The Promises and Perils of Medical Legal Partnerships

By Jessica Mantel and Leah Fowler

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.

New payment models that reward improved health outcomes challenge providers to rethink how they treat patients. No longer content to simply treat patients’ underlying diseases, many providers have embraced innovative approaches that also address the social, economic, and environmental factors that affect well-being. One such innovation is medical legal partnerships (“MLPs”).

By integrating legal services into the heath care setting, MLPs address health-harming legal needs (“HHLNs”). Kate Marple, Framing Legal Care as Health Care, Nat’l Ctr. for Med. Legal P’ship (last visited Sept. 25, 2019). For example, MLP attorneys can initiate legal action against landlords whose housing code violations cause or exacerbate respiratory conditions, secure protective orders for the victims of domestic violence, or help those denied benefits under Medicaid or the Social Security Disability Income (“SSDI”) program file an appeal.  MLP attorneys also train the medical partner’s clinicians and staff on how to identify patients with HHLNs and support patients exercising their legal rights, such as how to effectively navigate the SSDI application and appeals processes. Some MLPs also advocate for broad policy changes that ameliorate social determinants adverse to health.

While all MLPs share the common goal of leveraging legal services to improve individual and population health, MLPs’ operations vary greatly. In some MLPs the medical and legal sides have limited interaction beyond the initial referral of patients with HHLNs to the MLP attorney, whereas other MLPs tightly integrate their legal services with other clinical and nonclinical services offered to patients. In the latter model, the attorney works closely with clinicians and staff, often participating in rounds or interdisciplinary team meetings. MLPs also vary in other respects, such as their processes for screening for HHLNs and sharing information between medical and legal partners.

The Project

Missing from the MLP literature are empirical studies that explore the experiences of MLP professionals operating under different structures and processes. Inspired by a previous conceptual paper, we set out to fill this gap. Renee Newman Knake & Jessica Mantel, Legal and Ethical Impediments to Data Sharing and Integration Among Medical Legal Partnership Participants, 27 Annals Health L. 183 (2018). With approval from the University of Houston Institutional Review Board, we engaged 31 MLP professionals in hour-long, qualitative interviews. Our interviews explored how individuals in the MLP trenches experience and address the promises and perils of various MLP models. We discovered a range of challenges facing MLPs, with solutions as varied as the partnerships themselves. Below we highlight some key findings.

The Importance of Stakeholder Buy-In

The existing MLP literature highlights the importance of having an individual champion on the clinical side (usually a physician) who actively promotes the MLP. Nat’l Ctr. for Med. Legal P’ship, The Medical-Legal Partnership Toolkit Phase I: Laying the Groundwork 3, 10 (2015). While our research confirms the importance of having an individual champion, we also found that establishing and sustaining a successful MLP requires strong support from individuals at all levels of the provider organization, from frontline professionals to high-level administrators and in-house attorneys. Having multiple champions across the provider organization helps alleviate mistrust of the MLP attorney (including fears that they will bring malpractice claims against the provider), diminishes skepticism about the MLP’s value, and improves the quality and quantity of patient referrals to the MLP attorney.

The Need to Demonstrate Value 

Securing long-term, stable funding is an ongoing challenge for MLPs. See generally Dayna Bowen Matthew, The Law as Healer: How Paying for Medical-Legal Partnerships Saves Lives and Money (2017). Because few legal organizations can fully finance an MLP, most MLPs rely on grants from philanthropic organizations or government agencies or funding from the medical partner. Outside organizations, however, often condition continued grant funding on the MLP proving its value through outcomes data. Similarly, data showing that MLPs improve patients’ health and lower providers’ costs may persuade the medical partner to finance the MLP.

Although outcomes research can help MLPs secure sustainable financing, few MLPs actually conduct such research beyond documenting their legal outcomes. This is due to a variety of factors, including privacy concerns that hinder access to the relevant data, lack of expertise on conducting outcomes research, and limited resources. As one MLP attorney lamented: “I have a public health degree. I get it, you’re supposed to track. If you track it, they’ll fund it. [But] I have a to-do list in front of me on direct client work, [so] it just doesn’t get done.”

In lieu of more robust outcomes research, many MLPs demonstrate value through patient-client anecdotes. Anecdotes, however, often carry less weight with funders than outcomes data. As one physician noted: “it’s always going to come down to a number, and the currency that we deal with in America is, in fact, currency.”

Variation in Information Practices

Sharing patient-client information between legal and medical partners can present challenges, although not necessarily for the reasons identified in the MLP literature. Contrary to conventional wisdom, our research shows that the Health Insurance Portability and Accountability Act (“HIPAA”) generally does not pose a barrier to the medical and legal partners sharing patient-client information as long as the patient gives written authorization. In contrast, concerns about protecting the confidentiality of clients’ legal information and the attorney-client privilege significantly influence MLPs’ data sharing practices. Some MLP attorneys cited these concerns as reasons why they share little, if any, client information with the medical side, whereas others saw few risks in having the MLP attorney share basic case updates with the medical partner (with client consent). Rarely, however, do MLP attorneys share client information beyond basic case updates due to concerns about client confidentiality and protecting attorney-client privilege.

Our interviews also revealed wide variation in MLPs’ use of electronic health records (“EHRs”) systems. Some MLP attorneys had full access to patient-clients’ electronic medical records, whereas others did not. In addition, MLPs varied as to whether the attorneys communicated legal information to the medical side via the EHR. Interviewees cited various factors such as shaping their MLP’s EHR practices, including convenience and efficiency, promoting greater integration of clinical and legal services, discomfort with granting attorneys access to the EHR, liability and privacy concerns, and technological challenges.

The Challenge of Patient-Client Attrition

Nearly all interviewees noted that many individuals with a HHLN fall through the cracks and do not successfully connect with the MLP attorney. Our research suggests several reasons for this patient-client attrition. In some cases, individuals fail to follow-through on a referral for legal services due to competing personal demands or misapprehension of the legal system.  Instability in housing or communication technology also impedes communicating with individuals referred to MLPs. In addition, MLP attorneys may not have sufficient resources to follow-up with referred individuals in a timely manner, may lack the necessary expertise to address an individual’s specific legal needs, or may be barred from providing legal services to an individual who does not meet the applicable eligibility criteria. Our article, to be published in Volume 12, Issue 1 of the Northeastern University Law Review, discusses successful strategies that some MLPs have developed for addressing these challenges.

Conclusion

In highlighting the promises and perils of MLPs, as told by those currently operating MLPs, our forthcoming article provides a richer understanding of the different ways to structure and operate an MLP and the factors that influence choices among alternative MLP models. These findings are instructive for both existing MLPs and those forming new MLPs. In addition, our findings illuminate the debate on whether current legal and ethical rules–rules developed for a world where medical and legal professionals operate in silos–make sense for settings that integrate medical and legal services.

Bios:

Jessica Mantel is the George A. Butler Research Professor and co-director of the Health Law & Policy Institute at University of Houston Law Center.

Leah Fowler is a research assistant professor and research director for the Health Law & Policy Institute at University of Houston Law Center. @_leahrfowler

Handles: @leahrfowler

On Ending Physician Health Program Bans on Opioid-Agonist Therapy

By Nadia Halder

When thinking about the opioid crisis, the typical narrative is a patient who may have developed an opioid use disorder (OUD) after being prescribed medication for a shoulder surgery, or perhaps someone who is struggling with socioeconomic stress and turns to opioids as a way to cope. These stories are important, and we must know them in order to fight the ongoing crisis. However, we must also remember that the opioid epidemic spans all demographics and professions, including the health care professionals who are tasked with treating OUD patients.

“Practicing What We Preach – Ending Physician Health Program Bans on Opioid-Agonist Therapy”, written by Leo Beletsky, Sarah E. Wakeman, and Kevin Fiscella, opens with the report of two nurses found dead from opioid overdoses in hospital bathrooms, occurring at the same hospital just 16 months apart. The number of deaths due to opioid use disorder and overdose among health care professionals is unknown precisely because of lack of oversight on the issue.

While opioid-agonist therapy is a standard treatment for OUD and is very successful in reducing the risks of overdose, death, and relapse, it is greatly underutilized due to stigmatization of the nature of the treatment. Physicians have been pushing the increased usage of opioid-agonist therapy as a way to combat the increasing epidemic, and despite their work in destigmatizing the practice, practitioners themselves often remain barred from receiving this treatment.

When a practitioner self-identifies or is identified as having an opioid-use disorder, they are often required to enroll in a state-level physician health program (PHP). These programs push abstinence-based models of treatment “as a condition of maintaining professional licensure.” Due to the nature of a physician’s work, there are very rare exceptions to this rule, thus implying “a blanket ban on opioid-agonist therapy.”

In 1973, the American Medical Association endorsed the state-run model, and all but three states (California, Nebraska, and Wisconsin) have adopted PHPs. This model encourages early detection and diagnosis with “abstinence-oriented residential treatment for 60 to 90 days, followed by random urine toxicology screening for roughly 5 years.”

There are two reasons for restricting opioid-agonist therapy in physician health programs. The first is that physicians are viewed as exceptional individuals whose rigorous routines and intrinsic motivation to practice their professions yield significantly higher success rates in abstinence only-programs. Long-term monitoring and the threat of sanction also contribute to these supposed success rates. However, due to the uncertainty around the number of physicians with OUD and a lack of studies that carefully scrutinize the physician health programs, no conclusions can be drawn. Even when the existing data from these programs is analyzed, it shows that 25% of physicians are unsuccessful in their recovery.

Secondly, the ban against opioid-agonist therapy relies on concerns about impairment. However, the authors write that “available evidence doesn’t show that people receiving opioid-agonist therapy show meaningful differences in performance as compared with those receiving nonmedication treatment for OUD.” The logic that opioid-agonist therapy impairs an individual more than abstinence-only treatment ignores the notion that medications for other conditions may also have neurocognitive effects. In fact, there is a growing body of evidence showing that factors such as fatigue, stress, and sleep deprivation lead to physician impairment and patient harm. These stressors, combined with the readily available access to psychoactive substances, lead to an elevated risk of substance use disorder among physicians. Those who oppose opioid-agonist therapy for physicians place more importance on regulating the type of treatment rather than fixing the underlying factors that may cause an individual to develop OUD.

Restricting opioid-agonist therapy for physicians cements the stigma that they have been working so hard to fight. It creates a narrative that this treatment is not worthy of health care practitioners, and those who seek opioid-agonist therapy cannot be trusted with their profession. The article closes with the authors calling on the health care sector to “practice what it preaches by discarding this antiquated norm in all its policy and practice variants.”

Nadia is a fourth year student studying chemical engineering and global health at Northeastern University. She is interested in health policy and law, and she recently spent a month in South America studying various public health care systems. She is an intern at PHLW.

Global Perspective: How Chile's Healthcare System Addresses Substance Use Disorder

By Nadia Halder

As the opioid epidemic continues to worsen in the United States, the stigma surrounding the crisis makes community outreach and treatment increasingly difficult. Words like “abuser” and “junkie” shift blame onto the patient rather than recognizing the numerous factors that play into an individual developing a substance use disorder (SUD).

Here in Boston, many community health organizations, like Boston Healthcare for the Homeless, work hard to treat vulnerable populations and aim to recognize the social determinants that contribute to the welfare of its patients. Despite the work of these groups, the issue of SUD is heavily stigmatized, as illustrated by the recent “Operation Clean Sweep” crackdown, making healthcare access much more difficult for those who need it the most.

But 5,000 miles away from Boston, the city of Santiago, Chile is taking a different approach to SUD. Chile has a universal healthcare system – if you’re working, you either pay 7% of your paycheck into a public option called FONASA, or you can pay a little more and choose a private plan (ISAPRES). If you’re poor, unemployed, or have a mental or physical disability, you’re covered by FONASA. Everyone is covered, regardless of their situation. Chile also takes a more public health approach to its healthcare, especially in the areas of mental health and substance abuse, by creating a smooth pipeline between primary, secondary, and tertiary services.

At the primary care level, Chile has built hundreds of outpatient community health centers, known as CESFAM centers, which focus on prevention and promotion in addition to treatment, with emphasis on family and community participation in healthcare. CESFAM patients seeking mental health treatment are directed to COSAM centers, community health centers dedicated to the areas of mental health and psychiatry. Here, patients can see any number of behavioral and mental health specialists, and all services are covered under the public option. COSAM centers function both as primary and secondary care facilities; patients can be referred through other primary care centers, or they can directly access services with no referral. Because of Chile’s investment in healthcare infrastructure, CESFAM and COSAM centers are present throughout the country and readily accessible to those seeking treatment.

The tertiary level of care is not officially built into the Chilean network, and is provided by halfway houses. Many patients who utilize CESFAM and COSAM services are without a support group during and after treatment, so these centers refer them to halfway houses where they can be immersed in a stable social environment while integrating themselves slowly into society.

One such halfway house, Corporación Manaña, is located on the outskirts of downtown Santiago. The location was strategically chosen so that residents can easily immerse themselves in the city but remain far enough away from any situations that may expose them to substance use. The organization works to help participants find meaningful employment, develop skills that will help with navigate new social environments, and establish new relationships and rebuild old ones. Most Corporación Manaña participants accomplish these goals and go on to live independent lives.

Chile’s primary and secondary services provide an essential foundation for this success. The country’s recognition of factors that contribute to SUD and its active work to treat the root causes of SUD has led to the high success rates of organizations such as Corporación Manaña, which has a 69% completion rate. Perhaps the US can learn from Chile’s pipeline-style approach between different levels of services for SUD treatment to create a more efficient and easily navigable system for patients. 

___________________________________

Nadia is a fourth year student studying chemical engineering and global health at Northeastern University. She is interested in health policy and law, and she recently spent a month in South America studying various public health care systems. She is an intern at PHLW.

The big winner in Trump’s newest immigration policies: the flu

By Robert I. Field

The influenza virus gained an important ally during the past few weeks: the Trump administration. If you have been rooting for a widespread and virulent flu epidemic this winter, several of the administration’s new immigration policies should give you reason to cheer.

The first bit of good news for flu fans is a decision to withhold vaccination from children held in Customs and Border Protection detention centers. These facilities are supposed to hold migrants for no longer than three days, but many remain much longer, and the centers are often severely overcrowded. Since the flu can be quite serious, this puts the thousands of children held in them at increased risk of major illness or death.

Of course, that aspect of a Trump administration immigration policy is hardly news. At least three children have already died in detention centers of flu-related causes.

The real excitement for flu enthusiasts is that any residential facility where people live in close quarters is a perfect breeding ground for the virus. If any of the unimmunized children contracts the disease, they can easily transmit it to workers, visitors and anyone else with whom they come into contact. Those people, in turn, can spread the virus more widely outside the facility.

The policy coincides with another that permits immigrant families to be held indefinitely while awaiting decisions on their cases. There had been a 20-day limit on holding children. Conditions in detention facilities are often unsanitary and have reportedly led to flu outbreaks in the past. The new policy gives the virus better access to a large pool of people among whom it can incubate.

A final new policy that gives the flu a boost is the “public charge” rule for legal immigrants that is slated to go into effect this fall. That policy penalizes immigrants hoping for citizenship or a green card if they have used a safety net program while they are waiting. Included among those programs is Medicaid, which covers health care expenses for those who are poor or near poor. It is the only insurance that many people who are looking for work or are working in low-wage jobs can find or afford.

The rule means that legal immigrants who become ill while still finding their bearings in the country face the choice of foregoing health care or jeopardizing their shot at permanent legal status. With their dream of staying in the United States on the line, many will see health care as the disposable option. If their illness is an infectious disease like the flu, lack of treatment reduces the chance of stopping it quickly, which makes them more likely to spread it to others.

The rule could also discourage immigrants from seeking flu vaccines for themselves and their children. Even though it doesn’t apply to children’s use of Medicaid, it has already begun to exert a chilling effect, making parents fearful of accessing pediatric care. Increasing the number of unvaccinated people weakens the phenomenon of “herd immunity” through which entire communities can be protected against an infectious disease when enough of their members are immunized.

None of this necessarily means that the flu will have an easy time of it this year. Widespread vaccination among the general population or a weaker strain could still lead to a mild flu season. But the latest round of Trump administration immigration policies makes that possibility less likely.

Immigration is a complex issue, and new policies can have wide-ranging unanticipated effects. For those of us rooting against the flu, the possible effects of the new Trump administration policies deserve a lot more attention than they seem to have received. The health of everyone is at stake.

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Robert I. Field is professor of law and public health at Drexel University. He is also founder, editor and lead writer of the Health Cents blog on Inquirer.com.

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

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.

The Trump Administration’s New Public Charge Rule: Implications For Health Care & Public Health [from Health Affairs Blog]

By Wendy E. Parmet

Although recent discussions about the Trump Administration’s immigration policies have focused on the treatment of undocumented migrants and asylum-seekers at the border and in detention, the Administration has also sought to curtail legal immigration and make conditions more onerous for non-citizens who are lawfully present. The most recent example of these restrictive efforts is the long-anticipated public charge rule, which was published in the Federal Register by the Department of Homeland Security (DHS) on August 14. Unless halted by litigation, the rule will take effect on October 15, creating punishing new challenges for immigrant patients and their health care providers.

The proposed rule purports to implement a longstanding provision of the Immigration and Nationalization Act (INA) that requires most immigrants (excluding refugees, asylees, and certain other groups granted special humanitarian status), to show that they are “not likely to become a public charge,” in order to gain entry into the United States or attain permanent resident status once they are here. Under a guidance issued by the Clinton Administration in 1999, the receipt of non-cash benefits, except to support institutional or long-term care, does not render one a “public charge.” As a result, non-citizens who are eligible for Medicaid or other public benefits (it is worth noting that federal law already restricts many non-citizens from receiving most federal benefits) have had no cause to worry that the receipt of such benefits would undermine their chances of obtaining permanent resident status.

Since President Trump’s inauguration, his Administration has sought to override the 1999 guidance. In January 2017,  a draft executive order that would have required DHS to revise the definition of public charge was leaked and widely circulated. That draft was never signed, but in January 2018, the State Department revised the manual used by consular offices for issuing visas to include in the definition of public charge the use of non-cash health benefits, including Medicaid and the Children’s Health Insurance Program (CHIP). That change alone has led to a significant decline in the number of visas issued. 

Then in October 2018, DHS published proposed public charge regulations. Under the sweeping proposal, the definition of public charge was expanded to include receipt of certain non-cash federally-funded benefits, including Medicaid, the Supplemental Nutrition Assistance Program (food stamps), Medicare Part D subsidies, and federal housing subsidies. The complex regulations would also have required DHS to consider past use of such benefits, as well as cash assistance, and an immigrants’ health and health insurance status, in determining whether an immigrant was likely to become a public charge by using such benefits in the future.

Over 260,000 individuals and institutions filed comments responding to the proposed rule. The vast majority opposed it. Many warned that the rule would lead millions of immigrants to drop their own health care coverage, as well as coverage for their children. Commenters also cited numerous studies predicting that the proposal would lead to more uncompensated care, increased financial hardship for safety-net providers, and a decline in public health.

[Read more]
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This post was originally published on the Health Affairs Blog on August 13, 2019. We have posted an excerpt. Visit the Health Affairs blog to read the full post.

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.

Changes to the Health Care Rights Law: proposed rule factsheet

Health Care Rights Law: Proposed Rule Factsheet

Background:

• Section 1557 of the Affordable Care Act (ACA), the Health Care Rights Law (HCRL), prohibits discrimination on the basis of race, color, national origin, sex, age or disability.

• The rule promulgated by the Obama Administration’s Department of Health and Human Services (“the rule”) defines “sex” to include sex stereotyping, gender identity and whether someone has terminated a pregnancy.

• The rule applies to all health programs and activities that receive federal financial assistance through U.S. Department of Health and Human Services (HHS)

• The rule requires that covered entities post a “notice of nondiscrimination” at physical locations, on their websites and in significant publications, giving information on rights under the HCRL, that language assistance is available for free, and how to file a complaint with OCR in the top 15 non-English languages in the entity’s state. 

• The rule also requires that covered entities include taglines with information on how to get language assistance in the top 15 languages spoken in the state, on “significant” mailings.

The Proposed Rule:

• The proposed rule would eliminate the previous definition of “on the basis of sex,” so gender identity and pregnancy termination would no longer be covered in the anti-discrimination rule.

• The proposed rule would also narrow the scope of the entire HCRL, so that it would no longer apply to short-term plans, non-ACA products, or services as a third-party administrator for group health plans.

• Additionally, the rule would eliminate the requirement that covered entities post a notice of nondiscrimination in different languages, and would eliminate the tagline requirement.

The Effect:

• Transgender people and people who have terminated a pregnancy would not be protected from discrimination in health care and health insurance.

• Covered entities would not have to treat individuals consistent with their gender identities; ex. a hospital could assign a transgender woman to a male ward.

• Insurers would be allowed to categorically exclude health services related to gender transition, or deny claims or impose additional benefit restrictions because someone is transgender or has terminated a pregnancy.

• The non-discrimination and language requirements would not apply to Medicare Part B (52.1 million people), self-funded group health plans (50 million), the Federal Employees Health Benefits Program (8 million), or short-term plans.

• Many of the country’s 25 million non-English speaking people would not have adequate access to information on nondiscrimination rules or how to file a complaint with OCR.

You can submit a comment here.

You can find more information on the rule here.

You can find more information on the rule as it relates specifically to trans rights here.

You can find comment templates here and here.

CALL FOR PAPERS: Northeastern University School of Law - 2020 Health Law Conference

Northeastern University School of Law
2020 Annual Health Law Conference
Public Health Litigation: Possibilities and Pitfalls

 
CALL FOR PAPERS 

Since the tobacco litigation of the 1990s, academics and public health advocates have viewed litigation as an important affirmative public health tool. As the tobacco litigation demonstrated, litigation can help focus attention on a public health problem, unearth critical information through discovery, and help to change the political dynamics regarding regulation. Ideally, litigation can also help change industry practices to be less harmful to public health, and provide substantial funding for public health efforts. In the years since the Master Settlement Agreement to the multi-state tobacco litigation was reached in 1998, public health advocates, as well as states and municipalities, have sued gun manufacturers, fast food restaurants, e-cigarette companies, and the manufacturers and distributors of prescription opioids, all with an eye to improving public health.

 Despite its promise as a public health tool, affirmative public health litigation faces numerous obstacles and critiques. These include federal and state preemption, limitations on class actions, and the very real question as to whether litigation can actually achieve effective public health changes. Critics also argue that courts lack the capacity to understand complex public health issues, that the tort system should aim to compensate injured parties rather than achieve social change, and that affirmative public health litigation is inherently anti-democratic. Other critics argue that the interests of tort laws are frequently in conflict with those of the public.

 In conjunction with its 2020 Annual Health Law Conference, and in celebration of the career of Professor Richard A. Daynard, who is widely known for his pioneering work on public health litigation and tobacco control, the Center for Health Policy and Law seeks abstracts for papers discussing one or more of the myriad issues raised by affirmative public health litigation. Papers may look at the efficacy of such litigation (in one or more domains), the barriers such litigation face, critiques of such litigation, and/or possible reforms.

 The authors of the selected abstracts will present their papers at the conference on Friday, April 17, 2020.  The center will cover travel and accommodations for selected authors. Authors will also be invited to contribute their papers to an issue of the Northeastern University Law Review (20,000 words, including footnotes and bibliography). Final papers will be due in late May 2020.

 
Abstract
Abstracts (maximum 250 words) will be accepted until November 8, 2019. Please send to lawhealth@northeastern.edu with “2019 Call for Papers” in the subject line. Decisions are anticipated around December 6, 2019. Early expressions of interest and/or full paper submissions are welcome.
 

Contact: Jennifer Huer, j.huer@northeastern.edu
Website: www.northeastern.edu/law/health

New York's newly strengthened vaccine mandate protects all of us

By Robert I. Field

Should children risk getting a deadly disease by going to school? There was a time when infected children frequently spread serious diseases like smallpox, pertussis, diphtheria and polio (not to mention several others) to classmates. Thankfully, that risk is drastically lower today largely due to vaccination.

Over the years, vaccines have caused the threat of one deadly disease after another to vanish. They have saved an estimated 450,000 lives to date in the United States and an additional two to three million globally each year.

Last week, New York took an important step to increase those numbers by repealing a religious exception to its vaccine mandate for schoolchildren. While vaccine skeptics protested stridently, the action will help to protect everyone.

Vaccines have been around for more than 200 years. The first, which conferred immunity to smallpox, was developed in 1796, and its use was strongly encouraged by Thomas Jefferson. More recently, vaccines were developed against pertussis in 1914, against diphtheria in 1926, and against measles in 1963. In 1955, the scourge of polio, which killed or paralyzed as many as 15,000 children a year, succumbed to a vaccine, a development hailed at the time as a medical miracle.

But vaccines are only effective if people take them, and mandates have proven an extremely effective way to make sure they do. Massachusetts enacted the first mandate for schoolchildren in 1855 for the smallpox vaccine. By the 1920s it was widely required for school attendance throughout the country. As other vaccines were developed, states added mandates for many of them as a condition of entering school.

The antivaccine movement has been around for as long as vaccines. It rose to prominence in the 1830s and has persisted ever since, often fed by rumors and gossip. It received a boost in 1998 with publication of a since-discredited article speculating about a link between vaccination and autism. Fears of such of a link persist, even though numerous scientific studies have found that none exists.

Nevertheless, the constitutional authority of states to impose vaccine mandates rests on solid ground. In 1905, the Supreme Court affirmed that authority when it upheld a Massachusetts mandate that all adults receive the smallpox vaccine during a major epidemic. The only required exception is for those who can demonstrate a probability of harm from a vaccine, a group that is usually extremely small. In 1922, the Court extended its ruling to mandates for schoolchildren, and in 1944, it ruled that religious objections need not take precedence.

Until last week, all but four states chose to permit exemptions to vaccine mandates on religious grounds, even though they are not constitutionally required to do so. Last week, New York State became the fifth. It acted after a measles outbreak that began among unvaccinated members of a religious community in the state spread nationwide.

Respect for religious belief is a core American value embedded in the Constitution, but so is protecting the population’s welfare. Unvaccinated schoolchildren are not only a threat to themselves; they jeopardize the health of classmates who cannot be vaccinated because of medical risks and classmates for whom a vaccine does not produce sufficient immunity. As the Supreme Court has made clear, freedom of religion does not include the right to jeopardize the health and safety of others.

Unvaccinated children also threaten the rest of us. When enough people in a community are vaccinated, the disease disappears entirely through a phenomenon known as herd immunity. Since 2000, there have been enough vaccinated people in the United States for measles to disappear as an endemic disease. Growing numbers avoiding the vaccine are changing that. As a result, measles has inflicted needless suffering on more than a thousand people this year.

The antivaccine movement has persisted for 200 years, a period during which vaccines have saved millions of lives. In strengthening its mandate for schoolchildren, New York State is on a path to saving even more.

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Robert I. Field, JD, MPH, PhD, is professor of law and public health at Drexel University. He is founder, editor and lead writer of the Health Cents blog of the Philadelphia Inquirer.

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This blog post first appeared on Inquirer.com.