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.

 

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.

 

HOSPITALS INSTALL MEDIATION CENTERS TO QUELL PATIENT VIOLENCE AGAINST DOCTORS

    Is access to quality healthcare a right of all citizens or a privilege for the privileged?  Consider the prospect of a growing disparity between the halves and have nots and the frustration of those excluded from the better hospitals and physicians because of the inability to pay. Imagine the potential for violence as patients observe loved ones needlessly dying or facing disabling injury as a result of poor or inadequate treatment.  Hospitals demanding police protection, but officers concerned that they are public servants and not body guards.  2000 people riot at a hospital which refuses to treat a three year old who is unable to pay an $82.00 up front fee. A pediatrician jumps out of a fifth floor window to avoid the wrath of angry relative of an infant who died under his care.  Relatives beat doctors and nurses with mops and sticks for referring feverish patient to an outside clinic. 5,500 medical workers injured by patients in a single year. A grim vision of the future?

THE VALUE OF CONSENT TO SETTLEMENT CLAUSES IN PROFESSIONAL LIABILITY INSURANCE.

    Many physicians appear to be unaware of the potential impact on their reputations of not having a right to consent to any settlement in their contract for professional liability insurance.  Without such a clause the insurance company, may settle a nuisance claim against a physician for a small token payment, yet in making a payment on behalf of a physician, no matter how small, the insurance company is required to report the payment to the National Practitioner Data Bank under the Healthcare Quality Improvement Act of 1986. It is in fact sometimes better for a physician to make a nuisance payment himself or herself to settle a case if the amount is small enough, because payments made by the physician are not reportable.

HEALTH REFORM BILL (III): SMALL BUSINESS HEALTH OPTION PROGRAMS (“SHOP EXCHANGES”).

Back in the 1980’s the State of Hawaii developed a health insurance exchange for businesses located in the islands.  A core feature of the Massachusetts Health Plan (“Romneycare”??) installed several years ago was the installation of the Massachusetts Health Care Connector,  a state operated healthcare insurance exchange for small businesses and uninsured citizens looking for reasonably priced health insurance. Health Care Connector is the model for the Small Business Health Option Programs or SHOP Exchanges mandated by the Patient Protection and Affordability Act of 2009. The mission of the exchanges is to “assist qualified small employers in facilitating the enrollment of their employees in qualified health plans offered in the small group market of the state.” The states are required to have the exchanges in place by January of 2014.  The regulators from the Department of Health and Human Services  (“HHS”) will define who are qualified employers and what are qualified plans. 

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.

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. 

HEALTH CARE DATA CHASE: THE ARRIVAL OF HEALTH CARE ALL CLAIMS DATA BASES.

    The Colorado legislature is about to address a proposal to develop a state health care all claims data base as part of Governor Rittter’s health care initiative package. The pending bill, HB 1330, provides for the structure and development of a claims data base in the state with the hope of joining a number of other states that have already or are in the process of developing their data bases.  

What Point, Wellpoint? - Is Private Health Insurance Sustainable?

There were two interesting articles in the Wall Street Journal last week on Wellpoint, the huge health care insurer.  The Saturday/Sunday Edition highlighted an interview with Angela Braly, the CEO of Wellpoint by Joseph Rago entitled “A Wasted Opportunity.”  The Journal quoted Ms. Braly as being shocked by the pricing demands of hospitals and physicians.

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).