DEBATE

 

 

Under Medicare rules Certified Registered Nurse Anesthetists (“CRNAs”) must be supervised by a physician, typically an anesthesiologists or perhaps by a surgeon in rural areas where anesthesiologists are not available.  Medicare has a state “opt out” provision which permits CRNAs to practice without supervision of a physician.  To date, 15 states have chosen to opt out and others like Colorado are considering doing the same.  Anesthesiologists are compensated for supervising CRNAs and can supervise up to 3 at a time because they are not required to be in the same room.

THE END OF MEDICINE: How Silicon Valley (and Naked Mice) Will Reboot Your Doctor by Andy Kessler, Collins 2007.

    Andy Kessler is an irreverent, flip and highly readable writer who poses an interesting single question and than doggedly pursues an answer, with a lot of biting asides to entertain the reader. The question is, given the exponential decline in cost of technology in Silicon Valley and its exponential increase in power and effectiveness, why hasn’t medical technology turned over the same returns to deliver more effective health care at a cheaper cost. There are a number of reasons including the inherent slowness of the treatment and study process, the FDA, entrenched economic interests and the focus on treatment rather than prevention.