HYPE! HYPE, I TELL YOU!

So apparently morning-after pills don’t prevent implantation after all? (Which matters because that’s the reason abortion opponents hate them. Or say they do.)

Nurse: Oi vey! I feel like every time we open up a discussion like this, I
put on my sarcastic hat and say something like, “what, does pregnancy
begin at ovulation now, no sperm required?” and then the religious
right is like, “yes, actually, it does.” and then my head explodes and
something inside me dies.

Lawyer: That’s right. We’re all pregnant right now. In fact, we’re born with eggs,
so maybe we’re born pregnant?

Nurse: So now, if, as this article suggests, EC pills actually stop fertilization rather than stopping implantation, you’d think that would make things better, wouldn’t you? I guess my
point is that. . . well, they probably won’t. Whatever the quibble was this time, there will be something else, seemingly unthinkable, to take its place. Such is the nature of this debate. It’s not reasonable or logical.

Lawyer: True, but it’s often couched in those terms. So I think there’s value in
continuing to expose flawed logic. To protect the integrity of logic, if not to win on the actual issue.

Nurse: OK, Mr. Spock!

Lawyer: Plus, there are plenty of people out there who are swayed by logic. So, the
super-fringe will hold fast no matter what. But I have to believe there are people who will listen to reason, or reasonable-sounding things, such that that battle is worth fighting.

Nurse: In terms of the labelling, we sell all kinds of drugs that work without completely understanding the mechanism, and that is all fine and dandy and perfectly legal, right?  Also, the FDA may not really be a great source for cutting-edge science– they are the sanctioned authority, but not necessarily “right.”.

Lawyer: Agreed. What I think is really fascinating here is the power that one line
of an FDA label had. We’ve seen this fight play out a bit with the question of over-the-counter morning after pills, too — a good deal of the debate ends up being about
what’s on the label. But there seems to be a disconnect between how those things get designed and the immense ripples they can create.

Nurse: Finally, I always think it’s interesting when science may be influenced by religion and politics. Who is funding, or suppressing, research? Who knows?

Lawyer: Tell that to Secretary Sebelius.

Nurse: No, ma’am, I don’t like it!

Really, Kansas? Really?

We could barely bring ourselves to write about this.

The Kansas House has passed what would probably be the most restrictive abortion bill in the country, described here by the Huffington Post.

Lawyer: I think the two most troubling provisions (obviously?) are the ones mandating that doctors tell women certain things, and those authorizing doctors to withhold certain information. 

Nurse: Yeah. . . this seems like it completely undermines the doctor/patient relationship. You can no longer trust that your doctor is telling you what he really thinks is in your best interest. This seems a little. . . facist? I don’t know. The state doctor is going to tell you the state facts about your body now.  True? What do you mean? The state scientist said so. This is coming from the political party that wants the state to intervene less? Um. Ok. I think we really have 3 parties– democrats, fiscal conservatives, and religious right-wing nut-jobs. 

Lawyer: We can look at it both from the perspective of the rights of the patients and the rights of the doctors.  (Let’s not forget that the First Amendment not only prohibits restraining speech — but also compelling speech.)

Nurse: Good one. Plus, I didn’t even get into the fact that, um, the birth control/breast cancer link which is part of this whole argument is not what any informed person would call solid evidence. So there’s another way the state is telling doctors to lie.

Lawyer: It also raises a really thorny question about the relationship between science and law, reminiscent of the debate about teaching creationism. If a legislature deems something fact, that doesn’t make it true — but they do (and properly, I think) have some control over a curriculum. It’s harder to argue that the government has any role in dictating what can happen in the exam room with the door closed.

Nurse: Yep, that was my reaction as well– it’s similar, but worse. Private physicians behind closed doors should not have to tell patients any particular thing. Public schools. . . . more debatable. But, then, how the h-e-double-hockey-sticks are they going to enforce that law? Big brother? 

Lawyer: It’s also just really gross.

Nurse: AMEN, SISTER.

You need stitches, is this going on your VISA today?

. . . and while you’re here, you owe us five thousand dollars. The NYT reported twice recently on medical debts and collections issue: here and here.

 Nurse: For me, this is just one more symptom of the overall huge problem of the way our health insurance and healthcare systems (fail to) work. I was especially surprised that FICO said it doesn’t consider medical debt any differently from other debts– so debt you incur for being irresponsible is the same as debt you incur for being genuinely unlucky. You got sick and couldn’t pay? Your credit score takes the same bump it does if you overspent your credit card at Saks.

Lawyer: I don’t know much about how FICO operates, but there are lots of shades, too. I mean, student loan debt is different from credit card debt is different from your cell phone plan is different from healthcare. 

 I suppose one could argue that their job isn’t to measure how “responsible” you are, so much as how responsive you are in paying debts that you do have, no matter why you have them. 

But one of the real problems seems to be that people get caught in this crazy maze of not knowing who’s actually responsible for what, or wanting to dispute certain things, and having that process damage their credit (rather than straight up unpaid bills — which is also a problem, but a different one.)

 Nurse: It sounds like the bill under discussion here is reasonable– removing these medical credit black marks more quickly– but I don’t know, do you think there would be unintended consequences? I don’t buy the “quality of data” decline that the credit agency advocates are pushing.

 Lawyer: I agree that it seems like a reasonable bill. And the “quality of data” thing sounds like a crock to me, too, especially given the high rates these stories are reporting of things being either straight up errors or being matters of genuine dispute. I think other possible solutions involve including that info in the reports, but separating it out and clearly identifying it as a specific type of problem, so that users of the score (e.g. lenders) can evaluate whether they find it relevant or not. Or doing what they do with credit cards — forbidding them to report it to credit agencies in certain types of dispute situations, pending some reasonable resolution of the dispute. 

 Nurse: Of course, this doesn’t even get into the fact that, as the article points out, billing errors are rampant. That goes back to my original point that the system is so far broken, what can we do? You can’t get a doctor or hospital to quote your a price for treatment, so how are you supposed to really evaluate if you’ve been billed correctly? Have you ever tried to use an insurance company phone tree? Have you ever tried to do any of this while you or a family member was ill?

Lawyer: A classmate in the business school here was recently overbilled for a procedure, and it took her (a Stanford MBA student) a huge amount of time and effort to get it sorted out — she also says she just barely caught the error. I hate to imagine how difficult it would be for someone who doesn’t have any background or training in dealing with such things. Where do we lay the blame? Maybe the problem is with hospitals sending things into collection too quickly, without addressing/resolving disputes with patients first. (See above proposal about not reporting to credit agencies during a dispute resolution process.)

Nurse: On the bedside debt collectors: dude, not cool. Hospitals may employ debt collection agencies, and they often do, which is ok, but allowing them into patient care areas? This is slimy, having debt collectors posing as hospital employees, or having them demand payment before treatment in the ER. Isn’t that illegal, lawyer? EMTALA?

 Lawyer: I don’t know much about EMTALA (that’s the Emergency Medical Treatment and Active Labor Act) — I think it forbids refusing care based on inability to pay, but I’m not sure it forbids demanding payment in advance where possible. I could see a problem arising if the hospital didn’t make it clear to the patient that they would receive emergency treatment even if they couldn’t pay. (In other words, if they mislead the patient, and the patient leaves without care, that could be trouble.)

It certainly sounds like some of these practices are some kind of possible fraud or misrepresentation. And it probably violates state law in a lot of places that have good consumer protection laws.

Nurse: Yes, my concern is that it may seem to patients that they are or will be refused care if they can’t pay, even if that’s not really the case– it’s essentially intimidation on the threat of not receiving care. Patients, you are entitled to evaluation and stabilization in and ER, whether or not you can pay, and whether or not you owe anyone money. They can ask you for payment, but they must evaluate and treat you, payment or not.  Also not cool: You should not need to fear that seeking treatment in an ER will lead to your harassment for current or previous bills.

Lawyer: Very good point. 

Nurse: Yes, hospitals provide uncompensated care. No, they can’t fix it this way. Unless they care more about money than about care– in which case, they should go work for Goldman Sachs, am I right?

Lawyer: Maybe it’s kind of a desperation play? Because heaven forbid we should work to reduce the cost of care. That would probably do more to keep the doors open.

Nurse: Yeah, I mean, they try that, but it’s a big, messy problem. True, you can’t provide any care at all if you are entirely broke– but there is a line, and this practice crosses it.

Lawyer: Where do you think that line is? Is it okay to just talk about payment before providing care (assuming the person isn’t actively dying at the moment?)

What about people who actually legitimately incur costs that they can’t pay — when can the hospital start pursuing them for payment? 

Nurse: I think if they could tell you what it will cost, and make it clear that your will receive treatment no matter what, it might be ok. But it’s pretty near impossible to find out what a medical treatment is going to cost you before you get it. Just try sometime. You’ll be told, “well, it depends. . . .” There have been lots of studies comparing costs of treatments lately and it’s just wild. 

I would not want to work as a nurse in this environment– and I think my duty as a patient advocate would be to treat and protect these patients upfront. After they are treated, on their way out, fine, but not on my watch.

 Lawyer: Luckily, a lot of times when debt is sold, it’s done sloppily, so collection agencies sometimes sue for collection and it turns out they don’t have clear enough records to actually state any kind of legal claim to the debt. (Though this happens more with consumer debt than with medical debt, which is, perhaps obviously, more closely tied to the person who incurred it.) 

I don’t know how that interacts with the credit agencies.

 For now, I’m gonna put my money on state law for eliminating these abuses. But fingers crossed on the federal laws about credit scores, too!

You only get one brain. . .

This week, with the suicide of Junior Seau, we have another sad turn of events concerning head injuries in professional football. . .

Lawyer: Seriously. How many more of these is it going to take before people (TV networks?) start taking this really, really seriously? Yes, better helmets, small rule changes, okay, but human brains are not designed for this kind of repeated trauma. All in the name of lazy sundays and something to do while you drink your bud light and eat your wings.

I have lots of sports soap boxes to get on. But my big 2 are college sports and the dangers of pro football.

Nurse: Um. . . Nurse is about to take an uncharacteristically non-liberal standpoint on something. I might get on the college sports soapbox with you, and I will definitely talk about risks to high-school athletes, but I think I will allow the NFL . . . at least, if we are taking legally. (And yes, I know that the two former are related to the latter, but forgive me!) I mean, people are free to play for the NFL or not, and they are paid an enormous amount of money to do it (and I would consider that an incentive, but not coercion).

Lawyer: But the problem is that they (a) have known about these risks for a long time and done little to mitigate them (or possibly even actively concealed them) and (b) have actively encouraged (albeit not directly) behavior that makes the game more dangerous than it has to be. (see Bountygate.)

Nurse: The NFL is an organization with rules– and I agree that it has a responsibility (perhaps a moral one) to try to protect its players from harm. And clearly repeated head trauma is bad for you. But I have a hard time generating the level of outrage over this issue that I do over a lot of other stuff. Does it suck that this happens to guys? Yes. Is it a major public health concern? Honestly. . . not really.

Lawyer: I think it is in a way, though, because lots and lots of little boys (and a few little girls) watch this stuff on TV and form dreams. And habits. So it goes beyond the, I don’t know, 1500 guys in the NFL.

Nurse: Would everyone in the NFL drop out tomorrow if they were given a full, in-depth presentation on the dangers of head trauma? Doubt it.

Lawyer: But the point isn’t that people shouldn’t play football. It’s that it can be played in a less dangerous manner, with less glorification of injury and much more attention to the dangers of head injury. Players should come out of the game. They should miss games. And it shouldn’t be their call, because the culture is such that you can’t make that kind of call and succeed.

A few weeks ago, someone had written to the NYT’s Ethicist column about watching football, and whether it was ethical, given the injury thing.

She concluded that perhaps it isn’t.

Nurse: They know they can get hurt. They do it anyway. Boxers break their noses. Dancers get eating disorders. Skiiers tear their ACL’s. So, should the NFL do what it can to lessen the risks? Absolutely. Should we ban pro football? Nah.

Lawyer: Agreed. We shouldn’t ban it. But we need to have a big shift in the culture.(And a lot less HGH. Or something.)
Is it ever going to change? Can it? Can small changes to the rules actually get us anywhere in the age of bounties set for injuring opponents?

Nurse: Besides, I like wings. . .

Lawyer: You got me there.

Social Organ Donation?

It’s all over the place that facebook is now encouraging users to report their organ donor status, along with all the other stuff in your profile. The San Jose Mercury News has even reported that it’s already increasing registrations in California. What gives?

Nurse: The upshot is that Facebook hopes that asking people to list their organ donor status on their Facebook page will create peer pressure to sign up as a registered donor. This is a potentially good strategy to get people who would be fine with organ donation, but never bothered to sign up, to do it, or at least to think and/or talk about the issue. Especially if Facebook uses their spying/linking/advertising mojo to link you to your DMV. No harm there, right? Interesting– framing organ donation as a social issue.  I can’t really see a valid argument that peer pressure will cause people who aren’t ok with donation to sign up. I don’t see this as controversial, but then again, I’m usually wrong about that kind of thing. . . 

Lawyer: I guess it just depends on whether you see it as a personal/private kind of decision, or whether the “greater good” notion of having a donor registry to begin with really makes it a public-spirited thing anyway. Is it just sort of like the “I voted” sticker that you get on election days? Like the tote bag or bumper sticker that says you gave to NPR? Or is it somehow more private because it’s about your body? I guess I agree that I have a hard time objecting, especially since as I understand it, you can leave it blank, and it never appears. 

Nurse: The interesting question was whether Facebook could ever be used as a source of information for hospitals about the patient’s wishes if they did not officially register. The article suggests that, rather, Facebook could let the family, who makes the decision if the patent didn’t register, know what the patient wanted– essentially that they would have consented. Could it ever lead to a direct use by hospitals of this information? Probably not anytime soon, but it sounds like Facebook is adding more health features to its site– maybe we are moving towards an online “personal health record” style repository of information that could, some day, be useful in that way– but honestly, I don’t see that happening yet.

Lawyer: And ew, would you want it to? I already find it sort of annoying when people use status updates to report on their various symptoms and/or dietary and exercise achievements. A platform that’s created to be social and very adept at trying to sell you things based on your personal information seems like a bad place for personal health information.

As to the consent issue, I think that’s probably right — and it probably would lead to at least some increase in donations, assuming there are a fair number of cases where the family says no because they’re not sure whether the person wanted it. But then, I like all kinds of things on facebook. You have to wonder if any of that could come into play after you’d died. (Imagine leaving a big chunk of money to a charity which, unknown to you, has dispanded before you die; what do they do with the cash? I could see using an online profile to find information about what you would’ve wanted.)

And with my cynic hat temporarily on: Surely they did this to get some good press as a socially positive company in advance of their IPO…?

Fetuses, Drugs, and Rock and Roll

The NYT Sunday Magazine ran an article by Ada Calhoun, “Mommy Had To Go Away For A While”, about Alabama’s “chemical endangerment” law, which was originally intended to protect children from meth labs.  The law has been applied in a totally different way, though: to fetuses whose mothers use drugs. Holy can of worms, batman!

Image

Nurse: The obvious issues that the article talks about is “fetal personhood”– and the associated issue, can a fetus and a pregnant woman simultaneously have full rights? I don’t see how. Do I have to put on my feminist hat now? Does a women lose rights when she becomes pregnant? (Or, and I’m looking at you, Arizona, on the last day of her menstrual period?)

Lawyer: I also think there’s something disturbing about a crime that can only be committed by women. A woman and a man take meth together, she commits a crime he didn’t commit, even though they did the same act. Equal protection? (I wonder if that’s the “constitutional issue” being appealed in the case in the article. I still haven’t read it carefully. Did it say?)

Nurse: I don’t think the article explained the specifics of the appeal, but did mention an amicus brief (see? nurse knows legal stuff!) from a reproductive-justice group which suggested that yes, applying the law to pregnant women violates equal protection, among other things. 

For me, I am really, really concerned about the issue of where we are allowing medical issues and criminal issues to overlap. First, just from a philosophical standpoint, I believe addiction needs to be treated as a medical problem, and this is an issue brought up in the article, too. That’s not universally accepted. But women who are addicted to some drugs cannot safely quit cold-turkey just because they are pregnant– that could also endanger the fetus. 

Then, why do is it OK to drug-test infants for legal, rather than health, reasons? Can they do this without the parents’ consent?

Lawyer:  On the question of consent for testing the infants, it calls to mind a controversy from about two years ago about taking blood spots from infants for a few mandatory tests, and then keeping the samples and using them for research. I believe a court ordered the state (Texas) to destroy the samples.

Many states (such as California) have a few required tests they give all newborns and I think they do it without specifically getting affirmative parental consent.  So sometimes it is considered legal for states to do testing on infants — but only for health-related reasons, and there are clearly limits on what can be done with the data. (Screening ok, research not ok.) Prosecution of the mother? It’s tough, because it is related, in some ways, to the health of the infant. But only tangentially, because one could protect the infant by ordering treatment, or even taking the child away for a while, without criminal prosecution.

Nurse: If a patient comes into the ER and the staff runs a tox-screen, they are doing it for treatment purposes and those results are not allowed to be given to law enforcement, I believe. This is so that people will not avoid treatment for fear of arrest. But that’s exactly what we are doing to pregnant women if we threaten to prosecute them for using while pregnant, isn’t it? Discouraging prenatal care, discouraging them from seeking treatment for addiction. That’s dangerous, and could really do way more harm than good.  So, while illegal drug use is already criminal, the question is why does the state get to peek into medical records, or even require tests? I think the advocates for this law make an argument that  when you harm another person, the rules change. But then, this law has been applied to pregnant women who delivered healthy babies too.

Lawyer: My other concern is that the article says this law was “originally created to protect children from potentially explosive meth labs.” So the state legislature didn’t seem to have this sort of thing in mind, and prosecutors are running wild with it. As a general matter, I think prosecutors should be doing their best to punish people as the legislature intended — not taking a loosely drafted bit of law and trying to sweep people under it because of their own moral convictions. Looking at some of the quotes from prosecutors in this article, it’s pretty clear that they’re driven by personal conviction — not by what they understand to be the intent of the law as written.

Let’s just run a few tests. Or not.

[Note: Yikes. We've been gone so long that the upgrades to WordPress made it hard for us to figure out! We hope to be back more frequently with some quick updates, in addition to your usual beloved debates. -N&L.]

NYT reported this morning on  Choosing Wisely, an initiative by some doctors’ groups and Consumer Reports (which appears to be the first of several forthcoming recommendations) that, basically, doctors don’t order so many tests, unless there is some specific reason to think they are necessary.

Nurse: This one is for you: conventional wisdom has it that doctors order extra tests to protect themselves from malpractice suits. This practice is known as “defensive medicine.” Would this kind of professional recommendation have an effect? Most cases never make it to court anyway, so . . . maybe not so much? Lawyer?

Lawyer: You’re right that most cases settle. But it’s also true that weak cases tend to settle for less. (And are brought less often — at least to some degree.) And of course, sometimes there are trials where at least in theory weaker cases don’t prevail as often. 

Would this weaken some malpractice cases? Yes, I think so. Malpractice liability is based on doing something below the standards of your profession. If the standards of your profession are set down in documents and guidelines, which you followed, your ass is much more covered than it otherwise would be. Of course, a plaintiff could still put on experts who would say “those guidelines were written by outsiders/elitists/whatever and don’t represent the actual standards that prudent doctors follow,” etc., etc., but on the whole, they would surely give docs at least some cover.

Nurse:  We need a cultural shift to fix this problem. American patients, by and large, have the attitude that if there is a test, they should get it. Better not leave any stone unturned. And because we run medicine largely as a business, doctors want to please patients and many (though not all) won’t say no. This problem is created, or at least exacerbated, by the fact that almost no one actually pays directly for their care. There was a David Sedaris article in a recent New Yorker where he talks about going to the doctor in France and expecting a battery of tests for a small lump he found– instead he was assured that it was probably a fatty tumor and not dangerous and sent on his way, and he felt like a hypochondriac.  Just an example. . . 

Lawyer: I think the real question is whether all that stone-turning actually improves outcomes. Surely in some individual cases it does, but in the aggregate, is the effect quite small? In a perfect world, we wouldn’t be making our own personal decisions on this sort of thing based on cost anyway — if a test could be useful, we might want it.

I think one of the great fears surrounding this sort of thing is that such standards can make tests that might help some people (at least at the margin) unavailable. If the standards say it isn’t necessary, insurance (and especially Medicare) won’t pay — and then patients can’t get the test. Most patients are no worse off, but what about those few who would’ve been benefitted?

Nurse: Well, that is the rub. First, extra tests don’t necessarily improve outcomes in the aggregate at all. But it’s a complex question– what is an outcome? Is it catching the “zebra” as they say in medicine? Is it improving quality of life? Adding years? We see this debate play out when they talk about what kind of cancer screening should be routine, too. Will we catch a few? Yup. Does the cost savings for catching it early offset the cost of all that screening? Probably not. Is cost the issue? Depends who you ask. Then, there is the issue of routine tests turning up abnormalities that are then treated, when they really don’t need to be. Best case, this is expensive. Worst case, it causes harm.

Then, about certain tests being unavailable. It is possible that tests not routinely available will still be covered if certain criteria are met– like if there is “probable cause”. . . I made a legal analogy. See what I did?

Lawyer: Cute.

Nurse: But ultimately, this still speaks to the attitude– Americans feel that if a test exists, we should be able to get it. No one wants to use the r-word (rationing), but. . . it happens. I can certainly foresee a scenario, though, where a doctor wants a test for a good reason, and the test is not covered, and everyone’s mad. That happens already. 

Lawyer: I still think this might increase that. 

Nurse:  Did/does managed care work to address the problem? The primary care “gate keeper” is supposed to prevent unnesseary expensive tests and procedures, too. But it’s still a problem. Partly, perhaps, because everyone resents being told what to do by an insurance company. In any system that there is a fee-for-service, it’s going to be a problem, and it seems like that’s the target here– I wonder how it compares in effectiveness, and “side effects” (externalities?) to systems like capitation, or salaried physicians. There are too many factors to evaluate, but it’s an interesting question.

Lawyer: What’s capitation? 

Nurse: Capitation is the system where doctors are reimbursed per patient– per “covered life,” they say– regardless of the services provided. It’s an attempt to reverse the incentives to do less instead of to do more. 

Lawyer: Any idea how much of this is done in hospital settings without the involvement of a patient’s usual primary care physician?

Nurse: I think that most of the goal of what was discussed in the article was primary care-related– not doing routine tests. I think it happens in hospitals a lot, too, but testing might be more justified then. If you have chest pain, an EKG is a good idea. If you are having a check-up and feel fine, it’s overkill. What DOES happen in hospitals a lot is duplication– we can’t find the MRI he had last week, or we don’t know he had it, so just get another! This is where accountable care organizations and electronic records can save the day. . . :)

A Pack A Day Keeps the Jobs Away…

NYT recently published this article about employers — particularly health care employers — adopting policies that they don’t hire smokers.

Lawyer: I have no problem with this as comes to healthcare organizations.

Nurse: In general, it seems like if an organization’s mission is to promote health, then it’s reasonable to expect its employees to uphold that to an extent– not smoking at work, on the grounds, etc, but really, isn’t what they do at home their own business if it’s not illegal or damaging to the company? I guess there’s an argument to be made that it is damaging to the company, both in terms of image/mission and in terms of finances, but. . .  shouldn’t there be a line between our work lives and our personal lives somewhere? Where? When we sign on to work for a company, we aren’t signing away all of our lives and our time.

Lawyer: Sure, but isn’t there an argument that you’re not just choosing to smoke sometimes — you become a smoker? Given that it’s addictive, and we’re not really talking about the occasional — or even daily — cigarette, but rather a habit?

Nurse: Generally speaking, we can do things that are bad for us, right? We can eat too much cake, we can drink to excess, we can stay up too late. . . and if it doesn’t bother other people, who cares? So when is somking crossing that line, if it’s not during work hours? It might, but. . . when?

Lawyer: Can you tell if someone is a smoker? Smell of smoke, etc? Maybe there would be an argument for an honor system rule, but not for testing for nicotine at random and firing people for testing positive. I’d be interested to get your take on whether the American Cancer Association could do this. If they can, are hospitals really that different?

Lawyer: Also, this quote just kills me:

“If enough of these companies adopt theses policies and it really becomes difficult for smokers to find jobs, there are going to be consequences,” said Dr. Michael Siegel, a professor at the Boston University School of Public Health, who has written about the trend. “Unemployment is also bad for health.”

Um, so… quit? And then you can be double-healthier. People who are characterizing this as discrimination are missing a major point about discrimination: smoking is a behavior. It’s something you decide to do or not do — not a quality that you have and cannot change, such as race, gender, sexual orientation, national origin, arguably religion — the things we forbid discrimination against.

Nurse: I agree that it is not discrimination based on an innate charactaristic, which is all well and good, but. . . legally, can a company discriminate on anything it wishes outside of a few specific things? Can we refuse to hire people who smell bad (not unrelated. . .)? Or people who are alcoholics? What about people with terrible fashion sense? What about morbidly obese people?

Lawyer:  Here are the rules:

The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. It is also illegal to discriminate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.

Non-protected reasons for preferring one person over another? a-ok. It’s not illegal to prefer some people over other for reasons not on this list.

Nurse: If so, then, sure, have at it. If you don’t like it, don’t work there, or else quit smoking, or learn to hide it. At my job, they do random drug testing. So I don’t use drugs, and if I do, I accept that I could get caught and I could be terminated. If I wasn’t willing to accept that, I would work somewhere else.

Lawyer: Slightly different there, because drugs are illegal, right? I mean, they have a colorable claim that they’re firing you for violating drug laws. Or  that it’s totally reasonable to keep you away from the cabinet where you keep the vicodin — that you are uniquely unqualified. And perhaps more importantly, you have no claim that you have a right to do drugs.

This type of project seems to have three motivations:

Economic: (cheaper to run, since employees are healthier and more productive)

Image: health care facilities, at least, are trying to help people be healthy… isn’t unsettling to see people in scrubs outside smoking?

Public Health: Reduce smoking in general

Nurse: I think the economic incentive is crystal clear. In terms of image, that seems reasonable. It also matters in jobs like nursing because let’s be honest, who wants someone who smells like an ashtray leaning over them for 12 hours when they don’t feel good to begin with? I’m not just being rude, I’ve had patients ask me to have a particular tech stay out of their room for just that reason.  In terms of public health. . . I’m all for a lot of public health efforts, I think it’s great that you can’t smoke in bars an all that, but when is an employer being too paternalistic? I would resent it if my boss was allowed to fire me if I got a speeding ticket, wasn’t wearing my seatbelt, got drunk on a saturday, or had unsafe sex. Those are public health issues, too.

Lawyer: I’m curious — what do you think about a church refusing to employ a secretary who is unmarried and cohabitates?

Thanks for the 60 years of marriage, honey, but I have to cut you loose.

NYT ran a story this weekend about the practice of “spousal refusal” — that is, one spouse refusing to pay for the other’s long-term medical care (think nursing home) so that the ailing spouse can have the care covered by medicare. Which it otherwise wouldn’t be if they have assets of more than $110,000. (Assets including, you know, the money you were planning to live on for the rest of your life, since you’re retired, and stuff.) Nurse and lawyer take a look at some of the complexities of this practice — which seems heartless, but then, so do the alternatives, no?

Nurse: Yikes! Well, my first instinct is, can you blame ‘em? The cost of nursing home care is so outrageous, and it’s true that medicaid pays less than a regular consumer, so I totally get the instinct. If you’ve saved your whole life for a comfortable retirement and then you are basically S.O.L. because your spouse has a particular kind of illness that medicare won’t cover the cost for, that is pretty lousy.

Lawyer: I wonder if the consequences of signing a refusal form like that are limited to health benefits, or if they endure or extend. (In other words, is there some kind of “penalty” you end up paying?)
It also made me wonder why the man in the story who was being sued by the state hadn’t just transferred more of his assets. If the whole point was saving for the next generation, couldn’t he have avoided the problem by giving as much of it to his children/family as he could (depending on tax situation?) I’d also note that surely that suit could settle for far less than the cost of the care, making this kind of thing economically efficient for the refusing spouse.
Nurse: The counter-argument presented in the article talks about millionaires gaming the system. . .which I see is possible, but probably not really the issue. It’s more about people who made a lot of sacrifices to amass some savings who are never really going to see it now.  I don’t think it’s really a good thing to essentially “cheat” this way, but what you are allowed to keep and still be covered by medicaid isn’t super generous. . . and it sort of discourages saving, in a way.
Lawyer: Sure does. (If we assume that people are thinking about this and planning for it. Which some people are.) Why don’t they raise the amount of savings you’re allowed to have, and still qualify? It’s $110,000. That is… not much, in terms of life savings for retirement. They could set it considerably higher, avoid the “millionaire problem,” and keep people’s savings from being wiped out by catastrophic illness. This is crazy-making because of course spousal refusal is no kind of solution to the huge problems we face. And it might seem to make our health care budget crunch worse. But for the people facing the choices at the time, they have to do something.
Nurse: So. . . let’s reform the system! (that is apparently my standard answer, no?). You know what’s cheaper than nursing homes, has better outcomes, and better patient and family satisfaction? Home care! Day programs! There’s a place for nursing homes, we need them. . . but they aren’t the only option in a lot of cases, but they may be the easiest to set up, or the only one that has some insurance benefit.
Lawyer: Love it! The problem isn’t refusal — it’s that the cost of care if way too high. The article mentions that in New York, home care is covered by the same kind of benefit. I wonder how the decisions get made — I imagine it’s not by the patient/family, given your info on satisfaction.
If you were going to design a policy, how would you do it? Who gets home care and who goes into a nursing home? By disease? By preference? By. . . what? Are the decisions made by people who have financial incentives one way or the other?

I like this solution because it seems like it shouldn’t be controversial. It… works better AND costs less? AND doesn’t involve letting a government official appear to be making very personal decisions for you? But then, we’ve had all kinds of good ideas that can’t get any traction. The political system is busted. Beyond belief. Excuse me while I go bang my head against the desk for a few hours before I start working on solutions that won’t involve congress.

Paging Doctor Nurse!

Nurse and Lawyer’s dad sent on an article about the IOM report on the future of nursing. It was also discussed on Talk of the Nation this week. The report talks a lot about education for nurses and how advanced-practice nurses can help address the shortage of health care providers expected to worsen when new health care laws take effect.

Lawyer: Well, Nurse may be on track to be one of those nurses with doctorate degrees that the report says we need! So that’s one way to work for change. Get your boots on the ground.

Nurse: The education issue is huge. And divisive. While I agree that more education is good, and it seems reasonable to move towards a standard of a bachelor’s degree for entry-level nursing, it’s also true that some of the best nurses I know have associates’ degrees.

The article talked briefly about the idea of post-graduate clinical residencies for nurses– and I think that is  a very exciting idea. This is already widely practiced in a very haphazard way by hospitals who have various residencies, preceptorships, and externships for new graduate nurses, but there is no standardized way to do it and a nurse can be lisenced without any experience outside of school. Clinical skills and experience are largely obtained in your first nursing job.

Lawyer: Interestingly and mildly tangentially, that is also true of lawyers — though some (and an increasing number of) law schools have clinical programs where students work on real cases under faculty supervision, it’s still standard practice for newbies to have no practical experience. This (along with the student debt problem) accounts for some of the phenomenon of new graduates going so often into big law firm jobs, rather than working for smaller organizations that could really use the help — big firms have the resources to provide the training that isn’t required as part of the degree.

Nurse: Finally, the standard of education varries greatly. Some places are really pushing for NP’s to require doctorates rather than just masters’ degrees. The DNP degree has been created for this purpose, although a PhD in nursing also exists with a more academic/research focus.
Nurses with advanced degrees tend to be in somewhat different roles than ADN or BSN nurses– they are often educators, or specialists, or managers, serving as resources. They may teach, or do research, or direct nurse-led programs. They may work in primary care or alongside physicians in prescribing and treating. Some (but not many!) work in policy areas.

Lawyer: The Penn program mentioned in the NYT article seems to be getting at caring for people in a way that reduces demand for services. A kind of preventive care that kicks in only after a major incident — preventing relapse, rather than preventing disease to begin with — but still a step in the right direction.  At the risk of getting all econ here, with a shortage of this magnitude, we’ve got to increase supply AND cut demand. It seems to me that nurses could be useful in cutting demand.

Nurse: I agree. readmissions is a huge problem that can be addressed with good follow-up care, and nurses are a great way to do that. Not only will it lessen the burden on the system, but it is good for patients and good for health. This might be one of those situations that needs a very well-designed and executed study to prove that it saves money, since it involves laying out cash upfront. It’s a different way of thinking and those are sometimes hard to sell.

Lawyer: How do we effect change at the cultural level? (If I knew the answer to that. . . jeez.)

Nurse: It’s too bad that there’s so much infighting within the health care professions. Who doesn’t want nurses in expanded roles? What? Physicians? I call shenanigans.

Lawyer:  We need to pay nurses more. There, I said it. Not just to attract more nurses (though that would probably happen), but also because people will then take them more seriously as professionals and be more willing to entrust them with major tasks. (cf. NYT’s discussion of kindergarden teachers a few months ago.)

Nurse: Good point. I have had many people as me, if I’m considering getting my doctorate in nursing, why I don’t just go to medical school since it’s 4 years anyway, and I’d get paid a lot more. And it’s true, I would. My answer is that even nurses practicing in primary care have a different philosophy of care, in general, than physicians do.  But why that pay gap? For education and training, perhaps? Doesn’t hold much water when the nurse is doctorate-prepared. (Another reason to standardize residency programs for nurses– gets rid of that excuse entirely!).

Lawyer: We just need to keep fighting the idea that nurses are inherently less smart, useful, skilled, etc., than are doctors. (I’ll save my feminism rant for another day, but, yeah.) Just because many doctors have significantly more training than many nurses doesn’t mean that it has to stay that way.

Is there a role for law here? The Patient Protection Act is certainly a major force here, and a force for good, but it’s also creating a lot of issues that we need to solve. There are all the traditional answers to what law can do here — malpractice reform to cut costs, various iterations of who pays for which government programs — but could there be something else?

Nurse: Look at nurse practice act– these are different state by state, and the scope of practice varries from state to state. Some states require NP’s to work under physician supervision, some have prescriptive authority, some can function totally independently. Why does it need to be fragmented this way?

Lawyer: California’s is available here: http://law.justia.com/california/codes/2009/bpc.html (scroll down to Chapter 6: Nursing). Lots and lots of rules. This is one of those things that really has to be regulated by state law — it’s one of those types of things that seems like a state issue, not a federal issue. (That’s highly technical, I know.) There is an organization that promulgates “Uniform Law” — they very carefully draft laws that make sense to have agreement on and then try to persuade states to adopt them — but they have a really hard time getting enough states to adopt things to make them worthwhile. Still, this seems like the sort of topic where that kind of unity would be useful. (There is a Uniform Healthcare Decisions Act, and a Uniform Healthcare Information.