Last year California Governor Jerry Brown signed into law California SB 1172, which makes it illegal to provide “conversion” or “reparative” therapy to homosexuals under the age of 18 in the state. The issue is whether this an unremarkable and rational exercise of the police power of the state or an infringement of First Amendment rights. Supporters of the bill assert that the “antigay” therapy is worthless pseudoscience and has the potential of harming young homosexuals who are struggling with identity and self worth issues. They claim that homosexuality is not a disease or an assumed condition, but an intrinsic or genetic positioning on a natural scale of human sexuality.
The Institute of Medicine and the National Research Counsel announced the pre-publication release of their report on their recent comparison of health care data between the U.S. and 16 other countries which crosses all age categories. The other countries include Canada, Japan, Australia, Germany, Austria, Denmark, Finland, Norway, Portugal, Sweden, Switzerland, the Netherlands, the United Kingdom and Spain. This is a fascinating read entitled U.S. Health in International Perspective: Shorter Lives, Poorer Health is currently available to read on line for free at the National Academies Press website. The U.S. generally finished near the bottom in most categories for the population under the age of 75. Our post 75 population, outscores their peers elsewhere.
Yesterday, a panel of the federal 9th Circuit Court of Appeals considered a challenge to the constitutionality of the National Organ Transplant Act (the “Act”) as it relates to restricting compensation to bone marrow cell donors whose cells are extracted through apherisis. The Act prohibits the compensation of donors of body organs including specifically, bone marrow, but permits compensation for blood, sperm, and eggs. In Flynn et al v. Eric Holder, No. 10-55643 (9th Cir. 2011), the Plaintiffs, who included a variety of persons and entities adversely affected by the difficulty of obtaining donations of bone marrow, argued that there was no rational basis for distinguishing between the donation of blood plasma and the donation of hematopoietic stem cells which are excreted from the bone marrow itself into the blood stream in thus implicating the “equal protection clause” of the Constitution.
The Medicare Fraud Strike Force working with the Department of Justice has been particularly active in Detroit and in Miami, two of the eight cities singled out for special attention by the government for fraud of the government. There seems to be some kind of special axis between Detroit and Miami perhaps reflected by the recent by the migration of Cuban emigres Caridad and Clara Guiarte, who operated a medicare fraud scheme in Miami before moving to Dearborn, Michigan when things got too hot, both literally and figuratively, in Miami. They bilked the government out of millions of dollars for providing (or not providing as the case may be) infusion therapy for treatment of the AIDS virus. Most of these schemes involve paying kickbacks to “patients” for the use of their Medicare numbers and money laundering. The sisters Guiarte were recently sentenced to 14 years in prison following their arrests in Columbia. Interesting Medicare continued to pay for a therapy that has been obsolete for a decade due to the development of new antiretroviral drugs.
A panel of the 4th Circuit Court of appeals has weighed in on the issue of the constitutionality of the Patient Protection and Accountable Care Act (the “Act”) colloquially known as Obamacare in the case of Liberty University et al. v. Geithner et al., 10-2347. The panel ordered the dismissal of the complaint seeking to render the Act unconstitutional under the Anti-Injunction Act (“AIA”) of the Tax Code. Justice Davis in giving the majority opinion found that the AIA stripped the federal courts of jurisdiction to render pre-enforcement decisions regarding the constitutionality of the Act. Interestingly, both the government and the plaintiffs were in agreement that the AIA did not apply.
The Wall Street Journal reported today that United Health Group as agreed to acquire a Monarch Healthcare, an Irvine California physician group including approximately 2300 physicians in a range of specialties. The acquisition is by United’s subsidiary Optum Health. The fluidity and uncertainties of health care financing and strategy has led to a number of interesting events with the merger of providers with the insurance function in different and yet reminiscent echoes of managed care arrangements of the past. The Monarch deal in California in somewhat encumbered by the arcane corporate practice of medicine restrictions. The situation here would likely involve the purchase of some hard assets and a long term contractual relationship with an independent practice association.
The U.S. Attorney’s office in Rhode Island and the FDA’s Office Criminal Investigations managed to squeeze a half a billion dollars out of Google for publishing online ads for Canadian pharmacies selling low cost drugs to consumers in the United States. Google had blocked similar ads from other countries, but not Canada. Peter F. Neronha, the U.S. Attorney proudly proclaimed that the investigation and settlement was a significant step in curtailing the activities of “rogue pharmacies” to reach U.S. consumers with drugs that may be unsafe and/or unlawful. Note, he didn’t say “actually unsafe and/or illegal.”
The good news for Colorado Medical Marijuana smokers is that the Colorado State Constitutional Amendment making possession of pot more medically qualified users and their “personal care providers” is Constitutional. The bad news is that it is still illegal to sell it. On October 29, 2009, in People v. Stacy Clendenen, 08CA064, a panel of the Colorado Court of Appeals affirmed the conviction of apparent pot entrepreneur, Stacy Clendenen, for cultivation of marijuana, possession with intent to distribute marijuana, possession of marijuana-eight ounces or more, and possession of drug paraphernalia, after rejecting her defense that she was a “primary care giver, “protected under the Constitution.
Two recent and unrelated cases this month involved the unlawful access to private medical records and the posting of them on the internet on MySpace in order to inflict pain in the prosecution of family feuds. Both feuds involved Asian families. In Hawaii, Rhonda Wong-Fernandez, a 22 year old mother of three small children, plead guilty to a felony charge of unauthorized use of a computer to access confidential records. Ms. Wong Fernandez was a friend of the victim’s sister in law who was feuding with the victim. She obtained access to the medical records of the victim who was suffering from HIV at the Straub clinic and published them three times on MySpace. At one time she stated that “I hope she dies.” The victim did die in April. Although the prosecutor requested a one month jail sentence, the judge disagreed and sentenced her to one year in jail, five years probation and 200 hours of community service. The judge ordered her taken into custody immediately and refused a request to defer the start of her sentence until she could provide for her 5 month old child.
The front page of the New York Times today carried a story by Pam Belluck on a hospital’s promotional webcast of Shila Renee Mullins’s brain surgery to extract a malignant tumor, which raised conflicting opinion is about the wisdom, benefit and ethics of the public dissemination of personal medical information, even if consensual, and the public access to dramatic interventional medical procedures. Some hospitals are featuring twittering during operations in order to apprise relatives and others of the progress of thee procedure in real time.
