COVID Law Briefing: Medicaid and the ACA- Summary

Earlier this year, Public Health Law Watch, in collaboration with members of the George Consortium and other partner organizations, hosted a series of legal briefings related to COVID-19 and legal and policy issues associated with the global pandemic. Experts and scholars joined us for bi-weekly livestreamed discussions on these issues. We invite you to read the summaries of selected episodes below! And, enjoy relistening to the series (linked below and archived on our #COVIDLawBriefing webpage).

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4/16/20: Medicaid and the ACA

Mod: Wendy Parmet

Speakers: Nicole Hubberfield, Sidney Watson

Professor Parmet moderates a discussion with Professor Hubberfield and Professor Watson on Medicaid and the ACA on this #COVIDLawBriefing. The talk began by going over the stability of Medicaid’s federal funding, and the programs ability to bail out the states that need the money most. It allows states to be “flexible” in a pandemic as the poorer states can get more from Medicaid. Since it was designed to be “a safety net program” it is more able, then private insurance, to be positioned to help people during this crisis. This is due to the fact that Medicaid does not need to balance its own budget and engages in “countercyclical spending” so it can be positioned to help people when need arises. Additionally, you can sign up for Medicaid at any time with your current income so it can help people who just lost a job. Unfortunately, for states that didn’t expand Medicaid, many people have been stranded. This is especially true in communities of color and lower income communities. One tool available for states would be to expand Medicaid, a process which even during the crisis would only take a simple state amendment. Calling a state of emergency is also essential as it will open up different avenues for states to get funding. On the federal level, congress recently passed a 6.2% increase in federal matching funds for Medicaid, a typical response to a public health crisis. After going through the congressional and state loopholes that allow them to influence the distribution of Medicaid funding, the conversation ended with a discussion of the Trump administration’s relationship with Medicaid. Despite the public health crisis we are facing, the Trump administration has been reluctant to change their stances about many of their health care policy goals including getting people off Medicaid. 

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Public Health Law Watch’s COVID Law Briefings are co-sponsored by the Center for Health Policy and Law at Northeastern University School of Law, the Center for Public Health Law Research at Temple University Beasley School of Law, the Network for Public Health Law, and the APHA Law Section.

A Delicate Balance: Proposed Regulations May Upset the Tension Between Accessibility and Privacy of Health Information

This piece is part of a blog symposium featuring commentary from participants in the Center for Health Policy and Law’s annual conference, Promises and Perils of Emerging Health Innovations, held on April 11-12, 2019 at Northeastern University School of Law. The symposium was originally published on the Northeastern University Law Review Online Forum.

By Oliver Kim

Northeastern University School of Law’s “Promises and Perils” conference allowed my coauthor and me to continue the exploration of legal, policy, and ethical issues in the development and use of “disruptive technologies” in health care. See Ne. Univ. Sch. L., Promises and Perils of Emerging Health Innovations, (last visited Oct. 4, 2019); Oliver J. Kim, The Devil is in the Data, Balkinization (Nov. 3, 2018, 11:00 AM). The bedrock of the provider-patient relationship is trust, and that same level of trust must exist in the world of disruptive technology, such as digital health, if disruptive technologies will be welcomed by patients and consumers.

Consultant and health technology expert Susannah Fox argues that a “trust gap” has emerged because the narrative around digital health has negatively impacted people’s sense of trustworthiness due to “a steady drip-drip-drip of articles documenting how health apps are sharing data with third parties.” Susannah Fox, Trust Gap: Health Apps and Data Sharing (Apr. 29, 2019). Moreover, observers have raised concerns about how digital technologies affect women, people of color, and those of limited means in areas such as privacy, security, and criminal justice. See Emily Chang, What Women Know About the Internet, N.Y. Times (Apr. 10, 2019); Cat Zakrzewski, The Technology 202: Advocate Urges Congress to Protect Digital Rights of People of Color as it Crafts Privacy Bill, Wash. Post (Feb. 6, 2019); Mary Madden, The Devastating Consequences of Being Poor in the Digital Age, N.Y. Times (Apr. 25, 2019). For example, many questions about privacy arose when police were able to use a private company’s DNA ancestry tool to identify the Golden State Killer through partial matches from relatives’ genetic data. Avi Selk, The Ingenious and ‘Dystopian’ DNA Technique Police Used to Hunt the ‘Golden State Killer’ Suspect, Wash. Post (Apr. 28, 2018); Clare Wilson, Serial Killer Suspect Identified Using DNA Family Tree Website, New Scientist (Apr. 27, 2018). Some law enforcement agencies are building up their own DNA databases, and while the DNA may be taken consensually, individuals may not realize their DNA could be retained or used for other purposes. Jay Stanley, The Police Want Your DNA to Prove You’re Innocent. Do You Give it to Them?, ACLU (Sept. 16, 2016). As one physician noted after police swabbed his son, “My concern… is that it’s not just Adam’s DNA…. It’s my DNA, it’s my wife’s DNA, and our parents. Not to sound bad, but you just get nervous.” Lauren Kirchner, DNA Dragnet: In Some Cities, Police Go from Stop-and-Frisk to Stop-and-Spit, ProPublica (Sept. 12, 2016).

While improved healthcare interoperability is a priority for stakeholders, achieving it continues to be a vexing problem. Kate Monica, Top 5 Challenges to Achieving Healthcare Interoperability, EHR Intelligence (Aug. 14, 2017). After an extended comment period, the Centers for Medicare and Medicaid Services (CMS) and the Office of the National Coordinator (ONC) recently closed the long-awaited proposed regulations on interoperability as directed by the 21st Century Cures Act. Press Release, U.S. Dep’t of Health & Human Serv., HHS Extends Comment Period for Proposed Rules to Improve the Interoperability of Electronic Health Information (Apr. 19, 2019); Elise S. Anthony & Michael Lipinski, 21st Century Cures ACT: Interoperability, Information Blocking, and the ONC Health IT Certification Program Proposed Rule, The Office of the Nat’l Coordinator for Health Info. Tech. (last visited Oct. 8, 2019). These proposed regulations require certain payers— Medicare Advantage private plans, Medicaid and Children’s Health Insurance Program managed care organizations, Medicaid state agencies, and qualified health plans within Federally Facilitated Exchanges—to create open APIs (Application Programming Interfaces) that patients could use through a third-party app to access and compile their health data. Patient Protection, Interoperability and Patient Access for Medicare and Medicaid Programs, 84 Fed. Reg. 7610 (proposed Mar. 4, 2019) (to be codified at 40 C.F.R. pt. 156); 21st Century Cures Act: Interoperability, Information Blocking, and the ONC Health IT Certification Program, 84 Fed. Reg. 7424 (proposed Mar. 4, 2019) (to be codified at 40 C.F.R. pt. 170 & 171).

While the use of APIs and third-party apps may make health data more accessible and help to eliminate the digital divide on how different racial and ethnic groups tend to access the Internet, there is concern about utilizing third-party apps because of their potential for harnessing consumers’ data. Eva Chang et al., Racial/Ethnic Variation in Devices Used to Access Patient Portals, 24(1) Am. J. of Managed Care e7 (2018); Rebecca Pifer, HHS Officials Defend Interoperability Rules to Senate Critics, Health Care Dive (May 7, 2019). Indeed, one of the reasons cited for the extension of the comment period was confusion over whether providers would be liable for how patients use their health data under HIPAA’s privacy law (which ironically does not contain the word “privacy” in its full title, the Health Insurance Portability and Accountability Act of 1996). Jessica K. Cohen, HHS Extends Comment Period for Interoperability Rules, Modern Healthcare (Apr. 19, 2018); Health Insurance Portability And Accountability Act of 1996, Pub. L. No. 104-191, § 110 Stat. 1936, (1996).

HIPAA protections do not necessarily apply to a third-party app simply because the app has received health information via the consumer. See Health App Developers, What Are Your Questions About HIPPA? (last visited Oct. 8, 2019). In some cases, it would be no different than if a patient handed a paper file to a stranger who promised to take care of the information. See Focal Point Insights, When Does HIPAA Apply to Health Apps?, Focal Point Blog (Oct. 3, 2018). In this instance, the consumer has voluntarily taken their patient data outside HIPAA’s world of covered entities. Instead, it would be up to the Federal Trade Commission (FTC) to take enforcement actions against those who may have violated an app’s terms and conditions with the consumer. See Federal Trade Commission, Privacy and Security Enforcement (last visited Oct. 8, 2019); G. S. Hans, Privacy Policies, Terms of Service, and FTC Enforcement: Broadening Unfairness Regulation for a New Era, 19 Mich. Telecomm. & Tech. L. Rev. 163 (2012).

As argued earlier, see Kim, supra, and as discussed in presentations, trust is a key component of ensuring that the digital health system will work, as well as building the data foundation necessary for new advances in healthcare, such as artificial intelligence. See Ne. Univ. Sch. L., supra; Ariz. St. Univ. C. L., Governance of Emerging Technologies & Science (GETS) (last visited Oct. 8, 2019). Many communities of color share concerns about the use of their health data due to historical inequities and unjust treatment by the medical system; yet, their data is needed to ensure that there is no digital divide in our healthcare databases. See J. Corey Williams, Black Americans Don’t Trust our Healthcare System – Here’s Why, The Hill (Aug. 24, 2017); Research America, New National Public Opinion Poll Shows Majority of Americans Would Participate in Clinical Trials if Recommended by Their Doctor, ResearchAmerica! Polls (June 12, 2013); Graham MacDonald & Ajjit Narayanan, We Need Better Tools to Measure Bias in Data that Drive Decisionmaking, Urban Institute (Mar. 5, 2019). The proposed regulations are unlikely to close that trust gap, particularly when consumer groups have raised concerns about certain apps, wearables, and their relationships with marketers and insurers. See Drew Harwell, Is Your Pregnancy App Sharing Your Intimate Data with Your Boss?, Wash. Post (Apr. 10, 2019); Allison V. Smith, With Fitness Trackers in the Workplace, Bosses can Monitor your Every Step – and Possibly More, Wash. Post (Feb. 16, 2019); Kaitlyn Tiffany, Period-Tracking Apps are Not for Women, Vox (updated Nov. 16, 2018); Smartphone Contraception: Policy Issues, National Women’s Health Network (last updated Oct. 2018).

Ideally, everyone would be an informed consumer, but the truth is most of us do not read or do not understand the terms and conditions that go along with downloading an app. Caroline Cakebread, You’re Not Alone, No One Reads Terms of Service Agreement, Business Insider (Nov. 15, 2017). And the current Administration has not signaled a willingness to intervene on behalf of consumers. For instance, the new head of the Consumer Financial Protection Bureau said the agency will help consumers “to help themselves [to] protect their own interests” rather than on focus on enforcement. David Lazarus, ColumnL CFPD head, Charged with Protecting Consumers, Says People Need ‘to Help Themselves’, LA Times (Apr. 19, 2019). Similarly, ONC director Don Rucker said it is up to individual patients to decide what types of third-party apps to use. See Cohen, supra.  Let the downloader beware!

While CMS and ONC do not have regulatory authority over third party apps, they could allow or require APIs to restrict third-party apps’ access based on whether they agree to limit the use of patients’ health data. As one consumer group has argued, that would give patients some real measure of choice in their notice and consent. And to build trust—particularly for women and people of color—in this digital revolution in healthcare, the government owes patients and consumers some sense of safety and security. See Michell Richardson, Notice and Choice Are No Longer a Choice, CDT Blog (Mar. 1, 2019).

Bio: Oliver Kim is an adjunct law professor at University of Pittsburgh School of Law and a principal with Mousetrap Consulting in Washington, D.C.

Handle: @mousetrapdc

Medical Deferred Action Program Still Faces Unclear Future

By Faith Khalik

The future of medical deferred action is still unclear.

In yet another blow to immigrant healthcare in the U.S., the U.S. Citizenship and Immigration Services (USCIS) quietly eliminated its medical deferred action program on August 7th. The program allowed immigrants with serious medical conditions to remain in the country without fear of deportation.

After receiving much criticism, USCIS announced last Monday it will review deferred action renewal requests made up to August 7th. However, it did not say what will happen to requests made after August 7th, or whether the program will continue in the future.

The policy change first gained attention after The Boston Globe and WBUR reported individuals had received letters from USCIS denying renewal of their immigration status through the medical deferred action program. According to the denial letters, the agency will no longer consider deferred action requests, with exceptions for some military members.

Under the medical deferred action program, individuals can seek approval to remain in the U.S. in order to undergo medical treatment for chronic illness, rare diseases, and other serious health conditions that would go untreated in their home country. Many individuals in the program are part of clinical trials sponsored by academic medical institutions and hospitals in the U.S.

Jonathan Sanchez and his family applied for medical deferred action in November. The 16 year old, who was born in Honduras, has been getting treatment for cystic fibrosis (CF) in Boston for the past three years.

"If they deny the program, then I need to go back to my country, and I'll probably die because in my country, there's no treatment for CF," Sanchez told WBUR. "Doctors don't even know what's the disease. The only ones who can help me are here in the United States."

Since the initial reporting on the policy change, USCIS and the Immigration and Customs Enforcement (ICE) engaged in a public back-and-forth, further obscuring the future of the program.

Initially, USCIS told WBUR that ICE would be taking over the program. When asked for clarification, ICE told WBUR that it was surprised by the policy change, and that it had no plans to take over the program. The following day, USCIS told WBUR that it is working with ICE to transfer the program. Then, ICE spokesperson Shawn Neudaur told WBUR that the program no longer exists.

Most recently, USCIS announced that it will review requests made until August 7th, while also stating that “limiting USCIS’ role in deferred action is appropriate.” It did not indicate whether the program has a future, either within USCIS or through another agency.

The reasons behind the policy shift are unclear. “The non-citizens affected aren’t entitled to federally supported health care,” wrote Wendy Parmet for WBUR. “Some have private insurance. Others are supported by state programs or private charities. Some are receiving treatment by participating in clinical trials. Money’s not the issue.”

Perhaps some of these questions about rationale, and the future of the program, will be answered tomorrow, when the Subcommittee on Civil Rights and Civil Liberties holds a hearing about the policy change.

Medicare-for-All wouldn’t be Medicare if it eliminated private insurance

By Robert I. Field

 
 Should Medicare-for-All replace private insurance?

 The question is central to health reform debates among Democratic presidential candidates, but it presents a fundamental contradiction. If Medicare-for-All were to eliminate private coverage, it wouldn’t truly be Medicare as we know it, which has made room for private insurers from the start.

 Medicare could have been designed as a pure single payer with comprehensive coverage for all health care needs, but that approach would have risked alienating several important constituencies, including the insurance industry. Before the program was enacted, private insurers enjoyed a sizable market through which they sold coverage of some sort to about half the nation’s elderly.

 Although Medicare eliminated that market, it created a profitable new one. Insurers were able to sell policies that filled important coverage gaps, such as for vision and dental care, and that reduced or eliminated sizable copayments and deductibles. Today, that coverage is known as “Medicare supplement” or “Medigap.” When the program launched, more than 80 percent of beneficiaries who had previously maintained private coverage purchased it. Medicare also gave some insurers the chance to earn additional revenue by administering claims.

 The role of private insurance companies in Medicare has continued to grow over time. They now provide coverage to almost a third of beneficiaries through an alternative to the traditional program known as Medicare Advantage, and they play the central role in providing coverage for prescription drugs. Plans offered through Medicare now account for almost a quarter of industry revenue.

 With this combination of public and private elements, Medicare has not only survived for more than half a century but become a mainstay of the entire health care system. It is also extremely popular. In a 2014 Kaiser Family Foundation poll, 77 percent viewed it as a very important government program, and 76 percent saw it as important to them personally. Its hybrid structure helps generate broad support across the political spectrum, appealing to Democrats with its government foundation and to Republicans with its element of private sector choice.

 Of course, the program faces its share of challenges, especially concerning costs. However, in this regard, it is largely a victim of its own success. Americans are living longer and therefore enjoying more years of Medicare eligibility in large part because the program has given them access to ever more sophisticated care. It also provides essential funding for the introduction of new forms of care, which are increasingly expensive, and for the training of new physicians who provide it. It would not be an overstatement to say that without Medicare, much of health care as we know it in the United States would not exist.

 As Medicare-for-All proponents are quick to note, Medicare’s private component remains controversial. Private insurers generate higher overhead costs than the program’s traditional, government-run coverage and are accused of trying to avoid sicker potential customers. Moreover, cost increases for private insurance tend to outpace those for Medicare. However, regulatory oversight of Medicare’s private component has helped to mitigate some of those concerns, and stronger oversight could fill remaining regulatory gaps without eliminating it.

 The premise behind Medicare-for-All should be simple. Take a successful program with a limited range of beneficiaries and extend it to everyone. Perhaps a pure single payer plan could improve on Medicare’s decades-long success, but it would be misleading to call such a plan “Medicare.” It would be something quite different. To bring Medicare-for-All to fruition, there is no need to mess with success.

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 Robert I. Field is professor of law and public health at Drexel University and author of the book “Mother of Invention: How the Government Created ‘Free-Market’ Health Care.” He is also founder, editor and lead writer of the Health Cents blog on the Inquirer.com.

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 This blog post first appeared as an op-ed in the Philadelphia Inquirer.

Trump returns Obamacare to the crosshairs and we are all in peril

By Robert I. Field, Ph.D., J.D., M.P.H.  

The Trump administration has returned with renewed vigor to its war against the Affordable Care Act. If the attack succeeds, the damage would touch almost all of us.

The latest line of attack is to side with the plaintiffs in a lawsuit challenging the law, who are urging an appeals court to strike down the entire ACA as unconstitutional. Originally, the administration had argued that only the protections for individuals with preexisting medical conditions should be tossed out.

This latest step is highly unusual. It ignores the time-honored bipartisan practice of presidential administrations to defend federal laws against legal challenges, even laws with which they disagree. It is rarer still for an administration to actively side with a challenge. And it is extraordinary for one to harden its position while a challenge is proceeding.

If the administration’s new stance prevails, almost everyone would feel the catastrophic effects. Its original position was destructive enough in pulling health insurance from millions of people who are sick. Its new position would wreak havoc throughout most of American health care.

Among the biggest losers would be millions of adult children kicked off their parents’ coverage, hundreds of hospital partnerships known as accountable care organizations forced to close, millions of seniors again facing the infamous doughnut hole in Medicare prescription coverage, and thousands of patients unable to buy cheaper generic versions of expensive specialty drugs. And, of course, millions of poor and disabled patients who would lose access to health care in states that expanded Medicaid.

All of this comes after the ACA has achieved remarkable success in reducing the number of uninsured, its popularity is at near record levels, and it has strengthened much of the health care industry.

The administration’s action doesn’t even have a coherent legal rationale. Its new argument defies both law and logic.

The argument goes that because the Supreme Court upheld the law’s mandate to obtain insurance as a tax, repeal of the tax by Congress in 2017 eliminated its constitutional basis. And because the mandate is central to the law’s overall scheme, it cannot be severed from the other provisions and everything must go.

This argument makes little sense. The Supreme Court ruled that as a tax, individuals are in full compliance whether they choose to pay the tax or to obtain coverage. With the amount of the tax now set at zero, everyone has automatically complied. In other words, the mandate as a compulsion to obtain coverage has disappeared. How can it be unconstitutional if it no longer exists?

Even if the now nonexistent mandate were found to be unconstitutional, Congress has expressed a clear desire to retain the rest of the law without it. Just a few months before voting to eliminate the tax, it rejected proposals to repeal the law in its entirety. If it had wanted all of the law to fall, it would have voted in favor of full repeal, not against it. In fact, the ACA’s insurance exchanges are continuing to function quite well without the mandate, providing coverage to millions of people.

Even if the mandate were found to be essential to the insurance coverage provisions, it is clearly not central to many of the law’s other elements that have nothing to do with insurance. How, for example, is it central to requiring calorie counts on restaurant menus?

Might anyone benefit from the new assault on the ACA? It’s hard to image who they would be.

Certainly not the millions of patients who would lose access to health coverage and pay higher prices for drugs. And certainly not the hospitals whose partnerships to improve the quality and efficiency of care would dissolve, the insurance companies that would see markets for individual policies disappear, or the drug companies whose generic specialty drugs could no longer be sold.

And probably not Trump’s fellow Republicans, who could face voters next year as the anti-health care party.

Trump can’t seem to keep the ACA out of his crosshairs, and his scorched earth policy could burn everyone. He might not care, but millions of Americans should.

This blog post first appeared in the Health Cents blog on Philly.com

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About the author: Robert I. Field is a member of the Inquirer’s Health Advisory Panel, and nationally known expert in health care regulation and its role in implementing public policy. He holds a joint appointment as professor of law at the School of Law and professor of health management and policy at the School of Public Health at Drexel University.

The Texas ACA ruling is an assault on logic

by Robert I. Field , professor of law and public health at Drexel University.

  ACA opponents have a new approach to attacking the law – incoherence.

 On Friday, a federal judge in Texas accepted the argument of 20 Republican attorney generals that the ACA’s mandate requiring everyone to have insurance is unconstitutional because the tax penalty enforcing it has been repealed. In other words, he struck it down because it no longer has any practical effect. Logic was in for a rough ride in this decision.

 Judge Reed O’Connor relied on the Supreme Court’s 2012 ruling that the mandate’s penalty is constitutional as a tax on those who choose to remain uninsured. But, as part of the 2017 tax bill, Republicans voted to set the amount of the tax at zero. Judge O’Connor concluded that the mandate and the tax penalty are separate, so if the mandate stands on its own and doesn’t trigger the tax, it has lost its constitutional foundation.

 But without the tax, the mandate doesn’t trigger anything. It persists as a directive that everyone have health insurance (with a few exceptions) but with no penalty for failing to comply. It has become a “mandate” in name only.

 Why bother arguing about a now meaningless provision in a much larger law? Because it gave Judge O’Connell a pretext to strike down everything else in the law. He claimed that the mandate, even in its denuded form, remains central to the ACA’s entire legislative scheme - not just to the provisions regulating insurance markets to which it directly relates, but to everything. In legal terms, he found that it is not severable.

 Whether a single provision that is struck down by a court can be severed from the law that contains it is a decision for Congress to make when is enacts legislation. In this case, Congress spoke loud and clear. It repealed the mandate penalty as part of the 2017 tax bill after considering numerous proposals to repeal everything else and enacting none of them. If Congress found the mandate to be as central as Judge O’Connor claims, why would it have approved a proposal to repeal it in isolation?

 The consequences of this bizarre ruling could be devastating. If the entire ACA were to fall, millions of people who obtain coverage through the exchanges would lose it, and those with preexisting medical conditions might never be able to get it back. Millions more who gained coverage through the expansion of Medicaid would lose coverage, as well.

 But that is just the start. The ACA contains hundreds of provisions that have nothing to do with insurance and affect almost every other aspect of the health care system. As a few examples, it enables drug companies to develop and market generic copies of expensive biotechnology drugs known as biosimilars; it rewards hospitals and physicians for forming accountable care organizations that coordinate care to improve efficiency and quality; it improves Medicare drug coverage; and it implements numerous prevention initiatives, like calorie counts on chain restaurant menus.

 By what contortion of logic could the mandate, even if it still had practical effect, be considered central to provisions like these? Clearly, Congress didn’t think so.

 Fortunately, the chaos that would accompany full ACA invalidation is not imminent. Judge O’Connor’s decision will be appealed, and he declined to issue an injunction, at least for now, against enforcement of the law while those proceedings are pending. The Trump administration has said that it considers the law still to be in effect.

 Ultimately, the appeals will likely reach the Supreme Court, which has upheld the ACA twice before. This time, it will have to decide whether a mandate that has been rendered meaningless can be unconstitutional and whether completely unrelated provisions of the law that contains it should be struck down against the clear intent of Congress.

 These are issues more suited to Alice in Wonderland than a legitimate lawsuit. The latest case against the ACA is not just an assault on American health care. It is an assault on logic.

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This blog post first appeared in the Health Cents blog on Philly.com.

The Health Impact Of The Proposed Public Charge Rules [from Health Affairs Blog]

by Wendy E. Parmet, Matthews Distinguished University Professor of Law and Faculty Director, Center for Health Policy and Law at Northeastern University School of Law; Professor of Public Policy and Urban Affairs, Northeastern University School of Public Policy and Urban Affairs 

This post was originally published on the Health Affairs blog (Sept. 27, 2018).

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On September 22, the Trump Administration announced it would soon publish in the Federal Register proposed new regulations defining when lawfully present immigrants should be considered a “public charge.” Although the draft regulations posted by the Department of Homeland Security (DHS) were not as far-sweeping as a version that was leaked last winter, if promulgated they would still have a dramatic impact on public health and the health care system.

For over a century, the Immigration and Nationalization Act has required most immigrants (not including refugees, asylees and certain other exempt groups) who seek to enter the United States, and most non-citizens within the United States who want to obtain permanent residency status, to show that they are “not likely to become a public charge.” The Act does not define “public charge,” but under a 1999 guidance, the term has only been applied to non-citizens who rely on cash benefits for most of their income, or to those who require public assistance for long-term care or institutionalization. The receipt of non-cash benefits, including publicly-funded health insurance, does not make one a public charge.

The Administration’s proposed regulations would end those exemptions and redefine “public charge” as including non-citizens who receive an amount greater than 15 % of the Federal Poverty Level (for a household of one) of certain listed monetizable benefits, including Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), the Supplemental Nutrition Assistance Program (SNAP) and federal housing support. In addition, except in limited circumstances, a non-citizen could be considered a public charge for receiving Medicaid or premium and cost-sharing subsidies under Medicare Part D for 12 out of 36 months. Immigrants who use these benefits for fewer months could also be found to be a public charge if they also receive monetizable benefits. The proposal posted by DHS also seeks comments as to whether participation in the Children’s Health Insurance Program (CHIP) could also cause a non-citizen to be found to be a “public charge.”

The draft regulations explain that the public charge determination is one that is future-oriented. The key question is whether the individual, looking at the totality of circumstances, is likely to use any of the covered benefits in the specified amounts in the future. However, use of any of the listed benefits within 36 months of filing for an adjustment of status (though not reaching back before the regulations go into effect) will be treated as heavily weighted negative factors in determining whether an individual is likely to become a public charge by using such benefits in the future.  As a result, an immigrant who was on Medicaid for several years as a child may find that that coverage is held against her if she seeks a green card once she becomes of age, even though her circumstances may have changed dramatically. DHS also proposes to consider whether an immigrant has “private insurance or the financial resources to pay for reasonably foreseeable medical costs related to a medical condition that is likely to require extensive medical treatment or institutionalization “ or will interfere with the immigrant’s ability to care for him or herself or work or attend school.

Negative Health Impacts

If promulgated these changes will almost certainly harm the health of immigrants and their families. Most obviously, the changes will create a significant disincentive for immigrants to enroll in publicly-funded health insurance programs. In its comments, DHS estimates that 2.5 % of the eligible population of immigrants and their family members who are otherwise eligible for Medicaid or Medicare Part D subsidies will either dis-enroll or forego participation in the programs. In reality, many more immigrants, including many who are not actually subject to the public charge requirement because they  have an exempt status, are likely to avoid coverage due to fear of negative immigration consequences. Even before the proposed regulations were posted by DHS, many immigrants chose not to enroll either themselves or their children in public programs because of fear of possible adverse immigration consequences.

The emphasis that DHS seeks to place on immigrants’ medical condition is likely to exacerbate the problem, creating a type of “pre-existing condition” bar for non-citizens. Under the proposal, the absence of private health insurance alongside the existence of a serious medical condition makes an individual more likely to be found to be a public charge. Hence immigrants, especially those without private health insurance, will have a strong incentive to avoid medical examinations and tests, even when offered free of charge, lest a potential health problem be discovered. As a result, treatable medical conditions will remain undiagnosed and untreated until they become emergencies. Ironically, the proposed regulations deal with that by not considering the receipt of so-called emergency Medicaid, which pays for emergency care, in determining whether an individual is a public charge. The regulations thus create a strong incentive for non-citizens to wait until their health problems become emergent.

The impact of the proposed regulations on health, however, extends far beyond the negative consequences that will follow from patients losing their health insurance or avoiding medical care. The inclusion of SNAP and housing subsidies in the list of benefits that can render one a public charge means that many immigrants will avoid critical programs that can improve the social determinants of health. Importantly, the loss of these benefits will inevitably extend beyond non-citizen immigrants to their entire family, including their citizen children. After all, a child will lose access to housing if her immigrant mother avoids housing support.

The proposal’s ripple effects will undoubtedly extend even wider. As DHS notes in its comments, the regulations may increase the financial woes of health care providers who serve immigrant communities, as their patients avoid public insurance and even, potentially, primary care. This financial hardship could well cause some providers to cut back on vital services for their entire community, not simply the non-citizens.

The False Promise Of Universal Self-Sufficiency

Indeed, what is perhaps the most striking about the proposed regulations is the fact DHS recognizes their potential harmful impact. In its comments, the department states that its proposal may lead to:

• Worse health outcomes, including increased prevalence of obesity and malnutrition, especially for pregnant or breastfeeding women, infants, or children, and reduced prescription adherence;

• Increased use of emergency rooms and emergent care as a method of primary health care due to delayed treatment;

• Increased prevalence of communicable diseases, including among members of the U.S. citizen population who are not vaccinated;

• Increases in uncompensated care in which a treatment or service is not paid for by an insurer or patient; and

• Increased rates of poverty and housing instability; and

• Reduced productivity and educational attainment.

Despite acknowledging these drawbacks, DHS claims that the regulations are, nevertheless, necessary to ensure “self-sufficiency” among immigrants. Yet, when it comes to health, the goal of complete self-sufficiency is unrealistic and quixotic. Look across the life span, and it’s easy to recognize that none of us is self-sufficient during our childhood, and few of us will be in the future if we live long enough. And that does not consider the fact that our health is significantly affected by social and environmental factors outside of our control. None of us can be self-sufficient in the face of a widespread epidemic, an environmental catastrophe, or even a motor vehicle accident caused by others. That is just as true for non-citizen immigrants as everyone else. As DHS notes, almost 20 % of American citizens rely on the programs affected.  The demand that immigrants achieve self-sufficiency is implausible. It is also cruelly demeaning to all Americans who rely on the programs that are targeted.

Fortunately, it isn’t too late to prevent the alarming prospects that DHS cites from coming to pass. Once the Regulations are published in the Federal Register, the public will have 60 days to comment. During this period, health care providers, health policy experts, and the public health community will have an opportunity to weigh in. The nation’s health may depend upon their doing so.  

Legal Skills Through a Health Justice Lens: First-Year Northeastern Law Students Work Toward Health, Equity, and Justice for Two Oppressed Groups

We have a really special post today - George Consortium member Jason Potter describes his innovative work as a professor and the work of his students here at Northeastern University School of Law. These first year law students studied legal skills through a lens of health justice and turned health justice theory into practice by partnering with non-profit organizations and creating tangible guidance on issues of safe consumption facilities and barriers to health care for transgender individuals. The students will present their work at two upcoming community presentations - if you are local to Boston, please join us!

Law Office 7’s presentation of their research to the community, entitled, Establishing a Safe Consumption Facility in Massachusetts: An Interdisciplinary Review of Legal Barriers and Avenues to Harm Reduction, will take place on Thursday, Mar. 29, 2018, from 2:00-3:00 p.m. in 160 Dockser Hall (Forsythe Street entrance).

Law Office 8’s presentation of their research to the community, entitled Winning Gender-Affirming Care for Transgender Medicaid Recipients in New York, will take place on Thursday, Apr. 5, 2018, from 2:00-3:00 p.m. in 160 Dockser Hall (Forsythe Street entrance).

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By Jason Potter, Associate Teaching Professor, Northeastern University School of Law

Poor health in any population affects everyone. Poor heath negatively affects, inter alia, the economy, wages, property values, education, healthcare costs, and crime rates. Despite legislative innovations mandating access to care, from EMTALA to the Patient Protection and Affordable Care Act, improvements in the health of impoverished and minority populations remain incremental. Institutional racism, stigma, and bias—in the healthcare industry, in education, in employment, in social structures, and in legal systems—negatively impact the health of low-income, minority, immigrant, disabled, and non-conforming communities. As one scholar noted, the principles of “[h]ealth, equity, and justice” are the “keystones of a . . . thriving society,” and uniform application of these principles to all populations is a moral imperative. Today, these principles remain unfulfilled.

Social justice has been described as “a communitarian approach to ensuring the essential conditions for human well-being, including redistribution of social and economic goods and recognition of all people as equal participants in social and political life.”  Social justice and health are inexorably linked. According to Amartya Sen, “[i]n any discussion of social equity and justice, illness and health must factor as a major concern.” Sen further noted that “health equity cannot be but a central feature of the justice of social arrangements in general.” A “health justice” movement that treats law as a tool for achieving health, equity, and justice is well underway in the legal academy, and in legal education.

At Northeastern University School of Law, I teach in an innovative experiential program called “Legal Skills in a Social Context” (LSSC). In the LSSC Program, teams of first-year students (known as “law offices”) examine the complex interplay among law and diversity, values, and institutional oppression alongside learning traditional lawyering skills such as legal writing and research. Each law office partners with a nonprofit or government organization to complete a year-long social justice project. Given my interest in social determinants and the centrality of health to core social justice principles that also frame LSSC discourse, approaching the course through the lens of health justice and social determinants seemed both inevitable and novel. As it turns out, my students are likely the only first-year law students in the United States learning foundational legal writing in a health justice context.

Over the 2017-2018 academic year, my “law offices” served two oppressed and underserved groups of people. First, LSSC students in “Law Offices 7” confronted the enormous challenges facing people who use drugs (PWUD). There are significant “downstream” health consequences when drug enforcement laws are a primary means of addressing the harms of drug use. PWUD face “consequences associated with disclosure, including loss of employment, loss of housing, loss of child custody, loss of benefits, discrimination by medical professionals, and even arrest, prosecution, and incarceration.” Yet the view that addiction amounts to a moral failing, despite scientific evidence showing it is a chronic medical illness, remains the dominant one in the United States, particularly with respect to those who inject drugs. The resulting stigma and discrimination create an immense barrier to recovery and health for PWUD. Second, “Law Office 8” examined the unique healthcare needs of transgender individuals—needs that are problematized by discrimination in nearly every system, including the medical system. Of the 27,715 respondents to the 2015 National Transgender Discrimination Survey (conducted by the National Gay and Lesbian Task Force), 25% of respondents reported having difficulty with insurance related to their transition, and of the 87% of respondents who had sought care in the past year, 33% of them had at least one negative experience with a provider. Nearly a quarter of respondents reported that they needed care but didn’t seek it due to concerns about provider mistreatment. In their own unique ways, transgender individuals and PWUD both face significant barriers to health as a result of oppression.

Law Office 7’s project, on behalf of AIDS Action Committee of Massachusetts, addressed, among other things, the nearly impervious set of federal and state drug laws that could thwart the establishment of an effective point of healthcare engagement for PWUD—the first Safe Consumption Facility (SCF) in the Commonwealth. In its traditional sense, an SCF is an environment, equipped with medical staff and equipment such as naloxone and clean needles, created for the purpose of reducing harm to clients as they consume pre-obtained drugs. The team used the traditional SCF model as the main vehicle for analysis, but also considered different SCF models (such as clinical and mobile medical unit models), and examined how these models interact with the Controlled Substance Act (CSA), federal regulations, the Massachusetts CSA, state regulations, zoning restrictions, and other requirements. Finally, the team explored potential ways forward in Massachusetts and provided general legislative recommendations. Law Office 7’s presentation of their research to the community, entitled, Establishing a Safe Consumption Facility in Massachusetts: An Interdisciplinary Review of Legal Barriers and Avenues to Harm Reduction, will take place on Thursday, Mar. 29, 2018, from 2:00-3:00 p.m. in 160 Dockser Hall (Forsythe Street entrance).

Law Office 8’s project, on behalf of the Legal Aid Society of New York, involved the challenges facing transgender New York residents in accessing medically-necessary, gender-affirming health care despite laws that guarantee Medicaid coverage for such care. The team created a guide with the aim of assisting a wide audience of attorneys, advocates, and individuals attempting to navigate the complex Medicaid and fair hearing process in New York. The comprehensive guide introduced transgender cultural competency, explored the process of accessing Medicaid benefits for gender-affirming care, furnished detailed steps for Medicaid recipients facing care denials and the internal insurance grievance process, discussed preparation and expectations for the fair hearing process (setting forth advocacy tips and practitioner insights), and described potential next steps in the event of an unfavorable fair hearing decision. The team’s goal in creating the guide was to provide insight and instruction on navigating the entire process of receiving Medicaid benefits for gender-affirming care, from beginning to end. Law Office 8’s presentation of their research to the community, entitled Winning Gender-Affirming Care for Transgender Medicaid Recipients in New York, will take place on Thursday, Apr. 5, 2018, from 2:00-3:00 p.m. in 160 Dockser Hall (Forsythe Street entrance).

The principles of health, equity and social justice are not satisfied “when they do not apply equally to all members of society.” Explicit, implicit, and structural biases continue to shape the healthcare experiences of transgender individuals and PWUD, which negatively affects health outcomes in these communities. At the mercy of systems that are neither designed to consider their unique healthcare needs nor the social determinants of health, many transgender individuals and PWUD are incapable of realizing their full capabilities as human beings. This year, NUSL’s LSSC Students in Law Offices 7 and 8 didn’t just study health justice. They turned health justice theory into practice.

For more information about partnering with LSSC on a health justice project, visit the LSSC website and reach out to me directly (j.potter@northeastern.edu).

Medicaid Work Requirements Would Put Very Few People to Work [from philly.com]

[crosspost from Health Cents, philly.com]

By Robert I. Field

The Trump administration recently agreed to let states get tough on Medicaid recipients who don’t work. Kentucky was the first to win approval of a plan to kick those who can work but don’t off the roles, and at least ten other states would like to do the same. Under these plans, in order to maintain coverage, able-bodied adults would have to prove that they are either employed in some form or are actively trying to be.

Will we now see a lot of lazy people among Medicaid’s almost 68 million recipients forced to join the workforce or lose their free health care? Almost certainly not. The new requirements would apply to only about one percent of all Medicaid beneficiaries.

Let’s look at who currently receives Medicaid and do some simple arithmetic. According to the nonprofit Kaiser Family Foundation, about 10% of Medicaid recipients are elderly, age 65 and older, and many of them are in nursing homes. About 48% are children, age 18 and younger. That leaves about 42% who are of working age and potentially subject to the requirements.

Of those would could be subject to the rules, 42% are already working full-time, and 18% are working part-time. Another 14% are not working due to illness or disability, six percent are in school, and 12% are caregivers for family members. All of them would be exempt.

That leaves just seven percent who could be forced to work. But most of them are already looking for jobs. When active job seekers are taken into account, less than three percent of adult beneficiaries would feel the effects of the new rules. That is about one percent of all Medicaid recipients.

Why would states go through the effort of implementing a new program to reach such a small percentage of the Medicaid population? Most state Medicaid agencies would have to hire new staff to administer the rules, and the cost could exceed any savings that could be achieved.

Advocates of work rules claim that putting people to work will make them healthier, regardless of any cost savings. But even if more than a tiny percentage of beneficiaries were involved, this claim has almost no evidence to support it.

However, there may be another reason for the rules that has little to do with actually putting people to work and more to do with the way the requirements would be implemented. The rules would require most Medicaid recipients to prove that they are either exempt, can’t work, have a job, or are looking for one. Kentucky would require them to do this every month or risk losing benefits for the next six months.

Offering that proof could impose a substantial paperwork burden. Some beneficiaries, particularly the elderly and disabled, could find it especially difficult. Even able-bodied adults could find the documentation requirements challenging.

As a result, the work requirements could pare Medicaid roles of many more people than just those who are employable but not working. And many of those losing benefits would be people who desperately need health care and would now find it unobtainable. That would certainly save costs, but it’s a brutal way to do it.

Innovation to improve Medicaid is surely welcome. But work requirements would do nothing to improve the program while posing the risk that many people who are fully entitled to benefits would suffer real harm.

Threats to Medicaid and Community Integration for People with Disabilities

By Mary Crossley

As we enter the second year of the Trump administration, Medicaid remains in the cross hairs of conservatives in Congress and the administration. The repeated efforts in 2017 to reduce the program’s funding and change its structure, however, revealed the breadth and depth of public support the program enjoys. People with disabilities protested, putting their bodies on the line to express their outrage over proposed cuts that would threaten their access to services that permit them to live in the community rather than institutions. Along with others’, their protests helped defeat Republican proposals in 2017, but similar battles likely lie ahead.

In the recently published “Community Integration of People with Disability: Can Olmstead Protect Against Retrenchment?”,  I explain how the Supreme Court’s holding in Olmstead v. L.C. ex rel. Zimring, combined with changes to Medicaid that permit states to devote funding to home- and community-based services (HCBS),  have contributed to meaningful state progress in enabling people with disabilities to live in the community. The article also considers the extent to which Olmstead could act as a check on a potential retrenchment of support for HCBS if states were to face severe reductions in federal funding for Medicaid. Although states proposing to cut their HCBS programs would likely raise the ADA’s “fundamental alteration” defense and assert that Olmstead recognizes the relevance of budgetary constraints to state decision making, I argue that states should not succeed with a fundamental alteration defense if disabled plaintiffs are suing to forestall cuts to existing HCBS programs and maintain the status quo. In short, Olmstead should provide a check against states’ backsliding in their support for integrating people with disabilities, at least in theory. But people with disabilities probably shouldn’t think that their protesting days are over just yet….

Read the article in Laws.