Top 10 Health Rights Gains

8/9/2019 Top 10 Health Rights Gains

1/65

Top 10 Health Care Rights Gainsof the Past 50 Years

Mount Holyoke College 50 th Reunion

Fran Miller

Visiting Professor of Law

University of Hawaii at ManoaProfessor Emerita, Boston University

1


2/65

Defining Health Rights What is a health care right?

Lawyers answer: it depends . . . Answdepends . .

Different people

Different purposes Different contexts Different definitions

2


3/65

Defining Health Rights The lawyers method of analyzing rights:

Constitutional? Judicially enforced? Legislatively created? Ethically mandated? Aspirational?

Lawyers tend to focus on enforcementpotential

3


4/65

State of Patient Health Rights 50

Years Ago Institutional responsibility

& accountability for public

health comparatively slight

Significant % of the

elderly & poor lackedhealth insurance

4

The good news is thatits not my problem.


5/65

5

Research subjects(almost) literallyhuman guinea pigs

Not so much doctorscould do for patients,comparatively

50 Years Ago, cont.


6/65

So What Have the Top 10 Patient HealthRights Gains Over Past 50 Years Been?

Constitutional, judicial, legislative,

ethical, or aspirational? Earliest to latest, or vice versa?

Most important to least?

6


7/65

The Letterman Approach

My choices for top 10patient health rightsgains of the past half

century follow, inascending order of

importance:

7


8/65

# 10 The Rise of Corporate

Responsibility

8


9/65

# 10 - Rise of Corporate Responsibility

The WorkplaceSafety rules

Anti-pollution measures

Superfund clean-upresponsibilities

9


10/65

10

# 10 (cont.) The Rise of CorporateResponsibility

The Board Visits the Lab, circa 1970

The Health Sector


11/65

# 10 (cont.) The Rise of Direct

Corporate Responsibility Hospitals & Other Institutional Providers

Held Directly Accountable for Quality of Care

Managed Care Organizations directlyaccountable too

11


12/65

# 9 Required Nutrition Information

12

Congress &

theFDA joinforces toempower

consumers


13/65

# 9 Required NutritionInformation (cont.)

13


14/65

# 8 Vaccines Eliminate Many

Childhood Diseases

14

Polio cases declined from 58,000 in 52 to161 in 61, eliminated in the Americas by 94

(vaccination tied to school attendance)


15/65

#7 - Patient Autonomy Enhanced:(a) Pt-centered Standards of Disclosure

Adopted for Informed Consent toMedical Treatment

15


16/65

# 7 (b) Autonomy Rights of

Incompetent Patients Protected

16

Cruzan v. Director, MissouriDepartment of Health , 497 U.S. 261

(1990)


17/65

# 7 (c) - Human Rights in Medical

Experimentation Protected

17

Research subjects protectedvia OHRP common rule if

federally funded, or resultsdestined for FDA

Doctor seeking patient consent

has fiduciary duty to disclosepersonal interests unrelated topatient health


18/65

18

Jesse Gelsinger Case:Dr. James Wilson, ConflictedPenn Researcher

"To suggest that I acted or was influenced bymoney is really offensive to me. I don't think about how my doing this work is going to makeme rich. It's about leadership and notoriety andaccomplishment. Publishing in first-rate journals.That's what turns us on. You've got to be on thecutting edge and take risks if you're going to stayon top.

Deborah Nelson, and Rick Weiss, Hasty Decisions in the Race to a Cure?: Gene Therapy StudyProceeded Despite Safety, Ethics Concerns , The Washington Post, November 21, 1999, at A01;Robin Fretwell Wilson, Estate of Gelsinger v. Trustees of University of Pennsylvania: Mone y,Prestige, and Influence in Human Subjects Research , Cases In Context: Health Law and Bioethics(Sandra Johnson, Joan Krause, Richard SSaver, & Robin F. Wilson eds., Aspen Publishing 2008).


19/65

# 6 -The US Got Serious About

Smoking Hazards

19

1965: Smokers = 42.5%of US population

Males: 51.9%Females: 33.9%

Whites: 42.1%Blacks: 45.8%


20/65

#6 (cont.) Smoking Hazards

20

1965 - Congresspassed legislationrequiring SurgeonGenls warning oncigarette packages

2006 Only 20.8% ofUS adults smoke30 years later (rate cut in )


21/65

#6 (cont.) Smoking Hazards 1969 Cigarette advertising

prohibited on all TV & radio

1990 Smoking banned oninterstate buses & domesticflights of < 6 hours

90s & 00s State & local bans on smokingin workplaces, restaurants, schools,hospitals, etc. 21


22/65

22

#5 (a) Womens Reproductive RightsEnhanced

FDA Approved Enovid OralContraceptive (1960)


23/65

#5 (b) - Womens Reproductive

Rights Protected

23

Roe v. W ade , 410 U.S. 113 (1973)


24/65

#4 - Patient Safety Movement

24

Institute of Medicines1998 study galvanized

the patient safetymovement with:

Medical care is the8 th leading cause ofdeath in the U.S.


25/65

#4 - Patient Safety Movement Focused attention

on inherent dangersof health care Surgery Medication errors Infection Systems Errors 25


26/65

26

WATERSHED MOMENT:

Social Security Act of1965 establishedMedicare & Medicaid

# 3


27/65

# 3 (cont.) - Medicare & Medicaid

Revolutionized US Health Care Only 56% of elderly

had hospital insurancein 65 just 45 yrs ago

Uninsured elderly and poor got onlysporadic care

Medicare & Medicaid nowinsure > 1/4 of US population

27


28/65


29/65

#3 -Medicare/Medicaid

Revolution (cont.) US spent $2.5 trillion on

health care in 2009 More than we spend on food, or housing,

or education, or defense

Health care = (+/) 17% of GDP Medicare/Medicaid (& other govt.

programs) now finance of all US care29


30/65

#2 - The Patient Protection & Affordable Care Act of 2010

Comprehensive reform withan incremental soul

- Ezra Klein, Washington Post 30


31/65

Fundamental Focus of Reforms

31

1.

Improve dysfunctional & costlyinsurance markets for individuals &small businesses

2. Expand Medicaid coverage for the poor


32/65

Re Federal ComprehensivenessIndividual mandate will add 34million new US insureds by 2014

32


33/65

33

Fundamental Culture Shift at

the Federal Level

Purchase of affordable health ins =individual responsibility & obligation

(with employer & govt contributions )


34/65

Uwe Reinharts 3-legged stool1. Universal mandate2. Subsidies for those who cant

afford ins3. Insurers must accept all comers

34


35/65

The Basics Re Expanded

Coverage U.S. Citizens & Legal Residents MustHave Qualifying Coverage by 2014

Medicaid expansion for 17M new insured New ins exchanges to enroll 17M more

94-95% of US population to be insured

by 2014 (up from current 84%)

35

Insured - 2014 Insured - 2010


36/65

Medicaid Expansion Medicaid expanded to all individuals under

65 with incomes


37/65

New State Health Benefit Exchanges &Small Business Health Options

Programs Link individuals lacking access to

employer-sponsored insurance, & Firms w


38/65

Premium & Cost-Sharing Subsidies

to Purchase Health Insurance Individuals & families w incomes between

133-400% federal poverty level getrefundable & advanceable premium creditsto buy insurance thru state ins exchanges

Cost-sharing premium subsidiesfor eligible individuals & families

38


39/65

Individual Mandate Enforced

Through Internal Revenue Code

39

Starting in 2014,Individuals faceincreasing taxpenalties if no

health insurance


40/65

Tax Penalty

$695/year up to max of 3x that amt($2,085)/family, or 2.5% of household

income (by 2016) Annual cost-of-living adjustmentspost-2016

Exemptions for financial hardship,religious objections, those w incomesbelow tax filing threshold,* etc.

* $9,350 for singles, $18,700 for couples in 09 40


41/65

No Prior AuthorizationRequirements for Women To See

Ob-Gyns

41


42/65

42

No Co-insurance or Deductibles for

Certain Preventive Services for Women


43/65


44/65

Pre-existing Conditions Insurers can no longer reject applicants

with pre-existing conditions Or charge them exorbitant rates

44


45/65

45

No Rescission of Existing

Policies for Illness


46/65

46

Lifetime Caps on Insurance

Benefits Eliminated after 2014


47/65

47

Insurers Must Permit Children to

Remain on Family Policies Thru Age 26


48/65

Medicare Prescription Drug

Changes Part D donut hole* will be filled by 50%

prescription drug discount in 2011 By 2020, cost-sharing obligations within

gap reduce to 25%

* Donut hole eliminates Medicare coverage of prescription drugexpenditures between $2830 and $6440 (in 2010)

48


49/65

Comparative Clinical

Effectiveness Research Establish non-profit Patient-Centered

Outcomes Research Institute tocompare clinical effectiveness of medical treatments

49


50/65

Who Benefits from Reforms? Patients: almost everyone insured Doctors: more insureds = more

reimbursement Hospitals: more insureds = less

uncompensated care Ins. Companies: more insureds = bigger

market Pharmaceutical Manufacturers:

more insureds = bigger markets50


51/65

#1 - The Internet

51


52/65

Knowledge = Power The Internet Devolves Power Down to End Users

John Perry Barlows famous 1996declaration of Internet freedom:Governments of the Industrial World, youweary giants of flesh and steel, I come

from cyberspace, the new home of Mind . . . . You are not welcome among us. You have no sovereignty where wegather." 52


53/65

Public Health Harnesses the Power of the Internet for

Patients Providers Researchers Government Public Health

Officials Payors

53


54/65

Why Did We Have Such TroubleGetting The Patient Protection & Affordable Care Act Enacted?

Follow the money!

54


55/65

55

Uh-oh . . . .


56/65

56

Big Time Uh-oh!


57/65

The Elephant in the Room

That Everyone Sees: Costs

57


58/65

Costs of Federal Reform Will cost govt about $938 billion over

10 years, acc. to nonpartisan Cong.Budget Office (we spend $2.5+ trillionannually now)

Should reduce federal deficit by $138billion over decade

58


59/65

Medicare Payment &

Service Delivery Reforms Value-based purchasing

programs

Quality reporting

Pilot programs onpayment bundling

59


60/65

Limits on Insurance Adm. Costs

& Executive Compensation New limits on adminstrative costs & executive

compensation*

Violations will trigger subscriber rebates

* Starting Sept. 2010 60


61/65

Insurance Costs of enrollees in nongroup plans

will qualify for federal subsidies

Average costs lowered for middle- and moderate-incomefamilies by about 60 percent

61


62/65

Cost Controls: Individual

Incentives Excise tax on Cadillac Plans starting in

2020

Threshold for itemized medical expensededuction increased from 7.5% of adjustedgross income to 10% of AGI 62


63/65

63

Watch out for the messagesit delivers


64/65

64

What Will Be the Top 10 HealthRights Advances over the

Next Half Century? I Know Whats #1

on My Wish List`


65/65

65

Single Payer Health Insurance

Documents

Top 10 Health Rights Gains