The following is a guest post by Peter Roudik, director of legal research at the Law Library of Congress. He has written a number of posts for In Custodia Legis, including on “Crimean History, Status, and Referendum,” “Regulating the Winter Olympics in Russia,” “Soviet Law and the Assassination of JFK,” and the “Treaty on the Creation of the Soviet Union.”
A few days ago a reporter called and asked for my thoughts about a video showing a rowdy and apparently cheerful crowd in front of Ukraine’s parliament building chasing a legislator and throwing him into a dumpster. I undertook some Internet research and found that a flash mob campaign called “trashcan lustration” had been initiated by the opposition Radical Party with the aim of literally trashing the old generation of Ukrainian politicians. The campaign started in the southern city of Odessa where a local official accused of extorting a US$45,000 bribe was taken out of his office by angry citizens and placed in a dumpster. Later, this way of communication between voters and elected officials was extended to Kyiv where several members of the Verkhovna Rada (legislature) experienced similar punishment.
Reports have stated that the actions of the people involved are due to frustration at the slow pace of reforms in the country and dissatisfaction with the country’s bureaucrats. Of course, people have also expressed the view that such methods are not the best way to resolve problems, and that hopefully people can find solutions within the legal and political framework. This campaign goes under the motto of “lustration.” This word comes from a Latin term meaning purify or cleanse by sacrifice, and it is commonly used to describe the political process of purging government institutions of officials associated with the old regime. For about ten years, Ukrainian pro-democracy forces unsuccessfully attempted to initiate lustration. In neighboring Poland, Hungary, Czech Republic, Romania, Georgia, and three Baltic states laws banning former Soviet apparatchiks and KGB agents from working in government institutions were seen as bringing new people interested in pushing democratic reforms into government.
The first, very limited, attempt at lustration under the law in Ukraine was undertaken in April 2014. The law, which was passed following street protests in Kyiv that took place during the period from November 2013 to February 2014, subjected judges who made decisions in cases concerning participants of these protests to special review. However, instead of reviewing the general fitness of a judge, the law was seen by some as imposing extrajudicial control over rulings, thus further limiting judicial independence. More recently, on October 9, 2014, the President of Ukraine signed a new law on “Cleansing the Authorities.” The purpose of this law is to “restore public trust in government authorities and create conditions that allow the building of a new system of power in line with European standards.”
If the new law is implemented, about one million local and national government employees, including military personnel and law enforcement officers, will be fired from their jobs. The law includes a timetable for checks on officials and makes all high level officials in the executive and judicial branches of government subject to mandatory firing if they worked in their positions for at least one year during the presidency of Viktor Yanukovych, whose term started on February 25, 2010, and continued through February 22, 2014, when he left the country. Those who did not resign and continued to serve in their positions during the November 2013 to February 2014 street protests will also be purged. These people will be prohibited from government positions for the next ten years. Additionally, they will be subjected to so-called “property lustration,” which means that they and their family members will have to prove the legality of the means they used to buy property during their government employment. This requirement will also apply to leaders of all provincial and local government authorities and heads of government enterprises.
A ten-year government employment ban will also be applied to those who held leadership positions in Communist Party institutions during the Soviet period or worked for the KGB. Agents and secret informers of foreign intelligence services, and individuals who have made any public statements encouraging the disintegration of Ukraine or the violation of its sovereignty during the course of the ongoing conflict between Russia and Ukraine, will be banned from government employment for the next five years. A five-year employment restriction will also apply to judges who ruled against protesters during the protests in Kyiv. Police officers, tax officials, and personnel of correctional institutions as well as drafted military personnel will not be checked under the lustration law.
The law reflects the idea that public elections are the best form of lustration. That is why the current President of Ukraine, who served as Minister of Commerce in Viktor Yanukovych’s Cabinet in 2012, is exempt from lustration together with the legislators and other elected officials. This exemption will apply to all 450 members of the Verkhovna Rada who were elected yesterday, on October 26, 2014, to serve as the country’s legislators for the next five years. These members of parliament will face numerous legal and political conflicts, including those related to the implementation of the Law on Cleansing the Authorities, but first of all they will have to find legislative responses to current revolutionary challenges and keep Ukraine on the rule of law path.
A 78-year-old Vermont mother of four who helped change Medicare coverage for millions of other seniors is still fighting to persuade the government to pay for her own care.
Glenda Jimmo, who is legally blind and has a partially amputated leg due to complications from diabetes, was the lead plaintiff in a 2011 class-action lawsuit seeking to broaden Medicare’s criteria for covering physical therapy and other care delivered by skilled professionals. In 2012, the government agreed to settle the case, saying that people cannot be denied coverage solely because they have reached a plateau and are not getting better.
The landmark settlement was a victory for Medicare beneficiaries with chronic conditions and disabilities who had been frequently denied coverage under what is known as “the improvement standard” —a judgment about whether they are likely to improve if they get additional treatment. It also gave seniors a second chance to appeal for coverage if their claims had been denied because they were not improving.
Jimmo was one of the first seniors to appeal her original claim for home health care under the settlement that bears her name. But in April, the Medicare Appeals Council, the highest appeals level, upheld the denial. The judges said they agreed with the original ruling that her condition was not improving — criteria the settlement was supposed to eliminate.
After running out of options appealing to Medicare, her lawyers filed a second federal lawsuit in June to compel the government to keep its promise not to use the improvement standard as a criterion for coverage. They are asking Medicare to pay for the home health care that Jimmo received for about a year beginning in January 2007.
“There was really no expectation that she would improve — she was getting skilled nursing and home health care to maintain her condition and reduce complications,” said Michael Benvenuto, director of Vermont Legal Aid’s Medicare Advocacy Project, who has filed review requests for 13 other seniors. “It shows there may be real problems with implementing the settlement at the very highest level.”
In the settlement, Medicare officials had agreed to rewrite Medicare’s policy manuals to clarify that as long as patients otherwise qualify for coverage — for instance, they have a doctor’s order for skilled care to preserve their health or to prevent or slow deterioration —Medicare must pay for therapy and other care at home, in a nursing home or office. Each of those settings has additional restrictions: for instance, nursing home coverage still requires a prior three-day hospital admission, and there are dollar limits (with exceptions) on physical, occupational and speech therapy.
They also agreed to educate providers, billing contractors and appeals judges about the change.
Medicare officials confirmed the settlement’s review process puts appeals into the regular appeals system, but they would not say how many requests have been received or approved.
People shouldn’t have to decline in order to get the care they need.Judith Stein, executive director of the Center for Medicare Advocacy
Nearly five million Medicare beneficiaries received physical, occupational or speech therapy in 2011, with an average of 16 visits, according to the Medicare Payment Advisory Commission, an independent group that advises Congress.
The council’s decision makes no sense to Judith Stein, executive director of the Center for Medicare Advocacy, which filed the original class action lawsuit with Vermont Legal Aid and helped negotiate the Jimmo settlement.
“People shouldn’t have to decline in order to get the care they need,” Stein said. “It is ironic and also not unusual for people to find themselves in that circumstance. We are unfortunately finding providers are still reluctant to provide care because they are so accustomed to Medicare denials based on a need for improvement.”
The Parkinson’s Action Network, one of the seven advocacy groups that had joined the original Jimmo lawsuit, still receives several calls a week from patients who are told Medicare won’t cover their care because they are not improving. But Parkinson’s disease is an incurable chronic degenerative neurological condition.
“Just maintaining function is a victory,” said Chief Executive Ted Thompson.
Joshua Cohen, a physical therapist with a small practice near Chapel Hill, N.C., is worried claims he submits to Medicare may still be questioned or denied. When patients are not progressing, he tells them they can continue therapy if they sign Medicare’s “advanced beneficiary notice of non-coverage” form, promising to pay the bill if Medicare doesn’t. “That in and of itself often prevents further therapy,” he said because patients are afraid they will end up with the bill.This KHN story also ran in NPR’s Shots blog. It can be republished for free (details).
Gabe Quintanilla, a lawyer for the city of San Antonio, refused to sign the non-coverage forms when he was told at least seven times this year that his 92-year-old mother’s physical and speech therapy would end because she was not improving following her hospitalization for a stroke. One doctor predicted she would continue to decline and suggested hospice care.
“The only reason I was able to keep my mother’s therapy going is because I sent a copy of [the] Jimmo [settlement] to her doctor, her insurance company and the home care agency,” he said. His mother has a Medicare Advantage plan, a private health insurance program that must also comply with the settlement. He discovered it “by accident,” while researching legal options on the Internet.
His mother eventually left the hospital and received follow-up care at a nursing home before returning home. Despite the dire predictions, what began as maintenance therapy has led to unexpected, if slight, improvements.
In a video he posted on YouTube, he leans in close to share his prediction that the Spurs are going to beat Portland. And she smiles, pleased that her favorite basketball team won’t let her down.
“The Jimmo settlement saved my mother’s life,” he said.
By Richard Knox
The United States has entered a new phase in its response to Ebola. Call it “officially sanctioned panic.”
Governors of both parties declared over the weekend that even symptom-free health care volunteers coming home from Ebola duty in West Africa will be considered infected (and infectious) until they prove otherwise — by not falling ill for three weeks after their return.
But experts say mandatory quarantine of health workers and travel bans are unnecessary and could cripple the global fight against Ebola.
Against this backdrop, I had a long conversation this past weekend with Prof. Alessandro Vespignani. He’s a Northeastern University expert on how humans behave in the face of disease threats. The main takeaways: The key to defeating the outbreak is to get health care workers to West Africa and back, so to the extent a travel ban or quarantines impede that flow, they will be dangerously counter-productive. And travel is so hard to control fully that bans do little to stem the spread of disease anyway.
Vespignani is spending a lot of time these days consulting with the U.S. Department of Health and Human Services, the Centers for Disease Control and Prevention and the World Health Organization on how the Ebola situation could evolve over the coming months.
He’s thinking some ominous thoughts, which he says reflect the views of U.S. and international health officials that he talks to. But the scenarios they worry about are very different from those that preoccupy many politicians and voters. Politicians worry more about the small, containable immediate threat to Americans of occasional imported cases than the longer-term and potentially catastrophic Ebola scenario that could affect the whole world — in other words, an Ebola pandemic.
Here’s an edited version of our conversation:
RK: Your group published a paper the other day in the journal Eurosurveillance that would seem counter-intuitive to many Americans. You say that imposing a ban on travelers from Ebola-affected countries won’t do much to prevent importation of the virus to the United States. Why is that?
Vespignani: People think if you have a travel ban everybody from those countries will be kept out. It’s not like that.
It’s important to know that we don’t have direct flights from West Africa. So a travel ban has to be coordinated internationally. There are a lot of people with two passports (whose country of origin can’t be easily tracked). People would try to circumvent the travel ban, and they wouldn’t be trackable — that’s one of the most dangerous things.
You can stop 95 percent of travelers from a country, but it’s very difficult to do 100 percent. And even a 90 or 95 percent travel ban is going to delay the arrival of Ebola (in the U.S.) by only about two months. It’s only buying time.
Already there is almost an 80 percent reduction in travel to the U.S. from that region, so we have already bought some time — about four to five weeks.
So what’s the practical effect of that delay? How much would a travel ban reduce Americans’ risk?
AV: The problem for the United States is not in the next couple of months. We will see at most one or two cases [per month] in that period. The problem is down the road.
The number of cases we will see here increases the more cases there are in West Africa and other countries. By December or January, we can get to hundreds of thousands of cases in Africa. You can have outbreaks in Mali [where a case has just been reported, in a little girl who came by bus from Guinea], in Ivory Coast, and in Nigeria. Nigeria was able to contain one outbreak, but you cannot be confident they will be able to do that over and over again.
If the outbreak continues to grow exponentially, we will see more imports of Ebola in the United States. Instead of two or three cases per month, we will likely have three or four, then five to 10. These are all things we should be prepared for and should not panic over.
On the other hand, the fact is, as long as we have the outbreak in West Africa, nobody can be safe. So the only way to buy an insurance policy is to defeat the disease in West Africa. That’s what we have to do.
What is your worst fear?
If we don’t stop the West African outbreak, we can start to see Ebola cases in South Africa, Kenya — countries with much more [global] trade and travel. People can travel by bus or cross borders in many different ways. With hundreds of thousands of cases, there will be spillover to other countries. It’s a domino effect. The whole world could see cases.
We could see cases of Ebola going to countries in Asia — China or India — where one-third or more of the human population live. In some [Asian] cities, they have health care systems as good as we have [so could control Ebola]. But in other places, they do not. So you never know what could happen there.
In our global world, to seal off a country is a huge task. If the epidemic continues to grow and affects other countries, the task becomes more difficult still. You might eventually have to do a travel ban for more and more countries — for China, for India.
This brings us back to the question of the moment: What should the United States be doing?
To win the battle, we have to have health care workers, doctors, NGOs and the military go there [to Ebola-affected areas]. And they have to be able to come back. You could really make it so complicated for them that they are not going to go there. If you talk to the World Health Organization, they will tell you, “Look, travel bans are just going to make efforts to contain the disease in West Africa more complicated.”
Do you worry about the effect of putting returning health care workers in quarantine?
I do worry about it. These people are heroes. They are going to fight a battle in which they are risking their lives. They are not just helping African people. They are defending us. We need to stop the outbreak there to be sure we won’t have Ebola in our country. The more we hamper their effort, the more it could backfire on us. We have to be very careful about that, and also very rational.
It’s nearly half the state budget, almost 20 percent of the state’s economy and a perennial top concern for voters. The issue is health care, and so far, neither Democrat Martha Coakley nor Republican Charlie Baker has taken the lead on this topic with voters in the gubernatorial race.
“Coakley has perhaps a slight edge on the general health care issue, as well as the affordability issue, but neither campaign has really broken away” on health care, said Steve Koczela, president of the MassINC Polling Group. “It’s not like taxes, which go big for Baker. It’s not like education, which tends to go a bit bigger Coakley. It’s an issue that is still very closely fought.”
So where do the gubernatorial candidates stand on some of the key concerns in health care? Below is a summary of the candidates’ proposals for how to treat the health of the state.
On Making Health Care More Affordable:
BAKER: He argues that giving patients information about how much tests and procedures cost, in advance, will help us become informed consumers of care. We’ll spend less money, because we’ll choose to have a baby, for example, at the hospital with the lowest cost and best quality scores. As of Oct. 1, health plans in Massachusetts are required to post what they pay each hospital and doctor.
Baker would take a next step. “I’d like to get to the point where hospitals just post prices and people can see them plain as day,” Baker said. “As governor, I’m going to lean really hard on this.”
Some health care analysts say Baker’s strategy for reducing health care costs could backfire. Patients may assume that the most expensive hospital is the best even though that’s generally not true. And letting Brockton Hospital, for example, know that it is paid about half of what Massachusetts General Hospital receives for a C-section may mean Brockton Hospital demands more money, instead of MGH saying, “OK, I’m going to lower my prices to compete.” In addition, some of the expensive hospitals say their higher prices subsidize teaching and research.
COAKLEY: She argues she is uniquely positioned to tackle health care spending. She created a health care division in the attorney general’s office, issued the first detailed reports on health care costs and used her leverage to negotiate a deal that would limit the price increases Partners HealthCare could demand in the near future.
“The agreement that we have reached, to be approved by the court, caps costs and lowers costs as opposed to maintaining the status quo, which we all agree is too expensive,” Coakley said during a campaign debate on WBZ-TV.
But Coakley’s deal has been widely criticized, because it lets Partners add doctors and hospitals and expand the market power Coakley’s reports say have driven up costs.
Coakley suggests the state’s attorney general needs more power to effectively block harmful health care mergers. She would file legislation giving the attorney general authority to file suit based on a recommendation from the state’s Health Policy Commission.
“It would allow us to work more quickly and with a different and lower threshold [than the anti-trust statute] to address cost containment in mergers, acquisitions, other transactions in the health care field, that we think negatively would affect cost containment,” she said.
And Coakley would consider setting price limits for tests and procedures if the state does not meet its health care spending goal.
“We’ve always said if the market can’t correct, there’s always the opportunity to look at price convergence and have the state more involved,” she said.
Independent Candidates In 2014 Governor’s Race Health Care Goals In Summary:
EVAN FALCHUK: He would try to break hospital monopolies whose prices “lead to skyrocketing premiums for consumers.” And Falchuk would “create a fee schedule that will apply equally to all hospitals.”
JEFFREY MCCORMICK: His approach includes a focus on primary care, especially community-based and home care options.
SCOTT LIVELY: He says the state can lower health care spending by creating “nonprofit risk pools that are much less costly, where people are not restricted to the doctors and hospitals they can go to and where the members are stakeholders in the billing process which has a substantial downward pressure on costs.”
On Improving Health Care:
COAKLEY: She says the state has to build up mental health services and merge care for the body and mind.
“We haven’t been able to coordinate care, and it’s put costs way up on the physical health side,” Coakley said.
This is personal for Coakley, who has told the story of her brother Edward’s suicide throughout the campaign to explain her commitment to mental health care. She’d push for more screening to catch problems early on and expand access to programs and therapists.
Coakley would keep Taunton State Hospital open. She would require that mental health evaluations be done in a civil facility, not at Bridgewater State Hospital, and be conducted by staff from the Department of Mental Health, not Corrections.
BAKER: He would boost primary care as a whole, beginning with a Medicaid waiver that would increase pay for primary care doctors.
“If we simply invested in primary care,” Baker said, “we would spend less on health care overall, and we’d have healthier happier people. I really believe that.”
On The Move From Fee For Service And Toward Global Budgets Or Payments:
How you get paid doesn’t really seem to relate all that much to how expensive you are or how high quality you are. What seems to drive that more than anything is the culture of your group, and my view has been for a while that if a group wants to be compensated under a global budget and is willing to do the work that’s associated with being compensated that way…then I’m like, ‘Sure, go for it!’ But I think we need to be careful about pushing people into that type of arrangement, because I don’t think they’ll be very effective participants. There’s evidence out there that as long as you have the right incentives and the right culture in place, you can make a fee for service model work too.
As we move away from fee for service and try to get into our communities more affordable and integrated health care, it is the one way where you’re going to be able to address mental health care and behavioral health care.
On The Affordable Care Act And The Connector:
One big unknown for the next governor is whether the Connector website will be working, and if enrolling the roughly 450,000 residents who’ve been in limbo this year will be going smoothly when the new governor takes office.
COAKLEY: “The roll out of the Connector website was unacceptable,” she said. “I’ve also said that it’s very important that Massachusetts maintain control over what we are doing here. I’m glad that we are not going down the federal path [merging with the federal site, Healthcare.gov]. I have advocated with my colleagues around the country to say, we need a ‘not one size fits all program.’ We’ve done well here in Massachusetts, we need to keep moving forward on that.”
BAKER: He says “job number one has to be to get the website to work.”
There is some confusion about what Baker means when he says he would ask for a waiver or waivers from the Affordable Care Act.
“I’d like to be in a situation where the commonwealth can actually advocate for its own interests and if there are things we think we can do and make the case to the federal government that they’re the right things to do for the people of Massachusetts and fit within some framework that relates to the goals and objectives of the Affordable Care Act (ACA),” he explained. “I think we should be able to do that. That’s what I mean when I talk about a waiver.”
Baker has not outlined items in the ACA for which he would seek a Massachusetts waiver.
On Opening Medical Marijuana Dispensaries, Would The Candidates Continue The Current Process Or Stop And Start Over?
I’d want to take a look at where we are. No licenses have been issued yet. I think that the vetting that is supposed to take place is taking place. If it isn’t where it should be, I’m happy to start over. I’m not saying we need to do that. I want to make sure that we move as quickly as possible, but we have the regulatory piece in place.
We have huge process credibility issues here; we have pending lawsuits. I think it might be best to just redo this. I mean, compress the time frame, but get some real experts involved in it and do something that I think would have more integrity. I also worry about the fact that as far as I can tell we’re going to come nowhere near meeting the requirement that these dispensaries be available to the people within a certain geography. If you look at a map of Massachusetts and you point these things on that map, there are huge gaps in access and coverage.
On Legalizing Marijuana (An Issue Likely To Come Up During First Four Years):
BAKER: “I am against legalization. I’ve talked to too many people in the addiction community and too many people in law enforcement community. The addiction community, their stories and their concerns are particularly telling.”
COAKLEY: “We would like to see where Washington and Colorado go — states that are ahead of us on medical marijuana dispensaries and have legalized it.”
On Opiate Abuse:
BAKER: “I’ve had some friends who’ve either lost or come very close to losing children over the heroin problem. We need to have a real heart-to-heart about the way the health care community prescribes opiates.”
Baker would require all doctors to consult the state’s Prescription Monitoring Program before writing or renewing a patient’s prescription for pain medication.
COAKLEY: “One out of the three people is at risk for becoming addicted to something like Oxycontin. We have seen too many drugs prescribed, not monitored by doctors and pharmacists. We also need to find better ways for people who are addicted to get them off that and provide for rehabilitation. It is a burning issue for me. Sixty to 80 percent of people sitting in a house of correction have some kind of a mental health or substance abuse issue.”
Coakley has not released a plan to address opiate abuse.
Election Day is Tuesday, Nov. 4.