The U.S. Supreme Court heard arguments Tuesday in a case that could block hospitals, doctors — or anyone else — from suing states over inadequate payment rates for providers who participate in the Medicaid program for low-income Americans.

Federal law requires Medicaid, which covers 70 million people, to provide the same access to care as that given to people with private insurance. But many doctors avoid seeing Medicaid recipients, saying the program pays too little. That can lead to delays and difficulties in getting care for millions of poor people.

In Armstrong vs. Exceptional Child Center, several providers for developmentally disabled Medicaid patients sued the state of Idaho after officials failed to increase Medicaid payments as required under a formula approved by the federal government. An appellate court upheld a judgment in favor of the providers last year, noting that Idaho had conceded that it held rates flat since 2006 for “purely budgetary reasons.”

The issue before the high court is whether the U.S. Constitution gives providers the right to sue the state to increase their pay. And the court appeared split on that issue based on their remarks Tuesday. Chief Justice John G. Roberts Jr. expressed concern about opening the door to a flood of lawsuits that could have federal judges determining state payment rates and potentially gutting state budgets, while more liberal judges appeared more sympathetic to the providers.

“It seems to me that this is a prescription for budget-busting across the board.” Roberts said of allowing provider lawsuits. “It seems to me [we] will be putting the setting of budget priorities in the hands of dozens of different federal judges, and I just don’t know what the practical significance of that is going to be.”

In the past two decades, providers and patient advocates have sued Medicaid programs in numerous states, including California, Illinois, Massachusetts, Oklahoma, Texas and the District of Columbia — with many of those suits resulting in higher pay for doctors and other providers.

But Justice Sonia Sotomayor noted that in the case before them, Idaho officials had failed to follow the federally approved Medicaid payment formula.

Idaho is asking the Supreme Court to hold that neither providers, nor any other private party has the right to challenge payment rates in court; indeed that only the federal government has that ability.  A decision is expected by June.

More than half the states and the Obama administration have backed Idaho’s position. Major provider groups including the American Medical Association and the American Hospital Association — along with patient advocacy groups such as the National Health Law Program — have sided with the providers.

During the hearing, Roberts and Justice Antonin Scalia questioned why providers don’t take the issue up with the federal Centers for Medicare & Medicaid Services, which oversees state Medicaid programs. But the federal government has few options to sanction states other than cutting off a state’s federal Medicaid funding — the so called “nuclear option,” which CMS has never used, said an attorney representing the Idaho health providers.

The last time the court considered the issue, in a 2012 case from California called Douglas vs. Independent Living, a narrow majority sent the case back to lower court without clearly affirming or negating the right to sue. But four conservative justices in their dissent said that without explicit language from Congress saying that such a right exists, private parties such as providers and patients could not challenge Medicaid fees.

State Medicaid programs typically pay low rates — at least one third lower than Medicare, the federal plan covering the elderly and disabled. The Affordable Care Act widened eligibility for Medicaid to cover more low-income adults, adding nearly 10 million people to the program in the past year. The law temporarily increased reimbursement rates for primary care providers, but only in 2013 and 2014.

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation.

While Republicans cannot expect a full repeal of the health law while President Barack Obama remains in office, the GOP intends to “strike away at it, piece by piece,” Senate Finance Committee Chairman Orrin Hatch, R-Utah, said Tuesday.

But in a speech at the U.S. Chamber of Commerce, Hatch also said he expected that Republican and Democratic lawmakers would work together on several other key pieces of health legislation.

Hatch said there may be more bipartisanship in some “must pass items,” including continued funding for the Children’s Health Insurance Program and overhauling the way Medicare pays physicians, known as the “sustainable growth rate.”  On CHIP, Hatch said the Finance Committee has “heard from a number of governors from red states and blue stakes alike that they want to see this program extended. It has been a marvelous program. It has worked very, very well. I’m optimistic that we can work on a bipartisan, bicameral basis to extend CHIP in a responsible way.”

Hatch also said he wants the Finance panel “to address the SGR challenge once and for all.” Last year he co-sponsored legislation that would move physicians from the traditional system in which they are paid for volume and instead use financial incentives to encourage them to move to alternative payment models emphasizing quality care.  Finance must also act “sooner rather than later” to strengthen Medicare, Medicaid and Social Security, he said, noting that in the last Congress he supported several significant changes to Medicare, including raising the eligibility age and simplifying cost-sharing in the program.

In his remarks, Hatch said his committee would work on several measures to repeal elements of the health law — including its medical device tax and employer mandate — even though Obama would be likely to veto the measures.

“We can send them all to the president’s desk and have him try to explain to the American people why he’s right and they’re wrong,” Hatch said.

While House Republicans have passed dozens of measures to repeal or weaken the health law, the Senate has not voted on many of those bills because until this month, Democrats controlled the chamber. With Republicans now in charge with 54 seats, odds are better that some of the repeal measures will see floor consideration. But the GOP will still need some Democratic support to reach 60 votes to avoid a filibuster, and they are unlikely to garner enough Democratic support for the 67 votes needed to override a presidential veto.

In a wide-ranging speech that also touched on tax reform, trade and pensions, Hatch said the first health-related bill the Finance Committee will consider is legislation the House passed earlier this month. It allows employers to exempt workers who received health coverage through the Defense or Veterans Affairs departments from the tally used to determine whether the employer is meeting the health law’s requirements for providing coverage.

Hatch said Republicans need to be ready with an alternative to the health law if the Supreme Court later this year strikes down the provision that provides premium subsidies for low- and middle-income people buying coverage on the federal exchanges. If that happens, “we’ll need to act to mitigate the additional damage Obamacare will inflict on the health care system,” he said, but he offered no specific remedies. Along with Sen. Richard Burr, R-N.C., and former Sen. Tom Coburn, R-Okla., Hatch last year co-sponsored a health law alternative that, among its provisions, would repeal the health law’s individual and employer mandates.

Hatch said while he prefers to find bipartisan solutions on health care and other topics, he did not rule out a procedure known as budget reconciliation that allows legislation to pass with 51 votes in the Senate rather than the 60 needed to stop a filibuster. A number of Republicans have suggested that reconciliation could be used to repeal major portions of the health law.

“Should we decide to go that route, I’ll work with my colleagues on the Budget Committee to make sure whatever we do under the Finance Committee’s jurisdiction is effective,” he said.

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation.

When a woman had gall bladder surgery at a Massachusetts hospital in 2013, doctors noticed something suspicious on a CT scan that they thought could be ovarian cancer. But the recommendation that the patient get a pelvic ultrasound fell through the cracks. Months later, she was diagnosed with stage 3 ovarian cancer.

Normally, this type of medical mistake could mark the start of a protracted malpractice lawsuit. But in Massachusetts, where medical, legal and consumer groups have worked together in support of a recently enacted law that tries to preempt litigation by establishing a process and timeframe for discussing mistakes, that’s not what happened, according to her attorney who recounted the case in an interview.

The law mandates that people give health care providers six months notice if they intend to sue. The woman’s lawyer notified the hospital of the mistake and the harm it had caused her: A delay in diagnosis that may have led to more extensive cancer treatment and, arguably, a higher risk that the cancer will recur.

Hospital officials, who had 150 days to respond, determined that their actions hadn’t met the standard of care. The hospital arranged a meeting between the woman and one of their physicians to talk about why the error occurred and the measures being taken to make sure it won’t happen again. The physician apologized, and soon after the woman accepted a financial settlement from the hospital.

The whole process took about a year, far less time than a drawn-out legal battle would have involved, says Jeffrey Catalano, the Boston attorney who represented the woman but declined to provide identifying details in the case.

“The hospital did the right thing,” he says. “My client felt really good about it. She felt like she was heard.”

Traditionally, medical liability reform has focused on laws that set caps on the dollar amount that plaintiffs can receive in damages. But interest in non-traditional types of medical liability reform has been growing, spurred on by dissatisfaction with so-called “deny and defend” adversarial systems that often result in lengthy and expensive legal proceedings when a medical error occurs.

In the national health care debate, the issue has been a key dividing line between Democrats and Republicans. The GOP generally supports capping damage awards as a way to rein in frivolous medical malpractice lawsuits and keep health care costs down. Democrats, supported by the trial lawyers lobby, argue that the Republican strategy is ineffective and leaves patients who have been injured with inadequate recourse. After the health law passed, President Barack Obama offered to work with Republicans on the issue. In 2010, his administration awarded $23 million in planning and demonstration grants around the country as part of a patient safety and medical liability reform initiative.

Boston’s Beth Israel Deaconess Medical Center and the Massachusetts Medical Society received a planning grant for $274,000 to develop a roadmap for a statewide communication, apology and resolution (CARe) system modeled after a successful program at the University of Michigan.

“Our effort was to take a model that had been very successful in a closed [health care] system and see if we could create an environment to implement it in a much broader way,” says Dr. Alan Woodward, a retired emergency physician who chairs the Massachusetts Medical Society’s Committee on Professional Liability.

Communication and resolution programs are gaining in popularity. Advocates emphasize moving quickly when a medical error is made to discuss it with the patient and the patient’s family, apologize and, if the standard of care has not been met, offer compensation.

In Massachusetts, six hospitals joined a pilot project to implement the model. Medical, legal and consumer groups that had participated in developing the roadmap formed a health care alliance to exchange information and develop best practices, and provide support for the hospital pilot projects.

In turn, that state law bolsters the alliance’s efforts to change how medical injuries are addressed. In addition to the six-month “cooling off” period before a suit can be filed, the law requires that patients be told when medical mistakes are made that result in unexpected complications and allows providers to apologize for unanticipated outcomes without fear their words will be used against them in court.

While many health systems and states are experimenting with non-traditional forms of medical liability reform, Massachusetts’ efforts are among the more comprehensive.

The broad-based Massachusetts’ effort is modeled after the University of Michigan’s communication and resolution program. Since the program began in 2001, it had reduced the rates of average monthly new claims and average monthly lawsuits, while cutting the time to resolve disputes and legal costs, a 2010 study published in the Annals of Internal Medicine found.

Saving money shouldn’t be the primary motivation for adopting a program, says Richard Boothman, the chief risk officer for University of Michigan health system and the man who pioneered their program. Patient safety is the goal.

“The very best risk management is to not hurt anybody in avoidable ways, and the second best [strategy] if we do hurt someone is not to do it again,” he says.

Please contact Kaiser Health News to send comments or ideas for future topics for the Insuring Your Health column.

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation.

Until recently, same-sex couples could not legally marry. Now, some are finding they must wed if they want to keep their partner’s job-based health insurance and other benefits.

With same-sex marriage now legal in 35 states and the District of Columbia, some employers that formerly covered domestic partners say they will require marriage licenses for workers who want those perks.

“We’re bringing our benefits in line, making them consistent with what we do for everyone else,” said Ray McConville, a spokesman for Verizon, which notified non-union employees in July that domestic partners in states where same-sex marriage is legal must wed if they want to qualify for such benefits.

Employers making the changes say that since couples now have the legal right to marry, they no longer need to provide an alternative. Such rule changes could also apply to opposite-sex partners covered under domestic partner arrangements.

“The biggest question is: Will companies get rid of benefit programs for unmarried partners?” said Todd Solomon, a partner at McDermott Will & Emery in Chicago.

It is legal for employers to set eligibility requirements for the benefits they offer workers and their families — although some states, such as California, bar employers from excluding same-sex partners from benefits. But some benefit consultants and advocacy groups say there are legal, financial and other reasons why couples may not want to marry.

Requiring marriage licenses is “a little bossy” and feels like “it’s not a voluntary choice at that point,” said Jennifer Pizer, senior counsel at Lambda Legal, an organization advocating for gay, lesbian and transgender people.

About two-thirds of Fortune 500 companies offer domestic partner benefits, but only a minority is changing the rules to require tying the knot, said Deena Fidas, director of the workplace equality program at the advocacy group Human Rights Campaign.

Because same-sex marriage isn’t legal in all states, “many employers operating in multiple states … are retaining their partner benefit structures,” said Fidas.

Most companies making the changes, including Verizon, are doing so only in those states where same-sex couples can get married. And most give workers some time to do it.

“We gave them a year and a quarter to get married,” said Jim Redmond, spokesman for Blue Cross Blue Shield of Western New York, which made the change for employees shortly after New York allowed same-sex unions.

Employers that offer domestic partner benefits — for both same-sex and opposite-sex partners — generally allow couples in committed relationships to qualify for health and other benefits upon providing documents, such as financial statements, wills, rental agreements or mortgages, proving they are responsible for each other financially.

Such benefits were particularly important before the federal health law barred insurers from rejecting people with pre-existing medical conditions.

“We had clients over the years who were living with HIV … the only health insurance they had, or had hope of getting was their partner’s, through a job,”  said Daniel Bruner, director of legal services at the Whitman-Walker Health clinic in Washington DC. “Now folks have more health insurance options.”

After the Supreme Court ruled the federal Defense of Marriage Act unconstitutional in 2013, the portion of the health insurance premium paid by employers on behalf of the same-sex spouse was no longer taxable under federal rules, although state taxes often applied where such marriages were not legal.  When state marriage laws change, so do those tax rules.

In Arizona, Dena Sidmore and her wife, Cherilyn Walley are saving more than $300 a month in taxes on the health insurance from Walley’s state job, which covers them both.  The savings came after the state’s same-sex marriage bar was thrown out by the courts in October.

They didn’t marry for benefits. They already had coverage under domestic partner requirements affecting Arizona state workers. They simply wanted to be married. Indeed, they tied the knot in September 2013, after driving all night to Santa Fe, N.M., where same-sex marriage was legal.

“It was lovely,” Sidmore said of the ceremony at the courthouse. But for her, the real change came when Arizona’s bar on same-sex marriage was overturned by the courts. She remembers thinking: “This is real. It’s not just a piece of paper.”

After the courts lifted the same-sex marriage ban, Arizona dropped its domestic partner program. State workers had until the end of last year to marry if they wanted to keep a partner on benefits.

Sidmore has no objection to employers requiring a marriage license for benefits because “spousal benefits require marriage,” although she thinks there should be exceptions for older residents who might face the loss of pensions or other financial complications if they remarry.

Benefit experts recommend that employers consider what it might mean for workers if benefits are linked to marital status — especially those that operate in states where same-sex marriage is not legal.

While some couples, like Sidmore and Walley, may be willing to travel to tie the knot, others may not want to, or may be unable to afford it.  Additionally, some workers may fear if they marry, then move or get transferred to a state where same-sex marriage is barred, they would face discrimination.

Joe Incorvati, a managing director at KPMG in New Jersey, married his partner, Chuck, in 2013 when it became an option. “We’d been together for 38 years, so it just seemed natural,” he said.

KPMG offers domestic partner benefits and does not require employees to be married for eligibility.  While he’s comfortable in New Jersey, Incorvati said it could be a problem if his company wanted to transfer him to a state where same sex marriage is not legal.

Even though his work benefits would remain the same, “Would I have the same rights as in New Jersey?” Incorvati asked. “The answer may be no.”

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation.

A patient plagued with difficult-to-control asthma is at the end of his rope, until his doctor suggests joining a clinical trial. He’s no longer just a patient but also a research subject, and he’ll be testing one existing treatment approach while others stay on a different therapy. These kinds of studies are the bedrock of medical science – they ensure that medicines and procedures are safe and effective.

Before agreeing, he needs to know what he’s getting himself into – the potential benefits and harms, known as “informed consent.”

The federal government has regulated informed consent for decades. But some advocacy organizations are warning that proposed federal guidelines – which could be finalized in the upcoming year – could have a chilling effect on innovation, while fundamentally altering which studies get done.

The six-page guidance moves beyond the previous understanding of consent by calling for greater transparency in studies that compare how effective different treatments are.

These types of scientific studies, known as comparative effectiveness research, are among the tools tapped by the Affordable Care Act to help curb health care spending.

The updated policy says researchers must clearly explain all risks subjects might face by participating, and it redefines those risks to include any harm that is being measured or tracked by the study, even if patients would face those downstream effects when receiving regular treatment from a health care provider. That’s a change from prior language, which didn’t explicitly call for such clear and extensive explanation of potential dangers in studies.

The Department of Health and Human Services said Dec. 22 it would extend its timeline for accepting feedback until the end of January, rather than the original Dec. 23 deadline, so that groups can have more time to respond. Many of these stakeholders hope to reshape its approach.

HHS began the process of updating its informed consent policy after a controversial 2009 experiment that drew headlines and lawsuits, in which researchers studied extremely premature babies – those born at 24 to 27 weeks gestation.

That study focused on this very high-risk group, which is prone to death and eye disease, to determine the appropriate level of oxygen treatment commonly used at the time – comparing lower and higher ranges in a randomized test – to reduce instances of retinal disease without hurting the babies in other ways. But HHS found researchers hadn’t properly warned their subjects’ families about the possible risks. In the low-oxygen group, 130 out of the 654 babies died, versus 107 out of 662 infants in the high-oxygen group. Meanwhile, surviving babies in the low-oxygen group had more eye problems.

Unless the informed consent guidance undergoes major revision, it would create uncertainty among both institutional review boards – the independent committees required to approve research projects at medical institutions – and among researchers themselves, said Ann Bonham, chief scientific officer of the Association of American Medical Colleges.

Both parties, she said, might choose to interpret the guidance conservatively– requiring researchers to give long lists of possible risks without proper context – to make sure they don’t accidentally violate federal requirements. She believes this might have a chilling effect on both the interest of researchers in conducting studies and in their ability to sign up potential patients.

At a recent Institute of Medicine meeting, Greg Simon, a Seattle-based psychiatrist who conducts clinical trials with the Group Health Research Institute, says the new rules could lead to standards that make sense for some studies – where a certain treatment clearly presents a strong risk – while that same standard may overstate danger in other studies.

But in a public presentation, Jerry Menikoff, director of the federal Office of Human Research Protections, said the new language wouldn’t require overwhelming or confusing lists, but rather clear and thorough explanations of the dangers studies involve – something he suggested is currently lacking.

“We don’t think it should be confusing to write a good, brief consent form that accurately lays out the potential risks and benefits of the study,” Menikoff said in an emailed statement to Kaiser Health News.

No matter what kind of study, people deserve to know the relative risks of getting one treatment versus another, said Michael Carome, director of the health research group at Public Citizen, a left-leaning public interest group that has long called for stronger regulations. Though the proposal may be confusing, it doesn’t need more than cosmetic editing, he said. “The guidance – in terms of its overall intent and basic conclusion – is more or less on target.”

“The concern that people will no longer enroll in research if we describe the risk, I think, doesn’t make sense,” he added.

And given the proliferation of videos, online forms and other kinds of technology, getting consent doesn’t need to be cumbersome, Menikoff said in the statement, meaning that large numbers of subjects can be warned of study risks “in an efficient and cost-effective way, thus respecting their ability to choose which risks they are willing to be exposed to.”

Arguing the guidance would require consent forms to include 20-page lists of all minor risks is misguided, said Lois Shepherd, a professor at the University of Virginia who specializes in bioethics.

“What [HHS is] trying to get at is the heart of what people need to know in order to volunteer for research,” she said. For clarity, she said, the guidance could be edited to include examples of consent forms – so that review boards and researchers know exactly what they must do.

But the goal should be more open conversations between research interests and patients involved, rather than trying to achieve understanding through a consent form, said Sharon Terry, president of GeneticAlliance. “That doesn’t do justice either to the research or the participants,” she said.

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation.