Originally published by Healio on July 1, 2019. Written by Janel Miller.
Though some major medical societies applauded President Donald J. Trump’s executive order on June 24 directing HHS to require hospitals upfront disclosure of prices, it faces difficulty coming to fruition, medical, legal and economic experts told Healio Primary Care.
The executive order states that HHS issue a rule within 60 days that requires hospitals to publicly reveal the cost patients will pay for services in an “easy-to-understand, consumer-friendly, and machine-readable format using consensus-based data standards that will meaningfully inform patients’ decision making and allow patients to compare prices across hospitals.”
The executive order also gives HHS 90 days to seek proposals to make information on out-of-pocket spending more accessible to patients before receiving care. “[This] will create unprecedented transparency about health care prices and provide this information to the American people for the first time ever,” Trump said at a press conference announcing the executive order.
“You’ll be able to search out for the right doctor. And it really is, in a true sense, the opposite of Obamacare. You’ll get much better pricing, and you’ll get the doctor that you want and maybe you’ll get better than the doctor that you originally thought about,” he added.
Experts interviewed for this story commended the administration’s move towards transparency, but said that implementing Trump’s executive order – from historical and contemporary standpoints – is likely easier said than done.
“More information is almost always a good thing,” Arthur Caplan, PhD, founding head of medical ethics at New York University School of Medicine, said. “But Trump’s initiative is a return to the 1960s when health care was built around the idea of shopping and the invalid assumption that the free market would drive down costs.”
Nancy Nielsen, MD, PhD, a former senior advisor at CMS during President Obama’s tenure and now senior associate dean for health policy at the University at Buffalo, explained to Healio Primary Care some of the executive order’s potential barriers.
“Transparency is sorely overdue, but not as simple and one-size-fits-all as Trump implies. A lot of what patients pay at hospitals is related to their insurance. These prices vary based on who is the insurer and who purchased the insurance plan,” she added.
“There’s a perverse consequence to disclosure that Trump is ignoring,” Memo Diriker, DBA, MBA, founding director of the Business, Economic and Community Outreach Network at Salisbury University in Maryland, added. “Historically, such negotiations usually go in favor of the industry or organization rather than the consumer. Think about how high the salaries of some university presidents and K-12 school superintendents are. These only got that way once those amounts started becoming publicly available.”
Diriker and others also said that there are other reasons why, through no fault of the hospital, the executive order is impractical. “Are we really going to negotiate our health care the way we negotiate with a pain paint contractor for our households? If we are having a medical emergency, are we really going to take time to shop for the best deal? Of course not. In most such instances, we rely on a physician’s advice, not a financial planner’s tips,” Diriker noted.
“The idea that individuals will suddenly begin making decisions for health care based on this information is a leap of faith. Most people, particularly those with lower socioeconomic statuses, aren’t able to ‘shop around’ for health care even with this information,” Phil Waters, JD, clinical fellow at the Center for Health Law and Policy Innovation at Harvard Law School, added.
Many of the experts also cited Trump’s lack of specifics regarding implementation as an additional cause for doubt.
“The devil may be in the details,” Diriker said. “There is no one price in play here, and we don’t know yet what prices they are referring to.”
Caplan and Nielsen agreed the executive order falls short on specifics.
“He described an idea, but didn’t even suggest where these prices would be posted: hospital doors? Websites? The executive order does not have the requisite details that are needed,” Caplan said.
“There is a lot that is aspirational here, but there is very little on how it will happen,” Nielsen added.
Other experts discussed the pushback the administration will likely receive as it attempts to bring the executive order to reality.
“I can see hospitals and health plans warning that this could actually increase the cost of health care, either by adding administrative costs, focusing health care on volume as opposed to quality, or simply because once physicians know what the competition is being paid, their incentive is to match the same prices which may be higher than their own,” Waters told Healio Primary Care.
Nielsen concurred. “Price negotiations between health insurance companies and hospitals are closely held secrets. If you make the prices known, the lower-charging hospital is going to revolt and say they want equal pay for the same work,” she said in the interview.
“90% politics; 10% ideology”
With the 2020 presidential campaign already underway, Diriker suggested Trump may have issued the executive order for political gain, not patients.
“His idea will sound great at a rally filled with potential voters,” Diriker said. “But what he will never say, and is important to note, is that though hospitals charge high prices, individual patients will never be able to negotiate the lowest prices.”
Caplan also indicated a potential election-related motive for the executive order. “This initiative is 90% politics so that he has something positive to say about health care while on the campaign trail,” he said. “The other 10% is Republican ideology. Most Republicans don’t like ‘Medicare for All’ or government-sponsored health care but do like the market-oriented ideas put forth by this executive order.” -sponsored health care but do like the ideas put forth by this executive order.”
Possible solutions to high costs
Some of these experts offered suggestions for bringing hospital costs down, mindful of the critical nature of their comments. “We should consider more resources like FAIR Health,” Nielsen told Healio Primary Care. “This independent nonprofit organization gathers and manages the nation’s largest database of privately billed health insurance claims, uses the information to support business decisions about out of network claims and helps consumers anticipate the likely costs of their care for a given procedure,” she added.
Caplan suggested the U.S. government play a role in health care that mirrors some European countries’ procedures. “The government needs to exercise its bargaining clout like Germany and Holland do. These countries’ have a minimum health insurance mandate and then patients can add options, like U.S. residents do say with private automobile insurance.”
Other executive order components
Trump’s executive order also increases patient access to health savings accounts and claims data, requires several agencies to provide details on how the federal government or private sector hamper with health care price and quality transparency, and tasks several agencies with improving data and quality measures reporting systems across government programs. These components are expected to be completed within 180 days of the executive order’s issuance.
Some medical groups seemed receptive to at least part of the president’s executive order as they anticipated next steps.
“The American Academy of Family Physicians shares the administration’s goal of improving health care transparency,” Michael Munger, MD, chair of the AAFP board said when asked by Healio Primary Care for his thoughts on Trump’s initiative.
“By informing patients about the quality and costs, we can empower them to navigate the health care system more efficiently. We look forward to seeing and analyzing the forthcoming regulations that will attempt to achieve the proposals outlined in the President’s executive order and to submitting comments to the proposed regulations when they’re published,” he added.
The ACP also appeared enlightened by the president’s initiative, but with a caveat. “We firmly believe that increasing health care transparency is critical in providing quality, affordable, and accessible health care coverage to patients who need it the most,” Robert McLean, MD, president, ACP said in a statement. “While ACP supports the concept of the executive order, it should be implemented in a way that does not impose impracticable or excessive administrative burdens.”
CHLPI is looking for a part-time (17.5 hours a week with full benefits) administrative assistant to serve as the faculty assistant to two faculty members and report to the faculty and the Administrative Director of the Center for Health Law and Policy Innovation (CHLPI) of Harvard Law School.
This position performs a wide range of administrative duties in support of the faculty and the successful day-to-day operations and administration of a dynamic and complex department. CHLPI’s mission is to advocate for legal, regulatory, and policy reforms that promote equitable and effective health, public health and food systems, and is a clinical teaching program of Harvard Law School that mentors students to become skilled, innovative, and thoughtful practitioners as well as leaders in health, public health, and food law and policy. The Administrative Assistant is an integral member of CHLPI’s team, completing key tasks that meet the needs of faculty, students, staff, and external contacts.
Course logistics: Preparing course materials; developing and maintaining course and faculty websites; corresponding with students; organize all in-class needs such as guest speakers, catering, and others as they arise.
Student logistics: Providing quality customer service to students for responding to inquiries, scheduling office hours for faculty; preparing letters of recommendation; among other student logistical needs.
Finances: Processing and tracking expense reports and reimbursements for faculty; maintaining and tracking budgets for faculty.
Travel logistics and scheduling: Arranging travel logistics for faculty, invited guests and visitors including arranging flights, hotels and coordinating other travel needs; maintaining faculty schedules and booking meetings with/for faculty.
Event planning: Playing a key role in scheduling meetings and events, designing and promoting event collateral, arranging for catering, making room reservations, arranging venue set-ups and A/V, assisting guest speakers, staffing events, and other event planning and execution tasks as needed.
Program operations and communications: Contributing to website maintenance, social media accounts, and listservs; assisting with design and production of materials; assisting in the preparation of grant proposals and funder reports; and with other communications and development projects as needed.
Office operations: Overseeing office supply needs and placing orders accordingly, maintaining office equipment, and assisting in smooth day-to-day running of office space.
Performing other related administrative duties as needed by the faculty and CHLPI.
We are an equal opportunity employer and all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, national origin, disability status, protected veteran status, gender identity, sexual orientation, pregnancy and pregnancy-related conditions, or any other characteristic protected by law.
I joined the Health Law and Policy Clinic because I wanted to experience firsthand how communities use policies to promote a culture of health. As a JD/MPH Joint Degree student at Harvard Law School and Harvard T.H. Chan School of Public Health, I have been exposed to health policy largely in a classroom context. My coursework showed me the complexities of the U.S. healthcare system and the barriers to healthcare access that many Americans face. But while my classes taught me the problems associated with this lack of access, I wanted to put my learning to practice by actually implementing policies to address these problems.
Through the Clinic’s Community Approaches to Public Health Projects, I was able to work on both national and local policy to expand access to healthcare for vulnerable populations and reduce health disparities. My projects largely centered on the social determinants of health. In particular, I worked with communities to build a culture of easy access to healthy, affordable food. Food insecurity and overconsumption of unhealthy food is associated with a multitude of negative health outcomes, including: diabetes, cardiovascular disease, cancer, and other chronic diseases. The clinic has worked with national and local advocacy groups across the country to implement innovative policies that reduce sugar consumption and increase healthy food access.
On the national level, our team provided law and policy technical assistance to various state advocacy leaders, empowering these advocates to enact policies that will lower population-level consumption of sugar. I had the chance to meet and work closely with community champions to build a strategy for short- and long-term policy change. On the local level, my projects focused on broadening access to nutritious and affordable foods. The Clinic gave me the opportunity to travel for site visits around the country, meeting our clients where they were to better understand their questions and goals. In one site visit, I found myself in a freezer room wearing a hairnet and gloves, surrounded by packaged vegetables and fruits. We were meeting with a community kitchen to build community-use policies that increased access to vital and unique food production resources. In another, I found myself trekking across vegetable fields and herb gardens. We were meeting with a community farm dedicated to providing healthy produce to vulnerable populations and promoting agricultural education opportunities. Together, we created policies for the farm that increased the community’s access to the space for education, recreation, and healthy food production.
The Health Law and Policy Clinic was an incredible experiential learning opportunity. The hands-on experience of shaping health policy has been a unique highlight of my HLS education, and I look forward to honing these skills further throughout my career in law and in public health.
“Massachusetts was the first state to have universal health care . . . let’s make this state the first state that everyone living with chronic disease . . . will have access to nutritious healthy food . . .” – David Brown, Community Servings Client
After years of hard work, the Center for Health Law and Policy Innovation of Harvard Law School (CHLPI), Community Servings, and nearly 40 Planning Council organizations debuted the Massachusetts Food is Medicine State Plan at the Massachusetts State House on Tuesday June 18, 2019. With the support from legislative sponsors Senator Julian Cyr and Representative Denise Garlick, the event drew over 200 people with a line out the door comprised of government officials, non-profit group members, health care providers, health care payers, public health advocates, food systems practitioners, and academics from across the state. The launch of the State Plan was also highlighted by WBUR, who quickly published a story on the morning’s events.
The Massachusetts Food is Medicine State Plan initiative brought together hundreds of individuals and organizations, all united by the belief that food is medicine. Research increasingly shows that Food is Medicine interventions—such as medically tailored meals and produce prescription programs—are an effective, low-cost strategy to improve overall health outcomes, decrease utilization of expensive health care services, and enhance quality of life for people living with, or are at risk for, serious diet-related medical conditions. Present at the State Plan Launch were David Brown, a client of Community Servings’ medically tailored meal delivery program, and Max Makowski, a client of FLAVORx’s produce prescription program. Brown and Makowski spoke avidly to the audience about how Food is Medicine services improved their lives and health, reminding us that food and nutrition are crucial for people living with chronic illnesses.
“The most important thing for me was the sense of community and the sense of purpose. Those two things are profoundly altering. It’s great to have healthy food, it’s better to have community connection with the people who are around you.” – Max Makowski, FLAVORx Client
In his remarks, Senator Julian Cyr called attention to the massive, avoidable $1.9 billion in health care spending stemming from food insecurity each year. “Part of the reason Food is Medicine is so important and has so much promise is the potential for not only improving quality of life, access, and getting at food insecurity, but the potential for cost savings as well,” said Cyr. “Because of the State Plan, we have a blueprint now to equip our health care system to identify and respond to food insecurity.”
The State Plan provides a framework for creating a health care system that truly recognizes the critical relationship between food and health and ensures access to nutrition services needed to treat, manage, and even prevent diet-related chronic diseases. Representative Denise Garlick said passionately, “I feel that food is such a ubiquitous part of our day to day life. We have always had the power; we just haven’t utilized our power.”
As the keynote of the event, a panel of experts discussed the origins and next steps for the State Plan. Robert Greenwald, Faculty Director of the Center for Health Law and Policy Innovation, conveyed that Massachusetts has always been a leader in health care policy, setting the tone for broader health reforms across the country. “We are making progress but much more work needs to be done,” said Greenwald. “The good news is we now have a State Plan that includes very specific recommendations as to what it’s going to take to create a fully integrated health care system”.
The State Plan Report provides 15 recommendations, known as the Food is Medicine 15. These recommendations outline specific, concrete action items for key stakeholders within the world of nutrition, food, and health. It also establishes a Massachusetts Food is Medicine Coalition and three Task Forces charged with addressing critical barriers and driving broader systems and policy change. Inaugural leaders of each Task Force were present on the panel to discuss their vision for advancing the State Plan.
David Waters, CEO of Community Servings, asserted that, “As people are looking for new innovations, an old innovation has risen to the top, which is food.” He added, “If you want to make an impact on someone’s health outcome, you’d better think about it in a holistic way of what’s going on in that household…if we could also find a way to make sure that an entire household’s nutrition needs are met, that’s going to have the biggest impact.” In the same vein, Dr. Maryanne Bombaugh, President of the Massachusetts Medical Society stated, “Without addressing the social determinants of health, we will never have health equity.” Dr. Bombaugh placed high importance on educating health care professionals on food and nutrition to ensure patients have access to the information and care they need to heal and thrive. Richard Sheward, Director of Innovative Partnerships at Children’s HealthWatch, believed that “the State Plan is a great way of coalescing a diverse array of stakeholders around figuring out what works best” to address nutritional needs within the context of health care in the Commonwealth.
“Nutrition is a core component of health. Thus, nutrition is a core component of health care.” – Representative Denise Garlick
With strong leadership from individuals, organizations, and policymakers committed to achieving the goals of the State Plan, Massachusetts can achieve widespread, sustainable access to Food is Medicine interventions. The time is now for us to come together, take initiative, and continue to drive change so that all Massachusetts residents receive the nutritional services they need to live healthy, happy, and productive lives.
Originally published by WBUR/CommonHealth on June 18, 2019. Written by Colin A. Young, State House News Service.
At a time when consumers are paying more attention to nutrition and the source of their food, the state could do more to integrate food into health care as a way to address chronic conditions and avoid some health care spending, a new report found.
The Food is Medicine State Plan, a joint effort of the Center for Health Law and Policy Innovation of Harvard Law School and service provider Community Servings, focused on nutrition’s link to chronic diseases like diabetes or cardiovascular disease, and the notion that food can act as medicine when meals are tailored to meet the specific needs of people living with or at risk for certain serious health conditions.
The report was released Tuesday at an event featuring Sen. Julian Cyr and Rep. Denise Garlick.
About one in 10 households in Massachusetts struggles with food insecurity, or not having consistent access to enough food for a healthy and active lifestyle, leading to $1.9 billion in annual health care costs that could be avoided, the report said.
(Courtesy Massachusetts Food Is Medicine Coalition)
Though Massachusetts has programs that try to address the issue of food insecurity and inaccessibility of fresh foods, the report said access to food as medicine programs remains limited in the state and across the country. But as consumers think more about the food they eat, and as Massachusetts shifts its Medicaid program into an Accountable Care Organization model, the report says the time is now to integrate food and medicine.
“We can build a system that reliably identifies individuals who are food insecure, connects them to appropriate Food is Medicine interventions, and supports those interventions via sustainable funding,” the report concluded. “In doing so, Massachusetts will establish itself as the first state in the nation to ensure that patients have access not only to affordable, effective medical care but also to the foods they need to live healthy, happy and productive lives.”
The report said there are 736 food pantries, meal programs, food rescue organizations and produce voucher programs in Massachusetts, but only 63 of them work with health care providers or tailor meals to meet specific medical needs.
The new ACO system, the report said, provides a ripe opportunity to integrate food is medicine policies because program requirements and financial incentives are changing to leverage community-based resources.
“For example, MassHealth will require ACOs to screen patients for health-related social needs, including food insecurity,” the report said. “Starting in January 2020, ACOs will also receive Flexible Services funding that can be used to provide access to services that respond to health-related social needs, including Food is Medicine interventions.”
The report’s authors recommend that professional medical societies and providers work together to increase provider nutrition education and referral capacity, that MassHealth issue guidance on food insecurity and malnutrition screening protocols, and that insurers incentivize provider networks to screen for food insecurity and make resource referrals part of patient care.
The Legislature should “explicitly recognize Food is Medicine as a priority through legislative action and within the state budget” by funding a pilot program to evaluate the impact of Food is Medicine within the MassHealth population, providing enough funding to meet the demand of the Healthy Incentives Program and by funding the Prevention and Wellness Trust Fund.
To build on the report, its organizers in the coming months plan to convene three task forces within the Massachusetts Food is Medicine Coalition to focus on strategies to address some of the issues identified in the report.
One task force will look at ways to improve the capacity of health professionals to identify and address the need for food is medicine interventions in patients. Another will “lead a statewide effort to establish standards for Food is Medicine interventions in the Commonwealth” and the third will develop research plans to advance the public health and medical understanding of food insecurity and food is medicine programs.
Originally published by 22 News, WWLP on Wednesday, May 23, 2019. Written by Jennifer Zarate.
A group met on Wednesday to make sure healthy food is available to everyone in western Massachusetts.
The Franklin County Food Council brought together groups from across the state on Wednesday to talk about expanding access to food services.
Among those in attendance was the Center for Health Law and Policy Innovation of Harvard Law School, who spearheaded the Food is Medicine State Plan along with Community Servings, a Boston-based nonprofit that provides food services to people with critical and chronic illnesses.
“We want to make sure that we bring those resources to western Mass as well. And so the Food is Medicine State Plan is an attempt to do that, right, to figure out where the resources are across our state and where the need is,” said Sarah Downer from the Center for Health Law and Policy Innovation of Harvard Law School.
Downer told 22News, it’s been a year and half of gathering data to finally release the State Plan in June of this year. “That will begin the kick off of the implementation of the recommendations and the blueprint for expansion of services that we’ve created,” she added.
The state’s Department of Agriculture Assistant Commissioner Ashley Randle told 22News, the passing of the 2018 federal farm bill helped Franklin County farms produce the food needed to help make programs like Food is Medicine possible.
“There’s a lot of growth in the area; in the amount of farmland and their production levels, and for our farmers they’re looking to produce a wholesome, healthy, high-quality product from the Berkshires down to the Cape,” said Randle.
The upcoming launch event will be held at the State House in Boston on June 18.
After years of advocating for Vermont prisoners to have access to life-saving medication for Hepatitis C Virus (HCV), the ACLU of Vermont and the Center for Health Law and Policy Innovation at Harvard Law School, with cooperating counsel James Valente, yesterday filed a class action lawsuit challenging the state’s refusal to treat hundreds of inmates diagnosed with chronic Hepatitis C. The case was filed in the federal district court in Burlington on behalf of two Vermont prisoners, Richard West and Joseph Bruyette, who seek to represent a class of inmates who have been or will be denied treatment without medical justification.
The Plaintiffs assert the Agency of Human Services (AHS), Department of Corrections (DOC), and Centurion of Vermont’s systematic denial of the HCV cure to prisoners diagnosed with chronic HCV violates the Eighth Amendment’s prohibition on cruel and unusual punishment as well as the Americans with Disabilities Act. They are asking the court to end the Defendants’ policy of categorically denying effective, efficient, and medically appropriate HCV treatment.
ACLU of Vermont Staff Attorney Jay Diaz: “State officials are purposefully withholding the cure for Hepatitis C from hundreds of Vermont inmates, many of whom would have received it long ago if they were not imprisoned. This is not only inhumane and short-sighted—it is unconstitutional. Vermont cannot rely on cost considerations to try to justify unlawful treatment of the people in its care and custody.”
Hepatitis C is a progressive infectious disease—identified by the CDC as the deadliest infectious disease in America—that if left untreated is likely to cause a variety of medical symptoms, including permanent liver damage, and in some cases, cancer and death. More than five years ago, the FDA approved breakthrough medication with few side effects that effectively cures the disease.
After years of advocacy by the Vermont Coalition for Access to HCV Treatment, of which the ACLU of Vermont is a member, in 2018 DOC began to provide the cure to some inmates on a more regular basis, but still denied it to the vast majority because of the associated expense. Prior to this lawsuit, Coalition members appealed to DOC to stop denying access to the HCV cure to the hundreds of other Vermont inmates who were categorically excluded. DOC refused and to date has only treated about one-fifth of the more than 300 people with chronic Hepatitis C it has identified.
Kevin Costello is the Director of Litigation for the Center for Health Law and Policy Innovation of Harvard Law School: “Hepatitis C is responsible for more deaths in the United States than any other infectious disease by a mile. There is no medical reason to actively prevent hundreds of incarcerated people from receiving curative medications for Hepatitis C. In fact, the refusal to treat prisoners needlessly prolongs suffering and heightens the risk of serious health problems for a group of people who are completely at the mercy of the State of Vermont to provide their health care.”
Similar lawsuits challenging denial of Hepatitis C treatment to individuals in state custody have been won or favorably settled by ACLU affiliates and other organizations in several states, including Colorado, Florida, Massachusetts, Missouri and others, with more cases pending in additional states.
The plaintiffs are represented by the ACLU of Vermont, Harvard Law School’s Center for Health Law and Policy Innovation, and the law firm of Costello, Valente & Gentry.
Originally published by Healio on May 20, 2019. Written by Janel Miller.
The Justice Department brief filed on May 1 amounts to the Trump administration picking and choosing what parts of the Affordable Care Act should stay in place and also suggests it does not understand the law, experts told Healio Primary Care Today.
“The administration wants to keep the components of the law that will help it the most and remove the components that help the American people the most,” Nancy Nielsen, MD, PhD, a former senior advisor at CMS while Barack Obama was president, who is now the senior associate dean for Health Policy at the University at Buffalo, said in an interview.
“This latest brief is tortured legal reasoning,” Phil Waters, JD, clinical fellow at the Center for Health Law and Policy Innovation at Harvard Law School added.
Background of latest brief
In December 2018, a district judge from Texas ruled that when Congress eliminated the penalty for not buying health insurance, the individual mandate was no longer constitutional under Congress’ taxation powers and thus, the ACA should be nullified. The Attorney General at the time, Jeff Sessions, declined to defend the ACA but did not say the entire law is unconstitutional.
In April, the Department of Justice asked the 5th District Court of Appeals in a two-sentence letter to affirm the District Court opinion. Then on May 1, the Justice Department filed a 50-page brief with the Court of Appeals, asking a federal appeals court to overturn the ACA. According to Health Affairs, oral arguments could take place between July 9 and 12, with the loser of those arguments undoubtedly appealing to the U.S. Supreme Court.
Nielsen said the newest brief adds a new layer of questions surrounding ACA’s legality, a debate that has been raging almost since the ink dried on the original ACA agreement almost 10 years ago.
“This is the third position the Justice Department has taken on this case that was considered down in Texas,” she said. “The May 1 Justice Department brief suggests that it is now taking the stance that all the ACA is unconstitutional. But it claims that since provisions like increased penalties for fraud and kickback don’t apply to the states, the Justice Department wants those parts to stay,” Nielsen told Healio Primary Care Today.
“In this 50-page brief, the Justice Department also repeatedly refers to the case where Supreme Court Justice John Roberts said the individual mandate was permissible. That case was considered a loss to conservatives, and a Republican-led administration referring to the dissenting side of a case that they lost to make the case for why they should win is not something I can recall happening before,” she continued.
Waters provided some hints to the Trump administration’s mindset.
“Its position on appeal is generally identical to the plaintiffs in the lower court who argued that the entire ACA is invalid. It believes that because the 2017 Congress reduced the individual mandate’s tax penalty to $0, it could no longer be upheld as constitutional. This alone would not matter much, as the mandate has little consequence without an enforcement penalty. However, the argument is that in addition to the mandate the rest of the ACA must also be invalidated; because when Congress enacted the ACA it expressly found that the community rating and guaranteed issue provisions were intertwined and essential to the mandate, these provisions cannot be severed from the rest of the law and therefore the entire ACA must be declared unconstitutional,” he said in an interview.
“The administration argues that in addition to having to purchase insurance, as the mandate is still law despite the lack of an enforcement mechanism, the plaintiffs are also harmed by the fact that the mandate ‘limits choices’ that they would otherwise prefer. This, in their view, is sufficient enough to allow them to challenge the entire ACA, even if, as they concede, the insurance reforms in question are constitutional standing alone,” Waters continued.
He suggested that the administration’s rationale indicates it does not understand the severability doctrine. “When one part of a law is found to violate the Constitution, [that] doctrine asks: does the entire law fail or is the law ‘severable’ such that only the offending provisions are invalidated?” he said.
“On this issue, congressional intent is highly dispositive. If part of a law is found to violate the Constitution, judicial restraint requires that courts only invalidate the portion of the law that is now unenforceable or unconstitutional as opposed to the entire legal scheme. This reinforces the principle of separation of powers — the judicial branch will avoid invalidating as much of the congressional branch’s work as possible,” Waters continued.
Nielsen added that the timing of these recent actions, coupled with the fact that there are several justices on the Supreme Court appointed by Trump cannot be ascribed to luck.
“The Trump administration is going into contortions to try and get what they want. What they want is to return this to the Supreme Court, which has a much different make up, a more conservative majority than before. Their end game is clear, and it’s nuts,” she said.
While Nielsen did not want to speculate on which might side win this legal round, Waters offered a possibility.
“Given the severability doctrine and the many obvious holes in the Administration and Plaintiffs’ legal reasoning, I am cautiously optimistic that the Court of Appeals will overturn the lower court’s decision. If it doesn’t, I am equally optimistic that even a conservative Supreme Court will,” he said.
The AMA, American Academy of Family Physicians and ACP have previously indicated they want the lower court decision overturned, stating that a Supreme Court decision to the contrary would eliminate individual marketplace and subsidies based on income, Medicaid eligibility expansion, coverage for certain preventive services, protections for pre-existing conditions and coverage for children under their parents’ health insurance plan until age 26; remove the 85% medical loss ratio insurance companies are currently obliged to follow; and reinstate annual and lifetime dollar limits to health care coverage.
Healio’s Health Care and Politics Resource Center includes the latest news on health care laws, proposals, regulations and policies in the United States and how they are likely to affect clinicians and patient care. In addition, this page features expert opinions on the impact of health care reform on clinical practice across a wide range of specialties. Be sure to bookmark the page for future reference.
Food insecurity and malnutrition are major drivers for poor health outcomes, population disparities and soaring health care spending. Roughly one out of every ten households in Massachusetts struggle with food insecurity, causing the state a staggering $1.9 billion in avoidable health care costs each year. Nutrition is increasingly recognized as a key social determinant of health because poor diet and food insecurity are connected to chronic health problems and frequent use of costly medical services.
A growing body of research shows that connecting medically complex individuals to Food is Medicine interventions, such as medically tailored meals (MTMs), is an effective and low-cost strategy to improve health outcomes, decrease expenditure of health care services, and enhance quality of life for these individuals.
Leading Food is Medicine researcher, Dr. Seth A. Berkowitz, in collaboration with Community Servings and the Massachusetts Department of Public Health, has released a new study that examined the association between participation in a medically tailored meals program and health care utilization and costs. This rigorous two-year cohort study, supported by Robert Wood Johnson’sEvidence for Action Program, is the largest study to date, with 499 MTM recipients, matched to 521 nonrecipients for a total of 1020 study participants.
Participation in the medically tailored meals intervention was associated with significantly fewer inpatient admissions and fewer skilled nursing facility admissions.
The study model estimated that, had everyone in the matched cohort received MTMs, average individual monthly health care costs would have been $3,838 vs. $4,591, a difference of $753.
This difference translates to a net reduction of approximately 16% in average monthly health care costs.
The findings from this study align with Community Servings’ 2018 study on dually eligible Medicaid and Medicare beneficiaries, which also found a 16 percent net reduction in health care costs for participants who received medically tailored meals. The new study builds upon this earlier research, which was restricted to Medicare-Medicaid dual eligibles, by highlighting the potential benefits of medically tailored meals for a broader segment of the population, including participants in Medicare, Medicaid, and private insurance.
The ability to address nutritional needs in the context of health care is becoming increasingly important for improving population health, particularly for the nation’s most vulnerable groups. Food is Medicine interventions play an important role in managing and even preventing many of the chronic diseases that drive health care costs across the nation. Medically tailored meal programs represent promising interventions and deserve further study as we seek improve both health and the value of health care in the U.S.
CHLPI will continue to monitor developments on Food is Medicine research. Please check back with us regularly for news and updates!
Originally published by Healio on April 9, 2019. Written by Janel Miller.
Legal and political battles have put the fate of the Affordable Care Act, and health care for millions of Americans, back into the spotlight and ensure that it will play a pivotal role in the 2020 elections.
Last week, the Justice Department submitted a two-sentence letter to United States Court of Appeals for the 5th Circuit in which it stated that the Court of Appeals should affirm a December 2018 Texas District Court opinion holding the entirety of the Affordable Care Act to be unconstitutional. In 2018, under then-Attorney General Jeff Sessions, “the Department of Justice declined to defend the ACA in this case but did not go so far as to argue the entire law is unconstitutional,” Amanda C. Pustilnik, JD, a law professor at the University of Maryland, told Healio Primary Care Today.
“Now, under current-Attorney General William Barr, the Justice Department has endorsed the 2018 decision and will file a brief urging the appellate court to affirm the lower court’s complete invalidation of the ACA,” she continued.
The consequences of the circuit court concurring with the district court could be dire, according to Michele Goodwin, JD, the University of California Irvine School of Law Chancellor’s professor.
“The ACA would be completely eliminated, which would also remove some of the constitutionally-protected principles within the ACA. For example, the term ‘pre-existing’ would become whatever insurance companies want it to be, such as a second pregnancy, a recurrence of cancer, or other similar medical scenarios,” she said in an interview.
Robert Greenwald, JD, faculty director of the Center for Health Law and Policy Innovation at Harvard Law School, concurred with Goodwin on the consequences of the ACA repeal.
“If the lower court’s decision is affirmed, it would topple the entire ACA, including provisions entirely unrelated to the individual mandate such as the expansion of the Medicaid program. This would do untold damage to our health care system. It would leave over 20 million additional people uninsured,” he said in an interview.
Goodwin said historically United States Court of Appeals for the 5th Circuit usually leans conservative when rendering decisions, but that does not necessarily mean history will repeat itself.
Greenwald said he was “cautiously optimistic” the United States Court of Appeals for the 5th Circuit will keep ACA in place, since the district judge’s ruling has no legal footing to stand on.
“The Texas decision flies in the face of the severability doctrine that requires judges to leave what Congress did as undisturbed as possible. Congress could have eliminated any other part of the ACA in addition to the mandate or all of the ACA, but chose not to. The ACA has survived many challenges. This brief is not going to be the instance that takes the ACA down,” he said.
Many conservative legal analysts and the Republican Attorneys General of Montana and Ohio have criticized the legal underpinnings of the Texas District Court ruling, and have filed amicus briefs with the United States Court of Appeals for the 5th Circuit opposing the decision, according to NBC News.
However the Court rules, appeal to the Supreme Court is likely, where the ACA would face a more conservative bench than it faced in previous decisions.
“Chief Justice John Roberts has already presided over two cases in which a majority of the court held the individual mandate to be constitutional. Neither Justice Roberts nor the two new justices, Neil Gorsuch and Brett Kavanaugh, believe it is the role of judges to legislate from the bench,” Pustilnik said. “Perhaps these justices will resist being used as a tool in the political strategy of repeal and replace, which is the job of Congress, not the courts.”
Medical societies respond
The Justice Department’s action prompted many medical societies to renew their concerns about the potential fallout from a complete repeal of the ACA without replacement legislation in place.
The AMA, American Academy of Family Physicians, ACP, AAP and the American Psychiatric Association collectively filed an amicus brief with the Court of Appeals “in defense of significant coverage gains and key patient protection provisions of the ACA,” according to a press release.
Barbara L. McAneny, MD, AMA president, said that the district court ruling being upheld “would wreak havoc on the entire health care system, destabilize health insurance coverage, and roll back federal health policy to 2009.”
These societies argued that the District Court decision would no longer allow children to remain on their parents’ insurance plans until they turn 26 years of age, would allow insurance companies to generate higher profits at the expense of coverage and payments for services, would eliminate need-based subsidies as well as federal funding for Medicaid expansion and Medicaid eligibility expansion and would reinstitute annual and life-time dollar limits.
The American Cancer Society Cancer Action Network, American Heart Association, American Liver Foundation, American Lung Association, Arthritis Foundation, COPD Foundation, Crohn’s & Colitis Foundation and National Psoriasis Foundation were among 26 societies that issued their own statement that expressed concern if the district court decision was upheld.