Leaving a Man Behind: Veteran Health Care

By Jennifer Chow, DePaul University College of Law-

Earlier in 2014, Cable News Network (“CNN”) issued a series of articles on the extended delays for United States veterans to be seen in the Veterans Affairs health care system. CNN boldly stated that hospital delays were “killing war veterans.” That following April, CNN broke the news that United States veterans were not only dying as they waited for health care appointments, but secret waiting lists and falsified records were also being utilized to hide the thousands of veterans forced to wait months to see a physician. The breaking news launched multiple federal investigations, including an internal investigation by Veterans Affairs (“VA”), as well as investigations by Veterans Affairs Office of the Inspector General, the Justice Department and the Federal Bureau of Investigations. As the year comes to a close, this article examines the progress, or lack thereof, of the Veterans Affairs Administration and addresses what the future of health care looks like for our war heroes.

A System on the Edge

 The Veterans Health Administration (“VHA”), a division of the United States Department of Veterans Affairs, is America’s largest integrated health care system, serving 8.76 million veterans each year. All those who served in active military, naval, or air service are eligible under the program. Nevertheless, even with the 150 medical centers, nearly 14,000 community-based outpatient clinics, and 53,000 licensed health care practitioners, the average wait time, in May 2014, for new primary care patients was 51 days.

Moreover, the cost of caring for veterans is on the rise, with no relief in sight. The aging members of World War II and the Vietnam War will continue to place stress on the VA as illnesses related to age become more prevalent. Additionally, servicemen and women from the wars in Iraq and Afghanistan will soon retire and seek medical attention, especially for chronic conditions such as post-traumatic stress disorder.


The Question of Progress

 In the aftermath of the scandal, Dr. Robert Pretzel retired as the VA Undersecretary for Health, followed closely by the resignation of Secretary of Veterans Affairs, Eric Shinseki. In his stead, President Obama appointed Robert McDonald, a United States Army veteran and formed Proctor and Gamble CEO, as the replacement Secretary of Veterans Affairs. Additionally, Congress passed the Veterans Access, Choice and Accountability Act of 2014 . The key features to the Act provided veterans the right to access private health care and established leases for 27 new VA facilities with the hope of reducing patient wait times and addressing the overflow of veterans in need of care.

On Thursday, November 6, Secretary of Veterans Affairs McDonald announced that average wait times have decreased to 42 days as of October 2014. While McDonald touted the decrease as “significant progress,” criticism still hails down on the new Secretary of Veterans Affairs.

McDonald is slowly, but surely, navigating through the legal minefield of firing executive members who were involved in the original cover up, yet commentators on the Hill continue to call into question McDonald’s tactics and expediency. After allegations surfaced, executive members were put on paid leave while further investigations were conducted. Until due process has been given to each individual, those responsible for the mismanagement of veteran care will continue to be bankrolled by the VA, draining an already faltering system.

About-Face, Private!

 It is clear that something has to change in the administration of health care under Veterans Affairs. On the surface, it is easy to throw money at the problem. In addition to the $16 billion in emergency funds approved by Congress, the VA’s budget, under the Obama Administration, has increased from $100 billion in 2009 to $154 billion in 2014. McDonald is also seeking an unspecified amount of additional funds, on top of the $16 billion to be allocated to the backlog of disability claims for veterans. However, even with this allocation of billions of dollars, there seems to be no significant change in the provision of health care for war veterans.

The system is clearly broken. No patient should be required to wait 42 days to see a primary care physician. This practice is unacceptable for any civilian in the United States, let alone those who fought for our country. The simplest solution for this problem is the administration of veteran care outside the VA system, in the private sector. Where the VA lacks the infrastructure and locations to support the needs of all veterans, private and public hospitals can ease the burden. Although the Veterans Access, Choice and Accountability Act takes steps in the right direction by allowing veterans to seek VA-paid health care from local health providers with “choice cards,” it is ultimately not enough. The anticipated roll out of the “choice cards” will most likely be slow and not reach the 9 million members for months, if not years.

Veterans need care now. Instead of allocating funds to bolster the existing infrastructure, the VA needs to take advantage of the multiple health care systems that are already established and more equipped to handle the volume of veterans that stream into VA hospitals every day.


 CNN was not wrong; wait times are killing war veterans. Despite the good intentions of the Obama Administration, Congress, and Veterans Affairs, money alone will not solve this problem. A fundamental change is necessary to heal those who fought so bravely for the United States. Until then, war heroes continue to suffer on American soil.

Jennifer Chow is a current student at DePaul University College of Law in Chicago. Ms. Chow is the current Editor-in-Chief of DePaul’s E-Pulse and Business & Managing Editor of the DePaul Journal of Health Care Law. She completed her undergraduate degree at the University of Southern California in psychology and advertising. Ms. Chow will complete her JD and LLM degree in health law in 2015.

To Expand or Not to Expand: Medicaid Under the Affordable Care Act

By Jaime Whitt, University of Kansas School of Law-

Famed US Supreme Court Justice Louis Brandeis wrote, in his dissent to the majority opinion in New State Ice Co v. Liebmann, 285 U.S. 262 (1932), that “It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” With these words Justice Brandeis generated one of the most prominent analogies of US Federalism—one that still holds true today: the States as the “laboratories of democracy.” This concept has seemingly come to life with the implementation of the ACA (P.L. 111-148) and its provisions. Though it is federal health care reform, there is considerable leeway for each State to individualize the legislation’s impact. From the choice between utilizing www.HealthCare.gov or creating its own state-based health insurance Exchange, to regulation of the health care Navigators and other ACA outreach programs, to whether or not to expand Medicaid and how, each State has several opportunities to either fully roll out the ACA and its initiatives or stifle the bill’s impact.

One of the mostly hotly debated issues of the ACA has been Medicaid Expansion. With 2012’s National Federation of Independent Business v. Sebelius, 132 S.Ct. 2566, the Supreme Court invalidated the federal Medicaid Expansion mandate as unlawfully coercive and left the Medicaid decision to the states. Since then, contentious arguments in favor of and against expansion abound. To exhaust the minutia surrounding this hotbed topic would arguably be fruitless in this context, but even a cursory review of the myriad issues involved reveals that the expansion decision is a complicated one.

To Expand

On the side in favor of Medicaid Expansion, the arguments typically stem from the vantage point of viewing expansion as a moral and fiscal imperative. States who choose to expand Medicaid get considerable financial support from the federal government in the form of 100% funding for the cost of newly enrolled Medicaid beneficiaries. In a December 2013 study of how states stand to gain or lose under Medicaid Expansion, the Commonwealth Fund found that expansion dollars would represent a major source of federal revenue to state enterprises—nearly 2.5 times the value of highly sought-after federal highway funds in some cases. These dollars are necessary, the argument often goes, to strengthen and protect state health care providers against uncompensated care and to expand health coverage and financial protection to a state’s neediest constituents. The Oregon Health Insurance Experiment (OHIE), which conducted a randomized clinical trial of the effects of expanded Medicaid coverage, found that expansion resulted in improvements in mental and physical well-being as well as protection from catastrophic medical expenses for those who previously had no such resources.

Not to Expand

On the other hand, many states have been leery that the federal government, whose ACA expansion funds match the states at 100% until 2019 when the rate levels out at 90%, will take back that funding, leaving state budgets strapped and on-the-hook to find a way to continue coverage. Recently, this argument has come under fire, as more states consider expansion and research into the history of federal Medicaid funding has revealed that once such funds become entrenched, they are rarely reversed. To that same point, however, many economic and health policy analysts have expressed concern that this massive expansion of public funds will further contribute to the already currently unsustainable growth of national health care expenditures. In support of this argument, results from the aforementioned Oregon study, as well as trends seen in Massachusetts after its 2006 health care reform, indicate that an (expensive) increase in ER utilization is a likely consequence of status-quo Medicaid expansion.


It seems clear, even after just a merely skin-deep examination of this issue and its many interrelated and dependent corollaries, that this debate may indeed be appropriate. Our federal government has the right and responsibility, many argue, to ensure health coverage and financial protection for its citizens to the extent that it can. Likewise, the States each have the right and responsibility to be concerned about their financial welfare when state budgets directly impact state citizens. This is US Federalism at its core.

And the debate is far from over. Certainly, the Republican routing in the November mid-term elections, given that party’s distaste for all things Obamacare, does not forecast a favorable future for the initiative. Having said that, it is no secret that Medicaid funds are generated by and distributed from general federal tax revenues. This means that even states that choose not to expand Medicaid are paying for it. How long will citizens in states that choose not to expand, such as Texas, be complacent with the denial of additional federal revenue, all the while knowing that their federal tax dollars are paying for benefits enjoyed by other states? Only time will tell.

Which brings me back to Justice Brandeis’ historic dissenting admonition. The States are the laboratories of democracy. No one would or could legitimately argue that either the Federal or State governments do not want to provide for and protect their citizens. The question comes down to who should do it and how. Overall, whether states choose new innovations designed to privatize and control Medicaid Expansion funds or choose to use increased funding to focus locally on educating beneficiaries on what resources are available and how to more efficiently use the system, choosing not to participate at all seems like a loser here. The States know their citizens and circumstances better than the Federal government and changes need to be made to the status-quo. The fallout is certainly not clear, but the “courageous” state that Brandeis highlighted will take the money and see what positive progress it can make.

Jaime Whitt is her fourth and final year of a joint-degree program at KU.  She will graduate in May 2015 with a Masters in Health Services Administration from the University of Kansas School of Medicine and a J.D. from the University of Kansas School of Law, with a focus in Healthcare and Health Law.  When she is not in school, Jaime is a Law Clerk at Simpson Logback Lynch Norris, P.A. in Overland Park, KS and is a Graduate Research Assistant in the Department of Health Policy & Management at the University of Kansas School of Medicine studying health policy and health reform.

California Hospital has Patients Wearing Compliance

One California hospital has begun to use wearable remote patient monitoring devices in order to comply with patient safety requirements, according to mobihealthnews.com. The hospital, Chino Valley Medical Center, is relying on a product designed by Leaf Healthcare, known as the Leaf Patient Monitoring system to help reduce the risk of pressure ulcers in bed bound patients.

The Sensor

According to the Leaf Healthcare website, the device is a single use sensor that adheres to a patient’s chest, recognizes when it is attached, and monitors patient movement so that health care providers are alerted when a caregiver assisted turn is necessary. The device is attached to the upper chest, beneath a clavicle or at the sternum and remains fixed due to a “medical grade adhesive.” The sensor remotely provides information about the identity of a patient, when they need to be turned and whether they are in an upright or prone position. The wireless network that the sensors use is based upon a series of Leaf antennas that are plugged into outlets. Leaf Healthcare describes the network as “highly redundant to ensure data integrity.” The product’s user interface can be viewed on desktop computers, tablets or smartphones. The Leaf Healthcare website provides a technical overview of the manner in which the sensor and interface functions.


According to mobihealthnews.com, a recent clinical trial revealed that when the sensor was in use, compliance with hospital turn procedures jumped from 64 percent—the baseline—to 94 percent. The success of the product is significant because ulcers are a painful and costly condition. The U.S. health care system spends $11 billion a year treating ulcers, according to the HHS Agency for Healthcare Research and Quality (AHRQ). Leaf Healthcare’s own analysis of the cost of ulcers found that the average pressure ulcer costs $8,700 to treat, with stage four pressure ulcers costing as much as $21,400 to treat.


The hospital is currently using the sensors for any patient that scores 18 or lower on the Braden Scale for predicting pressure ulcers. Since receiving 510(k) clearance for the device from the FDA in November 2013, Leaf Healthcare has been running pilot programs with hospitals like Chino Valley and the Boise, Idaho VA Medical Center. Although Leaf Healthcare wasn’t the first to come up with the idea—according to mobihealthnews.com., Bam Laps earned that title with its “smart bed” system in 2012—the mobile sensor promises to be an effective means of limiting the occurrence, pain, and cost of unnecessary pressure ulcers.

Growth in Health Care Spending Continued to Slow in 2013

In 2013, health care expenditures in the United States grew to $2.9 trillion, up 3.6 percent from 2012. The share of gross domestic product (GDP) attributable to health care spending has remained stable since 2009, at 17.4 percent. Economists and statisticians at the CMS Office of the Actuary (OACT) reported that health care spending grew more slowly in 2013 than in 2012, continuing a pattern in which increases have not exceeded 4.1 percent since 2009.

On a per capita basis, the rate of growth of national health care expenditures declined from 3.4 percent in 2012 to 2.9 percent in 2013. The growth in health care spending is consistent with the rate of growth in the economy as a whole, which has averaged 3.9 percent since 2010. This pattern was a change from growth between 2008 and 2011, when health care expenditures grew faster than the national economy.

Factors Affecting Growth

Health care spending is affected by both economic, such as inflation in prices generally and medical prices specifically, and noneconomic factors, such as changes in the composition of the population by age and gender. The first baby boomers became eligible for Medicare in 2012, resulting in a large increase in Medicare enrollment Beneficiaries who recently turned 65 tend to be healthier than the average Medicare beneficiary, and this demographic shift may curb increases in expenditures.

The authors of the OACT report, published in Health Affairs on December 3, 2014, noted that payment adjustments under the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) exerted downward pressure on spending. Specifically, the reduction of Medicare Advantage benchmark payments and productivity-related adjustments to fee-for-service payments increased rebates for Medicaid prescription drugs, and the medical loss ratio (MLR) requirement helped to lower spending. Changes that countered the downward pressure include the temporary increase in Medicaid payments to primary care physicians, increased coverage of Part D drugs as the donut hole shrinks, and early Medicaid expansion increased spending. In addition, the budget sequestration required by the Budget Control Act of 2011 (P.L. 112-25) reduced federal spending for Medicare, clinical research, and other federal programs by 2 percent beginning in March 2013.

Cost of Coverage

Health insurance premiums, which account for one-third of health care spending, grew by 2.8 percent, a lower rate than previous years. The authors believe that the MLR, rate review, and other insurance market reforms required by the ACA and the increasing popularity of high-deductible health plans slowed the growth of premium expenditures. As increases in the prices of medical services have slowed, so have the increases in insurers’ expenditures.

Prescription Drugs

Spending for prescription drugs accelerated in 2013, rising 2.5 percent, compared to 0.5 percent in 2012. The low growth in 2012 was largely caused by the expiration of patent protection for certain popular drugs that had generated $35 billion in revenue each year; the generic drugs that became available were much less expensive. The percentage of prescriptions filled with generic drugs, excluding branded generics, grew from 73 percent in 2011 to 80 percent in 2013.

Although the increased use of generics reduced prescription drug spending, the rising prices of specialty drugs outweighed the effects of generics. Because the FDA approved more new drugs in 2013 than it had in any of the preceding 10 years, there were more specialty drugs on the market. Prices for existing specialty drugs continued to rise as well. Specialty drugs comprise 1 percent of prescriptions dispensed, but bring in almost 28 percent of prescription drug revenue. Medicare spending for drugs under the Part D prescription drug benefit rose 10.7 percent. Private insurance payments grew more slowly because of the increased use of tiered copayment structures, which increase the cost sharing requirements for more expensive drugs.

Anticipating the Future

The health care landscape has changed dramatically in 2014. Many people are newly insured or have more comprehensive coverage, and, in expansion states, many people are newly eligible for Medicaid. These individuals may use more services. The forces that depress the growth of Medicare spending, in particular, may continue to operate and the use of high-deductible health plans may continue to grow. Therefore, the authors concluded that whether the slowdown in spending growth will continue was an open question.