- King v. Burwell: next ObamaCare showdown at Supreme Court [Ilya Shapiro and Josh Blackman, David Bernstein on Cato brief, Adler v. Bagley Federalist video, Michael Greve with theory of Justice Kennedy riding off to Colorado with Dagny, earlier]
- “J&J says women being illegally solicited to join in mesh lawsuits” [Jessica Dye/Reuters, same on lawyers’ response, more on which]
- Invoking ACA, feds regulate non-profit hospitals to require periodic community needs assessment, limit collection methods [Treasury]
- Unless judges are vigilant, lawyers will take advantage of mass tort joinder to evade CAFA limits on forum-shopping [Steven Boranian, Drug & Device Law]
- Popular literature on IRBs/consent of research subjects can employ dubious definitions of “coercion” [Simon Whitney via Zachary Schrag]
- Qui tam lawyers vs. pharmaceutical companies, some empirical findings [Bill of Health]
- So that’s what “anatomical theatre” means: researcher checks into ostensible open-source medical journals and finds many “had suspicious addresses; one was actually inside a strip club.” [Fast Company on report finding that fake paper was accepted for publication by 17 journals]
- A student of David Henderson’s recalls the state of medicine under the Soviets: assignment to providers based on place of residence; the role of gifts, favors, and clout; how idealistic doctors became cynics; the black market as a safety valve. [EconLog]
A “thinly-veiled effort to do through regulation” what Congress had refused to do, according to federal district judge Richard Leon, who struck it down in a victory for the interests of elderly and disabled persons in need of care, not to mention the interests of taxpayers and liberty [Bloomberg Business Week] Earlier on the regulations here, here, here, here, here, here, here, here, etc.
From comments at Overlawyered.com …
Employee of a surgicenter goes to facility for a colonoscopy. When he wakes up, he was wearing pink underwear. As a result, he suffered extreme emotional distress, humiliation, loss of wages and loss of earning capacity. He is now suing.
While I probably would have laughed off a prank like this, I can understand why some people would have been upset. But suffering a loss of earning capacity from being dressed in pink panties as a prank? I’d like to see how that happened.
- More on effort to blame federal budget cuts for Ebola [Chris Edwards chart at Cato; Nick Gillespie, Reason; Michael Tanner, earlier] How Firestone, rare multinational firm with a large presence in Liberia, fought the disease [NPR] More: Heck of a job, Nicole: administration already has Ebola czar [Mollie Hemingway]
- Train wreck postponed: “Administration Delays Home-Care Worker Minimum-Wage, Overtime Protections” [Kaiser Health News, earlier here, here, etc.; California will not delay]
- “Should it be OK to fire employee for using medical marijuana?” [Debra Saunders, San Francisco Chronicle/syndicated, and thanks for quote; Jacob Sullum on Colorado “any lawful activity” statute]
- Venture capital interest dwindles in cardiac and orthopedic medical device sectors amid concerns over regulatory hassle, tax, reimbursement problems [WSJ (also Avalon), Arnold Kling]
- Billing code for “repeat doctor visit after being sucked into jet engine” probably little-used [Lowering the Bar, and surprise sequel]
- British ambulance workers’ strike will hit scheduled patient visits rather than emergencies, so that’s okay [BBC]
- Does Takings Clause, in combination with unconstitutional-conditions doctrine, require feds to compensate hospitals for EMTALA emergency-treatment mandate? [Haavi Morreim, Regulation, PDF] EMTALA, disability discrimination, and claimed “dumping” of psychiatric patients [Alison Somin on Gail Heriot dissent]
- ObamaCare challenge: D.C. Circuit vacates Halbig decision for en banc rehearing [Roger Pilon, earlier]
- ACLU and SEIU California affiliates oppose trial lawyers’ higher-damages-plus-drug-testing Proposition 46 [No On 46, earlier] As does Sacramento Bee in an editorial;
- Rethinking the use of patient restraints in hospitals [Ravi Parikh, Atlantic; legal fears not mentioned, however]
- Certificate of need regulation: “I didn’t know the state of Illinois had a standard for the maximum permissible size of a hospital room.” [John Cochrane]
- In China, according to a study by Benjamin Liebman of Columbia Law School, hired malpractice mobs “consistently extract more money from hospitals than legal proceedings do” [Christopher Beam, The New Yorker]
- Overview of (private-lawyer-driven) municipal suits on painkiller marketing [John Schwartz, New York Times, earlier] More: Chicago’s contingency deal with Cohen Milstein on opioid lawsuit [LNL] More: Rob Green, Abnormal Use.
- “So In The End, The VA Was Rewarded, Not Punished” [Coyote]
- Congress responds to Veterans Administration health care scandal by throwing huge new sums at care [Nicole Kaeding, Chris Edwards, Cato] “Every Senior V.A. Executive Was Rated ‘Fully Successful’ or Better Over 4 Years.” [NYT via Instapundit] “VA Hospitals aren’t included on the federal government’s Hospital Compare web site” [White Coat]
- Canadian judge quashes as vexatious suit over non-admission to medical school [Winnipeg Free Press]
- Brain-damaged child cases: “14.5 Million Reasons Physicians Practice Defensive Medicine” [White Coat, Cleveland] “North Carolina Jury Deadlocks in John Edwards’ Malpractice Trial Against Doctor” [Insurance Journal, emergency medicine]
- “Medical Licensing in the States: Some Room for Agreement — and Reform” [Charles Hughes, Cato]
- “NY Launches Statewide Med Mal Settlement Program” [NYDN via TortsProf]
- “Unlucky Strike: Private Health and the Science, Law and Politics of Smoking” [John Steddon and David Boaz, Cato program] Here’s the long-awaited segue to complete prohibition: British Medical Association recommends banning tobacco permanently for persons born after 2000 [WaPo]
- Sneaky: California ballot language undoing MICRA liability limits “buried in an initiative titled The Troy and Alana Pack Patient Safety Act of 2014.” [Yul Ejnes, KevinMD]
- Worst article of the week? Cheering on tort lawsuits as a way to trip up legalized pot [John Walters and Tom Riley, Weekly Standard]
- Remember not long ago when they used to tout VA health care as a success story and model to be imposed on other health providers? [James Taranto, recalling Paul Krugman, Ezra Klein and many others; more thoughts from Coyote and Roger Pilon]
- Muscle and intimidation: union + allies surge onto Oak Brook, Ill. McDonald’s headquarters property, closing key management building [Bloomberg; related earlier here, here, here, etc.] Yesterday I got into a Twitter conversation with Tim Noah (defending the protesters’ action) and William Freeland (siding with my own view), culminating in this rather startling comment from a Center for American Progress/ThinkProgress reporter: “This entire convo backs up the point the private property law itself functions as gov’t cronyism for the wealthy.” Wow!
- Long, impassioned Ta-Nehisi Coates case for reparations [Atlantic, sidebar, Jonathan Blanks, my 2008 thoughts which eventually grew into a chapter in Schools for Misrule]
- “Insurers Demand $2 Million for Negligent Squirrel-Torching” [Holland Twp., Mich.; Lowering the Bar]
- R.I.P. left-wing historian Gabriel Kolko, whose project of de-mythologizing the Progressive Era won him a large libertarian fan base; initially contemptuous of that fan base, he came eventually to mellow with age and discern elements of common ground [Jesse Walker]
- Hard lesson for Congress to learn: “Hawaiians simply aren’t American Indians in the constitutional sense” [Ilya Shapiro, Cato, background]
From a casual glance at the account by the Pew Foundation’s StateLine in USA Today, you might think President Obama’s proposal to require overtime for home health carers (covered earlier here and here) was not so very costly or burdensome. “States wary home care worker rules could cost millions,” reads the headline. Paragraph 6 seems to confirm that the stakes are just in the low millions, which would be minor as health care policy changes go: “The U.S. Department of Labor estimates the rule will cost $6.8 million a year over a 10-year period, with private businesses and state Medicaid programs picking up the tab.”
On the other hand, you might find the above-cited number to be suspiciously low, what with advocates of the rule promoting it as a major boost to the take-home pay of nearly 2 million home care workers ($6.8 million works out to about three and a half bucks per year for each such worker). Thirteen paragraphs later, the tune has changed: “California, which already applies its $8 minimum wage to home care workers, but not overtime, estimates the new overtime requirements will cost the state more than $600 million in 2015-2016.” That is to say, just one state (California) gives an annual cost estimate for the rule that’s about 100 times the national cost estimate recited earlier in the piece. What gives?
This September account from Littler Mendelson, while not itself as clear as one might like, sheds some light on the discrepancy:
The DOL estimates the new regulations will affect approximately 1.9 million home care workers in the United States. The DOL contends the primary effect is “the transfer of income from home care agencies (and payers because a portion of costs will likely be passed through via price increases) to direct care workers, due to more workers being protected under the FLSA.” While described by the DOL as a “transfer of income,” in actuality the DOL’s numbers are the estimated annual cost to the home care agencies as a result of the new regulations. With respect to annual costs incurred for minimum wages, travel wages and overtime, the DOL estimates home care agencies will pay an average of $210.2 million the first year of implementation, increasing each year to an estimated $468.3 million on average by year 10. For annual regulatory familiarization, hiring costs (based on overtime hours needed to be covered by newly hired employees), and deadweight loss, the DOL projects home care agencies will incur $20.7 million on average in the first year, decreasing to an average of $5.1 million in year 10.
However, a March 2012 Navigant Economics Study: Estimating the Economic Impact of Repealing the FLSA Companion Care Exemption suggests a much higher cost to home care agencies. Although Navigant studied the economic analysis published by the DOL in the 2011 Notice of Proposed Rulemaking (NPRM), the study continues to suggest that the DOL has underestimated the compliance costs of the new regulations. According to Navigant, the DOL has: disregarded the impact on live-in workers, a group the study contends are disproportionately more likely to incur extended periods of pay at the overtime wage under the new regulations; underestimated the cost of paying home care workers for travel time; and underestimated the increased cost to the home care agencies for compliance with the minimum wage protection afforded by the FLSA. Ultimately, the study concludes the annual cost to home care agencies is significantly higher than the DOL has predicted.
It’s almost as if DoL has been doing its part to promote the president’s proposal by systematically lowballing, complicating and hiding its costs. The USA Today story has this relevant passage about some other costs that may be less readily monetized:
Joseph Bensmihen, president of United Elder Care Services, Inc., a caregiver referral service in Boca Raton, Fla., said the most likely alternative for most of his clients, besides moving into a facility [emphasis added], will be to rotate caregivers to ensure that none works more than 40 hours a week. “This means that one of the most cherished benefits of home care among the elderly, disabled, and infirm, namely continuity of care, will be lost.”
It won’t take many hapless elderly persons moving from home and family care into nursing home facilities to exceed that absurd $6.8 million cost underestimate all by itself.
- Academics have underestimated sensitivity of medical system to liability pressures [Michael Frakes, SSRN via TortsProf]
- “Nobody has gone out and bought a new home” — Mark Lanier talks down his verdict knocking $9 billion out of Takeda and Lilly after two hours of deliberation by a Lafayette, La. jury [Reuters] Japanese drugmaker says it had won three previous trials [ABA Journal]
- Nursing home in living-up-to-its-name town of West Babylon sued over hiring male strippers to entertain residents [NYP, more (wife of complainant attended display), ABA Journal]
- “Reining in FDA regulation of mobile health apps” [Nita Farahany, Volokh/WaPo]
- Another setback for plaintiffs as Arkansas tosses $1.2 billion Risperdal marketing case against Johnson & Johnson [AP/Scottsbluff Star-Herald, Eric Alexander/Drug and Device Law, earlier here and here]
- “Spacecraft collision injuring occupant”: docs scratch their heads at new revamp to billing codes [Steven Syre, Boston Globe via Future of Capitalism]
- FDA preclearance, drug litigation: “Most [patients] never know they were harmed, because we never know what we might have had.” [John Stossel]