prosthetics and health care reform

Some of you may have heard that there was a national election recently. With Nate Silver now the political equivalent of Billy Beane circa 2004, I thought it appropriate to dive below the headlines of the left and right, which, depending on which side you favor, auger either (a) the final step in America’s rush towards disintegration, or (b) our continued ascendance towards never-ending bliss (aided, in a few states, by a long drag on a now-legal spiff). More specifically, there was this little thing called health care reform that occupied a lot of people’s attention the last four years.

Now that Americans have clearly spoken, voicing their displeasure with the vitriolic, he-said/she-said politics of the past, and signaling their desire for profound change by bringing back basically the same cast of characters we all spent much of the election cycle bemoaning, it makes sense to try to get our heads around one of the most divisive issues of President Obama’s first term: health care reform. More specifically, what, if anything, does health care reform mean for those of us who use  (or would like to use) a prosthesis? With the caveat that forecasting how health care reform will actually work is about as scientific as Dick Morris’s pre-election predictions, here’s a snapshot of the next 24 months.

2013

The two biggest changes coming in 2013 don’t directly relate to how we receive health care. First, a 2.3% tax on medical devices is scheduled to take effect for products sold after January 1, 2013. The scope of that tax – i.e., does it apply to prosthetic components? – remains unclear at this point, though regulatory guidance from the IRS earlier this year suggested that prosthetics would not be subject to it. Second, required reporting of payments to physicians by manufacturers of medical devices and pharmaceutical companies will begin. The purpose of this measure is to expose the financial relationships between the people treating us and the companies vying for their loyalty. Would you like to know if Dr. Jones is getting paid by Company X to prescribe you Drug Y? If you have the patience to wade through a yet-to-be-created government database to find out, soon that information will be yours to consume. (If the government makes it as user-friendly and attractive as other government websites, I feel confident in saying that it may get as many as 30 or 40 hits a year before users give up in disgust.)

2014

Beginning in 2014, people will need to comply with the health care reform law’s so-called “individual mandate”, which requires them to obtain insurance. People will do this in one of 3 ways: (1) through their employer (just as they do today); (2) through a health insurance exchange administered by their state (a new mechanism); or (3) through Medicaid (which the Federal government is expanding to cover more people). Of these 3, health insurance exchanges are the new kid on the block.

Modeled on exchanges created as part of Massachusetts’ health care reform law when Mitt Romney (remember him?) was governor, the state-run exchanges will provide a “one-stop shop” model for consumers where they can purchase health insurance. In order to protect consumers from hidden differences between policies, the government is requiring all plans offered through the exchanges to have the same set of basic benefits: “essential health benefits.”

A key question facing people with limb loss as health insurance exchanges ramp up is whether prosthetics constitute an essential health benefit. If yes, then policies excluding prosthetics become a thing of the past; if no, then insurers could choose not to offer them as a standard benefit.

To date, the government has declined to take a hard position on what constitute essential health benefits. In fact, after passage of the health care reform law, the government played “kick the can” with the issue, telling states that they should look to “standard” plans offered within their borders to determine what constituted essential health benefits. While this insulated the government (and White House) from yet more contentious health care debates as an election loomed, proponents of the reform law noted that the decision created the possibility of 50 different decisions regarding essential health benefits.

Most experts believe that the government will issue guidance on essential health benefits in the coming weeks now that the election is over. While the prosthetics industry argues – correctly, in my view – that prosthetics are essential health benefits within the meaning of the health care reform law’s language referencing “rehabilitative and habilitative” equipment, the fact remains that the law does not specifically mention prosthetics, so this remains an important issue to watch in the coming months.

Also coming in 2014 – the elimination of pre-existing risk exclusions. For amputees, this should be a welcome change. If on January 1, 2014 you have no insurance  and need a new prosthesis, you will be eligible to get one immediately after purchasing your new insurance policy without any kind of exclusionary period. (Assuming, of course, that prosthetics are an essential health benefit or are otherwise covered by the policy).

Finally, 2014 will also mark the end of insurance policies with lifetime or annual limits. Again, this should help people with limb loss/difference. Where policies today might contain a “$5,000/year” or “one prosthesis per lifetime” limit, tomorrow’s health insurance policies will eliminate these restrictions (again, assuming that prosthetics are an essential health benefit).

conclusion

As you can see, the “essential health benefits” issue permeates virtually every key potential benefit offered by health care reform in 2014 and beyond. For an incredibly detailed analysis of that issue, you can click here.

One final thought: whether you like “Obamacare” or not, the economic and clinical data show that maintaining the health care status quo is not sustainable. The United States spends more on health care and gets worse results per dollar than most countries when looking at key indicators. The battle for health care reform was never about should we do it, but rather, how to get there. President Obama’s legacy will be inextricably tied to health care reform. With reform surviving both constitutional review and the 2012 elections, the law’s implementation will begin to shape that legacy, starting now.

americans with disabilities act explained

With Election Day looming, less IS more turns its attention to Washington DC and the most comprehensive law addressing the rights of people with disabilities, the Americans with Disabilities Act. (At this point, a writer with legal training typically inserts a parenthetical as follows: “(‘ADA’)”. Lawyers do this because they fear that readers, having encountered the term “Americans with Disabilities Act,” will be hopelessly confused when they later come across the acronym “ADA” in the next sentence or paragraph. I, on the other hand, believe that people with limb loss/disability are capable of making that quantum leap from titles to representative initials seamlessly, so I will not follow that convention. (In the world of legal writing, this is akin to jumping out of a plane without a parachute. As you can infer from that statement, the world of legal writing is even more boring than you could have imagined.) In fact, I’m so certain that the brainpower of the average less IS more reader exceeds that of the average lawyer that I am going to litter this post with acronyms to test my theory.)

President Bush (the elder) signed the ADA into law on July 26, 1990. The ADA has three “Titles” – Congress’s confusing word for “sections” (yes, Congress consists of legions of lawyers; please refer to my previous parenthetical) – designed to protect the interests of individuals with LL/D. We’ll walk through some important preliminary terms and then each of the three Titles in order. I will try to make it an interesting journey, which, I don’t mind sharing with you, is a challenge of Herculean proportions. Aiding me in this task will be a woman and a man: Jacqueline Sanshand and Arturo Leggone.

the ADA’s purpose and definition of disability

The stated purpose of the ADA is to: (1) signal the desire to end discrimination against individuals with disabilities; (2) provide clear, consistent, and enforceable guidelines to prevent and/or stop such discrimination, and (3) make sure that the Federal Government enforces the law. Presumably, both Jacqueline and Arturo are very happy with (1) and (2), though, Arturo, as detailed below, probably doesn’t support (3).

The ADA next defines the term “disability”: “a physical or mental impairment that substantially limits one or more major life activities.” “Dave, what is a major life activity?” might be the question you’re now asking. “Well,” I’d answer, “our friends in Congress are so smart that they decided to tell us that.” A “major life activity” under the ADA includes:

performing manual tasks;
walking;
standing;
lifting; and
bending.

(The full list is much longer, but I’ve included only those MLA’s that obviously apply to people with LL/D.)

In addition, to be “disabled” under the ADA, you have to have a record of such an impairment or be “regarded as having such an impairment.”

Jacqueline, it turns out, has no record of impairment. She drives an unmodified vehicle and has never disclosed to DMV that she has no right hand. Because she doesn’t consider herself disabled, she also has never gone to the trouble of trying to get a handicapped tag for her car, dismissing the pleas of her lazy friends who implore her to “just do it” so that she can get primo parking spots on the ground that she doesn’t walk on her hands, and therefore, doesn’t need to park closer to buildings than anyone else. Setting aside, for a moment, the wisdom of not disclosing her situation to DMV and the potential liability if she should, perchance, find herself in a fender bender at some point in the future, Jacqueline would still be “disabled” under the ADA if she was subjected to prohibited discrimination because of her missing hand, even though there’s no record of impairment.

The ADA also states that the determination of whether an impairment substantially limits a MLA is made “without regard to the ameliorative effects of mitigating measures,” such as prosthetics. That lovely bit of lawyerly prose is best illustrated by the following: the fact that Arturo humped his way to the summit of Mount Everest with his prosthetic leg earlier this year (without supplemental oxygen) does not mean that he’s able bodied under the ADA. And that’s because the law considers his situation “without regard to the ameliorative effects of mitigating measures,” that is, without a prosthesis. And as an above-knee amputee without a prosthesis, he arguably has a disability that impairs an MLA.

Before everyone gets offended by this concept, remember: the purpose of the law is to end discrimination against individuals with disabilities, and the implicit premise of the ADA is that most IWD’s cannot achieve that goal without governmental intervention. Jacqueline and Arturo, God bless them, are strong, independent individuals with LL/D (though they have some flaws, as you’ll soon learn), but their peers may not be so empowered.

title 1 of the ADA: prohibiting discrimination against the disabled in employment

When Jacqueline fills out an application to work at J. Crew – she’s proud of her ability to fold shirts with the dexterity and precision of a finely-tuned machine despite her missing hand – the ADA prohibits JC from discriminating against her on the basis of her disability. The application process, hiring process, advancement process, compensation structure – all must afford Jacqueline the same opportunity as her able-bodied brethren to collect the coveted JC check and associated discount on fine preppy clothing.

Similarly, when Arturo gets a promotion to Manager of the local Quizzno’s franchise – Q corporate generously let him take a year off to summit the world’s tallest peak – he’s entitled to the same compensation as his ABB who also manage Q shops. And if Q later wants to discharge him from his responsibilities, it has to do so on the basis that his preference for leaving turkey out on the counter for two straight days under a heat lamp before putting it in a sandwich because of his belief that it’s “flavoricious” violates Q’s policy, and not on the ground that his prosthetic leg (with the picture on the socket of Pinhead from Hellraiser that no one can see under his pants) scares customers away.

Importantly, though, this doesn’t mean that people with LL/D have a Federally-protected right to do any job that their ABB can. If the employer can demonstrate (1) a job-related business necessity for standards that screen out individuals with LL/D, and (2) that the person with LL/D couldn’t perform the job even with reasonable accommodations, then activities that might otherwise be classified as discriminatory would be permitted.

When Jacqueline, one week after working at J. Crew, decides that brightly-colored outerwear for upper-middle-class suburbanites makes her nauseous, and gets struck with the divine inspiration to apply for a job as a trapeze artist at Fred Flanagan’s Fantastic Flying Circus that she sees in the local Pennysaver, FFFFC’s requirement that applicants “must have 2 hands” would likely not violate the ADA. Importantly, FFFFC would argue that there’s no way to reasonably modify trapeze equipment to accommodate Jacqueline. (FF, having run this circus since for 40 years, has seen everything, and after the unfortunate death of his chronically vertigo-suffering and heights-fearing tightrope walker in 1985, has made the written applications for employment at his circus very specific.)

Importantly, not every employer in the United States is a “covered entity.” That term refers only to companies with 15 or more employees. So, FFFFC’s main local competitor, Sammy Sampson’s Super Small Circus, with one ringleader, three clowns, a fire eater, bearded lady, axe thrower, tightrope walker, lion tamer, unicycle rider, and three (normally four) trapeze artists, does not have to comply with the ADA. Jacqueline knows this, and even though SSSSC is down a trapeze artist at the moment due to Lovely Lacy’s hospitalization – she suffered horrific injuries when doubling as the model for the axe thrower – Jacqueline doesn’t apply for the gig. But for those of you thinking, “That’s not fair!”, take heart: SSSSC is always on the brink of bankruptcy because no one wants to see only three clowns getting out of a car.

title 2 of the ADA: prohibiting discrimination against the disabled by public entities

Even though Arturo is a registered Independent, has strong Libertarian leanings, and generally distrusts all forms of government, the ADA prevents “public entities” from excluding him from or denying him the benefits of their services, programs, or activities. So while he refuses to pay his taxes based on his ardent belief, supported by numerous “authoritative” websites that “they” don’t want you to read, that the Federal government lacks the power to take his hard-earned Q money, he still votes every year, writing the name “Wiley E. Coyote” on the ballot to register his distaste for candidates that he describes as “part of the machine,” giggling the entire time.

When he advertises this practice to the octogenerian monitor at the high school gym where he votes, it results in a heated exchange and, ultimately, the geriatric woman breaking his nose with a right hook after he mocks her blue hair. The ADA ensures that he has appropriate access to the county hospital for treatment and the town courthouse when he elects to press charges against the OM.

Under Title 2, a “public entity” refers to any State or local government, or any department, agency, or other instrumentality of a State or a State’s local government. Services, programs, or activities provided by public entities include public schools, employment, social services, buses, public rail transit, and the aforementioned voting location where Arturo got smacked and the courthouse where the OM’s case was to be (but tragically, as you’ll see, never was) heard. Following the incident, the press is replete with stories documenting Arturo’s fall from grace and humiliation at the hands of the OM. He retreats to his apartment to consider his next move.

title 3 of the ADA: prohibiting discrimination against the disabled by private entities offering public accommodation/services

On her way to fill out the FFFFC application for trapeze artist – a position Jacqueline ultimately doesn’t get not because of her disability, but because she forgets to put her name, address, and phone number on the FFFFC paperwork, depriving FF of the opportunity to even meet her in person for an interview and learn of her unique situation (Jacqueline’s attention to detail is sometimes atrocious) – she stops at a national hotel chain to rest for the night. Thanks to the ADA, this private entity offering public accommodations cannot discriminate against her by depriving her of the right to fully and equally enjoy the goods, facilities, and advantages of this fine home away from home.

So the hotel cannot deny Jacqueline access to its pool, which has a quarter-inch layer of yet-to-be-classified scum on its surface that looks vaguely extra-terrestrial. (She goes for a swim and has Messianic thoughts when she realizes she can walk on the fetid surface without falling through.) Nor can she be charged more than her ABB for the room with the expensive-looking LCD TV that only gets 2 channels clearly – both hotel information channels, one of which “personally” welcomes her to the establishment, while the other announces that the Regional Meeting for the Northeast Lawnmower Racing Association will begin at 8 AM in the Belvedere Ballroom. (Despite her interest, she chooses not to attend, as she has a busy day ahead of her (see below).)

Jacqueline enjoys these protections not only in the flourescently-lit, stale-air hotel room she’s plunking down $159 a night for, but also in a variety of other settings referenced by the ADA: restaurants, auditoriums, movie theaters, convention centers, bakeries, grocery stores, hardware stores, laundromats, banks, barber shops, shoe repair service shops – yes, the United States Congress specifically lists “shoe repair” in the ADA at 42 USC Section 12181(7)(F) (apparently the shoe repair lobby has enormous but previously-undocumented influence in the halls of Washington) – funeral parlors, gas stations, attorneys’ offices, accountants’ offices, hospitals, museums, and bowling alleys, among other American institutions.

So, after not getting her dream job at FFFFC, when Jacqueline grabs lunch at Applebees at noon the following day, auditions for the local community play at 1 pm, attends the 2 o’clock screening of Glitter that the local Loews is inexplicably showing, stops by the American Bug Lovers Annual Conference at the local convention center at 3 (she walked out of Glitter before it ended because, in her words, Mariah Carey never “committed” to the role fully), grabs a cupcake from Jolene’s Bakery at 3:30, picks up kitty litter for her 14 cats at the Stop & Shop at 3:45, purchases a tarp at Home Depot around 4 pm (no matter how much kitty litter she buys, 14 cats excreting waste requires a complex system of backup measures), runs into the laundromat at 4:20 to run her socks through the dryer because her feet are cold, rushes to the bank before it closes at 5 to pick up some much needed cash, gets a trim at the local hair salon at 5 pm, limps into the local shoe repair shop at 5:45 for an emergency fix for the broken heel on her left shoe, briefly attends the wake that began at 6 pm for her friend’s grandmother who died in a prison riot after striking an amputee at a voting center the previous day, gets gas at the local Mobil at 6:40, has a nighttime meeting that she’s an hour late for with her attorney and accountant – fortunately for her, the same person – to discuss her will and investment portfolio, visits the ER at 7 pm because she’s feeling faint, meets her blind date at 8 pm at the local Taxidermy Museum with its much-anticipated “Poodles of America” exhibit, followed by a 9 pm expedition to Perfect 10, home of the best candlepin bowling this side of Virginia, she enjoys the seamless protection of the ADA in each of these varied premises.

While all of this is going on, Arturo contemplates flying a plane to California to pitch his rapid fall from grace to producers in the hope of scoring a reality TV show. Importantly, the ADA does not apply to air travel in the United States. (That will be the subject of a future post.) Frozen by this realization, Arturo instead sits at his apartment window all day, and watches the same woman enter and exit the Loews across the street, struggle to her car with two 50-pound boxes of kitty litter, eat a cupcake she bought from Jolene’s before entering the grocery store (he hopes she washed her hands between the kitty litter and the cupcake), leave the Poodles of America exhibit that everyone in town is simply raving about, and then go to the P10 with a man she appears to be flirting with. (Arturo is very lucky that his apartment is in the epicenter of this bustling little town.)

To summarize: the ADA prohibits discrimination based on a person’s disability. With limited exceptions, the ADA grants IWD’s protection when seeking or holding employment, when accessing public services, programs, or activities, and when using public accommodations/services offered by private entities. For a more serious, comprehensive, and boring description of the ADA, you can visit the official ADA website, which is a poorly-designed page with tons of very good information if you are willing to sift your way through it.

Will Jacqueline find love and happiness with her taxidermy-loving, candlepin-bowling flame? Will Arturo become a shut in, watching the world go by his apartment window, his only source of entertainment besides the people on the street consisting of placing his Pinhead socket against the panes to see if the visage scares away the pigeons that rest on his window sill? Stay tuned for future installments of Legislation Individuals with LL/D Should Know About to find out.