Author: Hayley Cronquist

Planning Trumped: Prepare for Parenthood

In October 2016 before leaving office, former President Barrack Obama issued a final rule to bar states from withholding federal family-planning funds from Planned Parenthood affiliates and other health clinics that provide abortions. The measure took effect two days before the inauguration of current President Donald Trump, and required that states pass along family-planning grants – regardless of whether the groups they’re passing them along to offer abortion services.

Now, however, President Trump has signed a law which gives states the option to deny funding for Planned Parenthood and other groups that perform abortions, thus invalidating Obama’s rule that “effectively barred state and local governments from withholding federal funding for family planning services related to contraception, sexually transmitted infections, fertility, pregnancy care, and breast and cervical cancer screening from qualified health providers…” To push the measure through Congress, Republicans relied on the Congressional Review Act, a law enacted by the United States Congress in 1996, which “empowers Congress to review, by means of an expedited legislative process, new federal regulations issued by government agencies and, by passage of a joint resolution, to overrule a regulation.” The law barely passed the Senate requiring a tie-breaking vote from Vice President Pence. President Trump’s new law allows states to block Planned Parenthood, along with other abortion providers, from receiving funds associated with the Title X Family Planning program. Title X is a federal grant program for family-planning and reproductive health services for low-income and uninsured patients. Title X provides about $60 million annually to Planned Parenthood. In states that directly control Title X money, the law could embolden legislatures to strip that funding from Planned Parenthood. However, in states like Pennsylvania and New Jersey, independent nonprofits distribute Title X funds, and those nonprofits have pledged to continue funding local Planned Parenthoods.

Prior to taking office, President Trump voiced support for Planned Parenthood’s health-related services, other than abortion. He says that Planned Parenthood may keep its federal funding if it no longer provides abortion services. Although this proposal was never formally made, Planned Parenthood has sternly rejected any such proposal. In any case, federal law already prohibits the use of federal tax money to pay for abortions, except in cases of rape or incest, or to save a woman’s life. The executive vice president of the Planned Parenthood Federation of America, Dawn Laguens, stated, “Offering money to Planned Parenthood to abandon our patients and our values is not a deal that we will ever accept. Providing critical health care services for millions of American women is nonnegotiable.” A healthcare crisis would arise, according to the President of Planned Parenthood Federation of America, Cecile Richards, if Planned Parenthood were to be defunded. She does not believe the national health care system would be able to handle the 2.5 million patients that Planned Parenthood sees annually. Republicans in Congress and legislatures will likely to continue targeting Planned Parenthood because its network is the largest provider of abortions, even though about half of its affiliates do not perform them.

Preventing Abuse in Long-Term Care Facilities

Up to one in six nursing home residents may be the victim of abuse or neglect every year. In late 2016, the Centers for Medicare and Medicaid Services (CMS) issued a final rule revising the requirements that Long-Term Care Facilities must meet to participate in the Medicare and Medicaid programs. According to CMS’ chief medical officer Dr. Kate Goodrich, “these are the first comprehensive updates to long-term care requirements since 1991.” One section in particular discusses changes to prevent the abuse of residents of Long-Term Care Facilities.

Provisions related to abuse, neglect, and exploitation are now included in a separate section, which brings more attention and focus to these issues. To more accurately reflect the content, § 483.13 regarding abuse in Long-Term Care Facilities has been re-designated and revised to § 483.12. The title has been changed from “Resident Behavior and Facility Practices” to “Freedom from Abuse, Neglect, and Exploitation.” The focus of this regulation is to ensure that residents are not subjected to abuse, neglect, misappropriation of property, and exploitation, and to establish requirements for the facility’s response to any allegations that has occurred. To prevent abuse of residents in Long-Term Care Facilities, we must recognize that abuse continues to occur. Last month, CNN issued a report from an exclusive analysis of state and federal data and interviews with experts, regulators and the families of victims, and found that abuse in nursing homes is far more prevalent than most people know.  The report focused on caregiver-on-resident abuse. Caregivers in nursing homes are in a position of authority and trust, and too often when they violate that position they are not properly reprimanded due to nursing homes being slow to investigate or report allegations, police dismissal, and state regulators failing to flag patterns of repeated allegations against a single caregiver.

A key difference in the new rule expands the list of individuals whom a facility may not employ or otherwise engage. It prohibits facilities from employing individuals who “have been found guilty of abuse, neglect, exploitation, misappropriation of property, or mistreatment by a court of law; have had a finding entered into the State nurse aide registry concerning abuse, neglect, exploitation, mistreatment of residents or misappropriation of their property; or have a disciplinary action in effect against his or her professional license by a state licensure body as a result of a finding of abuse, neglect, exploitation, mistreatment of residents or misappropriation of resident property.” The new rule now also requires that facilities develop and implement written policies and procedures that prohibit and prevent abuse, neglect, exploitation of residents and misappropriation of resident property, and also requires that facilities establish policies and procedures to investigate any allegations of abuse, neglect, exploitation, or misappropriation of property. Furthermore, facilities must establish policies and procedures to ensure reporting crimes, and investigation into any allegations.

With much of the new rule now in effect, residents and families will hopefully see a significant decline in the rate of nursing home abuse, but much will depend on implementation and enforcement. Medicare will issue guidance this summer on exactly how nursing homes must comply.

Keeping Our Elderly in Their Homes

The Program of All-Inclusive Care for the Elderly, otherwise known as PACE, has a goal to keep America’s elderly living long and happy lives in the comfort of their own homes. To keep people out of costly nursing homes, PACE provides individualized care and services in the home, the community, and PACE centers. The focus of this program is on the participant and the care he or she needs.

The program began as an experiment in 1983, but 14 years later Congress authorized the program as a permanent part of the Centers for Medicare and Medicaid Services (CMS) in the Balanced Budget Act of 1997. To be eligible to join the program, one must be 55 years or older, live in the service area of a PACE organization, be certified by his or her state to need nursing home care, and be able to live safely in the community. Although state eligibility for nursing home care is a requirement to enroll in PACE, only about seven percent of PACE participants in the US reside in a nursing home.

Until recently, for-profit companies were not allowed to run programs like PACE; it was strictly for nonprofit groups. Critics of this aspect question whether or not for-profit companies are well-suited for this line of work considering that the business for caring for seniors is already tainted with abuse. However, according to a pilot study submitted by the Department of Health and Human Services in June 2015, the results showed no difference in quality of care and costs between nonprofit PACE providers and for-profit providers. The hope in expanding to for-profit companies is to encourage states to push for these programs and that these services will develop more rapidly.

There are now 34,000 older adults enrolled in PACE organizations in 31 states, and as of August 2016, the program will be getting its first major update in a decade. The Office of the Federal Register published a proposed rule on August 16, 2016. The proposed rule revises and updates requirements including: strengthening protections and improving care for recipients; and providing administrative flexibility and supervisory relief for PACE organizations. Under the former, the interdisciplinary team that is fundamental to the coordinated care participants receive will be able to participate more in other roles than the one role currently allowed. The hope is that this will assist in providing more efficient and individualized care to the PACE participants. In regards to the administrative flexibility, the proposal is more contemporary and simplified administration and operational rules to augment PACE organizations’ ability to do a number of things more easily, including a more automated application process to speed up and tailor services to participants. CMS believes these changes will make PACE regulations more consistent, transparent, and comprehensible, which leads to better care for all program participants.

As of 2015, there were 116 PACE programs operational throughout 32 states. Andy Slavitt, Acting Administrator for CMS, hopes to see this number continue to grow so that the US can continue to provide our aging population with the care they need and deserve.

Comments on the rule are due October 17, 2016.

Holding Nursing Homes Accountable

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

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

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

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

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




An Undue Burden, Indeed

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

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

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

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

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

Death Penalty Dilemma

In 1994, the state of Ohio convicted Warren Keith Henness for aggravated murder.  The Ohio Supreme Court later set an execution date for Henness for January, 2015.  However, the Ohio Department of Rehabilitation and Corrections has pushed Henness’ execution date and the dates of many others, because they have been unable to obtain the necessary drugs to carry out the executions.  This problem is not limited to Ohio. More than 20 states will face great difficulty obtaining the specific drugs in the future.  As of January 1, 2016, there were 2,943 death row inmates in the United States.  The number of executions completed in 2015 was the lowest in 25 years, and half of the stays of execution were due to states’ inability to obtain the necessary drugs.

On May 13, 2016, Pfizer, an American global pharmaceutical corporation, announced that it will now enforce a distribution restriction on the specific drugs which are included as part of the lethal injection protocols.  Lethal injection procedures vary by state, but several use a one, two, or three-drug protocol, which requires an anesthetic or sedative, typically followed by pancuronium bromide to paralyze the inmate and potassium chloride to stop the inmate’s heart.  There are seven specific drugs that will now only be distributed to certain wholesalers, distributors and direct buyers, and all are required to agree to not resell the drugs to prisons.  The seven drugs: propofol, pancuronium bromide, midazolam, hydromorphone, rocuronium bromide, vecuronium bromide, and potassium chloride, are FDA-approved drugs used every day in efforts to treat illnesses and save lives.  Companies like Pfizer believe that these products should no longer be used for capital punishment.

Pfizer’s move is the last step in closing off the remaining FDA-approved manufacturers of drugs used in executions as all of the major pharmaceutical companies in the United States now stand together on this issue.  While the announcement is probably partly a public relations move and partly a business decision, Pfizer, along with other drug makers, say that their products are supposed to be used to save lives, not take them.  The companies believe that drugs have a certain value, but if associated with death due to the use in capital punishment, those drugs will lose that value.

Pfizer’s decision poses many questions for states that use lethal injection.  States may continue to search for the drugs needed to administer executions.  However, the 31 states that still impose lethal injection as capital punishment will possibly end their search by violating the law.  Some states have already looked to state-regulated compounding pharmacies that mix individual ingredients in the strength and dosage required to perform the procedure.  Though these compounding pharmacies distribute drugs for lethal injection, they often do not want their identities known to avoid lawsuits for contractual liability.  Few states allow methods such as electrocution, and even fewer states allow the gas chamber, hanging, and firing squad, but with the position taken by pharmaceutical companies, more states could resort to such procedures.  For example, Tennessee said in 2014 that if the drugs for lethal injection are unavailable, the state can use the electric chair.  A year later, Utah reintroduced firing squads.  Though it is difficult now to say how much of an impact Pfizer’s decision will have, states that use lethal injection will have to start looking for alternatives.