Category: Blog

There are currently over 1.4 million Americans living in nursing homes. When people enter a nursing home, they expect to receive the utmost quality care. However, if for any reason that care is anything less than adequate, there are not reasonable safeguards in place to hold nursing homes truly accountable to patients.

In an effort to prevent nursing home residents from suing for resident rights violations, abuse or neglect, nursing homes ask residents or their families to sign agreements prior to admission that include binding pre-dispute arbitration provisions. The arbitration clauses in these contracts require residents and their families to settle disputes through private arbitration rather than in a court of law in front of a jury. Most arbitration clauses are hidden in contracts so that consumers will not pay attention to the fact they are waiving important, constitutional rights to a jury, the right to discovery, and the right to a written record. However, instead of simply banning these pre-dispute clauses, the Centers for Medicare and Medicaid Services allows them as long as the nursing homes take steps to explain and disclose the clauses. Unfortunately, even if nursing homes explain these clauses it does not mean that residents and their families will fully understand prior to signing. Forced arbitration shields corporations from liability, but at the same time denies justice to patients, meaning that business wins and consumers lose.

In July 2015, the Centers for Medicare and Medicaid Services (CMS) issued a proposed rule to revise requirements for nursing homes, including specific requirements relating to the use of these pre-dispute arbitration clauses. In October 2015, 27 members of Congress sent a letter to CMS criticizing CMS’s proposed rule, stating it would not adequately protect residents in nursing home facilities. The letter called on CMS to issue a final rule; this ensured that residents entering these agreements will do so only on a voluntary and informed basis after a dispute arises instead of prior to a dispute. This would give residents the choice to use arbitration as an alternative dispute resolution rather than a forced resolution. Further, the congressional members wanted to ensure that signing the agreement would not be a requirement for admittance, but simply an option to handle unresolved disputes.

In July 2016, 32 members of Congress sent another letter to CMS that commended many provisions of the rule, but highlighted critical issues that must be fixed before the final version to protect our country’s most vulnerable population.  The letter applauded CMS for recognizing the problems with these pre-dispute arbitration clauses, but said CMS was not doing enough. The letter asked to explicitly prohibit these clauses from nursing home agreements for many reasons. CMS cannot expect residents and their families to make such decisions during their initial admission to a nursing home. Nursing homes must be held accountable for the care they provide to our nation’s elderly community.

The final version of the new regulations for nursing homes is expected to arrive in September.

 

 

 

Earlier this month, a federal court ruled on whether Monsanto’s Roundup herbicide is capable of causing non-Hodgkin’s lymphoma must be first determined before proceeding in a personal injury suit (Giglio v. Monsanto Co., 2016 BL 251362, S.D. Cal., No. 15-cv-2279, 8/2/16). The U.S. District Court for the Southern District of California bifurcated the trial and limited the first round of pre-trial discovery to whether Roundup can cause harm, such as cancer. If causation can be shown, then the court will weigh specific injury to plaintiff. The plaintiff, Emanuel Richard Giglio, owned and operated a turf installation business and used Roundup on a regular basis in his work. Giglio alleges that his exposure to glyphosate, the active ingredient in Roundup, caused him to develop stage three non-Hodgkin’s lymphoma.

Glyphosate is an active substance used for the production of pesticides and is the most frequently used herbicide worldwide. The term “pesticides” refers to a broad class of crop-protection chemicals: insecticides, which are used to control insects; rodenticides, which are used to control rodents; herbicides, which are used to control weeds; and fungicides, which are used to control fungi, mold and mildew. Glyphosate-based pesticides (i.e. formulations containing glyphosate and other chemicals) are used in agriculture and horticulture, primarily to combat weeds that compete with cultivated crops.

However, the United States is not the only country considering the health effects of the commonly used weed killer. Glyphosate has been thrust into the middle of a heated dispute between EU and US politicians, industry leaders, regulators, and activists. In 2015, European Food Safety Authority (EFSA) was in the process of reviewing glyphosate, when the International Agency for Research on Cancer (IARC)—which independently gathers health data for the World Health Organization—declared glyphosate a “probable human carcinogen.”  Then in May 2016, U.N.’s Food and Agriculture Organization (FAO) and World Health Organization (WHO) stated glyphosate was unlikely to pose a risk to people exposed to it through food.

The contradictory findings have spurred debate and have delayed the license for glyphosate, which expired June 30, 2016. EU member states failed to reach agreement on the renewal of the herbicide, and the European Commission were forced to temporarily grant an 18-month extension to glyphosate’s authorization in the EU.  Furthermore, new rules which restrict the conditions around the use of glyphosate in the European Union are to come into effect. These new restrictions around the use of the herbicide will apply for the duration of the 18-month extension until the European Chemicals Agency (ECHA) issues its opinion on the herbicide.

Glyphosate will continue to be at the center of debate for the next couple of years, as the EU and US await further studies on its likely impact on human and environmental health.

Studies show that growing up in poverty hurts young minds. A recent New York Times article chronicling these findings compares growing up in poverty to playing football without a helmet-everyday life causes social concussions. Brute force is not required to cause physical changes in the brain, rather these changes can result from perpetual toxic stress. How is this so? The brain is the primary mediator and target of stress resiliency and vulnerability because it determines what is threatening and also decides how to respond to that threat. When a person is stressed, the brain releases a hormone called cortisol-a hormone that is essential to the “fight or flight” response and that is important in the development of young children. Margaret Cotty, executive director of the Partnership With Children explains:

Too much cortisol changes two parts of the brain. One is your prefrontal lobe in the front of your brain. That’s how you develop executive functions — negotiating with people, telling the difference between good and bad, thinking about the consequences of your actions, your social behaviors in a classroom. Literally, how you behave. The other area is the hippocampus, deeper in the brain, which is central to creating memories of fact. The things you can declare and verbalize. Pretty important to school.

 

These concerns were highlighted in a study that was conducted by Kaiser Permanente health maintenance organization and the Centers for Disease Control and Prevention between 1995 and 1997. The study, called the Adverse Childhood Experiences Study, demonstrated an association of adverse childhood experiences (ACEs) with health and social problems as an adult. Children who develop in lower socioeconomic (SES) households, in addition to being exposed to toxic substances, excessive noise, and temperature variations, are more likely to live in unfavorable housing conditions and to be exposed to what have been termed “risky family” dynamics, characterized by conflict-laden relationships, aggressive and harsh parenting, and other forms of early life stress which may increase risk for the problems highlighted above. Also, individuals living in low SES neighborhoods may be more frequently exposed to stressful life events in association with higher concerns over community crime, pollution, and crowding, as well as unstable, effortful, and unrewarding employment opportunities related to persistent economic hardship.

This reality undoubtedly affects court systems every day. It is important to consider past and present trauma when working with clients in the court system, as many have undoubtedly been exposed to multiple stressors in their lives. In such instances, it is possible that clients may exhibit behaviors that are problematic or frustrating since their executive functioning and stress response systems have been adversely affected. In an article entitled “The Pedagogy of Trauma-Informed Lawyering,” Sarah Katz and Deeya Haldar offer suggestions for courts and attorneys. According to them, the hallmarks of a trauma-informed practice are when the practitioner puts the realities of the client’s trauma experiences at the forefront in engaging with the client, and adjusts the practice approach informed by the individual client’s trauma experience. Trauma-informed practice also encompasses the practitioner employing modes of self-care to counterbalance the effect the client’s trauma experience may have on the petitioner. By approaching the client with a trauma-informed response, the root of the problem can be addressed rather than exacerbated.

In Spring 2016, a report from the Veterans Administration (VA) Office of the Inspector General revealed that 21 of 38 VA medical facilities investigated were using improper scheduling for appointments. This is similar to a practice uncovered two years prior. In 2014, forty veterans died while waiting to be treated by the VA. In an investigation that culminated in Phoenix, Arizona, it was discovered that VA medical facility staff created secret waitlists instead of entering veterans into the actual scheduling system, and thereby hid actual wait times. The scandal exposed a pattern of practice used in VA medical facilities nationwide.

In response to the scandal, Congress passed The Veterans Access, Choice and Accountability Act (“Veterans Choice”) in 2014, with hopes it would improve veterans’ access to and quality of healthcare. Essentially, the law requires the VA to authorize veterans registered in the VA health care system as of August 1, 2014 to receive non-VA care if they live more than forty miles from the nearest VA medical facility or if the treatment they need has a wait time of more than thirty days.

Most VA patients do not have war wounds; they have “worn-out knees and [backs] from lugging heavy gear up and down,” according to Irvin Bishop Small, who served in the U.S. Navy for ten years and lives forty-five miles from the nearest VA medical facility. The Veterans Choice program was created to help veterans like him. When the doctor prescribed physical therapy and acupuncture to Small, he reached out to the nearest Choice private medical facility. He was told he would get a call back, but it was him who ended up calling back, over and over again. Because of the lack of necessary treatment, Small’s chronic pain sometimes drove him into deep depression. Legislators that created the program now admit that thousands of veterans are in the same situation.

According to a June 2016 report released by the Commission on Care, the unit Congress charged with implementing the program, Veterans Choice is thoroughly flawed in its design and operation. The report showed some racial and ethnic health care disparities and private medical facilities refusing to treat veterans because of delayed reimbursements, if any at all. It also showed aggravated wait times in some VA medical facilities. Still, it has produced some positive results. A survey showed that 90 percent of veterans were satisfied with the appointments’ timeliness. Still, VA Secretary Robert A. MacDonald said that, “until all veterans say they are satisfied…nobody at VA will be satisfied.”

Meanwhile, presidential candidates are making promises to solve the problem. Republican Nominee Donald Trump pledged that he would expand the Veterans Choice program to allow veterans to choose their doctor and medical facility, regardless of whether they are affiliated with the VA. J. David Cox, president of the American Federation of Government Employees, and a spokesman for opposing candidate Hillary Clinton, disputes that Trump’s proposed plan would lead to the VA’s privatization and private corporations making profit off of veterans suffering.

Many oppose increasing privatization because they believe that VA staff, which are largely made up of veterans themselves, will understand veterans’ needs better than a private caretaker. Bill Breeden, a Vietnam veteran, said that veterans “talk the same language…same issues, [and are] concerned about veterans’ issues.” It is curious to see if promises will be fulfilled and whether this time, the VA will create a system that actually gives each veteran a choice.

On May 27^th, the FDA released its much anticipated new nutritional labeling requirements. This will be the first time the FDA has revamped its nutritional labeling requirements since they were first created under the Nutritional Labeling and Education Act of 1990.  The new label will make a number of big changes, but none got more attention than the inclusion of “added sugar” on the label. The F.D.A. defines “added sugar” as “sugars that are added during the processing of foods, or are packaged as such, and include sugars (free, mono-and disaccharides), syrups, naturally occurring sugars that are isolated from a whole food and concentrated so that sugar is the primary component (e.g. fruit juice concentrates), and other caloric sweeteners.” The F.D.A.’s inclusion of “added sugar” on the label is seen as a health win by some and a misleading and unhelpful piece of information by others.

Attempts by the government, both local and federal, to curb Americans consumption of sugar has been on the rise over the past few years. In 2013, Mayor Bloomberg attempted to ban sodas and other sugary drinks that were more than 16 oz., but the law received vehement backlash and was eventually overturned. However, Philadelphia last month passed a law that would tax soda at 1.5 cents an ounce. Unlike the New York law, which was seen as an overbearing paternalistic measure to control what citizens eat and drink, the Philadelphia law was framed as a revenue generating tax. So is the Philadelphia law and the new “added sugar” labeling mandate a changing of the tide? Will added sugar become a minimal part of the American diet?

According to some, including George Mason professor and food lawyer, Baylen Linnekin, the new F.D.A. label requirement is a “stinker” and won’t do anything to change sugar consumption in America. Linnekin finds the label of “added sugar” misleading because it “creates a deceptive health halo around products like orange juice and apple juice, which are high in naturally occurring sugar, but contain no added sugar.” He also states that indicating added sugar will not suddenly change the habits of those who eat sugar in unhealthy amounts.

Linnekin is not the only one making these arguments. For the past two years the sugar industry and many food manufacturers have been fighting the “added sugar” component of the new label. The American Baker’s Association, American Beverage Association, Corn Refiners Association, National Confectioners Association, were among the companies and associations that fought for two years to keep “added sugar” off the new labels. Campbell Soup, the parent company to Pepperidge Farm and V8, stated that the new “added sugar” would confuse consumers.  Manufacturers may fear that added sugar could soon go the way of trans fat and become a minuscule part of the American diet. Trans fat is now nearly eliminated from the American diet because of a coordinated effort between scientist, the American Heart Association, and the F.D.A. to make consumers aware of their intake of the dangerous fat. Even if sugar is headed in that direction, many in the healthcare field think that might not be such a bad thing, given the link between sugar and increasing cases of diabetes and obesity in America.

The outcome of the new nutritional label on companies and consumers alike probably will not be fully realized for some time, but the new labeling will certainly have an impact on both groups. It cannot be ignored that consumers are becoming more and more aware of what they eat, with increased attention to labeling of foods with GMOs and consumers going out of their way to eat organic. It also should not be ignored that this will have an impact on the American sugar industry, which is one of the largest in the world. Either way, it was clear that F.D.A. needed to update the nutritional labeling requirements. That realization came because Americans consume food differently than we did twenty-six years ago, sometimes in very detrimental ways, and our food labels should reflect those patterns and needs.

Companies will have until July 26^th, 2018 to start complying with the new regulations.

Note: This blog is a follow-up from a previous post discussing the potential effects of the Whole Women’s Health v. Hellerstedt case. That post can be found here.

Roughly four months after hearing oral arguments, the Supreme Court of the United States handed down its 5-3 decision in Whole Women’s Health v. Hellerstedt on June 27,^, 2016. Justice Breyer wrote the majority opinion on behalf of himself and Justices Kennedy, Ginsburg, Sotomayor, and Kagan. Justice Ginsburg also wrote a concurring opinion on the case. Justice Alito wrote the dissent on behalf of himself, Justice Thomas, and Chief Justice Roberts. Justice Thomas also wrote a separate dissenting opinion. This decision is the most significant victory for abortion rights in a generation.

Just one year ago, the United States Court of Appeals for the Fifth Circuit overturned the trial court and upheld the provisions of the Texas law saying it did not place an undue burden on the right to obtain an abortion. Had the Supreme Court’s decision resulted in a 4-4 ruling, that verdict would have remained in place. However, the majority of the Court said that the appeals court did not properly apply the undue burden standard.

The Court decided that two provisions of the Texas House Bill 2 were unconstitutional as interpreted in Planned Parenthood v. Casey (1992). The Texas bill was signed into law in July 2013 by then-governor, Rick Perry. The first of those provisions was a requirement that physicians performing surgical or medical abortions have active admitting privileges at a hospital within 30 miles. The second provision stated that clinics performing previability abortions meet extensive licensure standards applicable to ambulatory surgical centers (ASCs). The majority opinion reaffirmed the balancing test from Casey; the test calls for thorough judicial review of abortion-related legislation whose stated purpose is to protect women’s health but is allegedly unnecessary. When the legislation presents a substantial obstacle to women seeking abortions, it therefore imposes an undue burden on that right. Justice Breyer, writing for the majority, struck down provisions of the anti-choice law in Texas stating, “each places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access, and each violates the Federal Constitution.”

As of March 2016, Texas was among four other states with laws requiring abortion-providing physicians to have admitting privileges at nearby hospitals, and 21 states with the ambulatory surgery center standards. The Texas law was the only law before the Supreme Court, but these other states will likely have their laws overturned as well. The ruling is a significant step in restoring abortion access for women in Texas and keeping high-quality clinics open. Though the fight is far from over, this decision reaffirmed and strengthened constitutional protections for abortion rights.