Yearly Archives: 2017

When Does Healthcare Ethics Consultation Constitute the Practice of Law?

Dec 12, 2017 Carl ColemanAdd a Comment

Following the New Jersey Supreme Court’s endorsement of healthcare ethics committees (HCECs) in its 1976 decision, In the Matter of Karen Quinlan, HCECs have become ubiquitous features of health care institutions throughout the United States. In addition to developing policies and providing education about ethical issues in medicine, HCECs play a central role in resolving ethical conflicts related to the care of particular patients. While most HCECs do not purport to issue binding determinations, the manner in which they frame ethical issues and present options for consideration can have significant impacts on how disputes are resolved.

In a thoughtful and comprehensive article published in the Connecticut Public Interest Law Journal, Anya Prince and Arlene Davis consider “whether participation in ethics consultations could be considered the practice of law.” The consequences of characterizing ethics consultations as a type of legal practice are potentially significant. Non-attorney HCEC members, or attorney members who are not licensed in the HCEC’s jurisdiction, could be subject to civil or criminal penalties for the unauthorized practice of law. Even attorneys who are licensed in the HCEC’s jurisdiction might run into problems when serving as HCEC members, as they might find it difficult to comply with professional legal obligations “that may be at odds with the expectations and professional rules of the ethics committee itself.”

As Prince and Davis explain, many of the most common issues that HCECs address have clear legal dimensions. For example, HCECs may be involved in disputes over whether a patient has decision-making capacity, or, for patients determined to lack capacity, the identification of an appropriate surrogate decision-maker. They also may be called upon when patients or surrogates insist on treatment that a health care provider considers ineffective or “futile.” The appropriate resolution of these questions requires not only on ethical analysis but also familiarity with the legal parameters established by applicable caselaw and legislation.

Prince and Davis identify five tests that have been used to determine when an activity constitutes the “practice of law.” The first, which they describe as the “most expansive” of the five, asks whether an activity “affects legal rights.” They argue that many aspects of HCECs’ work could be considered the practice of law under this definition, “especially given that one of the initial motivations of HCECs was to avoid litigation of complicated medical-ethical issues.” The second test is whether the activity in question is “commonly understood in the community to be the domain of attorneys.” Here, too, they suggest that HCECs could “cross the line into the practice of law” if they “engage in problem-solving” with respect to “complex issues that are commonly associated with law.”

The third test involves a distinction between providing legal information — which does not constitute the practice of law — and “applying law to specific facts,” which could be considered to “jump[] into the realm of [legal] opinion and advice.” Prince and Davis note that the distinction between providing information and giving legal advice has arisen in debates over the scope of activities that may be performed by non-attorney mediators. For example, guidance in Virginia prohibits non-attorney mediators from offering “legal advice,” which is defined under state law as “the application of legal principles to facts ‘in a manner that (1) in effect predicts a specific resolution of a legal issue or (2) directs, counsels, urges, or recommends a course of action by a disputant or disputants as means of resolving a legal issue.’” They argue that HCEC members could potentially cross this line “through detailed analysis of how case law may apply to a specific consult or what the outcome of potential litigation may be.”

The final two tests that Prince and Davis discuss are whether an individual believes she is receiving legal services (the “client reliance” test), and whether the activity results in the creation of “a relationship that looks like the attorney-client relationship.” Both tests could potentially pose problems for HCEC members, particularly those who are also attorneys. In this regard, Prince and Davis cite a survey of physicians in Maryland in which two-thirds of respondents thought that “providing legal advice” was an appropriate HEC function. They argue that these results “suggest[] that physicians may expect a certain amount of legal analysis and opinion from ethics consultations.” Even if these expectations are mistaken, in some circumstances they could be sufficient to form “an implicit attorney-client relationship.”

Having concluded that “HCE consultants may be held as engaging in the practice of law under several of the five common legal tests,” Prince and Davis make several practical recommendations for HCEC members. For example, they counsel HCE members to “limit[] in-depth analysis and application of the facts of the consultation to case law and potential litigation outcomes,” and to “make explicitly clear when interacting with individuals as part of the consult that they are not providing legal services and that the parties may want to seek outside legal advice.” They also call on professional associations, including the American Bar Association, to issue guidance on the distinction between engaging in ethics consultations and practicing law, similar to guidance the association has already issued in the area of mediation.

Price and Davis recognize that, unlike many other professional turf battles — such as the conflict between dentists and non-professional teeth whitening services at issue in the Supreme Court’s 2015 decision in North Carolina State Board of Dental Examiners v. FTC, or disputes between lawyers and online legal document services like LegalZoom — there is little economic incentive for the legal profession to bring actions against HCEC members for the unauthorized practice of law. It is not as if there is a lucrative market for hospital-based ethics consultations, which private attorneys are eager to exploit. Nonetheless, they argue that HCEC members should still be careful about overstepping their bounds because “[i]ndividuals who are providing legal services should be competent to do so or the public may be harmed.”

Prince and Davis’ article makes an important contribution to the literature on the practice of healthcare ethics consultation. It is highly recommended for both members of HCECs and policy-makers charged with defining the concept of the unauthorized practice of law.

Rethinking Medicaid’s Core Mission

Nov 2, 2017 Jessica Lind MantelAdd a Comment

Republican efforts to “repeal and replace” the Affordable Care Act have generated heated debate over the Medicaid program. Underlying this debate is a fundamental question: How should we define Medicaid’s core mission? In his article Medicaid, Managed Care, and the Mission for the Poor, Professor John Jacobi provides a possible answer to this question: raising the health status of the poor and vulnerable by improving their access to both medical care and the social goods and services whose absence impede health. His vision of Medicaid deserves serious attention by policymakers.

As Professor Jacobi explains, the health-related needs of the poorest Americans differ significantly from the non-poor. An enormous body of research documents the impact that social, environmental, and economic conditions have on individuals’ health. Indeed, poor quality housing, food insecurity, the stress of social inequalities, and other non-medical factors likely exert a greater influence on health than access to health coverage and medical care. Because these determinants of health disproportionately affect the poor and vulnerable populations served by Medicaid, their health care needs are far more fragile and complex than those of other populations. Many experts therefore have concluded that medical care should no longer be provided in isolation from social services, but instead should be part of a delivery system that coordinates clinical and non-clinical services and interventions. As Jacobi explains, “[t]his coordination requires not only the purposeful interaction of previously separate public services, but also coordination of the funding that flows to and through the providers of those services.”

State Medicaid programs, however, have done little to promote this broader vision of the health care system (with a few notable exceptions). Jacobi explains that this unfortunate state of affairs stems from Medicaid’s traditional mission of simply providing its beneficiaries with medical coverage. This narrow focus has culminated in states relying on commercial managed care plans. Because commercial insurers operate their Medicaid plans largely in the same manner that they do their commercial plans – connecting enrollees to medical care through the formation of provider networks and claims payment functions – they are ill-equipped to address the non-medical barriers to improving Medicaid beneficiaries’ health.

Jacobi somewhat overstates his case, however, as some states do contract with niche Medicaid managed care plans that focus exclusively on poor and vulnerable populations and the social determinants that impact their health. Nor does Jacobi distinguish among different Medicaid subpopulations, some of whom may closely resemble the non-Medicaid population. For example, the health care needs of low-income adult students and temporarily unemployed individuals typically are less complex than those of the homeless or disabled. Medicaid managed care plans may be sufficient to meet the health care needs of the former groups even if inadequate for the latter. Nevertheless, many Medicaid beneficiaries with complex health needs remain enrolled in commercial or managed care plans that primarily focus on narrow payment functions, and Jacobi rightly questions whether we should continue to mainstream care for these individuals.

Consistent with his broader vision of a Medicaid program that promotes coordination of medical and social interventions, Jacobi advocates for new forms of health care delivery and finance. His article highlights two such models – Medicaid accountable care organizations (ACOs) and Health in All Policies (HiAP) networks. He also cautions against federal regulatory policies that limit states’ ability to experiment with innovative health delivery and financing models to address Medicaid beneficiaries’ clinical and non-clinical health needs.

Although Jacobi’s article was published prior to Congress’s repeal and replace efforts, his concerns nevertheless remain instructive for federal policymakers seeking to reform Medicaid. In particular, proposals to both roll back Medicaid coverage of low-income adults and reduce Medicaid funding would constrain the program’s ability to raise the health status of the poor. With reduced funding to support transformation of the health delivery system, states would abandon any movement toward a Medicaid program consistent with Jacobi’s vision and would continue their narrow focus on providing coverage of medical care, albeit with a narrower scope of benefits.

Mapping the Axis of Disability onto the Axis of Race: Can We Reclaim the Possibilities?

Oct 3, 2017 Christina S. HoAdd a Comment

“This is how a myth becomes reality: how contingent social choices and practices can create the disabled subject.”¹

What counts as healthy and what counts as disability are not necessarily biologically determined, but rather can be socially constructed. Kimani Paul-Emile’s forthcoming paper, Blackness as Disability, calls our attention to this truth, and does so in a way that shows how our chosen constructions could not have higher stakes for any given individual, or for the fate of our collective life.

Any definition of health, even the most biomedical, depends on a conception of “normal” functioning, as I have written of before. Wendy Parmet puts it thus: “[T]he questions of whether the capacity to stay focused in a classroom or to see well at night are [part of normal functioning depend] . . . on what is expected in a given society of people and their interactions with their environment.”

The ADA’s definition of disability is similarly littered with socially contingent parameters, such as whether the individual has a “physical or mental impairment,” which is defined to include any “physiological condition,” that “substantially limits” one’s ability to perform any “major life activity.” Of course, what our way of life prioritizes as a “major life activity” or “normal” functioning is variable, not necessary or given. Indeed our current economic structure may well shape the designation of sleeping patterns as functional or disordered.

As the social model of disability teaches us, the physiological conditions themselves do not produce disability, until they meet social structures, institutions, and norms that “substantially limit” a person in what we have rendered “a major life activity.” One could view some mobility impediments as stemming not from individual physical characteristics, but from the architectural choice of steps over ramps. If the so-called “actual” disability prong of the ADA definition already harbors these many layers of social construction, then surely the “regarded as” prong of the definition even more explicitly extends ADA protection to those whom society has stigmatized as less able, due to certain physiological and other markers, despite those markers’ irrelevance to functional abilities.

So how have we as a society made “blackness” disabling to those with the physical, cultural, and linguistic characteristics that Americans have constructed into that racial label? What, as Paul-Emile phrases it, are the “social structures, institutions and norms” that “substantially limit” a black person in such dimensions as 1) in basic mobility through public space, 2) overall health prospects, 3) choice of housing, 4) ability to work and 5) ability to pursue schooling? We know the litany, but not in this particular frame. Police stops and other racially disparate law enforcement practices limit the basic ability to navigate territory, much as door jambs and stairs might limit someone in a wheelchair. Disparate housing opportunities, resulting from government-sponsored discrimination in part, disproportionately expose Black Americans to substandard living conditions and environmental hazards, contributing to increased health risk factors and disadvantages in accessing care. These circumstances lead to physical health outcomes that may themselves be disabling conditions. Unequal access to jobs and education limit a person’s ability to work, no less then the failure to accommodate an employee in taking their epilepsy medication, or refusal to adjust for hearing loss, would pose barriers.

Paul-Emile’s article is plainly a pragmatist, not an essentialist, project. She is hardly saying that the nature of race is like the nature of disability, because she does not believe we get very far viewing either of these things as having “natures” at all. We are the ones who have chosen to dub them one or another through the manner by which our social institutions and norms respond to certain clusters of circumstance. I believe this point could be foregrounded even more. The piece could have been entitled “How We Render Blackness Disabling,” because the polemical title, “Blackness as Disability” does not cue the reader to what we can never be reminded of enough: that “blackness” and to a great extent, “disability,” are as real or as unreal–as salient or not to a person’s life opportunities–as we decide in any historical moment.

Given the malleability of each of these constructed categories, why have we chosen to treat them distinctly, and might it be fruitful to trouble the boundary between the two?

Paul-Emile usefully recounts the differing conceptions of equality reflected by our race-related and disability-focused civil rights regimes. The disability regime envisions affirmative obligations such as reasonable modification/accommodation, it focuses on disparate impact rather than intent in recognition of structural causes of discrimination, and it prohibits reverse discrimination claims. The cramped principles and doctrines that have arisen around race law lack these equality-enhancing features. Why? The juxtaposition Paul-Emile proposes helps to, as she says, “center[] our attention on the aspects of Blackness that really matter, revealing its purpose as being to disable ….” Paul-Emile uses her article to pose the question of whether the civil rights paradigm could be harnessed to address the disadvantage imposed upon Black Americans.

Another fruitful result of her re-mapping is to expose the radical potential at the core of disability law, in particular its conception of remedy. If particular physiological conditions themselves do not necessarily bear any inherent valence, and our social institutions, practices, and norms are what often render any characteristic “disabling,” disability law’s virtue is that it forthrightly calls for a change of that social structure, in other words, a “reasonable modification.” Disability law envisions not mere deterrence of individual wrongdoing, or compensation for rogue behavior. It assumes that social institutions and norms can and should be changed. Paul-Emile reminds us that Samuel Bagenstos has characterized disability law thus: the “greater part of disadvantage is best addressed through attempts to change the environment.”

The paper asks big questions and therefore prompted me to mull over all sorts inquiries related and tangential (such as thinking over what if any significance attaches to Wesley Hohfeld’s designation of “power” and “disability’ as jural opposites). However, what captivates me most about this paper, about the disability law regime, and indeed about the possibilities of collective action afforded by law in any context, is this point: here is the world we have made, un-made, and can re-make again. Will we?

A Must-Read on Health Care Nudges

Sep 5, 2017 Elizabeth Weeks LeonardAdd a Comment

Nudging Health: Health Law and Behavioral Economics is essential reading for anyone interesting in moving the health reform ball forward. The insights are especially important amid United States lawmakers’ persistent emphasis on individual responsibility and market-based solutions for health care. In their edited volume, esteemed authors I. Glenn Cohen, Holly Fernandez Lynch, and Christopher T. Robertson draw together canonical threads of legal theory, applying them to timely, essential health law and policy topics. The forty-five essays included in Nudging Health explore various ways that behavioral science may be applied to nudge health law and policy in the direction of better health and better health care spending. The book builds on a deep and provocative foundation of earlier scholars, including Kenneth Arrow, Cass Sunstein, and Richard Thaler.

Anyone who has spent even a little time around health law and policy is well aware that neoclassical economic models fail to accurately depict modern health care. Viewed through that lens, health care is a highly imperfect market, as Kenneth Arrow’s timeless 1963 essay, Uncertainty and the Welfare Economics of Medical Care, describes. Arrow accurately depicts a market characterized by, among other features: the uncertain nature of demand for health care; imperfect information and information asymmetries between buyers (patients) and sellers (health care providers); distorted trust, or fiduciary, relationships between health care providers and patients; barriers to entry and other supply limits on medical care; and third-party payment (insurance) leading to moral hazard and pooling of unequal risks.

More recently, legal theorists have questioned the accuracy of the neoclassical economic model in law and policy generally, observing that, even in less flawed markets, individuals often fail to act as rational “homo economicus.” Applying cognitive psychology and behavioral economics, those theorists observe various ways in which individuals make choices based on reasons other than maximizing their own welfare, rely on various shortcuts and heuristics in decision-making, and operate under limited willpower and self-control. Cass Sunstein’s 1998 edited volume, Behavioral Law and Economics, provides an authoritative survey of those insights, noting various implications for legal analysis and policymaking across contexts, including taxation, labor and employment law, voting, corporate governance, personal injury law, and constitutional law.

Building on that volume and decades of research on behavioral law and economics, Sunstein in 2009 joined with University of Chicago colleague Richard Thaler to publish Nudge: Improving Decisions About Health, Wealth, and Happiness. Nudge became a best-seller in both academic and trade presses, introducing the concepts of “libertarian paternalism” and “choice architecture” to the public through numerous detailed, salient examples. The book takes issue with the rational actor model, which generally presumes that individuals will make decisions that promote their own best interests. Under this model, paternalistic policies, such as mandatory seatbelt laws, are disfavored, on the theory that individuals should be permitted to make their own decisions as long as those choices do not directly harm others. Behavioral law and economics points out the problems with relying on the expectations underlying the rational actor model, revealing the various ways in which individuals may act other than for their own best interests. Thus enters Sunstein & Thaler’s notion of “libertarian paternalism,” which accepts the various predictable ways in which individuals err in their judgment and allows for greater government involvement in shaping individual choice.

The approach advocated by Sunstein and Thaler is called choice architecture, referring to the way that choices are packaged and presented to consumers, thus influencing decisionmaking. For example, simply placing “green” healthy labels, and “red” unhealthy labels, on food in the cafeteria line may influence diners’ choices, without limiting their autonomy. Likewise, some email programs, such as Gmail, send users a pop-up reminder if the text mentions an attachment but none has actually been attached. Changing default rules also operates as choice architecture. For example, workers might be automatically enrolled in, and required to take steps to opt out of, employer-sponsored health insurance, instead of being required to take steps to sign up for those benefits. Or we might address the shortage of donor organs by adopting a presumed consent rule, instead of requiring individuals to affirmatively opt-in to becoming a donor.

Those and additional suggestions are explored in-depth in Nudging Health. The book opens with an introduction by Sunstein himself, laying out the essential theoretical framework. What follows is a masterful collection of in-depth discussions and specific examples, including the use of penalty nudges via the Affordable Care Act’s individual mandate and employer shared responsibility payments; reward nudges via financial incentives for individuals’ adopting healthy behaviors, or physicians’ prescribing lower-cost generic or follow-on drugs; default rules around end-of-life care and surrogate decision-makers, as well as the aforementioned automatic insurance enrollment; choice architecture to guide consumers’ decisions among health insurance plans, and physicians’ recommendations around treatment alternatives; and strategies to address other cognitive biases, including patients’ unchecked deference to physicians’ recommendations.

The book does not, however, does not operate as an untempered valentine to the behavioral law and economics school of thought. Rather, a number of the contributors offer critical, skeptical, or cautionary notes about the theory’s ability to operate effectively in health care. Criticisms include the possibility that choice architecture may be overly coercive, obscure individuals’ true preferences, backfire with unintended results, serve social aims at the expense of individual rights, or be the result of law- and policymakers’ own biases and judgment errors. Including those voices gives the overall volume greater credibility and balance than if the book had neglected them. In sum, Nudging Health deserves its own place in the cannon of health law and policy, and health economics, literature. I anticipate that the conversations and suggestions that it sparks will find their way into many important academic and lawmaking circles.

Healthism in the Current Political Climate

Jul 27, 2017 Jacqueline FoxAdd a Comment

As we are all aware, the current political time is one of great upheaval and unsureness in numerous areas, with health care and the health care system repeatedly taking center stage. The change in the presidential administration coupled with the Republican majority in both houses of Congress have led to many new approaches to the health care system being proposed, debated, hurriedly being voted on, amended, withdrawn, and subjected to a hot and passionate debate. As this is going on, recent polling has made it clear that a significant percentage of the voting population in this country had no or minimal understanding about how health care laws affect them and their loved ones, leading to a pattern of voting in the 2016 elections that often appeared to be against voters’ self-interest.

As we grapple with analyzing and communicating the ramifications of proposed changes, the analytic approach to assessing the effect of health care policy delineated in Roberts’ and Weeks Leonard’s article, What is (and isn’t) Healthism, has much to offer in a climate wildly different than the one in which it was written. Healthism, as this article and a forthcoming book define it, is a form of discrimination based on a person’s health status. As the article states in the introduction, the passage of the Affordable Care Act in 2010 created significant protections for persons with health problems. For example, that law prevents discrimination in the health insurance market against those with preexisting conditions. Taking the question of disparate treatment further, the authors consider the possibility that a person’s health status could be the basis for disparate treatment in a number of other areas, such as employment and the provision of services, privileges, or opportunities. In light of the possibility of multiple arenas for this type of discrimination, the article asks when, if at all, the law should intervene to protect persons from these wrongs, and then presents a framework for answering that question.

The article is excellent, and gives an engaging analysis of this issue. Of particular interest to me in the current environment is the authors’ analytic framework for determining if healthism has occurred. There are seven different elements to guide the analysis, and health status distinctions that meet one or more of these elements are healthist and deserving of legal or policy intervention. The elements are as follows: If a distinction is 1. Driven by animus, 2. Stigmatizes individuals unfairly, 3. Punishes people for their private conduct, 4. Impedes access to health care, 5. Cuts off resources or otherwise limits the ability to adopt healthy life choices, 6. Produces worse health outcomes, or 7. Maintains or increases existing disparities, it is likely healthist.

One can add an examination of intersectionality as it relates to these elements, and to healthism, generally. Numerous groups of people are already at risk of baseless disparate treatment due to ethnicity, religion, gender, sexual or gender identity, disabilities, and numerous other criteria. Healthism can become much more harmful when it is combined with these unjust burdens.

Utilizing this framework to identify healthism and to pinpoint the occurrence of intersectionality that compounds injustice gives a crisp and comprehensible framing for the analysis of proposed changes to the health care system, and does so in a way that I think helps people outside of health policy understand more clearly what the proposed changes mean to them.

For example, the changes to Medicaid proposed in current Congressional legislative proposals include changes that are extremely damaging to people who are vulnerable to healthism. The proposed changes cut off access to health care by gradually eliminating Medicaid benefits. The changes impede people’s capacity to pursue a healthy lifestyle by imposing rigid work requirements as a prerequisite to receiving care. Analyzing the law through a lens of intersectionality, it becomes clear that it would have a disparate impact on the elderly who live in nursing homes, on women who rely on Medicaid for access to family planning and to maternity care, and on those who have disabilities, who often receive the bulk of their therapy, home care and health care through this program. Data already consistently show that minorities have poorer health outcomes and lesser access to care in the current system, and the changes would exacerbate those problems.

I highly recommend this article, and this method for analyzing future proposed systemic changes in an effort to educate and give voice to those who will suffer the most.