Can people on Medicaid sue states to stop budget cuts?

access to health care, court cases, Independent Living Center of Southern California, long term care, Medicaid, Our News & Commentary Blog, Supreme Court

Monday, October 3, was opening day for the U.S. Supreme Court. The Court heard oral arguments in three consolidated cases: Douglas v. Independent Living Center of Southern California, Douglas v. California Pharmacists Assn. and Douglas v. Santa Rosa Memorial Hospital. In these cases, Medicaid recipients and providers are suing the state of California to stop 10 percent across-the-board cuts in payment rates that were instituted to address state budget deficits.

As the September 21 My Medicaid Matters Rally proved, with over 90 national co-sponsoring organizations, concern about threats to Medicaid is mounting. It’s good to see an independent living center helping to lead the charge in challenging Medicaid cuts of the magnitude seen in California. It’s also good to see people with readily apparent disabilities out marching against such cuts, as seen in a photo the Los Angeles Times carried about the case. As one of the providers’ attorneys argued, “My people have a life-or-death problem.” (I guess he must have been referring to provider concerns on behalf of Medicaid consumers.)

If Medicaid recipients and providers are not allowed to sue states to enforce Medicaid requirements, then enforcement might depend solely on the federal government. The New York Times described some of the key issues in the case:

The justices were not focused on the ultimate question of whether state officials were entitled to address the budget crisis there by lowering payments to medical providers. Rather, they considered the threshold question of whether the providers and Medicaid recipients were entitled to sue over the move.


…There is no question that federal authorities can enforce the law and that states that fail to comply with their obligations [under federal Medicaid law] face the loss of federal money. Almost as soon as the argument was under way, though, Justice Ruth Bader Ginsburg said such enforcement standing alone was problematic.


“That’s a very drastic remedy that’s going to hurt the people that Medicaid was meant to benefit,” she said of the potential loss of federal funds.


Justice Anthony M. Kennedy suggested that private lawsuits may serve a valuable role in supplementing federal enforcement, referring to a friend-of-the-court brief filed by former officials of the Department of Health and Human Services that said, “Fewer than 500 federal employees are today tasked with supervising 56 different Medicaid programs administering nearly $400 billion in federal funds every year.”


It followed, the former officials said, that exclusive enforcement by the federal agency was “logistically, practically, legally and politically unfeasible.”


For links to 11 major news outlets’ coverage of the Supreme Court arguments, the Kaiser Health News is a useful source. For legal nerds (like me) who want to look at the various briefs filed in the case, several are posted at http://www.scotusblog.com/case-files/cases/maxwell-jolly-v-independent-living-center-of-southern-california/ .

Democratic lawmakers are divided on the case. As reported in The Hill:

The Obama administration’s Justice Department argued in California’s favor, saying the lawsuits should be barred. But several Democratic leaders in Congress — including House Minority Leader Nancy Pelosi (Calif.) — filed a brief in the providers’ favor. Individuals should be able to sue as a way to guarantee that they get the full benefit of the Medicaid program, they said.


Over 30 states have filed a brief opposing the private right to sue states. To find out whether your state is one of them, you can check the states listed in their brief.

About a month ago, nearly 400 disability advocates emailed federal administration officials urging them to withdraw their friend-of-the-court brief opposing the right to sue. The letter expressed deep concerns about the potential impact of a bad decision in the case:

Those of us who have spent decades advocating for states to implement our civil right to receive Medicaid long term care services in “the most integrated setting” are painfully aware that the Department of Health and Human Services is far from effective in protecting our Medicaid rights. …


The arguments, while focusing on the particular section of law involved, could spill over and affect private enforcement of other Medicaid Act provisions. These arguments could affect the enforcement of Olmstead at the state level. …

State budget cuts to Medicaid threaten the health and sometimes the very lives of Medicaid beneficiaries. Access to the courts may be the best way, and often the only way, to protect our lives and defend our freedom. Medicaid consumers need access to federal courts if the voices of the people whose health and lives are most directly impacted by Medicaid are to be heard as loudly as the voices of the states that want the “flexibility” to ignore our rights.



In fact, as if to drive the point home, there’s news reported on the plaintiff ILC’s website of another round of threatened Medicaid cuts in California that heavily impact home and community based long term care services, including an 8.6% cut to personal care hours under the In-Home Support Services program (IHSS).

The Supreme Court decision is expected to take several months to be issued. Before then, it’s likely that many states will enact Medicaid budgets that make Douglas v. Independent Living Center of Southern California one of the most important disability impact cases in a number of years. – Diane Coleman

India – Newest Case of Person Demanding Treatment/Money or Euthanasia (“Your Money or My Life”)

access to health care, assisted suicide, court decisions, euthanasia, health disparities, India, Our News & Commentary Blog, thaddeus pope, your money or my life

Lately it seems like I’ve been drawing quite a bit on material from the Thaddeus Pope‘s Medical Futility Blog.

Mostly it’s because Pope is really good at digging out stories that fly under the radar of most of us. More than occasionally, he’ll write something that is too tempting to ignore.
That’s true with his latest blog entry, regarding the newest request by a citizen of India to be euthanized if they can’t get aid or treatment for the condition or disability they have.

Pope’s blog post can be found here:

Medical Futility Blog: Alka Tiwari: Give me a bone marrow transplant or give me death

From the blog:

On September 30th, Alka Tiwari filed a complaint in the courts of the Indian state Uttar Pradesh asking the government either (1) to provide funds for her treatment or (2) to allow physicians to administer a “poisonous injection” to get rid of the unbearable pain.

This is certainly not the profile of the typical patient utilizing the ODDA or WDDA. But this is exactly the sort of case that opponents of PAD legalization in other states suggest would be become increasingly common.

As Pope asserts, this is not the profile of a “typical” patient using the assisted suicide laws in Oregon and Washington states to end their lives.

This case is, however, very typical of the majority of euthanasia/”mercy killing” appeals that have made news in India over the past few years. I wrote about it back in 2008. Responding to the recommendations of a legal commission in India to legalize euthanasia on the grounds of “solace compassion, justice and humanism.” Here’s what I wrote at the time:

Sounds nice, doesn’t it?

Trouble is, it ignores the reality of the rash of highly-publicized pleas for “mercy killings” put forth by families and individuals in India over the past few years. This is a fairly representative example:

KOLKATA: An ailing 40-year-old woman and her husband have written to the District Magistrate of North 24-Parganas seeking permission to undergo euthanasia, official sources said.
Swapna Das, suffering from a kidney disorder, and her husband Biswanath, a soccer coach at a local club, got married five years ago. The couple stated that they have decided to end their lives because they can not meet the cost of treating Das’ illness.

“We need Rs 6,000 for a dialysis and another Rs 3.5 lakh for a replacement,” Das said. Biswanath said they were currently dependent on neighbours’ help for her survival.

This couple is typical of the “mercy killing” pleas that have emerged in India. Central to virtually every story is the despair over the inability to get treatment, support or in some cases even adequate food and shelter.

But the Kerala Law Reforms Commission neatly ignored the economic and social factors that have been central to the plight of those who have sued for permission to kill themselves, a relative or be killed by a third party.

In almost every publicized case, the plea for euthanasia was lost, but the publicity forced the government to free up some resources for the suffering family or individual.

So, as Pope notes, that isn’t what we see in the US in terms of requests for assisted suicide right now.  But considering that there is a powerful political movement to shift in the US to make availability of health care dependent on one’s financial resources – to shift that availability even more to an income-based system than it is now.

If that happens, expect future groundbreaking requests for euthanasia to look a lot more like the ones that dominate the debate in India.  –Stephen Drake

Addendum – There’s really no name for these type of cases.  The individuals making these demands of the govt in India are generally desperate – desperate for medical and financial help most often.  They come across as a cross between robbery and hostage situations.  Although, instead of saying “Your money or your life,”  the person is handing the gun to the govt and saying “Your money or my life.”  And “your money or my life” seems as good a term as any to label these cases.

RESEARCH – Study finds that antisocial personality traits linked to embracing utilitarian ethics – (like those promoted by Peter Singer)

bioethics, moral reasoning, Our News & Commentary Blog, Peter Singer, psychopaths, research, Utilitarianism

I suspect most readers of this blog are familiar with Peter Singer – mostly through his views on infanticide and euthanasia.  Many others are already familiar with his book Animal Liberation – a book that served as the first inspiration for many who are now in the animal rights movement.

Singer’s worldview – and the policies he promotes to form a better one – fall within the framework of utilitarianism, which is defined briefly here:

Utilitarianism is an ethical theory holding that the proper course of action is the one that maximizes the overall “good” of the greatest number of individuals. It is thus a form of consequentialism, meaning that the moral worth of an action is determined by its resulting outcome. The most influential contributors to this theory are considered to be Jeremy Bentham and John Stuart Mill.

Utilitarianism was described by Bentham as “the greatest happiness or greatest felicity principle”.

Singer is probably the best popularly-known advocate of the utilitarian ethics.  His advocacy of infanticide and euthanasia – both voluntary and nonvoluntary – are a result of his promotion of utilitarianism as the most rational approach to ethical choices.  In the case of nonvoluntary euthanasia, persons with severe cognitive disabilities can be killed humanely and increase the greater good – especially if the organs of those people could be harvested and transplanted into people with more ability to appreciate the extra amount of life.

And, you know, when Singer and others lay it out, it really sounds logical – bloodlessly and brutally without any kind of empathy – but logical.  It’s a point of view in which every person who makes a choice about killing someone else for the greater good is operating from the purest of motives.  That’s always sounded quite a bit removed from the world I inhabit, in which people make choices – including life-changing ones – for reasons that range from heroic to selfish to downright criminal.

It turns out that a couple of researchers are interested in how utilitarianism works out in the real world as well.  Or rather, they’re interested in finding out just who is willing to make utilitarian decisions.  From a press release that was issued about the study last week:

Antisocial personality traits predict utilitarian responses to moral dilemmas

Study questions the widely-used methods by which lay moral judgments are evaluated; results found individuals who are least prone to moral errors also possess a set of prototypically immoral psychological characteristics

NEW YORK – September 30, 2011 – A study conducted by Daniel Bartels, Columbia Business School, Marketing, and David Pizarro, Cornell University, Psychology found that people who endorse actions consistent with an ethic of utilitarianism—the view that what is the morally right thing to do is whatever produces the best overall consequences—tend to possess psychopathic and Machiavellian personality traits. (Emphasis added.)

In the study, Bartels and Pizarro gave participants a set of moral dilemmas widely used by behavioral scientists who study morality, like the following: “A runaway trolley is about to run over and kill five people, and you are standing on a footbridge next to a large stranger; your body is too light to stop the train, but if you push the stranger onto the tracks, killing him, you will save the five people. Would you push the man?” Participants also completed a set of three personality scales: one for assessing psychopathic traits in a non-clinical sample, one that assessed Machiavellian traits, and one that assessed whether participants believed that life was meaningful. Bartels and Pizarro found a strong link between utilitarian responses to these dilemmas (e.g., approving the killing of an innocent person to save the others) and personality styles that were psychopathic, Machiavellian or tended to view life as meaningless.

These results (which recently appeared in the journal Cognition) raise questions for psychological theories of moral judgment that equate utilitarian responses with optimal morality, and treat non-utilitarian responses as moral “mistakes”. The issue, for these theories, is that these results would lead to the counterintuitive conclusion that those who are “optimal” moral decision makers (i.e., who are likely to favor utilitarian solutions) are also those who possess a set of traits that many would consider prototypically immoral (e.g., the emotional callousness and manipulative nature of psychopathy and Machiavellianism).

While some might be tempted to conclude that these findings undermine utilitarianism as an ethical theory, Prof. Bartels explained that he and his co-author have a different interpretation: “Although the study does not resolve the ethical debate, it points to a flaw in the widely-adopted use of sacrificial dilemmas to identify optimal moral judgment. These methods fail to distinguish between people who endorse utilitarian moral choices because of underlying emotional deficits (like those captured by our measures of psychopathy and Machiavellianism) and those who endorse them out of genuine concern for the welfare of others.” In short, if scientists’ methods cannot identify a difference between the morality of a utilitarian philosopher who sacrifices her own interest for the sake of others, and a manipulative con artist who cares little about the feelings and welfare of anyone but himself, then perhaps better methods are needed. (Emphasis added.)

The article itself, which can be read here in pdf format,  is only 8 pages long and worth the read.  This is a paragraph describing some individuals within the 10% of the population who are likely to embrace utilitarianism:

What do those10% of people who are comfortable with the utilitarian solution to the footbridge dilemma look like? Might these utilitarians have other psychological characteristics in common? Recently, consistent with the view that rational individuals are more likely to endorse utilitarianism (e.g.,Greene et al., 2001), a variety of researchers have shown that individuals with higher working memory capacity and those who are more deliberative thinkers are, indeed,more likely to approve of utilitarian solutions (Bartels,2008; Feltz & Cokely, 2008; Moore, Clark, & Kane, 2008).  In fact, one well-defined group of utilitarians likely shares these characteristics as well—the subset of philosophers and behavioral scientists who have concluded that utilitarianism is the proper normative ethical theory.

Unstated here seems to be an assumption that there isn’t any overlap between that “subset of philosophers and behavioral scientists” and individuals who score high in terms of psychopathy and Machiavellianism.  I think that’s an untested assumption and therefore not one that should be made.  Seriously.

Maybe the best summary comes from Joshua Rothman at the Boston Globe in his column “The Practical Psychopath“:

Psychologists, they argue, should stop assuming that the utilitarian moral choice is the right one. Each moral judgment is part of a general outlook. It might be important to have a utilitarian on board your lifeboat–he “may be able to act for the greater good in ways that prove difficult” for most people. But it’s important, too, that most people have moral outlooks attuned to everyday life. It’s lucky that most people aren’t utilitarians.

And yes – to people out there with strong feelings on this – I’m the first one to admit that psychology isn’t a hard science.  But bioethics isn’t a science at all – and the haphazard approach it takes to empirical matters (which might be due to the field’s roots in philosophy) often defies the old adage “the plural of anecdote is not data.”

But this study is in some ways good news for Peter Singer.  If he ever wants to go off to some island somewhere and establish a community based on utilitarian ethics, the authors of this study have identified just the types of people who are already willing to use utilitarian ethics.  They might even let him use their test that screens for psychopathic and Machiavellian personality traits.  That would be what I’d call a very brave new world.  –Stephen Drake

h/t to John B Kelly for pointing this study out to me.

Pennsylvania: Unusually Thoughtful and Informative Article On Elderly Homicide-Suicides

american foundation for suicide prevention, Compassion & Choices, Donna J Cohen, media coverage, Our News & Commentary Blog, suicide prevention, suicide-homicide

According to reporter Jo Ciavaglia, the murder-suicide described in this article is “at least the third in Pennsylvania involving an elderly couple reported since June.”

Maybe that’s what inspired Ms Ciavaglia to reach out to some sources that are most often ignored in coverage of these cases.

Here is an excerpt from Murder-suicides among elderly an act of desperation:

They lived together and died together, but this was no romantic ending for the Middletown couple. Murder-suicide is what the coroner called it.

Jeanne Hoez, 90, had advanced Alzheimer’s disease, a progressive illness that left her unable to respond to her environment. Her husband, Charles, 92, was at his “wits’ end,” according to Bucks County Coroner Dr. Joseph Campbell.

Police believe that Charles strung a hose from the couple’s minivan through their first-floor bedroom window and pumped deadly carbon monoxide into the home. Their son, who lives in Upper Bucks County, found them dead in their bed Monday morning.

The Hoez murder-suicide is at least the third in Pennsylvania involving an elderly couple reported since June, a scenario that mental health experts say is driven by desperation, not adoration.

This is a real departure from the usual framing of these tragic events.  All too often, the murder victim (usually the wife) is described as having died through a “mercy killing” and the perpetrator’s killing of her as an act of love.  (Last year, of course, this framing of these tragedies was actively encouraged by the group “Conflation and Con Jobs.”)

Ms. Ciavaglia made the unusual step (for a reporter) of NOT calling a “right to die” advocacy group, but called some organizations devoted to prevention of suicide – in this case, the American Foundation for Suicide Prevention.

Through that organization, she found and shared the work of Donna J Cohen, who has done extensive research on this growing and alarming trend in the elderly population.  We’ve shared some of her work in earlier blog entries.

Local groups devoted to suicide prevention and support for elderly persons are also used as sources in this story.

I wish we’d see more of this kind of story, but it’s really dependent on one particular reporter “getting” this aspect of the story.  Unlike Conflation & Con Jobs, who appeared to be proactively reaching out to newsrooms when an elderly murder-suicide happened in a given community, I fear that organizations like the American Foundation for Suicide Prevention just waits by the phone for someone to call.  (They’ll comment on this type of case, but I fear they’d probably express “no comment” when it comes to issues such as the suicide vigilante cult Final Exit Network.)

Or I could be wrong and now we’ll hear lots more from the AFSP and similar groups because they care passionately about preventing and reducing suicides for everyone in the population – including old, ill and disabled people.  That would be a nice surprise.  It would be worth being wrong this once.  😉  — Stephen Drake

Peter Singer: Latest Lecture Recommends Rationing Health Care on the Back of Disabled People

bioethics, disabilities, disabled people, discrimination, health care reform, healthcare rationing, Our News & Commentary Blog, Peter Singer

Last week, Peter Singer continued his longstanding vendetta against people with disabilities in a public lecture at Princeton University:

Peter Singer, a professor with the University Center for Human Values, presented a talk on “Rationing Health Care” on Tuesday. The event, open to the public, was sponsored by the Student Bioethics Forum.

Currently, the United States spends more per capita than any other country in the world, yet is ranked 176th in infant mortality and 50th in life expectancy according to the CIA World Factbook. According to a study conducted by the World Health Organization, the United States health care system is ranked 37th. These statistics make “it look like we’re not getting good value for money,” Singer said.

From NDY’s perspective, Singer’s stating the obvious here.  It’s hard to understand how anyone other than affluent people with comprehensive health insurance can see the health care system in the US as even  approaching “adequate” for a large segment of the population.

But, not for the first time, Singer can’t stop himself from attacking people with disabilities as part of his argument for more universal access to healthcare:

Although opportunities would never be exactly the same for the poor and rich, if a life is saved regardless of a person’s socioeconomic status, it promotes unity within the society, he added.

However, there remains the problem of what kind of care the country should provide. “We should get … the health care that provides the greatest benefits for the resources available,” Singer said.

This issue becomes complicated, however, with issues such as end-of-life care and saving disabled people over healthy people. For example, in prolonging life, hospitals spend high amounts of resources that could be used for saving lives. (Emphasis added.)

“We should only be spending on health care that actually benefits people and that benefits the patients,” Singer said.

Interesting wording “saving disabled people over healthy people”?  It seems to me that what he really means is “saving disabled people as well as healthy people.”

As I noted earlier, this isn’t the first time Singer has assaulted people with disabilities as part of an overall argument in favor of universal access to healthcare.  The July 15, ’09 edition of the NY Times Magazine published an essay by Singer titled Why We Must Ration Health Care.  In that essay, Singer made even more egregious – and data-free – arguments for limiting healthcare to people with significant disabilities. 

The disability community responded in a letter to the editors of the NY Times Magazine, who declined to print or respond to the protest letter – signed by 20 disability rights and other advocacy organizations.

Among the many issues relevant to a discussion of any discussion of limiting medical care to people with disabilities is the following, included in the original protest letter:

The proposed treatment – or nontreatment – of people with disabilities also violates the UN Convention on the Rights of Persons with Disabilities, which was signed by US Ambassador to the United Nations, Susan Rice. She signed the Convention on July 30th at the direction of President Obama. While the Singer essay violates the spirit and vision of the Convention in numerous ways, the most pertinent section of the document is spelled out in Article 25 (f), in which obligates signatories to “prevent discriminatory denial of health care or health services or food and fluids on the basis of disability.” This is important. Article 4(d) states that countries that have signed the Convention agree to “refrain from engaging in any act or practice that is inconsistent with the present Convention.”

It’s clear that Peter Singer has little use for the UN Convention on the Rights of Persons with Disabilities.  That’s no excuse to leave the document – and its mandates – out of the discussion.  –Stephen Drake

h/t Wesley Smith