Within the healthcare regulatory landscape, there are a couple phrases that have become a bit played out of late: “let the courts decide” or “we’ll see what the courts say.”
Those expressions, dogearing important policy discussions for another day, currently refer to issues that may take months or years to find resolution. A couple have, however, seen meaningful movement over the past week, and I would be remiss for not circling back to scrutinize how they are moving and shaking medical practice.
The first one worth mentioning is State of Oregon et al vs. Kennedy et al, from the District Court in Eugene, Oregon.
During a Monitor Mondays broadcast back in January, I reported that the Secretary of the U.S. Department of Health and Human Services (HHS) had declared he would henceforth withhold Medicaid funds for gender-affirming care, and hold hospitals in violation of Medicare’s Conditions of Participation if they continued to provide such care.[1]
In accordance with the Administrative Procedure Act, “the Court indicated that it will grant Plaintiff States’ motion for summary judgment, deny Defendants’ motion to dismiss, hold unlawful and set aside the Kennedy Declaration, and declare that ‘defendants lack authority to establish superseding standards of care to exclude providers from federal healthcare programs’”.
To prevent HHS from moving forward with any actions stemming from the HHS Office of Inspector General (OIG), and perhaps even the proposed rules (CMS-2541-P and CMS-3481-P), the Plaintiffs filed a request for permanent injunction last Thursday. One of the stated intentions of the injunction is to ensure that members of the administration “do not simply re-adopt the reasoning of the Kennedy Declaration . . . under a different name or via a different instrument.”[2]
The second recent judgement we cannot ignore is the U.S. Supreme Court’s 8-1 ruling on Chiles vs. Salazar, concerning a Colorado law banning conversion therapy” on minors.[3]
Now, despite consensus against using conversion therapy by the largest and most reputable medical societies of practitioners in this arena in the U.S. – namely, the American Medical Association, American Psychological Association, and American Academy of Pediatrics – the court’s majority focused on the perceived First Amendment issue at play.
The result: the current Colorado law was deemed unconstitutional, and licensed therapists can – under the authority given to them via their state license – try to talk gay, lesbian, and non-binary individuals out of living as themselves, regardless of the known harms of doing so.
The gravity of that was not lost on the singular dissenting Justice, the Honorable Ketanji Brown Jackson. As she stated in her 35-page dissent, mixing up providers’ standard of care with individuals’ freedom of speech could be “catastrophic,” “ushering in an era of unprofessional and unsafe medical care.”
As a physician, I echo Justice Jackson’s concerns. For instance, if I advised a person with atrial fibrillation and a very high stroke risk not to take a blood thinner because I simply did not believe in it, and then they had a stroke and died, I am pretty sure there would be professional consequences regarding my state licensure. I may have a personal freedom to say whatever I want about blood thinners, and even call them an “abomination” because they are not revered in religious textbooks – but do I have a responsibility to practice sound medicine, as a credentialed, licensed physician?
Likewise, if a depressed patient told me they were suicidal, with an active plan, and my subsequent treatment recommendation was they go home and pray because “god is good:” if they go home and end their life, should there not be a professional consequence for my failing to uphold the standard of care to actually secure safety for that person?
As court cases continue to be decided by our friends in the legal profession, I hope that judges and juries get it right sometimes – and that we, as physicians, have the fortitude to protect our patients and our profession when they do not.
EDITOR’S NOTE: This column features spoilers for the current season of The Pitt, and the sentiments reflected therein are the author’s own – not necessarily
Last summer’s Loper Bright decision was supposed to be a watershed moment for administrative law. By overturning Chevron deference, the U.S. Supreme Court declared that
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