Thursday, August 7, 2014

Fifty Years After the Civil Rights Act: Celebrating the Latest Milestone on the Journey Toward Racial Equity in Health Care

Fifty years ago this July, President Lyndon B. Johnson signed into law the Civil Rights Act of 1964. The Civil Rights Act was viewed by many as a powerful symbol of the nation's commitment to racial equality. It was the most comprehensive civil rights law enacted up to that point - tackling discrimination in employment, education, voting, public accommodations, and federally funded programs, such as those financing health care. And although health care discrimination has not typically garnered as much attention as discrimination in other settings, inequality in health care was seen as a serious problem that the Civil Rights Act was needed to address.

People understood that good health was integral to one's ability to realize the other opportunities protected by the Act, such as finding employment, getting an education, and being an engaged citizen. In addition, discrimination in health care was pervasive and often had dire consequences. Many hospitals and physicians refused to treat Blacks because of their race; this included women in labor, patients with serious illnesses that could have debilitating effects, and even people in need of emergency, life-saving treatment. Indeed, civil rights leader Dr. Martin Luther King, Jr. is reported to have said that "Of all the forms of inequality, injustice in health care is the most shocking and inhumane."

Title VI of the Civil Rights Act, which prohibits discrimination on the basis of race, color, or national origin by recipients of federal funds, has been an important tool for fighting discrimination in health care. In theory, tying anti-discrimination protections to federal funding would give the government greater leverage to enforce Title VI against health care providers who wanted those funds. In reality, Title VI's power as an anti-discrimination tool depended on the federal government's willingness to devote significant resources to health care to ensure that this leverage existed.
And the government did this, just one year later in July 1965, when President Johnson signed legislation creating the Medicare and Medicaid programs. Medicare is the federal social insurance program that finances care for the aged and disabled. Medicaid is the joint federal-state insurance program for the very poor, and it initially covered only certain categories of the poor -- the disabled, children, and pregnant women. It did not take hospitals long to realize the value of these programs as a reimbursement source, and this gave the federal government the economic leverage it needed to force hospitals to adopt new policies prohibiting racial discrimination. In fact, it is Medicare and Medicaid, operating in conjunction with Title VI, which have been credited with bringing about the early reduction of racial disparities in health care access.
But progress has been limited. Although Title VI helped root out some of the most egregious and easily identifiable forms of intentional discrimination by health care facilities, racial disparities have persisted. And as important as Medicaid and Medicare were in helping to reduce disparities in access, they left significant holes in the safety net that have disproportionately impacted racial and ethnic minorities. For decades, the federal government has been criticized for designing narrow eligibility categories for Medicaid and Medicare based on arbitrary assumptions about which groups were "deserving" of federal help. This line-drawing left many people without insurance through no fault of their own. For example, the working poor tended to make too much to qualify for Medicaid, but they also tended to work in jobs that did not provide employment-based insurance. The individual insurance market was typically not a viable option because of the escalating costs of insurance in a largely unregulated market and because insurance companies could refuse to cover people they considered "high-risk."
While these barriers have affected people of all races, it should not be surprising that racial and ethnic minorities, especially Blacks and Latinos, have been at greater risk for falling through these gaps. The Kaiser Commission on Medicaid and the Uninsured reports that, as of 2011, 70% of Black workers and 79% of Hispanic workers were employed in blue-collar jobs that typically provided low wages and were less likely than white collar jobs to offer health insurance coverage. People of color have also been more likely to suffer from the kind of chronic medical conditions that make them high-risk to insurance companies. As a result, people of color have been disproportionately represented among the uninsured.
Title VI has been understood by courts primarily as a right to be free from intentional discrimination, not as guarantee of equal access to health care for everyone. Achieving health care equity, many have argued, would require creating a new legal right to health care that ensures access for everyone. How fitting, then, that as we celebrate the 50th anniversary of the Civil Rights Act, we are witnessing the most significant expansion of health care access and rights since the creation of Medicaid and Medicare. In 2010, President Barack Obama signed the Patient Protection and Affordable Care Act (ACA) into law. The ACA is a massive health care reform package whose myriad legal reforms are being implemented in multiple phases over several years. But 2014 is a particularly noteworthy year because this is the year in which the two most significant pieces of reform - the public and private insurance expansions - are being rolled out.
The Medicaid expansion finally extends eligibility to include almost all adults whose income falls below a certain threshold; important eligibility restrictions on immigrants remain, however. The private insurance expansion depends on a system of insurance reforms and public subsidies that are designed to increase coverage in the individual insurance market. Under this new system, insurance companies can no longer refuse to cover people. In addition, the availability of public subsidies, in combination with rate regulation, is supposed to keep insurance affordable so that people with low and moderate incomes (up to 400% of the federal poverty level) are not priced out of the market. It was predicted that full implementation of these public and private expansions would reduce the number of uninsured by over 23 million people.
The Obama administration, health and civil rights advocates, and policy analysts have specifically touted the potential of these expansions to reduce racial and ethnic disparities in health care access. For the same reasons that people of color were at greater risk for being uninsured under the old system, they are likely to fall into the categories that would benefit from the expansion under the new system: the Kaiser Commission on Medicaid and the Uninsured reported that given the low incomes of uninsured Blacks and Latinos, nearly all of them (94% and 95%, respectively) would be eligible for the new Medicaid limit or for public subsidies to help them purchase insurance. And the latest enrollment survey from Kaiser confirms that the ACA is already making a difference: just over 60% of eligible Blacks and Latinos have gained coverage under the ACA.
The public and private insurance expansion occurring this year is momentous, yet there are several reasons why we should be cautiously optimistic about its potential to help achieve health care equity. First, the ACA does not create a universal health care system; its goal is to achieve "near-universal" coverage, but millions are expected to remain uninsured even with full implementation of the ACA. The uninsured are most likely to be immigrants who are not legal residents, people not required to buy insurance because it is deemed unaffordable, and individuals who choose to pay the tax penalty instead of buying insurance.
Second, legal challenges to the ACA threaten to undermine full implementation, exacerbating coverage gaps and access disparities. One of the most significant gaps in reform was created by the Supreme Court in its decision in National Federation of Independent Business v. Sebelius. The Court ruled that the federal government could not require states to expand Medicaid, effectively giving them a choice about whether or not to opt in to the expansion. So far, only twenty-six states have chosen to participate in the expansion, and a few others are exploring expansion alternatives. For states that have chosen not to expand, the traditional and narrow Medicaid eligibility categories apply. Another potential problem is occurring in states that have not created their own health exchanges to facilitate the private insurance expansion. Residents of these states must depend on the new federal health exchange to buy insurance, but current litigation by reform opponents alleges that public subsidies cannot be used to purchase insurance on the federal exchange. If they are successful, this means that insurance will not be affordable for the low and moderate income residents in these states.
Finally, even in states that have embraced public and private expansion, there have been problems in implementation that undermine the ACA's potential to reduce disparities. Some of the more well-known problems include the health exchange website glitches that made enrollment difficult initially, as well as inaccurate plan information that has undermined consumers' ability to make informed shopping decisions and eroded trust. But there has also been a problem with flawed outreach to limited-English speakers that has resulted in an underrepresentation of some ethnic groups otherwise eligible for Medicaid and public subsidies. This is true even in states like California, which has a significant population of limited-English speakers who are also relatively healthy and thus considered to be very desirable from a marketing perspective: exchange officials want to attract and enroll these groups through the state's health exchange (Covered California) because the exchange's success depends on robust enrollment by healthy consumers. Thus, many people were surprised to learn that early enrollment among Latinos was low due to marketing mistakes, poorly translated educational materials, a shortage of Spanish-speaking enrollment counselors, and a lack of paper applications in Spanish. These cultural and linguistic challenges seemed even greater for applicants whose primary language was not English or Spanish; although Covered California made information available in the thirteen most commonly spoken languages, many organizations reported running out of materials faster than Covered California could produce them.
These and many other enrollment challenges are documented in a report by the Greenlining Institute, titled Covered California's First Year: Strong Enrollment Numbers Mask Serious Gaps. The report concluded that cultural and linguistic differences remain one of Covered California's most pressing problems and that Covered California needs to improve outreach to diverse communities. California's experience presents an important cautionary tale about the promises of the ACA to achieve health equity -- one that other states and the federal government should heed as well.
The good news is that federal regulators and states are learning from their mistakes and working to correct these problems in order to achieve better and more equitable enrollment outcomes next time. Moreover, the federal government acknowledges that the problem of racial and ethnic disparities cannot be solved by merely expanding insurance. Many factors contribute to this problem, and federal regulators are taking a variety of steps to reduce health disparities through the ACA and other important initiatives. Even with the ACA, there is much left to do in order to achieve true racial and ethnic equality in health care. Still, as we reflect on the fifty-year journey toward health care equity since the Civil Rights Act, we should take a moment to celebrate this latest milestone.

Wednesday, July 23, 2014

Ban on "Gay Conversion Therapy" for Minors is Safe for Now, But What's Next?

This Supreme Court term has been another important one for health care. In particular, the Supreme Court was presented with several cases that questioned the scope of the government's power to enact laws relating to health care access or quality, when such laws are viewed by those subject to the regulation as a burden on free speech or religious freedom.

The two cases receiving the most attention were Burwell v. Hobby Lobby and McCullen v. Coakley; in these cases, the Supreme Court limited the government's regulatory power in ways that many fear will undermine health care access. Hobby Lobby held that three closely held, for-profit corporations did not have to comply with a federal prescription contraception mandate, because it would be contrary to the religious beliefs of the companies' owners; McCullen invalidated a state law creating a 35-foot buffer zone around any clinic performing abortions, finding it an unconstitutional restriction on the free speech of anti-abortion protesters. You can learn more about these cases, at my post titled Supreme Court Update: Abortion, Contraception, & "Gay Conversion Therapy."

But there were two other important cases that have not received much attention by the mainstream media - Pickup v. Brown and Welch v. Brown. Pickup and Welch involved constitutional challenges to a California ban on the practice of "gay conversion therapy," also termed Sexual Orientation Change Efforts (SOCE), by health professionals on minors. The Ninth Circuit upheld the SOCE ban as a legitimate exercise of the state's power to regulate mental health professionals. Challengers of the ban - SOCE practitioners, SOCE advocacy organizations, and parents wanting SOCE for their children - petitioned for certiorari by the Supreme Court; but the Supreme Court issued an order declining review, effectively leaving the SOCE ban in place.

Health law scholars and advocates have been watching these cases closely because of the growing number of examples of free speech or religious freedom claims being used to defeat, avoid or invalidate important health protections. The Supreme Court did not explain its reason for denying certiorari in these cases, so trying to predict the constitutional implications of this denial is difficult and probably unwise. Nonetheless, this decision is noteworthy for two reasons. First, it leaves in place a health care regulation that is important for protecting the mental and physical health of a particularly vulnerable population. Second, it lets stand a Ninth Circuit decision that explicitly affirms this governmental power and rejects an expansive definition of free speech rights that could be used to undermine similar protections in the future.

This rest of this blog provides more information on SOCE regulation, the legal challenges that have brought us to this point, and what may be next.

What is SOCE?
According to a Report of the American Psychological Association (APA) Task Force on Appropriate Therapeutic Responses to Sexual Orientation, the term SOCE refers to a variety of techniques that have been used to try to eliminate same-sex attractions in order to change an individual's sexual orientation from homosexual to heterosexual. Historically, SOCE has included both aversive and nonaversive techniques. Behavior therapists have tried a variety of aversive methods, such as inducing nausea, vomiting, or paralysis; administering electric shocks; or having an individual snap an elastic band around the wrist when aroused by same-sex erotic images or thoughts. More modern practices involve predominantly nonaversive methods, such as assertiveness and affection training with physical and social reinforcement, with the goal of increasing other-sex sexual behaviors. Cognitive therapists attempt to change sexual arousal, behavior, and orientation by reframing desires, redirecting thought patterns, or through hypnosis. The SOCE practitioners challenging current SOCE bans use nonaversive methods.
Why are states banning SOCE on minors?
SOCE began during a time when many medical and mental health providers considered homosexuality a disease that needed to be cured or treated. This was also a time when the mental and sexual health fields were still stigmatized and neglected by the mainstream scientific and medical communities. This meant that research into sexual attraction and behavior, the classification scheme used to identify and diagnose "sexual disorders," and "treatment" methods were not subject to rigorous objective or scientific research or review. Researchers and practitioners pathologized same-sex and gender nonconforming behavior at the outset, speculating that such behavior was caused by genetic defects or social conditioning -- theories which were later disproven. There was also inadequate oversight of mental health professionals, which meant that for many years practitioners were free to engage in ineffective and even harmful practices on vulnerable groups, like children who exhibited same-sex attraction or behavior that did not conform to gender norms.
Over time it became clear that claims that homosexuality was an illness could not stand up to rigorous scientific scrutiny. As a result, a number of professional organizations concluded that same-sex sexual attraction or identity was not an illness, and in the 1970s, homosexuality was removed from the Diagnostic and Statistical Manual of Mental Disorders. Around the same time, researchers questioned the efficacy and appropriateness of SOCE; a renewed focus on SOCE research exposed serious flaws in claims that SOCE could change sexual orientation identity and behavior, and those reviewing the research highlighted evidence of potential harm that had been ignored by SOCE proponents. Finally, researchers have been gaining better insight into the potential harms that could result from minority stress and stigma: the harms suffered by sexual minorities as a result of societal discrimination generally, and specifically how the pathologization of same-sex behavior by the mental health community contributed to these harms.
According to the APA Task Force Report, these developments, in conjunction with the growing importance of evidence-based mental health treatments among health professionals, led the mainstream medical and mental health communities to reject SOCE as a legitimate therapeutic practice. SOCE has been rejected by numerous professional organizations in addition to the APA, including the American Medical Association, American Academy of Pediatrics, American Psychiatric Association, Association for Behavioral and Cognitive Therapies, and the American Psychoanalytic Association. The prevailing opinion of the medical and psychological community is that SOCE is inappropriate because same-sex attraction is not a disease that needs to be treated or cured, that SOCE has not been shown to be effective at changing sexual orientation, and that SOCE creates a potential risk of serious harm, including depression, suicidal thoughts or actions, and substance abuse.
What specific practices are banned by the California & New Jersey SOCE laws?
Despite the overwhelming scientific consensus rejecting SOCE, it continues to be practiced by a small minority of licensed mental health practitioners and some unlicensed persons, on minors and adults. As result, health and LGB advocates, as well as some former SOCE recipients, have sought protection through the legislature. The first law directly regulating SOCE was enacted in California in 2012, and a similar one was adopted in New Jersey the following year.
The California and New Jersey bans are extremely limited in scope. First, they are part of the regulatory scheme for licensed mental health professionals only. These bans do not explicitly ban unlicensed persons, such as parents or religious leaders, from engaging in SOCE. Second, the laws are not an absolute prohibition on the use of SOCE by licensed professionals. The bans only apply to the use of SOCE on minors; they do not ban the practice on adults. In fact, both the California and New Jersey legislatures justified their laws as necessary to protect the physical and psychological well-being of minors. Finally, the laws do not prohibit licensed professionals from talking about or recommending SOCE to patients, or from referring patients to out-of-state SOCE providers.
To be clear, the fact that these SOCE laws do not expressly ban or limit these activities does not mean that SOCE practitioners can continue these activities without any fear of reprisal. LGB and health advocates, and individuals harmed by SOCE, are exploring a variety of legal means for limiting SOCE further and for holding SOCE practitioners accountable for resulting harms. This movement raises a number of legal issues not addressed by the current SOCE bans: whether unlicensed individuals using SOCE can be prosecuted for (or enjoined from) engaging in the unlicensed practice of psychology; whether SOCE practitioners who fail to disclose the most current scientific information questioning SOCE and identifying its risks can be sued for malpractice for failing to obtain patients' informed consent; and whether existing consumer protection and tort laws provide an effective remedy for patients who believed they were harmed by SOCE.
Thus, the following discussion of the constitutional challenges to existing SOCE bans must be understood within the very narrow context of the government's power to prohibit licensed health care professionals' use of SOCE on minors.
SOCE practitioners, SOCE advocacy organizations, and parents seeking SOCE for their children have sued state officials in California and New Jersey to try to invalidate the bans. Before summarizing the issues at stake in the case, I should disclose that I was part of a group of health law scholars who served as amicus curiae in support of California officials in the cases of Pickup v. Brown & Welch v. Brown before the Ninth Circuit, and in support of New Jersey officials in the King v. Christie case which is currently being appealed in the Third Circuit.
California Challenges Appealed to the Supreme Court, but Review is Denied
Plaintiffs challenging the SOCE ban in California have raised numerous constitutional arguments; but the one receiving the most attention, and the only claim so far to get any traction with a federal district court, has been the free speech claim.
In both Pickup and Welch, plaintiffs argued that the ban was an unconstitutional infringement on SOCE practitioners' First Amendment rights to free speech, and consequently their patients' rights to get SOCE-related information. This claim initially met with mixed success: the district court in Welch found that the plaintiffs would likely prevail on their free speech claim and that the balance of equities favored the plaintiffs, so it issued a preliminary injunction against the SOCE ban. A different judge in Pickup, however, came to the opposite conclusion; it denied the preliminary injunction, finding that the plaintiffs were unlikely to prevail on any of their claims. Both cases were appealed and consolidated for review by the Ninth Circuit, which undertook plenary review of the constitutional issues and upheld the SOCE ban.
The plaintiffs' free speech claims relied heavily on the fact that the therapeutic practices banned by the law were carried out through provider-patient communication, in particular the nonaversive methods of SOCE that only involve "talk therapy." Plaintiffs characterized the regulation of this talk therapy as a regulation of practitioner speech that necessarily implicated the First Amendment, and thus should be subject to a very high standard of review known as strict scrutiny. Under strict scrutiny, a law will only be upheld if it serves a compelling government interest and is narrowly tailored to that interest, which the plaintiffs argued the state could not show. The plaintiffs also argued that because the law targets SOCE, the state was engaging in the kind of content or viewpoint discrimination that typically cannot satisfy strict scrutiny. Finally, the plaintiffs' argued that even if the court did not find free speech rights implicated, and thus would only subject the law to the lower standard of rational basis review, the law should still be found invalid. They argued that California officials could not prove that the law was rationally related to a legitimate state interest because they could not prove that SOCE was ineffective or that it caused harm to children.
On appeal, the Ninth Circuit rejected all of these arguments in an opinion first issued in August 2013, and then amended earlier this year. As a threshold matter, the Ninth Circuit said that it must decide whether the First Amendment requires the court to apply heightened scrutiny to the ban, and that the first step in this analysis was to determine whether the SOCE ban was a regulation of speech or conduct. To determine this, the Ninth Circuit relied on its earlier decision in National Association for the Advancement of Psychoanalysis v. California Board of Psychology (NAAP) (2000). In NAAP, the Ninth Circuit rejected a similar challenge to California's licensing requirements for mental health providers: psychoanalysts who were not licensed in California brought a free speech challenge based on the fact that the license examination tested only certain psychological theories and required certain training; the plaintiffs in that case had studied and trained under different psychoanalytic theories.
The Ninth Circuit noted that in NAAP it specifically rejected the argument that just because psychoanalysis is the "talking cure," it deserves special First Amendment protection as "pure speech." The Ninth Circuit affirmed NAAP's reasoning that "the key component of psychoanalysis is the treatment of emotional suffering and depression, not speech." Applying this principle, the court held that the SOCE ban was a ban on a particular form of treatment, or professional conduct; it did not ban speech and thus should not be subject to strict scrutiny. The court also rejected the plaintiffs' characterization of the law as impeding patients' ability to get information about SOCE, because the statute expressly provided that it did not prohibit mental health practitioners from merely talking about SOCE or giving patients SOCE referrals.
In addition, the Ninth Circuit considered how the First Amendment has been applied to the regulation of professionals generally, and it described a continuum of First Amendment protection that varied based on the context and purpose of the regulated communication. At one end of the spectrum is public dialogue by professionals, where the personal nexus between professional and client does not exist; this is where First Amendment protection is greatest. At the other end of the spectrum, however, is professional conduct within the professional-client relationship, and this gets the least amount of First Amendment protection from government regulation. At this end of the spectrum, the state's regulatory power is great, even if the regulation has incidental effects on speech. The Ninth Circuit found that the SOCE ban, as a ban on conduct or treatment, fell at this end of the spectrum, which meant that the law need only be rationally related to a legitimate state interest. The Court held that "without doubt" protecting the well-being of minors was a legitimate state interest, and that the law was rationally related to this goal in light of the "overwhelming consensus" of professional organizations that SOCE could cause serious harm to minors.
Plaintiffs in both Pickup and Welch raised additional objections to the ban, but these arguments were also rejected and with a much shorter analysis. Plaintiffs argued that the law's regulation of speech was overbroad and too vague, but the Ninth Circuit disagreed based on what it found to be a clear and rational delineation of the banned conduct. The plaintiffs also claimed that the law was an unconstitutional infringement on their First Amendment right to freedom of association, which plaintiffs argued should protect the rights of providers and patients to enter into a therapeutic relationship. The Ninth Circuit rejected this argument as well. It first clarified that the ban did not, in fact, prevent plaintiffs from maintaining such relationships; and in any event, the court explained, the therapist-patient relationship has not been recognized as the kind of relationship protected by the freedom of association.
Finally, parents seeking SOCE for their children alleged that the ban infringed on their fundamental parental right to make important medical decisions for their children. Although the court acknowledged that parents do have a fundamental right to make medical treatment decisions for their children, it said this right was not absolute. The court cited many examples of the state's power to regulate the well-being of children in the health care arena, such as states' power to require compulsory vaccinations of children and their power to intervene when a parent refuses necessary medical care for a child. Perhaps more importantly, it observed that the Supreme Court has held that there is no constitutional right to a service or drug that has been reasonably prohibited by the government. Thus, parents cannot have a constitutional right to choose for their children a particular type of provider or treatment that the state has deemed harmful.
The plaintiffs appealed the Ninth Circuit's decision to the Supreme Court, but the Court denied review. The effect of this denial is to leave in place the current SOCE ban, and to let stand a Ninth Circuit decision that rejects an expansive understanding of free speech rights that could be used to undermine similar protections in the future.
What's Next
Constitutional challenges were recently brought in New Jersey to try to invalidate a virtually identical SOCE ban there. In King v. Christie, a federal district court upheld New Jersey's law using reasoning similar to the Ninth Circuit's. Predictably, the King court spent the most time addressing the free speech claim, and the judge cited heavily to the Ninth Circuit's decision in holding that the law does not regulate speech and that it is rationally related to a legitimate state interest. The plaintiffs in King raised one additional claim that did not make it to the Ninth Circuit: plaintiffs argued that the ban was an unconstitutional burden on the plaintiffs' First Amendment right to the free exercise of religion. But the court rejected this claim pretty easily, based on a longstanding principle that the First Amendment does not provide a shield from neutral laws of generally applicability. Plaintiffs would have to show that the law targeted SOCE for regulation because the conduct was religiously motivated or that the law banned only religiously motivated SOCE, which they could not do.
The King decision has been appealed to the Third Circuit Court of Appeals, which could also follow the reasoning of the Ninth Circuit to preserve the status quo. On the other hand, because the Supreme Court did not rule on the merits of the Pickup and Welch cases, it is possible that the Third Circuit could invalidate the New Jersey ban by adopting the more expansive reading of free speech rights presented by the plaintiffs and embraced by the district court in Welch. If this happens, it would create another opportunity for the issue to be appealed to, and ultimately heard by, the Supreme Court.
We could also see more challenges surface if the movement for increased SOCE regulation is successful. At least, eight other states are considering similar bans, according to a recent Washington Times article. In addition, other legislative protections have been proposed, such as specific disclosure requirements for SOCE practitioners to protect adult sexual minorities (a complete ban for adults seems politically unlikely in the short term). Indeed, specific disclosure provisions were included in an early version of the California SOCE bill, because of reports by some former SOCE recipients that they received false, misleading or incomplete information from mental health providers. The provision was removed from the bill before passage, however, reportedly as a result of political negotiation.
While it is difficult to predict with certainty how challenges to such laws would fare, the Ninth Circuit's opinion in Pickup uses language that strongly affirms the government's power to regulate in this way. Although the court could have simply relied on the conduct-speech distinction for its ruling, the Ninth Circuit went even further in affirming the government's regulatory power over certain kinds of speech. In describing the spectrum of First Amendment protection that applies to the regulation of professionals, the court noted that "at the midpoint of the continuum within the confines of a professional relationship, First Amendment protection of a professional's speech is somewhat diminished." And, as an example, it explained that doctors are "routinely held liable for giving negligent medical advice to their patients, without serious suggestion that the First Amendment protects their right to give advice that is not consistent with the accepted standard of care." Put more bluntly, the court said that "[a] doctor may not counsel a patient to rely on quack medicine" and "the First Amendment would not prohibit the doctor's loss of license for doing so."
Notably, the court insisted that the First Amendment tolerates a substantial amount of speech regulation within the professional-client relationship that it would not tolerate outside of it because "[w]hen professionals, by means of their state-issued licenses, form relationships with clients, the purpose of those relationships is to advance the welfare of the clients." By highlighting the important role of government regulation in protecting the health and welfare of patients, the Ninth Circuit seems to limit the use of the First Amendment as a tool for avoiding such regulation. This suggests that, for now at least, the biggest hurdle to greater government regulation of SOCE is not legal, but political.

Monday, July 7, 2014

Supreme Court Health Law Update: Abortion, Contraception, & Gay "Conversion Therapy"

This Supreme Court term has been another important one for health care. The Court was presented with several cases that questioned the scope of the government's power to enact laws regulating health care access or quality, when such laws are viewed as burdening religion or speech. The two cases receiving the most attention - Burwell v. Hobby Lobby and McCullen v. Coakley - involved challenges to laws protecting women's access to reproductive health care. But there were two other noteworthy cases - Pickup v. Brown and Welch v. Brown - which involved challenges to a law that bans a discredited health care practice that is harmful to the mental and physical health of sexual minorities.

Health law scholars and advocates have been watching these cases closely because of the growing number of examples of free speech or religious freedom claims being used to defeat, avoid or invalidate important health protections. For those who envision a robust regulatory role for government in protecting and promoting health - especially for groups that have historically been the targets of health care discrimination - this term brought some good news and some bad news.

The bad news came from the two opinions involving access to reproductive health care: Burwell v. Hobby Lobby and McCullen v. Coakley. The Hobby Lobby decision was a consolidation of two cases in which three closely held, for-profit corporations challenged a federal prescription contraception mandate as contrary to the religious beliefs of the companies' owners. The companies won: in a 5-4 opinion, the Court held that for-profit corporations were "persons" protected by the federal Religious Freedom Restoration Act (RFRA), and the mandate violated RFRA because it would force the companies to cover forms of contraception the companies' owners believed to be immoral and sinful. In McCullen, the Court issued a unanimous opinion invalidating a state law creating a 35-foot buffer zone around clinics performing abortions, ruling it an unconstitutional infringement on the free speech of anti-abortion protesters. The Court did not hold that buffer zones were per se unconstitutional, but the Court pointed to examples of other kinds of regulations with a less restrictive impact on speech and said that Massachusetts officials needed to demonstrate that such alternatives would not work before imposing this kind of restriction.
These cases have been criticized on numerous grounds. Much of the criticism so far has focused on the Court's expanded view of the type of entities that qualify for religious protection and the kind of action that qualifies as a substantial burden on speech or religion. But a law that burdens religious conduct or speech may still be valid if it serves a compelling or legitimate government interest, respectively, and the law is narrowly tailored to serve that interest. What is particularly concerning about these decisions from a health law perspective is the lack of attention given to the government's interests and the way in which the challenged laws served these interests.
In Hobby Lobby, for instance, there was no discussion about whether the law actually served a compelling interest. The majority failed to acknowledge that the exclusion of woman-specific health benefits has been a longstanding and pervasive form of gender discrimination in health care and employment -- discrimination that laws like Title VII of the Civil Rights Act, the Pregnancy Discrimination Act, and most recently the Patient Protection and Affordable Care Act were enacted to eliminate. Nor did the majority discuss the serious health harms that would result if employers could deny women access to contraception that is medically-indicated, especially given the fact that most people still depend on employer-based insurance to afford care. Similarly, in McCullen there was almost no discussion of the importance of trying to proactively protect the privacy and health of patients seeking care at a medical facility, or why buffer zones may be the only effective way to achieve this goal. This absence is particularly striking in light of the Court's focus on this very concern in a 2000 Supreme Court opinion, Hill v. Colorado, that upheld a similar law. Both opinions gave short shrift to the health interests at stake and they limited the government's regulatory power to ensure women's access to medically necessary care.
Yet the news was not all bad. Pickup v. Brown and Welch v. Brown have not received as much attention by the media, probably because they were never taken up by the Supreme Court. The Court declined to hear the cases, and because the Court did not explain why it was denying review, attempting to ascribe meaning to the denial is difficult and probably unwise. Nonetheless, this denial is noteworthy because the cases involved a similar conflict between the government's attempt to regulate health care and objections on free speech or religious freedom grounds. Except this time the government won.
Both Pickup and Welch involved challenges to a California law banning health professionals' use of gay "conversion therapy" on minors. Gay conversion therapy, also known as Sexual Orientation Change Efforts (SOCE), involves the use of various "therapeutic" techniques to try to eliminate same-sex attraction. SOCE began during a time when many medical and mental health providers considered homosexuality a disease that needed to be cured or treated. This was also a time when the mental and sexual health fields were still stigmatized and neglected by the mainstream scientific and medical communities. This delayed the development of effective, evidence-based mental health treatment, and it meant there was inadequate oversight of mental health professionals for many years. Consequently, mental health providers had the freedom to engage in ineffective and even harmful practices on vulnerable groups, like children who exhibited same-sex attraction or gender non-conforming behavior. As the mental and sexual health fields gained greater acceptance, scientific advancements began yielding better information for evaluating and regulating health care quality. Now the overwhelming consensus of the mental health and medical communities is that same-sex attraction is not a disease or illness, that SOCE is not effective, and that SOCE can cause serious harms including depression, suicidal thoughts or actions, and substance abuse.
For these reasons, California prohibited licensed mental health providers from practicing SOCE on minors; but SOCE practitioners, and parents seeking SOCE for their children, challenged the ban. They claimed that it was an unconstitutional infringement on their First Amendment right to free speech, and they filed lawsuits challenging the law in two different federal courts. The court in Welch found that the plaintiffs would likely succeed in showing that the law was an unconstitutional infringement on speech, and it temporarily enjoined the law. The plaintiffs also claimed that the law violated their First Amendment rights to the free exercise of religion, but the court found it unnecessary to consider this claim in light of its free speech holding. By contrast, the district court in Pickup rejected the challengers' free speech claims and denied the plaintiffs' request for an injunction. The cases were consolidated and heard by the Ninth Circuit, which affirmed Pickup and upheld the ban as a legitimate exercise of the state's power to regulate mental health professionals.
In its opinion, the Ninth Circuit affirmed the importance of government's regulation of health care and limited the use of the First Amendment as a tool for avoiding such regulation. It noted that "the First Amendment tolerates a substantial amount of speech regulation within the professional-client relationship that it would not tolerate outside of it [because] the purpose of those relationships is to advance the welfare of the clients, rather than to contribute to the public debate." But the court also made clear that the SOCE ban does not regulate speech because it does not prevent mental health practitioners from talking about or recommending SOCE to their patients, or from giving them SOCE referrals. The court emphasized that the SOCE ban is a ban on a particular form of treatment or professional conduct, and the state's regulatory power to regulate conduct (as opposed to expressive speech) is great. For this reason, the law need only be rationally related to a legitimate state interest, and the Ninth Circuit found it met this standard given the important state interest in protecting minors' mental and physical health.
The challengers of the law petitioned the Supreme Court for review, and supporters of SOCE bans had good reason to be concerned about what the Supreme Court might do, especially in light of Hobby Lobby and McCullen. Although these cases involve different types of regulation, all of the laws being challenged should be understood, at least in part, as necessary for preventing the serious health harms that result from discrimination in health care - in particular, the denial or neglect of the health needs of women and sexual minorities by various actors in the health care system. Indeed, the legal challenges in each of the cases were motivated by plaintiffs' ideological or religious objections to the conduct or status of those the law was supposed to protect, and this is the same kind of motivation that has been used to justify discrimination against these groups in other contexts. This is why the Hobby Lobby decision has sparked concern by the dissent and others that it would open the door for even greater discrimination in health care and beyond.
The petition for certiorari in Pickup and Welch presented the Supreme Court with another opportunity to wade into the on-going legal and cultural battle between the government, in its attempts to protect these groups, and those who resist regulation, by characterizing it as a burden on religion or speech. The Supreme Court's decision to decline review is good news because it preserves an important health care protection for a very vulnerable group in California, and it leaves in place a Ninth Circuit opinion that has already been followed by a district court in New Jersey in upholding a similar protection there.
More in-depth analyses of the Hobby Lobby, McCullen, and the Pickup/Welch cases will be posted to soon.

Monday, February 24, 2014

Attempts to Exclude Planned Parenthood from Medicaid Funding Still Unsuccessful

Last August, in Betlach v. Planned Parenthood Arizona Inc., the Ninth Circuit invalidated an Arizona law that would have excluded Planned Parenthood as a Medicaid provider, and thus prohibited Medicaid beneficiaries from accessing preventive and reproductive health care at Planned Parenthood facilities. This law is similar to an Indiana law that was also invalidated by the Seventh Circuit the year before. Both circuits held that the laws violated a provision in the Medicaid Act known as the "free-choice-of-provider" requirement. This provision says that state Medicaid programs must allow Medicaid recipients to obtain care from "any [provider] qualified to perform the service or services required" and that enrollment in a Medicaid managed-care plan "shall not restrict the choice of the qualified [provider] from whom the individual may receive" family planning services. The Arizona and Indiana laws violated this provision because the state's exclusion was not based on Planned Parenthood's qualification to provide services - the medical and professional qualifications of Planned Parenthood staff were never questioned, and Planned Parenthood centers are the primary and, in many cases, the only trusted sources of preventive and reproductive care for Medicaid recipients.

Rather, states say they target providers like Planned Parenthood because they provide abortions, and they justified the Medicaid exclusion as necessary to prevent public funding for abortion. But as explained in greater detail in an earlier blog, this is not true. There are already bans in place that prevent federal funds from being used for abortions, except in the case of rape, incest, or threat to mother's life. And many states have similar bans on funding abortions. Rather than limiting funding for abortion, the Arizona and Indiana laws would have prevented Medicaid recipients from accessing non-abortion related services from Planned Parenthood -- services such as gynecological exams, cancer screenings, and prescription contraception.

These laws are simply the latest in a long history of attacks on Planned Parenthood because of its advocacy on behalf of women's reproductive choice, and the attacks will surely continue. But yesterday the Supreme Court denied review of the Ninth Circuit's decision to invalidate the law, effectively preserving Medicaid beneficiaries' access to Planned Parenthood for health care for now.

Thursday, February 20, 2014

After ILC: Troubling Implications for Medicaid Access

In 2011, the Supreme Court granted certiorari in the case of Douglas v. Independent Living Center of Southern California (ILC), and Medicaid beneficiaries and providers have been on a roller coaster ride ever since. I have written about the case in earlier blogs, so I won't repeat all of the details here. In short, plaintiffs sued to challenge provider rate cuts in California's Medicaid program (Medi-Cal). Plaintiffs alleged that the rate-setting process violated federal law because state officials enacted the cuts solely in response to budgetary concerns and without considering how they would impact beneficiaries' access. Their concern was that the new rates were so low that providers would flee the Medi-Cal program or refuse to accept new patients, exacerbating an existing shortage of Medi-Cal providers and further jeopardizing health care access.

Plaintiffs won preliminary injunctions in the district court, which were affirmed by the Ninth Circuit. The state appealed, challenging the substantive decision that the cuts violated federal law and claiming that plaintiffs had no right to challenge the cuts in federal court in any event. The Supreme Court granted cert on the latter procedural question -- specifically, whether private plaintiffs could use the Supremacy Clause to challenge cuts in federal court. California officials argued that enforcement of federal rate-setting requirements should rest exclusively with the federal regulatory body charged with Medicaid oversight, the Department of Health and Human Services (HHS).

ILC was viewed as a high-stakes case, implicating providers' and beneficiaries' right to use the federal courts to enforce Medicaid access protections. Because the Supremacy Clause had been used in this way for years, many people were surprised when the Court granted cert on this question. There was speculation that the Court was going to eliminate this right -- a prediction that wasn't too far off since four members of the Court (Chief Justice Roberts, and Justices Scalia, Thomas, and Alito) were ready to do just that.

Surprisingly, a majority of the Court decided not to answer the question. It reframed the issue in light of "changed circumstances" - what changed was that federal regulators had approved the cuts during the course of the litigation. Federal law requires states to submit proposed rate changes to HHS for approval, but when plaintiffs sued initially, HHS had not yet acted. The majority decided that HHS approval may have changed the posture of the case by providing a different legal basis for challenging the cuts. Federal administrative action (like HHS approval of Medicaid rates) is governed by the Administrative Procedure Act (APA), which expressly provides for federal judicial review.

On its face, the decision seemed like a win for plaintiffs. By failing to answer the original question presented, the Court effectively preserved the status quo, which has allowed plaintiffs' to use the supremacy clause to challenge rates prior to HHS approval. After approval, the majority suggested, plaintiffs would be able to challenge rates under the APA.

Yet ILC is being interpreted in a way that significantly weakens this right to judicial review. In dicta, the ILC majority speculated that a decision by HHS to approve the cuts as consistent with federal law "may change" the lower courts' answer about whether the cuts were illegal. The court explained that this is because of the deference ordinarily applied to federal regulatory action. But this was only speculation, because the court never granted cert on the substantive question of how courts should determine if rates violate the law. In fact, the majority admitted that there are reasons why a court should not apply ordinary standards of deference that may apply in the case -- reasons that the Court had not yet had an opportunity to confront because the issue was never briefed.

This did not stop state and federal officials, and some scholars, from seizing on the Court's dicta about deference. They characterized it as a message to lower courts to be very deferential to HHS and proclaimed ILC a win for the states. They predicted that HHS would be a strong legal ally to the states in such disputes and that HHS approval would shield states from future judicial scrutiny into their rate-setting processes. In an earlier blog, I argued that this was not a foregone conclusion from ILC; but, to my surprise, the states' predictions seem to be coming true.

Recently, the Ninth Circuit embraced this characterization of ILC in another round of challenges to the Medi-Cal payment cuts, consolidated in the case Managed Pharmacy Care v. Sebelius. The Ninth Circuit invoked ILC in applying a very deferential standard to uphold the most recent Medi-Cal cuts that had been approved by HHS, and it refused to take a hard look at the approval process in order to determine whether it warranted such deference. This approach reflects a stark divergence from the robust judicial review that the Ninth Circuit had historically applied to state Medicaid cuts, and it has troubling implications for Medicaid access going forward. It places too much trust in HHS to enforce federal rate-setting requirements, and it removes the only effective tool for ensuring that HHS exercises its regulatory authority effectively - robust judicial review.
The procedural question taken up by the Supreme Court in ILC, and the broader debate about the proper role of federal courts in enforcing Medicaid rate-setting protections, reflect a deep skepticism about HHS's willingness to protect vulnerable beneficiaries' access to care. Indeed health care advocates, members of Congress and former HHS officials were among those who filed amicus briefs on behalf of the plaintiffs, arguing that federal courts play an essential role because of HHS's inaction. This is not simply the story of a regulatory agency that is understaffed or ineffective; rather it is about selective enforcement and deliberate neglect. For decades, there has been a federal regulatory void on the question of whether Medicaid rates are too low to guarantee access. While HHS has largely ignored objections by providers and beneficiaries that rates are too low, it has aggressively scrutinized state proposals that would increase rates.
This selective enforcement makes sense when one considers that the federal government is acting not only in a regulatory capacity, but also as a payor. Because of the federal matching it provides to states, HHS has just as much incentive as states -- if not more -- to want expenses lowered. And this incentive will only grow with the Medicaid expansion, as the federal government's share of the cost gets larger. Indeed, the federal government continues to actively encourage states to cut expenses, suggesting that one easy way to do this is through lower rates.
Admittedly HHS has increased its oversight of rate cuts under the Obama administration - it has actively reviewed proposed rate cuts and, in a few instances, demanded more information based on access concerns. But more oversight activity does not necessarily mean that this oversight is effective. HHS's financial conflict remains. It has still not finalized rules that would provide states with guidance about the kind of data that it must consider in its rate-setting process. And although HHS is requesting more information than before, it does not seem to be requesting the right kind of information or looking at it very closely.
The consolidated cases in Managed Pharmacy Care illustrate this well. As I describe in greater detail in an earlier blog, the district court looked closely at the state's rate-setting process and federal approval in all three cases, and found the process fundamentally flawed in each. The district court's opinions make clear that the data submitted by the states did not rationally support the conclusion that the rates were sufficient to ensure adequate access, and the additional information requested by HHS did not fix this defect.
The Ninth Circuit's deference to HHS, and its decision to allow implementation of the recent Medi-Cal cuts, has not ended this debate or quieted concerns about access. As the Medicaid rolls expand, primary care physicians continue to report access barriers for patients in need of specialists because too many refuse to accept Medicaid. And some California lawmakers do not trust the determinations by state officials and HHS that Medi-Cal rates are sufficient to ensure access. California Healthline reported earlier today that bills have been introduced in the California state legislature to reverse the 10% Medi-Cal provider rate cuts upheld by the Ninth Circuit, and ordering an independent analysis to determine the degree of impact the new rates will have on health care access.
Given the importance of federal courts in enforcing Medicaid access protections, and the growing strain on access due to the Medicaid expansion, health care advocates are justifiably concerned about what a more deferential approach by courts will mean for Medicaid access going forward.

Friday, May 3, 2013

Medicaid Funding for Planned Parenthood is Safe, But Threats to Reproductive and Sexual Health Care Continue

Last week the Supreme Court decided not to hear the case of Planned Parenthood of Indiana Inc. v. Commissioner of the Indiana State Department of Health. The case involved state control over federal funding and Indiana's use of this power to defund Planned Parenthood. Planned Parenthood has been the target of attacks by federal and state legislators for years, but this case reflects the most recent wave of state attempts to defund Planned Parenthood, presumably because of a concern about such funding being used to subsidize abortion.

I say "presumably" because some of these state laws, like the Indiana ban being challenged in this case, exempt hospital and ambulatory surgical centers that provide abortions, and abortion services make up only a very small percentage of the services Planned Parenthood offers. In fact, despite the anti-abortion rhetoric often used by states to justify attacks on Planned Parenthood, the reality is that depriving it of federal funding jeopardizes a wide range of other reproductive and preventive health care on which patients depend, including access to the prescription contraception that helps prevent unwanted pregnancies. Finally, as I've noted in other blogs, these state defunding attempts threaten funds that by law cannot be used for abortion, and some of the Planned Parenthood facilities affected do not even perform abortions.

The Indiana law in this case would have made Planned Parenthood ineligible for participation in Medicaid (funded jointly by the federal government and states) and the Disease Intervention Services (DIS) program (entirely federally funded, but administered by states). The Supreme Court's refusal to hear the case is both good news and bad.

The good news is that this denial lets stand a ruling by the Seventh Circuit that Planned Parenthood's exclusion from Medicaid would violate federal law, which means Medicaid funding is safe for now. This is considered a very important win for Planned Parenthood patients because of the importance of Medicaid funding for health care access and because of the signal it sends to other states.

But this latest development only lets patients breathe a partial sigh of relief. The Seventh Circuit also ruled that Indiana probably could bar Planned Parenthood from receiving grants under the DIS program, which means that threats to reproductive and sexual health care services provided by Planned Parenthood remain.

Medicaid Funding - Safe for Now
As I describe in greater detail in an earlier blog, Indiana enacted a law that effectively targeted Planned Parenthood for exclusion from the Medicaid program in May 2011. The law was challenged by Planned Parenthood of Indiana, Medicaid beneficiaries, and individual health care providers on several grounds. In June of 2011 a district court enjoined the state from implementing the law, and in October of last year, the Seventh Circuit affirmed the injunction.
The Seventh Circuit held that the law violated the "free choice of provider" provision in the federal Medicaid Act. This provision requires states to ensure that "any individual eligible for medical assistance...may obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service or services required...who undertakes to provide him such services...." The Seventh Circuit made clear that although federal law gives states a lot of discretion to determine which providers are qualified, "the term 'qualified' as used [in the free choice of provider guarantee] unambiguously relates to a provider's fitness to perform the medical services the patient requires." A state cannot deem a provider "unqualified" merely because of the state's ideological objection to its provision of certain services. Excluding Planned Parenthood from the Medicaid program would harm Medicaid beneficiaries who rely on Planned Parenthood for preventive and reproductive health services.
Now for the Bad News - Why Other Funding May Still Be in Jeopardy
Most media reports focused on this win for Planned Parenthood and its patients, but the Supreme Court's decision to not consider the case also let stand an unfavorable ruling by the Seventh Circuit. Indiana's ban on contracts with providers of abortion services meant that Planned Parenthood would also be ineligible for the Disease Intervention Services (DIS) program grants - despite the fact that Planned Parenthood had consistently received such grants since 1996, including two grants totaling $150,000 for 2011, and that Planned Parenthood would likely have continued to receive these grants in the future absent the state ban. The district court issued a preliminary injunction that prevented the state from excluding Planned Parenthood from the DIS program, but the Seventh Circuit overturned this injunction.
Plaintiffs had challenged Planned Parenthood's exclusion from the DIS program on two grounds. First, they argued that Indiana's ban on abortion providers conflicted with the federal eligibility criteria established for the DIS program. Because the federal government created a comprehensive funding and eligibility scheme for the DIS program, they argued that the state's attempt to restrict eligibility criteria without federal authorization violated federal law, and thus must be invalidated under the Supremacy Clause. Although the district court agreed with Planned Parenthood and enjoined the ban, the Seventh Circuit reversed, finding that Planned Parenthood probably would not be successful at showing that such a ban violated federal law.
Specifically, the Seventh Circuit noted that DIS is a block-grant program and that the key federal provision authorizing HHS to make grants to the states under this program places no conditions on recipient states other than the basic requirement that the money be used for its stated purposes. The law did not contain any specific limits on state discretion with respect to eligibility, like the free choice of provider provisions in Medicaid. Although the court's holding seems to be based on the specific characteristics of the DIS program, its reasoning may leave Planned Parenthood patients vulnerable to defunding attacks in other block-grant programs that do not create clear guidelines for states. In fact, this is precisely the problem that many health care advocates and policymakers have identified with block-grant programs: they often delegate too much power to states without any meaningful legal check or accountability on how funds are actually used.
Plaintiffs also tried to argue that the exclusion constituted an unconstitutional condition on the receipt of federal funding; specifically, Indiana used the denial of funding to punish Planned Parenthood for its association with, and advocacy of, abortion rights. The Seventh Circuit rejected this argument, noting that it is unlikely to succeed because plaintiffs did not argue that the loss of its block-grant funding would impose an undue burden on a woman's right to obtain an abortion.
The Seventh Circuit's ruling does not necessarily foreclose either of these lines of attack, however, because other courts have invalidated similar bans based on the Supremacy Clause, unconstitutional conditions argument, or both. For example, in Planned Parenthood of Kansas and Mid-Missouri v. Brownback, a Kansas district court struck down a state law which effectively excluded Planned Parenthood from applying for federal Title X family planning funds. As described in an earlier blog, this court found that by completely excluding a class of entities who were otherwise qualified under federal law for Title X participation, the state law was in direct conflict with federal law and thus unconstitutional under the Supremacy Clause. The court also found that intentionally singling out Planned Parenthood for exclusion because of its association with abortion created an unconstitutional condition in violation of the First and Fourteenth Amendments. The court's reasoning is important because it highlights the underlying problem with these state defunding attempts:
"Here, the purpose and effect of [the law] is precisely to bar Planned Parenthood as a recipient of any Title X subgrants in Kansas. This bar does not reflect merely a desire to avoid 'funding [abortion related] activities out of the public fisc', but to bar an entity associated with abortion from the benefit of federal funding for which it would be otherwise eligible....Indeed, the bar has been applied precisely because of Planned Parenthood's otherwise legal and constitutionally-protected conduct. [The law] serves to entirely deny the plaintiff access to Title X subgrant funding, based entirely upon the plaintiff's participation in unrelated political conduct. This punitive aspect of the statute, arising from the plaintiff's protected association with abortion related services, renders the statute unconstitutional."
The Supreme Court's refusal to hear an appeal of the Seventh Circuit's ruling may have created doubt about which state defunding attacks on Planned Parenthood constitute a violation of federal law. But certainly there is no doubt that such ideologically motivated bans reflect an abnegation of a state's moral duty to secure the health and welfare of its citizens. Defunding attacks on Planned Parenthood threaten access to the reproductive and sexual health care services that both federal and state health policymakers have identified as a top priority. Such ideological attacks also undermine a long history and recognition of Planned Parenthood as a reliable and critical partner in improving the health and well-being of women, children, and families as a whole. In the Kansas case, for example, the Kansas Department of Health and Environment - the state agency that was awarded the Title X grant and responsible for doling out funds to providers of family planning services - had relied on Planned Parenthood as a subgrantee for over 25 years and specifically touted Planned Parenthood's special Family Planning Male Involvement Information and Education Project in the application it filed for Title X funding. When states ban funding for Planned Parenthood based on ideological opposition to abortion, and without any consideration of the health policy implications of their decisions, some of our most vulnerable citizens are the ones who suffer.

Monday, November 19, 2012

Election Results Through a Health Care Lens

Since election night people have been preoccupied with what the post-election polling reveals about America's electorate, particularly its shifting values and priorities and what this will mean for future elections. A recurring theme among commentators is that growing diversity played an important role for Democratic wins in the Presidential and Congressional races. According to a report by the Pew Research Center, Obama received the support of African Americans, Latinos, and Asian Americans by a wide margin. Women also played a prominent role in this election: they not only supported Obama by a wide margin, but were also instrumental in Democratic wins in the House and Senate. And a Gallup survey showed that voters who identify as gay, lesbian, or bisexual overwhelmingly supported President Obama.

Commentators also point to growing support for important "social" issues like marriage equality and abortion as further evidence of a cultural shift toward a more liberal electorate that is more likely to vote Democratic. For example, while abortion continues to be a divisive issue, exit polling by Fox news showed that 59% percent of those polled believe abortion should be legal in all or most cases, and a Pew Research Center poll showed that Democrats hold a significant advantage when voters are asked who would do a better job representing their interests in this area. The same polls also show more people support same sex marriage than are against it (support ranges from 51% - 49% depending on the poll), and this growing support was reflected in the wins for marriage equality in Maryland, Maine and Washington.

It should go without saying that no group (whether defined by race, gender, or orientation) is monolithic in its values or voting preferences, and individual voters care about a range of issues, and to different degrees, in ways that may not always be easily predictive of one's votes. Nonetheless, politicians, campaign advisers, and political pundits are paying a lot of attention to these trends and asking why these diverse groups' interests have converged to support Democrats this year. One of the best explanations of this convergence that I have read so far was an op-ed titled The Culture War and the Jobs Crisis in the New York Times, by Thomas Edsall:

"More recently, there has been a steady diminution of conflict and a growing consensus on the left culminating in the 2008 and 2012 election victories. Issues now linked – clustered — in the minds of many Democratic voters include not only traditional socio-cultural, moral and racial issues like women’s, minority and gay rights, abortion and contraception, non-marital child-bearing, and the obligation of government to provide a safety net, but also to matters pertaining to the overarching role of government in generating greater social justice. "

I agree that concern about social justice and an appreciation for the government's role in ensuring a more just system is a common thread for these otherwise diverse groups. And I think that the most salient issue this election season that highlights this shared interest is health reform. Health care is an area where "socio-cultural" issues, like discrimination against women, racial and ethnic minorities, gay men and lesbians, and people with disabilities, can have the most tangible, immediate, and devastating effects on one's life. These groups have historically been, and are currently still at high risk of discrimination in a variety of ways. As a result, they are also at greater risk of exclusion from, or discrimination in, a private health care market that is linked to employment, and thus more likely to need government protection or to rely on the public safety net.

Inequity in the Health Care Market: Before Health Reform
Historically, health care access has been determined primarily by powerful private industry players like insurance companies and large employers; predictably, certain groups are at greater risk of experiencing barriers to access. For instance, insurers selling plans in the individual insurance market would charge women higher rates than men or deny them coverage altogether if they were deemed "high risk" - a label assigned to women who were victims of domestic violence or with a prior history of Caesarean sections, according to a recent Institute of Medicine (IOM) report. The IOM has also reported that women and racial and ethnic minorities tend to suffer from chronic disease and disability at greater rates, making them "high risk" and thus more likely to be excluded from the individual insurance market.
People who receive insurance through their employer, rather than on the individual market, have been protected from this kind of inequity for the most part. But access to employment-based insurance is limited. Employees in low-wage and part-time jobs often do not have this option, and according to the IOM, racial and ethnic minorities are disproportionately represented in jobs that do not provide insurance. A study by the Williams Institute reveals that gay men, lesbians, and transgender individuals suffer high levels of employment discrimination, which can impact access. And many workers use employment-based policies to provide health care for their families as dependents, which is not an option for most same-sex couples denied the right to marry.
Even those lucky enough to be insured may be treated inequitably because of coverage exclusions that are not justified actuarially, and which reflect broader patterns of societal discrimination. One example that has received the most attention in health reform is the exclusion of women's reproductive health care, including prescription contraception used to treat medical problems as well as facilitate pregnancy planning. The inability to control the timing of pregnancy has implications for women's and fetal health, but can have particularly serious consequences for women suffering from chronic conditions. Another troubling example includes a history of exclusion of people with HIV from the private market, as well as insurance caps on, or exclusions of AIDS and AIDS-related treatment, that make coverage inadequate. Finally, coverage for mental health care is still not comparable to coverage "physical" health conditions, despite federal and state mental health parity laws. Denials of certain kind of mental health care, especially residential care and long-term habilitative care for people with developmental disabilities, persist despite litigation and regulatory oversight.
Although health care and civil rights advocates have tried using anti-discrimination law to fight inequity, this has yielded mixed results, at best. Public insurance has provided an imperfect, but crucial safety net for some groups excluded from the private market. Federal funding, in particular, has played a critical role in facilitating access to HIV medication, women's preventive and reproductive health care, prenatal care, and habilitative services.
Convergence Around Health Care Justice & the Affordable Care Act
Health care justice cuts across many issues and deeply impacts the diverse groups that are becoming more prominent in national elections. I have already described how various forms of discrimination in society (in employment, marriage, and the health insurance market) create barriers to health care access. Gaps in health care, in turn, have serious consequences for health and life, as well as economic security: access to care helps prevent disabling illness, enables people to manage their chronic conditions, and prevents significant medical debt, a common cause of personal bankruptcy. "Socio-cultural issues", "health" and the "economy" are often treated by pollsters as alternative issues to be ranked during election time, but these things are inextricably linked in pronounced ways for the historically disadvantaged groups which make up a growing percentage of voters.
Moreover, treating women, racial and ethnic minorities, and members of the LGBT community as discrete groups also ignores intersections among these populations that further highlights overlapping concerns around health care justice. For example, 2010 data published by the U.S. Census Bureau shows that same-sex couples are as likely as different-sex married couples to include a racial or ethnic minority, and same-sex couples with a householder who is a racial or ethnic minority are more likely to have children than those without a racial or ethnic minority. A 2008 snapshot of California's Black LGB population provides an even more detailed picture of what this intersection looks like: women comprise a majority of Black people in same-sex couples (55%), almost 55% of Black women and 11% of Black men in same-sex couples are raising children, and Black same-sex parents have fewer financial resources to support their children than those in married couples. Consider the numerous barriers that a Black woman raising children with her same-sex partner must face as a result of the intersection of her race, gender, orientation, and economic status. The harms resulting from those barriers are often compounded as well, either because she has fewer resources to help compensate for these barriers, or because some barriers, like discrimination based on race or orientation, can actually create new health problems, like depression, that exacerbate existing ones.
Health care did play a prominent role in this election. Obama's signature accomplishment from his first term, the Affordable Care Act (ACA), is designed to help remedy much of this inequity. It builds upon the existing public-private patchwork, but tries to plug many of its holes. It strengthens the public safety net by extending Medicaid coverage to the very poor who do not fit the traditional narrow eligibility categories. It also uses regulation to try to level the playing field for people in the individual market to give them similar protections enjoyed by those covered by employment-based insurance, such as guaranteeing coverage, eliminating risk rating, and providing subsidies to ensure access to affordable, meaningful coverage.
Other consumer protections in the ACA either directly or indirectly eliminate some of the inequities mentioned above, especially provisions that eliminate gender rating and caps on lifetime benefits, and require qualified health plans to provide some minimum level of benefits (referred to as "essential health benefits") to ensure that coverage will be meaningful. Federal regulators have already made clear that preventive services must include the kind of screenings and reproductive health care for women that have been excluded in the past, and that people with chronic conditions, like HIV, should be able to get meaningful coverage in the private health care market. Additionally, the ACA requires an external review mechanism to help counter wrongful denials of care, like those frequently seen in mental health coverage determinations. Although the federal government has delegated the responsibility for defining many of these requirements to the states, it has published guidance that acknowledges existing inequities and emphasizes the importance of ensuring equity in coverage.
This is not to say that the Affordable Care Act is perfect or will succeed. In fact, this post is the start of a series of blog posts looking at how the states and federal government handle reform implementation, with a focus on whether the ACA delivers the equity and affordability it promises. But the ACA provides a stark contrast to the alternatives presented by Republican candidates. Promises of repeal by Republican challenger Mitt Romney and other republican lawmakers relied on abstract attacks on "big government" and ignored the critical role that government has played in removing some of the barriers that cause inequity in the private health insurance market. Romney's choice of Ryan as a running mate triggered fears that he would support Ryan's plan to gut the public safety net by transforming Medicare into a voucher program and Medicaid into a block grant program, predicted to result in greater numbers of people becoming uninsured. Finally, political rhetoric that treated abortion and marriage equality as purely "social" or "cultural" issues that conservatives should fight was divorced from any consideration of the economic, personal and health-related hardships that result from marriage discrimination and denial of reproductive health care.
It should not be surprising then that the interests of this more diverse electorate converged to deliver wins for President Obama and other Democrats, especially in light of polls like those by the Washington Post, which show that 81% of the people voting for Obama listed as a "top quality" they want in the President "cares about people like me", and that 75% of Obama voters listed "health care" as a "top issue." Health care is a civil rights issue - not one distinct from other civil rights concerns like discrimination based on racial, ethnic, gender, or LGBT status, but one that is shaped by, and inextricably linked to, the many other kinds of inequity experienced by an increasingly diverse electorate that will continue to shape future elections.