Massachusetts Joint Use Toolkit Encourages Healthier Communities

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As part of Massachusetts' ongoing efforts to fight childhood obesity, the Center for Health Law and Policy Innovation and the Harvard School of Public Health partnered with the Massachusetts Department of Public Health to produce the Massachusetts Joint Use Toolkit  - a dynamic resource for communities seeking to engage their residents in healthier, more active lifestyles.

Across Massachusetts, communities are searching for ways to help residents live active and healthy lives. The Massachusetts Joint Use Toolkit is a how-to guide for community members seeking to access public buildings and spaces afterhours so residents can exercise and engage in other recreational activities. This Toolkit helps communities maximize the use of schools, playgrounds, parks, libraries, and town halls, by offering children and their families a safe, familiar place to get fit. The Toolkit describes the process of sharing space from A to Z; it addresses location, funding, safety, and liability, and provides a Model Joint Use Agreement that communities can use to safely open unused spaces to the public.

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The Joint Use Project is supported by Harvard Catalyst / The Harvard Clinical and Translational Science Center (National Center for Research Resources and the National Center for Advancing Translational Sciences, National Institutes of Health Award 8UL1TR000170-05 and financial contributions from Harvard University and its affiliated academic health care centers). The content is solely the responsibility of the authors and does not necessarily represent the official views of Harvard Catalyst, Harvard University and its affiliated academic health care centers, or the National Institutes of Health.

CHLPI Launches Report on Diabetes in New Jersey

CHLPI Clinicians and Students Travel to New Jersey to Launch Report on Diabetes

by Kristie Gurley, JD' 15, Harvard Law School

On Thursday, March 27, 2014, the Harvard Law School Center for Health Law and Policy Innovation (CHLPI) hosted the New Jersey Diabetes Leadership Forum in Trenton, New Jersey, at the historic War Memorial. The Forum featured the public release of CHLPI’s 2014 New Jersey State Report: Providing Access to Healthy Solutions (PATHS) – An Analysis of New Jersey’s Opportunities to Enhance Prevention and Management of Type 2 Diabetes, a project funded by the Bristol-Myers Squibb Foundation (BMSF). Legislators, state agency policymakers, and community leaders attended the event to learn about the findings and recommendations in the report and discuss priorities for moving forward. The Forum was successful in bringing together key advocates from both the primary prevention and health care sectors in an effort to address type 2 diabetes across the state.

Harvard Law Professor and Director of CHLPI Robert Greenwald opened the event with an introduction highlighting the importance of the report’s recommendations. “The fun begins after today,” Greenwald noted in encouraging participants to transform the report’s research into reform efforts. Patti Doykos, from the BMSF’s Together on Diabetes™ initiative, reiterated this message in her introduction to the day’s events.

Senator Stephen Sweeney, President of the New Jersey Senate, gave an opening address advocating for action on diabetes policy.  “There are 700,000 people in New Jersey with diabetes. I’m one of them,” Sweeney told the audience. Sweeney shared his personal struggle in discovering he had type 2 diabetes and how the disease has been “very hard” for him to manage. Sweeney advocated for improved diabetes education and thanked Harvard Law School for participating in the development of diabetes solutions for the state of New Jersey. “I’m in your corner,” Sweeney told the audience.

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Professor Robert Greenwald, Director of the Harvard Center for Health Law and Policy Innovation, and Senator Stephen Sweeney, President of the New Jersey Senate.

Next, Christene DeWitt-Parker from the New Jersey Department of Education presented the perspective of schools coping with a high rate of diabetes among school-aged children. DeWitt-Parker discussed the importance of both diabetes management and prevention on school grounds. This address was followed by a presentation by report co-authors Amy Katzen and Allison Condra on the report’s findings.  First, Condra discussed recommendations for the prevention of type 2 diabetes, including improvements to both economic and geographic access to healthy foods, healthy foods at schools, and improving the built environment to facilitate physical activity in communities. Second, Katzen discussed proposals for improving the treatment and management of the disease, including access to care and insurance coverage for needed services.

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NJ PATHS Report co-authors Allison Condra, Clinical Fellow in the Harvard Food Law and Policy Clinic, and Amy Katzen, Clinical Fellow in the Harvard Health Law and Policy Clinic.

The Forum also featured two panels. The first panel was devoted to discussing the current initiatives and programs that different cities and counties within New Jersey have implemented to promote health and wellness. The panel featured:

  • Charles Brown, Senior Research Specialist at the Vorhees Transportation Center at Rutgers University Bloustein School of Planning and Public Policy;
  • Kim Fortunato, Director of Campbell Healthy Communities at Campbell Soup Company;
  • Elizabeth Reynoso, Food Policy Director for the City of Newark;
  • Mark Humowiecki, General Counsel and Director of Government Affairs for the Camden Coalition of Healthcare Providers; and,
  • Dr. Kemi Alli, Chief Medical Officer at the Henry J. Austin Health Center and Secretary of the Executive Committee of the Trenton Health Team.

The second panel addressed ideas for improving the prevention and treatment of diabetes by providing access to key services in New Jersey. This panel included:

  • Darrin Anderson, State Deputy Director of the New Jersey Partnership for Healthy Kids and Associate Executive Director of the New Jersey YMCA State Alliance;
  • Bill Lovett, Executive Director of the New Jersey YMCA State Alliance;
  • Teresita Lawson, Clinical Pharmacist, and Dr. Rina Ramirez, Chief Medical Officer, at the Zufall Health Center; and,
  • Fran Grabowski, Lead Diabetes Educator for the Camden Citywide Diabetes Collaborative and Program Manager at Cooper Diabetes Center.

Over lunch, Dr. Anthony Cannon discussed the economic impact of type 2 diabetes in New Jersey, calling for action to decrease these personal and societal costs of the disease.

The presentation of the NJ PATHS Report, panels on recommendations, and speaker addresses led to a Roundtable Discussion in which Forum participants could discuss these issues themselves. Approximately sixty individuals from community-based organizations participated in the Roundtable Discussion. Together, these community leaders praised the recommendations in the report and highlighted several broad themes, such as increasing collaboration and communication among activists, expanding the implementation of programs to increase consumption of healthy foods, and improving insurance coverage for prevention and management programs. Conversation about possible collaboration continued over a reception, where participants discussed the report further with the CHLPI authors and with each other.

Overall, the Forum was extremely successful in ensuring that the PATHS report serves its primary purpose—to provide a necessary resource for policymakers and community leaders in continuing their efforts to address type 2 diabetes in New Jersey.  Diabetes advocates will be moving forward with the recommendations they identified as most important, and with the resources and detailed recommendations from the report, they have hope that they will be successful in reducing the type 2 diabetes epidemic in New Jersey.

Having Trouble Getting Care? Speak Up!

speak_up_logo 2-4 croppedAre you or a client having problems accessing HIV care or services with a health plan? We want you to Speak Up!

The Speak Up project wants to hear about difficulties people living with HIV are having accessing health care, such as:

  • Problems getting prescription drugs
  • Trouble accessing primary care
  • Difficulty accessing HIV specialists

Go to our Speak Up web page, and report any problems you or a client face with new Affordable Care Act health plans, or existing plans.

When you Speak Up, you’ll help thousands of others across the country.

This national project, led by AIDS Foundation of Chicago and the Center for Health Law and Policy Innovation at Harvard Law School, will monitor, catalogue, and analyze the problems experienced by people with HIV in the new system.

Speak Up will identify issues that need to be addressed, bring them to the attention of state and federal policymakers, advocate for change, and report back to the community.

Let your voice be heard. If you can’t get the care you need, Speak Up!

Statistics Are Not the Whole Story

Statistics Are Not the Whole Story: Dr. Anthony Cannon’s Keynote at New Jersey PATHS Event Makes the Diabetes Epidemic Personal

by Taylor Bates, JD'15, Harvard Law School

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Keynote Speaker Dr. Anthony Cannon describes the economic and human costs of diabetes.

The New Jersey Diabetes Leadership Forum keynote presenter was Dr. Anthony Cannon, who discussed the economic impact of type 2 diabetes in New Jersey. Dr. Cannon made clear that prevention and effective treatment could significantly cut the costs of treating diabetes, but that without reforms New Jersey would face enormous costs to combat the disease. Dr. Cannon’s most striking figures included an estimated $68.6 billion in indirect diabetes costs per year, and a cost of emergency room care for untreated diabetes of over $1,250 per hour. Dr. Cannon, a former member of the American Diabetes Association's African-American Initiative Committee, also made a clear case for outreach to minority communities, because uninsured African-Americans visit the emergency room 75% more than similarly situated populations. As an endocrinologist, Dr. Cannon grounded his economic analyses in experience treating patients face-to-face, and linked poor diabetes management with doctors who failed to treat their patients with respect. He identified denial, depression, and despair as major obstacles to patients receiving the best diabetes treatment, but expressed hope that the state could combat diabetes through better policy going forward.

The most striking aspect of Dr. Cannon’s presentation was his ability to link face-to-face interaction with the overall economic costs of diabetes. Dr. Cannon’s presentation would have been powerful even if limited to the statistics and analysis he presented, but those costs become palpable when he told the story of a woman who had gone untreated because she felt shamed and unwelcome at her previous doctor’s office. The woman, who had begun to present serious “Charcot foot” swelling symptoms, was quickly able to regain control of her blood glucose levels with medication and lifestyle change.  While she was able to avoid the immediate health risks of diabetes, her mistreatment at a previous doctor’s office risked serious harm to her health and enormous medical costs. Dr. Cannon used this example to call for better training and engagement between providers and patients, with greater understanding of the human touch when treating diabetes.

Applied to New Jersey’s diabetes challenges, Dr. Cannon’s comments underscore the need for improved communication among providers, since a more robust system of providers might have caught the failure of her first doctor. Patient-Centered Medical Homes and Medicaid Health Homes are both significant ways to improve communication among providers, and prevent the serious health risks and costs that accompany untreated diabetes. On the patient side, education programs like DSME (Diabetes Self-Management Education) and DPP (the Diabetes Prevention Program) might have helped the patient recognize her symptoms as serious much earlier, or provided coping strategies to deal with an unhelpful doctor and the stress of a chronic illness. Clearly, New Jerseyans will need more efficient and effective medical care to avoid the worst human and economic costs of diabetes, but well-researched solutions already exist to tackle these problems.

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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the Center for Health Law & Policy Innovation or Harvard Law School. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.

From Open Streets to Cooking Classes

From Open Streets to Cooking Classes, New Jersey PATHS Speakers Highlight Innovative Healthy Solutions

by Alexandra Maron, JD'15, Harvard Law School

As a student in the Center for Health Law and Policy Innovation at Harvard Law School, I was fortunate to have the opportunity to attend the New Jersey Diabetes Leadership Forum in Trenton, New Jersey on March 27, 2014. The event featured the release of the Center’s 2014 New Jersey State Report: Providing Access to Healthy Solutions (PATHS) funded by the Bristol-Myers Squibb Foundation in an effort to address type 2 diabetes in the state.

The Forum featured two panels aimed at presenting what is currently being done in New Jersey to improve the type 2 diabetes situation in the state in addition to opportunities for improvement and ways to work together to find a solution. The first panel, which took place in the morning, was devoted to discussing the current initiatives and programs that different cities and counties within New Jersey have implemented to promote health and wellness.

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From left: Panelists Mark Humowiecki, Charles Brown, Kim Fortunato, Elizabeth Reynoso, and Dr. Kemi Alli.

Each panelist presented what their organization is currently doing for individuals in New Jersey to help improve their health and physical activity. First, Charles Brown of the Voorhees Transportation Center at Rutgers University discussed Complete Streets, Safe Routes to School, and other programs to make it easier and safer for people to walk and cycle through their communities. One of the programs that stood out to me was the “open streets” program called the “New Brunswick Ciclovia,” which opened up streets to pedestrians and bikers and closed them to drivers. Over 4,000 people attended Ciclovia in New Brunswick on October 6, 2013 and the event allowed individuals to play in the streets and see new stores, providing the opportunity both for physical activity and exploration of the community in which residents live. According to Mr. Brown, more than 50% of the Latino community of New Brunswick participated in the event. There are additional Ciclovia events scheduled for May, July, and October of 2014. I think that the Ciclovia events are a wonderful place for cities in New Jersey interested in making an impact on obesity and diabetes to start. These events not only provide the opportunity to individuals who might not feel as though their neighborhood is safe to play and be active outside to explore their communities, but also allow them to partake in events with other individuals who live around them to be active and healthy together. By implementing similar open streets programs in other cities in New Jersey, individuals may start to become more comfortable in the communities in which they live while having the opportunity to walk, run, or bike without fear of oncoming traffic.

Another panelist from the first panel who described a program that really stood out to me was Kim Fortunato, the Director of Campbell Healthy Communities at Campbell Soup Company. She discussed the strategy areas of the Campbell Healthy Communities Initiative, a $10 million corporate program aimed at reducing childhood obesity and hunger in Camden, New Jersey. One program focus has been on improving food access in Camden with the addition of healthy foods and cooking demonstrations at corner stores to help improve nutrition in Camden. The initiative funds about thirty healthy corner stores in the city. I think that taking action and going into the corner stores in Camden is a wonderful idea, since a lot of the residents of Camden rely on these corner stores for the majority of their food needs. By working with these stores to stock healthier options and providing the tools that individuals need to be able to prepare healthy foods, this initiative is making a real difference in the community. The Campbell Healthy Community Initiative is also focused on nutrition education through family cooking classes. Similar to the cooking demonstrations being provided in the corner stores, cooking classes for families are also an important step in not only providing healthier options to individuals to help lessen the obesity and diabetes epidemic, but also in implementing the healthy options in the home. The family cooking demonstrations can really provide a way for individuals to learn more about healthy food preparation in a fun, interactive way that can help individuals and their families lead healthier lifestyles.

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From left: Panelists Teresita Lawson, Bill Lovett, Francine Grabowski, Darrin Anderson, and Dr. Rina Ramirez.

The second panel was about improving the diabetes prevention and treatment programs in New Jersey that provide access to key services.

Darrin Anderson, the State Deputy Director of the New Jersey Partnership for Healthy Kids and the Associate Executive Director of the New Jersey YMCA State Alliance, discussed the New Jersey Partnership for Healthy Kids, whose goal is to evaluate and improve the environment in which New Jersey children live. He noted that without changing the environment that kids are living in, which is often “contaminated,” it will be impossible to make a marked impact on their health and physical activity. This idea really resonated with me because for individuals struggling to change their lifestyle to become healthier people, being constantly faced with temptations to choose less healthy options would be incredibly difficult. If instead communities were more supportive of healthy lifestyle changes, then perhaps children could have an easier time getting more physical activity and making healthier choices in terms of nutrition. Mr. Anderson also discussed the need to create School Health Councils to improve the climate of schools to cultivate healthy and active students. He spoke of the importance of maintaining a positive atmosphere in schools for students when working towards better health. By engaging teachers, faculty, and school administrators in the process of building a healthy, active school community, students will hopefully learn the skills and ways of life most conducive to being healthier individuals. Hopefully these steps will help to reduce the incidence of childhood obesity and diabetes in New Jersey.

Additionally, Teresita Lawson, a Clinical Pharmacist at the Zufall Health Center, and Dr. Rina Ramirez, the Chief Medical Officer at the Zufall Health Center, presented findings from their study of the Zufall Health Center’s integration of pharmacists into coordinated care teams through a program called Project IMPACT Diabetes. Evidence from this project showed that clinical pharmacy services, including face-to-face encounters and frequent follow up with patients, yielded better health outcomes and improved levels of cholesterol and blood pressure after only one year. However, because pharmacist visits are not a billable service, the program’s sustainability is in question. The lack of insurance coverage of pharmacist visits is a potential barrier to the future implementation of similar coordinated care integration. Additionally, while evidence of the program’s success in such a short period of time is promising, it will be interesting to see if there are additional longer term impacts of adding pharmacists to care teams.

The panels were incredibly enlightening and each panelist’s presentation laid the groundwork for possible collaboration and change in New Jersey, which was exciting and motivating to all of the attendees, including myself. I really enjoyed hearing about all of the different programs currently being run in New Jersey to help make residents healthier and to combat the diabetes epidemic in New Jersey. I am very much looking forward to seeing what is accomplished in the state in the coming months and years to decrease the rates of obesity and diabetes in New Jersey.

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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the Center for Health Law & Policy Innovation or Harvard Law School. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.

Syringes, Pens, and Pumps

Syringes, Pens, and Pumps: New Jersey Diabetes Educator Demonstrates the Challenges of Managing Insulin Dependence

by Alexandra Maron, JD'15, Harvard Law School

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Francine Grabowski demonstrates how to use insulin.

As an attendee at the New Jersey Diabetes Leadership Forum, I had the pleasure of witnessing a real, live insulin demonstration. Fran Grabowski, Lead Diabetes Educator for the Camden Citywide Diabetes Collaborative and Program Manager at Cooper Diabetes Center, went around from table to table at the Forum throughout the day showing attendees the various tools available for those with diabetes to take their insulin. A number of attendees, including myself, had never witnessed insulin intake before, so this was a fascinating part of the day. Ms. Grabowski first demonstrated how to use a syringe to give insulin, and while she noted that the needle is much smaller than it was in the past, it is still uncomfortable for those with diabetes who have to give themselves insulin at least 4 times per day. Ms. Grabowski then showed attendees the insulin pen, which has a remarkably smaller needle than a syringe, but unfortunately is no longer covered under New Jersey Medicaid. She pointed out that this is very unfortunate for those with diabetes in New Jersey because they are forced to use methods that are more time consuming and more painful. She also described the mechanism of insulin delivery systems, such as pumps and patches, which are even easier ways for those with diabetes to receive insulin; however, Medicaid also does not cover those systems. Therefore, a big take-away from this demonstration that was reiterated by many attendees is the need for more coverage under Medicaid for the tools necessary to treat and manage diabetes such as test strips, insulin pens, and other delivery systems. Additionally, Ms. Grabowski noted that there is a 76% chance that individuals who need insulin will not take it at meals when they are supposed to due to the cumbersomeness of the syringe system. If individuals with type 2 diabetes were able to use pens or other insulin delivery systems instead, then administering insulin would be easier and less time consuming and perhaps fewer people would avoid taking it. I really enjoyed the opportunity to witness insulin delivery and to hear more about the day-to-day challenges that individuals with diabetes in New Jersey are facing. It seems to me that if the insulin pens and other delivery devices were covered by Medicaid in New Jersey, then more individuals would be able to use them, which could lead to better diabetes control in the state. Because the pens and patches seem so much easier and more efficient for those with diabetes than the traditional syringe methods, those with diabetes in New Jersey could learn to treat and control their disease more effectively. Ms. Grabowski indicated that the cost of the pens and delivery systems are what prevent most individuals from using them, so by alleviating some of the financial burden through insurance coverage, more people in New Jersey with diabetes could gain access to them. Therefore, I agree with Ms. Grabowski that Medicaid coverage would drastically improve the face of diabetes control in New Jersey.

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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the Center for Health Law & Policy Innovation or Harvard Law School. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.

Ending Discrimination Against the Chronically Ill: An ACA Success Story

by Maggie Morgan and Jeremy Kreisberg, JD'14, Harvard Law School

Imagine going into a restaurant and being told to leave because you have cancer. Or being denied access to a hotel because you have AIDS.

Most Americans would be outraged, and understandably so. Though we are far from a discrimination-free society, we do have laws in place that prevent businesses from excluding people simply because they have a health condition such as cancer or HIV.

However, this has not been the case with our healthcare system. Until this year, health insurance companies routinely refused to insure sick patients or charged them impossibly high premiums. This practice left millions of sick Americans without health insurance. But it was perfectly legal.

Fortunately, the Affordable Care Act (the “ACA” or “Obamacare” in common parlance), has extended anti-discrimination laws to health insurers. Since this January, health insurers can no longer deny Americans coverage or charge them more because they have a health condition, whether it is congestive heart failure, advanced-stage cancer, or HIV.

This is a huge step forward for all Americans but particularly for those suffering from chronic illnesses. But like the implementation of any new law, pockets of resistance have been cropping up: in this case, insurers who still seek to treat the sick differently from the healthy. Advocates for the chronically ill must remain vigilant in identifying and fighting these discriminatory practices as ACA implementation proceeds.

One example of successful advocacy on this front has already occurred in Louisiana. Earlier this year, Blue Cross Blue Shield of Louisiana (BCBS), the largest health insurer in the Bayou State, abruptly decided to no longer accept payments from the state’s Ryan White HIV/AIDS Program (“Ryan White”). Ryan White is a program funded by the federal government and administered by the states to help people with HIV gain access to lifesaving treatment and prescription drugs. Louisiana, like many other states, also uses its Ryan White funds to help pay for the health insurance premiums of low-income residents living with HIV. BCBS’s change in policy would have effectively excluded hundreds of Louisianans with HIV from access to health insurance, right before the March 31st federal deadline to enroll in an ACA Marketplace plan. Many of these individuals depended on BCBS’s extensive provider network and prescription drug formulary to meet serious health needs. Worse still, Vantage and Louisiana Health Cooperative, the two only other statewide insurers on the Marketplace, quickly followed upon its heels by indicating that they too would stop accepting Ryan White payments absent federal intervention.

BCBS justified its rejection of Ryan White assistance by claiming that banning third-party payments deters fraud. Yet BCBS in Louisiana (and throughout the country) has accepted such Ryan White payments for years without any allegations of fraud.

So what changed? As of January 1, 2014, the ACA requires insurance companies to accept all applications for health insurance (a “guaranteed issue” requirement), and it prohibits those insurers from charging some people more than others simply because they are sick or disabled (a “community rating” requirement). In order to evade these consumer protections, some insurers are seeking creative ways to exclude people with significant health care needs. Indeed, as a Reuters article reported, a BCBS official told a staffer for Louisiana Senator Mary Landrieu that the decision to reject Ryan White payments was rooted in “adverse selection” concerns. In other words, the largest insurance company in Louisiana was concerned about insuring too many sick people.

After learning of this developing crisis, the HIV advocacy community in Louisiana and nationwide quickly sprang into action. In February, Lambda Legal, Ropes & Gray and Phelps-Dunbar law firms brought a federal class-action lawsuit against all three insurers refusing Ryan White payments, claiming violation of the ACA’s anti-discrimination provisions as well as state law. Advocates sent letters of protest, crafted petitions, and made phone calls to the companies urging them to change their harmful positions. Advocates also called upon the U.S. Department of Health and Human Services to put a halt to this discriminatory practice through the rulemaking process.

Fortunately, the federal court system and executive branch so far have sided with the HIV advocacy community. In February, a federal judge issued a temporary restraining order against the three insurers. Facing the threat of injunctive relief, the insurers then agreed to accept Ryan White payments through November 15, 2014. However, a final victory appeared in sight only when the federal government issued an interim final rule in March requiring issuers of Marketplace plans to accept premium and cost-sharing payments made by the Ryan White program, as well as other federal, state, and Indian programs.

This story has a happy ending (thus far) and represents a victory for the HIV/AIDS community in Louisiana and nationwide. The result has sent a message to insurers across the country that they should not feel comfortable in looking for creative ways to exclude people with chronic conditions from access to comprehensive, life-saving health insurance coverage. However, the fact that this situation even happened at all is a sure sign that the advocacy community must remain on alert as ACA implementation moves forward. The non-discrimination provisions within the ACA represent a hard-won battle for millions of sick Americans, and we must continue to ensure that insurers faithfully adhere to these requirements— for all people living with HIV and other chronic conditions.

 

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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the Center for Health Law & Policy Innovation or Harvard Law School. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.

Smoke and Mirrors and Women, Oh My

by Katherine L. Record, JD, MPH, MA

Last week the Supreme Court attracted lots of attention when it heard arguments about whether a corporation can exclude mandatory preventive benefits from its employee health plan, based on a religious objection to certain types of healthcare.  This is a tale as old as time; religion has long been the basis for opposition to reproductive (i.e., women’s) health – including the preventive healthcare now in question, contraception.

Yet this argument has nothing to do with government infringement on the practice of religion.

In fact, the corporation, Hobby Lobby, covered two of the four contraceptive devices in dispute until its lawyers were actually arguing the issue in court, apparently to little detriment to the company’s faith in God.  What’s more, Hobby Lobby’s 401(k) includes more than $73 million invested in the companies that produce these objectionable contraceptives (e.g., intrauterine devices, emergency contraception).

This has not stopped Hobby Lobby from arguing that the Affordable Care Act (ACA) is threatening its freedom, as a corporation, to practice religion.

This is a clever argument.  We take religious freedom seriously, as we should.  Masking coverage of FDA-approved contraceptives, as the ACA requires, as an infringment on faith is catchy.  Nonetheless, it is nothing more than smoke and mirrors, which we, as attorneys, have a knack for creating.

Practicing law is often a matter of distilling a problem into sterile elements and stringing them together to form a line of reasoning that favors a given conclusion.  Generally, this allows judges to apply the law with an even hand, no matter how complicated life gets.

Yet it also allows us to paint an issue as something it is not.  This is particularly problematic when the issue is inequality, a concept lawyers have masqueraded for years (justifying slaves as property, segregation, limited voting rights, a narrow definition of marriage).

Last week we did it again.  Here’s the picture Hobby Lobby painted:

The ACA’s requirement that most health plans cover preventive services, including all FDA-approved contraception, violates the Religious Freedom Restoration Act of 1993 (RFRA).  RFRA is a federal law that bars Congress from enacting a law that substantially burdens religious practice, even if it generally applies to all faiths, which passes muster under the First Amendment.  In other words, RFRA creates more robust protection of religious freedom than the First Amendment.

Let’s break it down:

(1) RFRA protects the corporation’s right to practice religion just as it does a person’s right to practice (i.e., a corporation is a person, which is the case under the First Amendment, but has never been treated as such under this federal law);

(2) covering certain types of contraception substantially burdens this corporation’s religious practice; and

(3) the government does not have a compelling interest that justifies this insufficiently narrowly tailored intrusion into the company’s faith.

Sounds good, right?

It did to the Court.  Last week, the attorney representing the United States and the Justices of the Court focused on this argument just as Hobby Lobby painted it, waxing poetic on statutory interpretation, principles of corporation law, the distinction between for-profit and non-profit tax status, and the intention of Congress as it existed in 1993 – when it enacted RFRA to protect a “person’s” right to religious practice.

All of this is irrelevant.

The legal profession is being dishonest by cloaking the real issue in legal doctrine.  Hobby Lobby paints contraceptives as the Scarlett letter of the ACA, alleging that coverage of some types disrupts their Christian faith.  Yet the ACA requires coverage of all FDA-approved contraception to protect women’s health – not to promote sex that does not produce offspring.  In fact, 98% of sexually active Catholic women use contraception, yet the Catholic Church marches on.

As it turns out, healthcare is healthcare, even if you have a uterus.

Women who do not space out pregnancies are at higher risk for adverse outcomes – both for the mother and the child.  Women who get pregnant accidently – whether unintentionally or unwillingly, are more likely to give birth prematurely, to develop depression, to avoid prenatal care.

Moreover, some women require contraception for reasons entirely unrelated to conception (e.g., amenorrhea or menstrual irregularities, fibroids, endometriosis).  And not all women can take the kind of contraception Hobby Lobby deems pious (e.g., an intrauterine device can be medically necessary if a woman cannot take the pill).

In short, women and children are healthier when medically indicated contraception is available – which is why contraception is a healthcare benefit.  Requiring companies to offer the same level of healthcare to both female and male employees does not impede religious autonomy, it keeps the workforce healthy.

In June, the Supreme Court will issue a ruling couched in terms of religious autonomy.  Yet it will not affect religious practice, Hobby Lobby’s or otherwise.  Rather, the Court will determine whether an employer can charge women more than men for preventive services (i.e., provide comprehensive coverage for men and partial coverage for women).  In other words, the Court is once again considering equality, masqueraded as a religious threat.

Are women sufficiently person-like to access the same degree of medical coverage as men?  The Court very well might say no.

Fortunately, the law is not a foregone conclusion.  Indeed, over time, the Court has reversed itself on matters once considered predetermined by our forefathers (e.g., the federal ban on gay marriage, criminalization of sodomy, and the status of black persons as, well, persons).  Women might not be equal to men quite yet, but there is hope.

 

*This blog post originally appeared on Harvard Law School’s Petrie-Flom Center Bill of Health and Our Bodies Ourselves.

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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the Center for Health Law & Policy Innovation or Harvard Law School. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.