Tag: health law

The Disproportionate Impacts of Obstetric Violence on Minority Women

Serena Williams is a superstar tennis player and a force to be reckoned with, especially after sharing her harrowing postnatal experience. Williams has a history of pulmonary embolisms, and the day after giving birth to her daughter via C-section, she had trouble breathing and believed she was experiencing a blood clot. After Williams alerted a nurse, the nurse suggested Williams’s pain medication left her confused and instead insisted a doctor perform an ultrasound on her legs. Doctors ignored Williams, who knew she needed a CT scan and heparin drip. This dismissal of Williams’ concerns delayed the discovery of several blood clots in her lungs and a large hematoma in Williams’ abdomen, near her C-section wound; she was placed on six-week’s bedrest following this event. Williams’ deeply upsetting interaction with her doctors is not uncommon for new mothers in the days following childbirth, especially among minority women.

Between 700 and 900 women die yearly from complications stemming from pregnancy and childbirth. For every death, there are a handful of women who suffer life-threatening birth injuries. There is a notable racial disparity in the figures, and black women are seventy-five percent more likely to experience a traumatic birth compared to white women. Traumatic birth experiences often result from obstetric violence, a notion that encompasses disrespectful attitudes from doctors, discrimination from care providers, and lack of consent for treatment. In 2016, the American College of Gynecologists published a committee opinion outlining that a “decisionally capable” woman has the right to refuse certain treatments while she is in labor. Furthermore, the College strongly discouraged “manipulation [and] coercion” to influence a woman’s treatment decision. Although this opinion offers guidance to practitioners, it is not binding, and many women nonetheless face varying forms of obstetric violence.

Obstetric violence is especially severe for women of
color due to the widespread discrimination within the maternity care field. The CDC notes that
Black women in the US are three times more likely to die from childbirth-related issues than white
women. Across the country, the maternal mortality rate has risen to 17.3 maternal deaths per 100,000 births.
The United States is one of only a select handful of
countries where the maternal
mortality rate is worse now than it was 25 years ago.

Anecdotal evidence
from doulas in Milwaukee and Washington, D.C., both cities that support a large
low-income and Black population, reveals how doctors often justify acts of
obstetric violence by feigning paternalistic worry and falsely claiming either
the mother or infant were in danger. Additionally, it is well-established that black women fare worse in pregnancy, and growing evidence points to a low quality of care
in hospitals where black women seek maternal care, which are often found in
highly segregated areas. Research has also indicated that women who deliver in
these hospitals are more
likely to have complications
from birth-related embolisms and hysterectomies. Black women believe their concerns
are not addressed by their healthcare teams; for many women of color, the news of a baby
evokes fear rather than joy because these women know of the alarming trends and
how treatment teams may disregard their wishes and concerns.

In the wake of the CDC and WHO data on obstetric
violence and maternal mortality rates, legislators have signed H.R. 1318/S. 1112,
which supports states to put an end to preventable maternal deaths.
Additionally, Senator Kamala Harris introduced the Maternal Care Access Reducing Emergencies Act meant to promote training programs for healthcare
professionals that would address implicit biased based on stereotypes. Until the
legislation takes effect, organizations like Improving Birth and Birth Monopoly
will continue advocating for women who have faced obstetric violence.

Blockchain’s Promise for the Future of Healthcare

In the winter of 2017, the world was captivated by the rise
and fall of Bitcoin. Every night during its historic rise, local
news ran rags-to-riches
stories of basement investors who had cashed out at the right time.
Every day, bloggers, tech journalists, and finance journalists tried to diagnose
the market and divine what portents this fluctuation may hold for
the future. Even before Bitcoin hit its fever pitch in December of 2017, the
national conversation focused on the technology powering it – Blockchain. Intrigued
by the success of Bitcoin, industry leaders sought to understand Blockchain’s structure,
potential, and capabilities. Although the Bitcoin craze eventually came to an
end, the conversation over Blockchain continues and it is now positioned to
make inroads into the healthcare industry.

Blockchain, in its modern form, was
created in the fallout of the 2008 financial crises. It is “[a] digital
record or ledger [mini database] that is structured as a series of blocks that
are strung together in a chain. Each block—a digital expression of a
transaction or an event—is validated by multiple computers on the internet.”
Blockchain is also highly secure by distributing “blockchains” to millions
of computers, creating a decentralized
database.

This combined ability to both secure and share files
simultaneously makes Blockchain an attractive new frontier for the healthcare industry.
Large
healthcare providers such as Cigna, Aetna, and Sentara Health have
signed onto Blockchain pilot programs; even Apple
signaled interest in Blockchain applications. In
2018, 45% of the healthcare industry experimented with Blockchain
applications and 11% of the industry deployed Blockchain applications for use
in business. By 2025, it is projected that 55%
“of healthcare applications will have adopted Blockchain for commercial
deployment.”

This growing trend of Blockchain’s presence in healthcare is
due to the enormous benefits the system presents. Cognizant’s
2017 report, “Healthcare: Blockchain’s Curative Potential for
Healthcare Efficiency and Quality,” identifies top benefits that healthcare
organizations could gain through its implementation, such as strengthened data
security and improved interoperability. As Cognizant’s
report states, “Blockchain technology enhances privacy through
modern public key encryption techniques, reinforces data integrity with its
properties of immutability, and improves security with its decentralized data
model” allowing for improved patient care through data interoperability between
different care providers. Deloitte’s 2018 global Blockchain
survey also identifies areas where Blockchain will provide
significant value, such as disintermediation, transparency and auditability,
and industry collaboration.

These advantages present
solutions to long-standing problems that have plagued the industry’s
ability to modernize, specifically the ability to digitize
patient records into Electronic Health Records. Blockchain’s decentralized
data also provides a single authoritative source for patient records resulting
in lower cost for patients, better collaboration between professionals, and
increased efficiency for providers. Full realization of these benefits has the
potential to revolutionize and modernize the healthcare industry and drastically
increase the quality of care that patients receive.

Yet Blockchain’s real world implementation highlighted some operational hurdles. The Mayor’s office of Austin, Texas undertook a project called the “MyPass Initiative” to utilize Blockchain technology to improve the city’s homeless services by replacing paper records with “electronic encrypted records that would be more reliable and secure.” The initiative aims to “consolidate the identity and vital records of each homeless person in a safe and confidential way while providing a means for service providers to access that information.” Yet the program faces difficulties such as social buy-in and a reliable way to connect a person with an identity, which can hamper full implementation and in turn preclude the complete realization of the initiative’s benefits. These challenges are not insurmountable and overcoming them will pave the way for larger implementation of Blockchain technology in fields such as healthcare.

Blockchain’s utilization in healthcare is nowhere near complete, but its capabilities and potential operational effectiveness are becoming clear to industry leaders. Its promise to improve patient care through better interoperability, heightened data security, and lower cost is a benefit that the healthcare industry has long been looking to provide to patients. With growing industry engagement with Blockchain technologies and continued innovative pilot programs, such as Austin’s MyPass Initiative, we move ever closer to realizing Blockchain’s promise for the future of healthcare.

The ACA Twilight Zone

Death by a thousand cuts has been the Trump Administration’s approach to the Affordable Care Act (ACA).  To be sure, President Trump  tweeted on April 23, 2017 that “ObamaCare is in serious trouble.”  On October 13, 2017, he tweeted, “ObamaCare is a broken mess. Piece by piece we will now begin the process of giving America the great HealthCare it deserves!”  On May 30, 2018, he stated: “For the most part, we will have gotten rid of a majority of Obamacare.”  And on June 4, 2018, he tweeted, “We had Repeal & Replace done (and the saving to our country of one trillion dollars) except for one person, but it is getting done anyway. Individual Mandate is gone and great, less expensive plans will be announced this month.”

In the courts, the ACA has certainly been no stranger to the artful attack.  But two lawsuits, one filed in Texas and the other in Maryland, have gained nationwide traction and hold nationwide consequences.  The first suit, Texas v. US, made its way to U.S. District Court Judge Reed O’Connor’s bench in the Northern District of Texas.  The 20-state GOP led suit was filed on February 26, 2018 by Texas Attorney General Ken Paxton.  It argues that since the ACA was only upheld by the Supreme Court in NFIB v. Sebelius because the individual mandate was a tax, and now that the Tax Cut and Jobs Act of 2017 (TCJA) zeroed-out the individual mandate penalty, the entire ACA is unconstitutional.  The Plaintiff-states also argue that since the ACA does not have a severability clause – a clause that would allow the rest of the statute to live if one part is stricken – the ACA as a whole must fall.

Under Attorney General Jeff Sessions direction, the government will not defend the ACA’s constitutionality.  Defending the ACA, and its patient protections like the prohibition on insurers from discriminating against patients with pre-existing conditions, are 17 Democratic attorneys general representing their respective states as Intervenor-Defendants.  A slew of patient groups and scholars filed amicus briefs in support of the Intervenor-Defendants, but only Citizens United filed as amicus in favor of the Plaintiff-States.  The American Cancer Society Cancer Action Network filed as amicus, urging the court to uphold the ACA and to “recognize Congress’s clear intent to improve access to lifesaving health care for millions of Americans.”  A bipartisan group of law professors filed as amicus, arguing that “[t]he arguments of both the plaintiff States and the United States on the severability of the insurance mandate from the other provisions of the ACA are inconsistent with settled law.”  On July 19, 2018, Senate Democrats introduced a Senate resolution that would authorize Senate Legal Counsel to intervene in Texas v. US to defend the ACA’s patient protections for people with pre-existing conditions.

The second suit, City of Columbus v. Trump, filed on August 2, 2018 by the Cities of Baltimore, Chicago, Columbus, and Cincinnati in the U.S. District Court for the District of Maryland alleges that the Trump Administration’s actions over the last several years amount to an unconstitutional sabotage of the law the President is required to faithfully execute.  The suit makes two claims: the first claim that the Administration is acting arbitrarily and capriciously, and the second that President Trump is violating the “Take Care” Clause of the Constitution.  Under the Take Care Clause of the U.S. Constitution, the President and his or her Administration must “take care that the laws be faithfully executed.” U.S. Const. art. II, § 3.  The suit cites a range of administrative actions taken to sabotage the ACA and have the aim and effect of weakening ACA exchanges, driving up premiums, and driving out issuers, ultimately increasing the rate of the uninsured and underinsured.

Judge O’Connor, after first announcing that oral arguments in Texas v. US would take place on Monday, September 10, moved up oral arguments to Wednesday, September 5, at 9:30 a.m.  At the same time in Washington, D.C., Supreme Court nominee Brett Kavanaugh will be testifying before the Senate Judiciary Committee for potential confirmation.  As some have noted, the fate of the ACA could turn on Kavanaugh’s appointment to the Supreme Court.  Kavanaugh’s preeminent views on separation of powers and his textualist-meets-originalist approach to statutory interpretation is consistent and can be expected to appear in his opinions, but is alarming to health care advocates and patients.  Kavanaugh’s jurisprudence shows that he cares deeply about administrative law and is unlikely to “deconstruct the administrative state,” but he is likely to “put a tighter leash on the regulatory state.”  In all, the fate of the ACA remains to be seen.

 

 

 

Pentagon Reviewing Care for Veterans Exposed to Chemical Weapons

An October investigation by the New York Times (NYT) has led the Pentagon to review and adjust how it cares for veterans returning from tours in Iraq who believe they were exposed to chemical weapons.  The NYT investigation notes that between 2004 and 2011, American and American-trained Iraqi troops “repeatedly” found chemical weapons and were even wounded by them on “at least” six occasions.  All told, the report states that 5,000 chemical warheads, shells or aviation bombs were found in that time.  It also noted that secrecy was needed regarding the discoveries.  Secrecy surrounding the missions, however, may have put a number of military service personnel at risk as they were not aware of the threat these old munitions were to their health. Also, they were not allowed to discuss with military doctors the nature of their injuries and thus could not receive the proper treatment.

In 2004, the Army sent out instructions for the treatment of exposed soldiers which included collection and analysis of blood and urine samples for all potentially exposed soldiers followed by annual, long-term follow-up appointments – coordinated by the Deployment Health Clinical Center at Walter Reed Army Medical Center – for those who had indeed been exposed.  In addition, incidents of exposure were to be recorded and reported by Command Surgeons and a database maintained by the US Army Center for Health Promotion and Preventative Medicine.  However, the original NY Times investigation uncovered veterans who were never given blood and urine tests, told their symptoms were from something else, and returned to duty before their symptoms were over.  Furthermore, the long-term care they were promised was never followed up on.

Defense Secretary Chuck Hagel moved quickly to correct these issues.  Shortly after the investigation, which only mentioned 17 American service members that were exposed, he ordered an internal review of Pentagon records, specifically the collection of “post deployment health assessments” held by the Army’s Public Health Command.  In a statement following that review, the Pentagon now says that more than 600 American service members reported exposure to chemical weapons in Iraq according to the surveys filled out by troops returning from combat tours.   In the survey, they specifically ask the question “Do you think you were exposed to any chemical, biological and radiological warfare agents during this deployment?”  The Army surgeon general’s office said that 629 of these surveys were affirmative for this question.

The Army and Navy have both made statements that the examinations promised to long-term veterans will start to be available in early 2015.  Furthermore, because the previous policy of secrecy created a lack of records of exposure, the military will be reaching out to units that were possibly exposed to try and find all of the affected veterans.  Finally, there will be a hotline for veterans to call who believe they were exposed to chemical weapons.  Hopefully as the secrecy fades away and outreach continues – these veterans can get the help they need.

How the NFIB v. Sebelius Ruling Will Increase the Amount of Uninsured under the ACA

In a March 2012 report, the Congressional Budget Office (CBO) estimated that by 2022, the Patient Protection and Affordable Care Act (ACA) would reduce the number of nonelderly people without health insurance by 33 million, leaving another 27 million still uninsured.  A significant part of that 33 million included the 17 million more people the CBO estimated to qualify for Medicaid by 2022 under the ACA.  They had not previously qualified because the ACA increased the eligible income to those making up to 138% of the Federal Poverty Level.  This increase in eligibility would have been implemented by making all federal Medicaid dollars given to the states contingent on states increasing the pool of eligible individuals.

On June 28th, the Supreme Court ruled in National Federation of Independent Business v. Sebelius, however, that the federal government could not withhold current levels of Medicaid funding to force the Medicaid expansion.  Instead, it could only withhold the additional funds it planned to give out, making the Medicaid expansion optional state-by-state.

Based on the Sebelius ruling, the CBO reworked its estimates in a July 2012 report that concluded, because of the Supreme Court ruling, six million fewer people would qualify for Medicaid than previously estimated. Of those six million, however, an additional three million would qualify for the new exchanges.  Therefore, the net loss of insured people thanks to the Supreme Court ruling was three million.  In updating their numbers, the CBO did not attempt to guess which states would or would not expand their Medicaid program, but attempted to “reflect an assessment of the probabilities of different outcomes…and are, in their judgment, in the middle of the distribution of possible outcomes.”

These figures are being discussed again because of a June 2013 study by HealthAffairs, which did attempt to guess state-by-state who would be expanding their Medicaid programs and its affect on the uninsured.  They note that, after the Supreme Court decision, 14 states had announced their intent to opt-out of the expansion, six were undecided, three were leaning against the expansion, and two were leaning toward the expansion.  They found that if all currently undecided states opted in, 29.8 million people would remain uninsured by 2016 (compared to 26 million people uninsured according to the CBO by the same year).  That number would rise to 31 million if all of the undecided states opted out.  They also note that around 80% of those uninsured would be US citizens, and no matter which way the undecided states go, 4.3 million children and 1 million veterans would likely remain uninsured.

As of a September 17, 2013 a report by the Advisory Board Company found that the number of undecided and not participating states had increased. They found 15 (up from 14) states firm in opting out of expansion, seven (three) leaning against expansion, five (six) undecided or exploring an alternative model, four (two) leaning towards expansion, and overall 20 (25) firmly participating.  Therefore, the percentage of states that could be opting out has increased from 34-46% to 44-54% of states.  This will in turn increase the number of uninsured people.  As the merits of the ACA continue to be debated on Capitol Hill in light of the budget debate, and more states become firm in their plans to opt-in or opt-out of the Medicaid expansion, the number of those who are ultimately uninsured could rise and continue to undermine the goal of universal health care.